Post on 06-Feb-2023
Loosening the Shackles of the Truth
Defence on Free Speech:
Making The Truth Defence in Australian
Defamation Law
More User Friendly For Media Defendants
By
Joseph M Fernandez
BA (Curtin), LLB (W Aust), LLM (W Aust)
This thesis is presented for the degree of Doctor of Philosophy of The
University of Western Australia
Faculty of Law, 2008
i
SUMMARY
Defamation law‘s truth defence – the oldest, most obvious and principal defence – has
failed Australian media defendants. Few who mount the defence succeed. Many,
discouraged by the defence‘s onerousness, do not even attempt it. As a consequence the
journalistic articulation of matters of public concern is stifled. This thesis argues that the
limitations of the Australian truth defence are inconsistent with established freedom of
speech ideals and the public interest in having a robust media. As a result society is
constrained from enlightened participation in public affairs. This thesis proposes
reforms to alleviate the heavy demands of the defence so as to promote the publication
of matters of public concern and to strike a more contemporary balance between
freedom of speech and the protection of reputation. These reforms employ defamation
law‘s doctrinal calculus to reposition the speech-reputation fulcrum. While defamation
law has for decades attracted reform attention, the truth defence has languished by the
wayside. This thesis steps into the breech. The cornerstone of this thesis is a proposal to
reverse the burden so that the plaintiff bears the burden of proving falsity of the
defamatory publication where: the complainant is a public figure; the matter complained
about is a matter of public concern; and the suit involves a media defendant. While this
proposal is likely to dramatically alter the prevailing Australian freedom of
speech/protection of reputation equilibrium, other measures are proposed to serve as a
bulwark against the wanton destruction of reputation.
Note: This thesis reflects the law as at 15 July 2008.
ii
ACKNOWLEDGMENTS
I am immeasurably indebted to my supervisors Professor Michael Gillooly and
Professor Peter Handford whose unstinting attention, painstaking feedback and wise
counsel was a steady fount of illumination and invigoration.
Dr Niall Lucy, Dr Peta Bowden and Dr Fran Martin spontaneously responded to my
invitation to comment on Chapter 3 and they gave me valuable advice.
I am very grateful to my Curtin colleagues Professor David Wood who provided
welcome additional support during the tenure of my scholarship from the University of
Western Australia‘s Law School while Professor Colin Brown and Associate Professor
Steve Mickler provided various other welcome relief and guidance.
Professor Eric Barendt who long ago touched my freedom of speech nerve has been a
source of great inspiration. London-based media lawyers James Price QC and Desmond
Browne QC generously shared with me their time and thoughts.
Thanks are also due to Sabah Publishing House‘s Yeh family, the many librarians,
technical support staff and others who readily responded to my inquiries and calls for
assistance. My cheer squad comprised many friends, colleagues past and present,
industry fraternity and extended family.
Special thanks are due to Ms Linda Browning for readily bringing her word processing,
design and layout expertise to bear on this manuscript.
Most of all, I thank my wife Elizabeth and our children Jeremy, Elayne and Elsie for
their love and support all these years.
iii
CONTENTS IN BRIEF
Summary i
Acknowledgments ii
Contents in Brief iii
Contents in Detail iv
Table of Cases xi
Table of Statutes xviii
Abbreviations – Law Reform Bodies xxiv
PART I – Preliminary
Chapter 1: Reforming the Truth Defence 1
PART II – Threshold Matters
Chapter 2: Freedom of speech 31
Chapter 3: An exploration of the meaning of truth in philosophy, law and journalism 70
Part III – Problems and Solutions
Chapter 4: Introduction to problems and solutions 147
Chapter 5: Reversing the presumption of falsity 160
Chapter 6: Of ―public figures‖ and ―matters of public concern‖ 205
Chapter 7: Difficulties with ―meaning‖ and ―reputation‖ 237
Chapter 8: The Truth Defence in all its forms 273
Chapter 9: Defendant‘s other hurdles 321
PART IV – Conclusion and Model Provisions
Chapter 10: The way forward 375
Appendix: Model Provisions 393
Bibliography 402
iv
CONTENTS IN DETAIL
PART I – Preliminary
CHAPTER 1 Reforming the Truth Defence 1
1. Introduction 1
1.1 The “chilling effect” 3
1.2 Does the “chilling effect” exist in Australia? 5
1.3 Putting the “chilling effect” into context 11
2. The Uniform Defamation Acts 12
3. The reasons for focusing on the truth defence 16
4. The purpose of defamation law – the truth rationale 17
4.1 A brief history of defamation law 18
4.2 Modern defamation law rationales 21
4.3 A brief critique 22
4.4 Restoring the primacy of vindication 24
5. Overview of chapters 25
6. Conclusion 26
PART II – Threshold Matters
CHAPTER 2 Freedom of Speech 31
1. Introduction – why examine freedom of speech? 31
1.1 Freedom of speech an important value recognised by law 35
1.2 Freedom of speech a promoter of truth 39
1.3 Freedom of speech and the media imperative 40
2. Some issues in defining freedom of speech 43
2.1 Freedom of speech, expression, communication 44
2.2 A fundamental value with varying justifications 46
3. Some rationales for freedom of speech 48
v
3.1 It enhances our humanity and dignity 49
3.2 It enhances individual autonomy and self-determination 49
3.3 It promotes the right attitudes of tolerance 52
3.4 It enhances the possibilities and quality of democracy 53
3.5 It enables the discovery of truth 56
4. Constraints on freedom of speech 62
5. Conclusion 69
CHAPTER 3 An exploration of the meaning of truth in philosophy, law and
journalism 70
1. Introduction 70
1.1 A framework for the truth inquiry 72
1.2 “Truth” – a fraught term 74
2. Truth and philosophy 76
2.1 Substantive Theories 79
2.1.1 Realism/correspondence 79
2.1.2 Anti-realism/coherence etc 82
2.1.3 Pragmatic 84
2.2 Deflationary Theories 86
2.3 Summary 88
3. Truth in the context of courts, journalism and defamation – overview 88
4. Truth and the courts 90
4.1 Some preliminary matters 91
4.2 A historical backdrop 93
4.3 Some criticisms of the notion of courts as a truth-seeking institution 99
4.4 Some responses to criticisms 101
4.5 Summary 104
5. Truth and journalism 109
5.1 Some preliminary matters 109
5.2 A historical backdrop 110
5.3 Some criticisms of the notion of journalism as a truth-seeking institution 111
5.3.1 Truth in the professional framework 112
5.3.1.1 The Australian Press Council Code 116
5.3.1.2 The Media, Entertainment and Arts Alliance Code 118
5.3.1.3 Truth imperative lacks prominence 120
5.3.2 Factors to consider in journalistic truth 122
vi
5.3.2.1 Objectivity, accuracy, fairness and balance 123
5.3.2.2 Journalistic orientations 127
5.3.2.3 Characteristics of news 129
5.3.2.4 Commercial imperatives and exigencies of news
production 131
5.3.2.5 Narrative models 134
5.4 Some responses to criticisms 135
5.5 Summary 137
6. Truth theory, the courts and journalism 138
6.1 Truth theory and the courts 139
6.2 Truth theory and journalism 140
6.3 Truth theory and defamation law 141
7. Conclusion 142
Part III – Problems and Solutions
CHAPTER 4 Introduction to Problems and Solutions 147
1. Introduction 147
2. Preliminary matters 149
3. The UDA and truth 150
4. Defining “balance” 152
5. The defamation law quagmire 154
6. Overview of reform approach 157
7. Conclusion 157
CHAPTER 5 Reversing the presumption of falsity 160
1. Introduction 160
2. The truth-not-relevant rule 161
2.1 Issues arising 164
2.2 Summary 167
vii
3. Burden imbalance inimical to public adjudication of truth 168
3.1 A presumption of falsity? 169
3.1.1 View that there is a presumption 170
3.1.2 View that there is no presumption 171
3.2 Burden reversal arguments 172
3.2.1. Arguments against burden reversal 172
3.2.2 Arguments for burden reversal 172
3.3 Falsity burden and the United States 175
3.3.1 Falsity 179
3.3.2 Fault 179
3.3.3 Harm 182
3.4 Falsity burden and England 183
3.5 Falsity burden and Australia 185
3.6 Impossibility of proving truth or falsity 187
4. Reversing the existing burden 189
4.1 Burden of proving falsity on plaintiff 189
4.2 Reform recommendations 192
4.3 Model provisions 194
5. A “no fault” defence 195
5.1 Reform recommendations 199
5.2 Model provisions 203
CHAPTER 6 Of “public figures” and “matters of public concern” 205
1. Introduction 205
2. Competing interests and “balance” 206
2.1 Argument for a “public concern” requirement 207
2.2 Argument against a “public concern” requirement 210
3. “Public interest” in the defamation scheme 212
3.1 UDA and the “public interest” 212
3.2 A role for the “public concern” element 215
4. Calibrating “public figure” and “matters of public concern” 216
4.1 The “public figure” test 216
4.1.1 Public figure and nature of the controversy 219
4.1.2 Public figure and extent of voluntariness 219
4.1.3 Businesses as public figures 220
viii
4.1.4 Effect of passage of time on public figure status 221
4.1.5 Answering objections to the ―public figure‖ test 221
4.2 The “matters of public concern” test 223
4.2.1 Scope of ―matters of public concern‖ 226
4.2.2 Answering objections to the ―matters of public concern‖ test 229
5. Reform recommendations 230
6. Model provisions 234
CHAPTER 7 Difficulties with “meaning” and “reputation” 237
1. Introduction 237
2. Preliminary observations on the determination of meaning 238
3. Meaning of “defamatory imputation” 244
3.1 A statutory definition or not? 246
3.2 Reform recommendations 248
3.3 Model provisions 250
4. The complex task of establishing defamatory meaning 250
4.1 Finding the “moral community” 251
4.2 Finding the meaning 257
4.3 Judges or juries? 262
4.4 Reform recommendations 266
4.5 Model provisions 271
CHAPTER 8 The truth defence in all its forms 273
1. Introduction 273
2. The truth defence in all its forms 274
3. “Truth” in the context of the truth defences 275
4. Substantial truth principles 276
4.1 Substantial truth difficulties 278
4.2 Reform recommendations 280
4.3 Model provisions 283
5. The new contextual truth defence 284
ix
6. Contextual truth principles 284
6.1 Rationale for contextual truth 286
6.2 Contextual truth difficulties 289
7. Polly Peck principles 293
7.1 Polly Peck difficulties 298
7.1.1 Objections to the Polly Peck defence before the UDA 300
7.1.2 Support for the Polly Peck defence before the UDA 301
7.1.3 Polly Peck views following the UDA 303
7.1.4 A place for Polly Peck 305
7.1.5 Summary of Polly Peck elements 308
8. Partial truth principles 310
8.1 Summary of partial truth elements 314
8.2 Partial truth difficulties 314
9. Reform recommendations 317
9.1 Model provisions 319
CHAPTER 9 Defendant’s other hurdles 321
1. Introduction 321
2. Principles governing admissibility of evidence 322
2.1 Burden of strict evidentiary rules 323
2.2 Limits on hearsay evidence 326
2.3 Alleviating the hearsay rule 328
2.4 Reform recommendations 331
2.5 Model provisions 333
3. Defendant’s burden and standard of proof 334
3.1 Different standards of proof 334
3.2 A third standard of proof? 336
3.3 Reform recommendations 341
3.4 Model provisions 341
4. Truth a “high stakes” defence 342
4.1 Presumption of good reputation 345
4.2 Presumption of damage 347
4.2.1 Mitigation of damages 348
4.2.2 Vindication through damages 352
x
4.2.3 Imprecision in arriving at damages 352
4.3 Tension between damages and vindication 354
4.4 Remedies in the UDA 356
4.5 Inadequate attention to corrections 357
4.5.1 Case for court-ordered corrections 360
4.5.2 Answering objections to court-ordered corrections 361
4.6 Reform recommendations 366
4.7 Model provisions 369
4.8 Higher risk of failure 371
4.9 Reform recommendation 372
4.10 Model provision 373
PART IV – Conclusion and Model Provisions
CHAPTER 10 The way forward 375
1. Introduction 375
2. The truth defence and the reformer’s challenge 376
3. Summary of the chapters 378
4. Promoting UDA objectives 382
4.1 The “freedom of speech” objective 382
4.2 The truth defence reform “touchstone” 384
5. Protecting freedom of speech 385
6. Relevant ongoing developments 390
APPENDIX Model Provisions 393
Bibliography 402
xi
TABLE OF CASES
Abrams v United States (1919) 250 US 616 ................................................................... 40
Abrams v United States 250 US 616 (1919) ........................................................... 56, 378
A-G (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 ................................................... 144
Air Canada v Secretary of State for Trade [1983] 2 AC 394 ......................................... 95
Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544 ................ 162, 163, 164, 166
Alexander v North Eastern Railway Co (1865) 6 B & S 340 ....................................... 277
Allan v Bull (1836) 1 Legge 70 (NSW) .......................................................................... 19
Allen v Flood [1898] AC 1 ............................................................................................ 169
Allen v John Fairfax and Sons Ltd [1988] NSWSC, Unreported, 2 December ............ 288
Allsopp v Incorporated Newsagencies Co (1975) 26 FLR 238 .................................... 226
Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254… ... 14, 171, 230, 253, 307,
349
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 .... 10, 252,
254, 257, 258, 260
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWSC 419 ................. 337
American Booksellers Association v Hudnut, 771 F.2d 323 (7th
Cir. 1985) ................... 57
Anderson v Liberty Lobby 477 US 242, 106 S Ct 2505, 91 L Ed 2d 202, 12 Med L Rptr
2297 (1986) ............................................................................................................... 196
Anderson v Nationwide News Pty Ltd [2001] 3 VR 619 ............................................... 299
Arkianakis v Skalkos (1999) 47 NSWLR 302 ................................................................. 55
Arnold v The King-Emperor (1914) (Privy Council) 30 TLR 462 ............................... 144
Atlanta Journal-Constitution v Jewell, Ga Ct App, Nos A01A15b4-66, 10/01/01 ...... 220
Attorney-General v Leveller Magazine Ltd [1979] AC 440 ......................................... 368
Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 ......... 290, 291
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR
199 ..................................................................................................................... 386, 387
Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 .................. 350
Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457… ... 251, 345, 350,
386
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 ...... 36, 41,
225, 233
Australian Consolidated Press v Uren (1966) 117 CLR 185 ...... 148, 162, 163, 164, 169,
171, 349
Ballina Shire Council v Ringland (1994) 33 NSWLR 680 ............................... 22, 36, 206
Bashford v Information Australia (Newsletters) Pty Ltd [2000] NSWSC 665 ...... 21, 277,
349
Bassett v Host [1982] 1 NSWLR 206 ............................................................................. 96
BCNZ v Crush [1988] 2 NZLR 234 .............................................................................. 308
Beamish v R [2005] WASCA 62 ................................................................................... 140
Bell v Kingsbay Pty Ltd (No 2) [2001] VSC 498 .................. 294, 295, 299, 303, 309, 371
Berkoff v Burchill (CA) [1996] 4 All ER 1008 ............................................. 246, 248, 249
Blair v Mirror Newspapers Ltd [1970] 2 NSWR 604 .................................................. 251
Blake v John Fairfax Publication Pty Ltd [2001] NSWSC 885 ................................... 285
Bond v John Fairfax Publications Pty Ltd & Anor [2002] WASC 130 ............... 294, 306
Bonnard v Perryman [1891] 2 Ch 269 .................................................................... 41, 184
Bonnick v Morris & Others, Unreported, PC 30/2001, 17 June 2002 .......................... 227
Bose Corp v Consumers Union 446 US 485, 104 S Ct 1949, 80 L Ed 2d 502, 10 Med L
Rptr 1625 (1984) ....................................................................................................... 196
Boyd v Mirror Newspapers Ltd (1980) 2 NSWLR 449 ................................................ 244
xii
Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 ........ 334, 336, 337, 338, 339, 340
Broome v Cassell [1972] AC 1027 ............................................................... 352, 353, 354
Brown & Ors v Classification Review Board of the Office of Film and Literature [1997]
145 ALR 464 ......................................................................................................... 40, 42
Brown & Ors v Members of the Classification Review Board of the Office of Film and
Literature Classification (1998) 154 ALR 67 ..................................................... 31, 224
Bunning v Cross (1978) 141 CLR 54 .............................................................................. 93
Button v R (2002) 25 WAR 382 .................................................................................... 140
Caccavo v Daft [2006] TASSC 36 ................................................ 294, 298, 299, 304, 309
Cairns v John Fairfax & Sons [1983] 2 NSWLR 708 .......................................... 267, 269
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 ............................... 267
Campbell v MGN Limited [2004] 2 All ER 995 ........................................... 131, 202, 336
Camporese v Partoon (1983) 150 DLR (3d) 208 ......................................................... 335
Capital and Counties Bank Ltd v Henty & Sons (1882) 7 App Cas 741 .............. 251, 257
Carleton v Australian Broadcasting Corporation [2002] ACTSC 127 ........................ 252
Carlton Communications plc v News Group Newspapers Ltd [2001] EWCA Civ 1644
................................................................................................................................... 295
Carrey v ACP Publishing Pty Ltd [1998] VSC 78 ................................................ 259, 303
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 .... …21, 344, 350, 351, 352, 353,
354, 356, 365
Cassidy v Daily Mirror Newspapers [1929] 2 KB 331 ................................................ 162
Chakravarti v Advertiser Newspapers (1998) 193 CLR 519……...5, 155, 187, 240, 241,
251, 252, 253, 258, 261, 262, 297, 299, 300, 301, 302, 303, 304, 309, 349
Chappell v Mirror Newspapers Ltd [1984] Aust Torts Reports 80-691 ............... 292, 350
Charleston v News Group Newspapers Ltd [1995] 2 AC 65 ................................ 253, 262
Chase v News Group Newspapers Limited (2003) 11 EMLR 218 ....................... 165, 335
Clark v Richards & Anor [2002] WASC 49 ................................................................. 306
Clarke v Taylor & Anor (1836) 2 Bing (NC) 654 ......................................................... 313
Clemesha v The Queen [1978] WAR 193 ....................................................................... 94
Clines v Australian Consolidated Press (1965) 66 SR (NSW) 321 ............................. 164
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 .................................... 36
Corby v Channel Seven Sydney Pty Limited [2008] NSWSC 245 ........................ 269, 344
Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 ................. 335, 340, 354
Coyne v Citizen Finance Ltd (1991) 65 ALJR 314 ....................................................... 353
Craftsman Homes Australia Pty Ltd & Ors v TCN Channel Nine Pty Ltd & Ors [2006]
NSWSC 519 .............................................................................................................. 286
Creevy v Carr (1835) 7 Car & P 64 (173 ER 29) ......................................................... 350
Cruise v Express Newspapers Plc [1999] QB 931 ....................................... 297, 298, 302
Cunliffe v Commonwealth (1994) 124 ALR 121 ............................................................ 36
Cusson v Quan [2007] ONCA 771 ............................................... 197, 199, 231, 385, 390
David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 ..... …240, 254, 259, 299, 301, 303,
305
Davis v Nationwide News Pty Ltd [2008] NSWSC 693 ............................................... 343
Derbyshire C.C. v Times Newspapers [1993] AC 534 ......................................... 3, 4, 323
Dingle v Associated Newspapers Ltd (1964) AC 371 ..................................................... 21
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 .......................................... 161, 346
Dow Jones & Co Inc v Jameel [2005](CA) 16 EMLR 353 .................................. 347, 348
DPP v Australian Broadcasting Corporation (1987) 86 FLR 153 ................................. 98
Dun & Bradstreet Inc v Greenmoss Builders Inc 472 US 749 (1985) ............. 3, 182, 227
Edsall v Russell (1842) 4 Man & G 1090; 134 ER 446 ................................................ 316
Erskine v John Fairfax Group Pty Ltd, 6 May 1998, NSW Supreme Court, Unreported
................................................................................................................................... 356
xiii
Evans v State of New South Wales [2008] FCAFC 130 .................................................. 35
Ex Parte Elsee (1830) Mont. 69 ...................................................................................... 93
Ex Parte Lloyd (1822) Mont 70 .................................................................................... 101
Farquhar v Bottom [1980] 2 NSWLR 380 ................................................................... 257
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 ................ 255, 256, 267
Foretich v Capital Cities/ABC Inc, 37 F 3d 1541 (1994) ..................................... 219, 220
Francome v Mirror Newspapers [1984] 2 All ER 408 ................................................. 227
Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675 ... 188, 255, 263, 264,
265, 269, 270
Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 ............................... 255
Gallagher v Durack (1983) 152 CLR 238 ................................................................ 37, 42
Gardiner v John Fairfax & Sons (1942) 42 SR (NSW) 171 ................................ 249, 252
Garrison v Louisiana 379 US 64, 85 S Ct 209, 12 L Ed 2d 1042, 1 Med L Rptr 1548
(1964)………………………………………………………………………………179
Gartside v Outram (1856) 26 LJ Ch 113 ........................................................................ 98
Garziano v EI du Pont de Nemours & Co, 818 F 2d 380 (5th Cir 1987) ..................... 176
General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) (CA) 65
NSWLR 502 .............................................................................................................. 212
Gertz v Robert Welch Inc, 418 US 323 (1974) .... 152, 156, 176, 179, 180, 181, 182, 183,
209, 218, 219, 231, 389
Giannarelli v Wraith (1988) 165 CLR 543 ......................................................... 91, 93, 94
Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 .................. 163, 349
Goody v Odhams Press Pty Ltd [1967] 1 QB 333 ................................................ 316, 350
Graham Barclay Oysters Pty Ltd & Anor v Ryan & Ors (2002) 211 CLR 540 ........... 263
Grobbelaar v Newsgroup Newspapers Ltd [2001] 2 All ER 437 ......................... 188, 324
Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 .............................. 245, 246
Handyside v UK (1976) 1 EHRR 737 ............................................................................. 35
Harrigan v Jones [2001] Aust Torts Reports 81-621 ................................................... 322
Harrison v Pearce (1858) 1 F & F, Martin B, at 569 [175 ER 855] ............................ 351
Hart v Wrenn (1995) 5 NTLR 17 .................................................................. 289, 294, 296
Harvey & Another v County Court of Victoria & Ors [2006] VSC 293......................... 65
Hawke v Tamworth Newspaper Co [1983] 1 NSWLR 699 .......................................... 168
Heggie v Nationwide News Pty Ltd, Unreported, NSWSC, 27 May 2002 ................... 251
Held v McGregor (1929) 41 CLR 254 and Broome v Cassell [1972] AC 1027 ........... 371
Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 ............................. 285, 291
Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1 .... …171, 224, 274, 276,
297, 300, 302, 303, 304, 306, 307, 309, 310
Herbert v Lando 441 US 153, 99 S Ct 1635, 60 L Ed 2d 115, 4 Med L Rptr 2575 (1979)
................................................................................................................................... 196
Heytesbury Holdings Pty ltd v City of Subiaco (1998) 19 WAR 440 ........................... 335
Hickman v Peacey [1945] AC 304 .................................................................................. 94
Horrocks v. Lowe (1975) AC 135 ................................................................................... 21
Hosking [2005] 1 NZLR 1 ............................................................................................ 229
Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416 ..... 17, 169, 189, 276, 277,
278, 312, 313, 327, 375
Howden v “Truth” and “Sportsman” Ltd (No 2) (1938) 38 SR (NSW) 287 ...... 311, 312,
313, 314, 316
Hulton v Jones [1910] AC 20 ............................................................................... 162, 174
Humphries v TWT Ltd (1993) 114 ACTR 1 ............................................................ 21, 249
Hustler Magazine Inc et al v Jerry Falwell 485 US 46, at 52 (1988) ..................... 58, 178
In re H and Others (Minors) [1996] AC 563 ................................ 336, 337, 339, 340, 341
Initial Services v Putterill [1968] 1 QB 396 ................................................................... 98
xiv
Jackson & 9 Ors v TCN Channel Nine Pty Ltd [2002] NSWSC 1229 ......................... 342
Jackson & Ors v ACP Publishing Pty Ltd [2001] WASC 121 ............................. 299, 302
Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 ............................ 287, 289, 290
Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279 .... …37, 39, 62, 196,
198, 199, 202, 271, 279, 355
Jane Doe v Australian Broadcasting Corporation & Others [2007] VCC 281 ............. 32
Jewell v Cox Enterprises Inc, 27 MLR 2370 (1999) .................................................... 220
Johansen v City Mutual Life Assurance Society Ltd (1905) 2 CLR 186 ...................... 228
John Fairfax & Co Pty Ltd v David Syme & Co Ltd (2001) 53 NSWLR 541 .............. 288
John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 ....................................... 144
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 .............................................. 352
John Fairfax & Sons v Hook (1983) 72 FLR 190 ......................................................... 325
John Fairfax & Sons v Vilo (2001) 52 NSWLR 373 ...................................................... 55
John Fairfax and Sons Ltd v Carson (1991) 24 NSWLR 259 .............................. 354, 365
John Fairfax Publications Pty Ltd & Anor v Jones [2004] NSWCA 205 .................... 291
John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694
................................................................................................................................. …55
John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53
NSWLR 541 ...................................................................................................... 286, 290
John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218...... 188, 255, 262, 263,
264, 266, 267, 268, 270, 348
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 ......... 252, 262, 263, 264
Jones v National Coal Board [1957] 2 QB 55 ................................................................ 94
Jones v Skelton (1963) 63 SR (NSW) 644 .................................................... 251, 257, 258
Kelly v Nationwide News Pty Ltd (1998) 147 FLR 410 ........................................ 301, 303
Kennett v Farmer [1988] VR 991 ................................................................................. 301
Khashoggi v IPC Magazines Ltd & Anor [1986] 1 WLR 1412 .................... 296, 307, 315
Khawar v Glob International Inc, 965 P 2d 696 (1998) ............................................... 219
Lange v Atkinson [1997] 2 NZLR 22 .................................................................. 21, 33, 37
Lange v Atkinson [1998] 3 NZLR 422 .......................................................................... 278
Lange v Atkinson [2000] 3 NZLR 385 .................................................................... 37, 195
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ..... …21, 32, 36, 55,
152, 206, 217, 224, 226, 384, 389
Levy v The State of Victoria & Ors (1997) 189 CLR 579 .... 36, 41, 44, 45, 180, 385, 386,
389
Lewis v Daily Telegraph Ltd [1964] AC 234… ... 239, 240, 241, 248, 251, 252, 257, 258,
259
Ley v Hamilton (1935) 153 LR 384 .............................................................................. 353
Li v Herald & Weekly Times Pty Ltd [2007] VSC 109 ................................. 304, 337, 338
London Artists Ltd v Littler [1969] 2 QB 375 ............................... 214, 216, 226, 230, 233
Lucas-Box v News Group [1986] 1 WLR 147………………………………………...297
M’Pherson v Daniels [1829] 10 B & C 263 ......................................................... 167, 346
Mabo v Queensland (No 2) (1992) 175 CLR 1 ............................................................. 387
Maisel v Financial Times Ltd (1915) 112 LT 953 ........................................................ 288
Mallard v R [2005] HCA 68 ......................................................................................... 140
Mann v Carnell [1999] HCA 66 (21 December 1999) ................................................... 94
Mann v Mackay Television [1992] 2 Qd R 136 .................................................... 278, 279
Manning v Hill (A-G for Ontario & Ors, interveners) (1995) 126 DLR (4th) 129 ....... 18,
156, 376
Marquard v Littlemore & Anor [1997], NSWSC, Unreported, 29 August .......... 287, 371
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510…….10, 327,
334
xv
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 541 ........... 10, 142
Masson v New Yorker Magazine Inc, 881 F 2d 1452 (1989) ........................................ 218
Masson v New Yorker Magazine, Inc 501 US 496, 111 S Ct 2419, 115 L Ed 2d 447, 18
Med L Rptr 2241 (1991) ........................................................................................... 196
McBride v Australian Broadcasting Corp [2000] NSWSC 747 ................................... 307
McBride v John Fairfax Group Pty Ltd [2007] NSWSC 717 ............................... 288, 290
McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 .................................. 353
McHale v Watson (1964) 111 CLR 384 ........................................................................ 199
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 .......................... 228
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 .... 64, 65, 214, 229
McPhilemy v Times Newspapers Ltd [1999] EMLR 751.............................................. 305
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 ............................ 251, 254, 257
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 .......................... 259
Moir v Flint & Anor [2001] WASC 183 ....................................................................... 303
Monson v Tussauds Ltd [1894] 1 QB 671 ....................................................................... 46
Moore v TWT Ltd (1991) 105 FLR 350 ....................................................... 289, 293, 316
More v Weaver [1928] 2 KB 520 .................................................................................. 166
Morgan v Odhams Press Ltd [1971] 2 All ER 1156 ............................................. 252, 325
Moriarty and Wortley v Advertiser Newspapers Ltd [1998] SADV 3843 (Unreported), 9
July 1998 ................................................................................................................... 335
Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
............................................................................................................................... …241
Narkle v The State of WA [2006] WASCA 113 ............................................................ 140
Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 .................................... 303, 306
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 ......................................... 16, 36, 40
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 ...... …334, 335,
336, 337, 340, 341
New South Wales v Fahy (2007) 81 ALJR 1021 .......................................................... 263
New York Times v Sullivan 376 US 254 (1964) ... 5, 22, 55, 175, 180, 183, 191, 195, 221,
375, 386
Newsom v Henry, 443 So 2d 817 (1984) ...................................................................... 221
NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd [1989] A Def R
40,371 ................................................................................................................ 292, 350
NRMA v John Fairfax Publications Pty Ltd [2002] NSWSC 563 ................ 114, 327, 329
O’Kane v Sellheim (1882) 1 QLJ 85 ............................................................................... 19
Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059 ............................... 342
Official Solicitor of the Supreme Court v K [1963] 3 All ER 191 ................................ 323
Ollis v Jenman & Anor [2008] NSWSC 67 .................................................................. 345
Packer v Meagher [1984] 3 NSWLR 486 ...................................................................... 21
Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 .............................. 297, 311, 350
Parmiter v Coupland (1840) 151 ER 340 ..................................................... 244, 249, 251
Pavy v John Fairfax Publications Pty Ltd [2000] NSWSC 328 ................................... 287
Pearse v Pearse (1826) 1 De G & Sm 12; 63 ER 950 .................................................... 93
Peek v Channel Seven Adelaide Pty Ltd (2006) 228 ALR 553 ..................................... 224
Pepi Holdings v Pauanui Publishing Ltd CA, 25 August 1997, CA 22/97 .......... 278, 281
Petritsis v Hellenic Herald Pty Ltd (1978) 2 NSWLR 174 .......................................... 245
Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986) .... 167, 175,
177, 178, 179, 181, 182, 188, 227
Pioneer International Ltd & Ors v Knox & Anor (1991) 22 NSWLR 266 .................. 292
Plato Films Ltd v Speidel [1961] AC 1090 ................................... 192, 288, 296, 313, 321
Polly Peck (Holdings) v Trelford [1986] 1 QB 1000 ....... …274, 284, 289, 293, 295, 296,
298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 311, 316, 317, 319, 381
xvi
Popovic v Herald & Weekly Times Ltd (2002) VSC 174 ............................................... 55
Prager v Times Newspapers Ltd [1988] 1 All ER 300 ................................................. 312
Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 ChD 501 ...................... 184
Queensland v JL Holdings Pty Ltd (1996) 189 CLR 146 ............................................. 256
R v Armstrong [2007] WASCA 204 ............................................................................. 387
R v Bailey [1956] SASR 153 ........................................................................................... 94
R v Central Independent Television plc [1994] Fam 192 ............................................... 36
R v D-G of Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369 ...................... 388
R v Editor of the Daily Mail; Ex parte Factor (1928) 44 TLR 303 ................................ 21
R v Gerard Thomas McManus & Michael Harvey [2007] VCC 619 ..................... 65, 330
R v Ireland (1970) 126 CLR 321 .................................................................................... 93
R v Murtagh and Kennedy (1955) 39 Cr App Rep 72 .................................................. 339
R v Pfitzner (1976) 15 SASR 171 ................................................................................. 322
R v Saxon, Hadfield & Western Mail Ltd [1984] WAR 283 ........................................... 98
R v Secretary of State for the Home Department, Ex Parte Simms [2000] 2 AC 115 ... 40,
62
R v Voisin [1918] 1 KB 531 .......................................................................................... 139
R v WA Newspapers Ltd & Another; Ex Parte A-G (WA) [2005] WASCA 161 ............ 32
R v Whithorn (1983) 152 CLR 657 ................................................................................. 95
Ratcliffe v Evans [1892] 2 QB 524 ............................................................................... 348
Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia
(1987) HCA 27; (1987) 61 ALJR 393 ...................................................................... 212
Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 .......... 24
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 . 251, 252, 253, 255, 325,
335
Rejfek v McElroy (1965) 112 CLR 517 ........................................................................ 334
Renouf v Federal Capital Press (1977) ACTR 35 ........................................................ 156
Reynolds v Nationwide News Pty Ltd [2001] WASC 90 .............................................. 299
Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609 .. 4, 23, 33, 36, 37, 38, 39,
40, 41, 42, 148, 156, 157, 161, 185, 196, 197, 198, 200, 201, 202, 206, 212, 222, 227,
228, 230, 231, 271, 282, 390
Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87 .................................. 254
Roberts v Camden (1807) 9 East 93 .............................................................................. 170
Robinson v Laws [2000] QSC 082 ................................................................................ 300
Robinson v Laws [2001] 1 Qd R 81 ...................................................................... 300, 301
Rochfort v John Fairfax & Sons Ltd (1972) 1 NSWLR 16 .......................................... 350
Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 ...... …17, 73, 141, 147, 148, 157,
158, 160, 165, 167, 209
Rosenblatt v Baer, 383 US 75 (1966) ........................................................... 156, 218, 376
Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd (1980) 2 NSWLR 845
................................................................................................................................... 164
Scott v Sampson (1882) 8 QBD 491 ............................................................................. 249
Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743 ................... 158, 191, 206, 243
Sim v Stretch (1936) 2 All ER 1237 ...................................................... 244, 249, 251, 252
Singleton v Ffrench (1986) 5 NSWLR 425 .......................................................... 170, 349
Skipworth’s Case (1873) LR 9 QB 230 .......................................................................... 98
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 .................................... 252
Sleeman v Nationwide News Pty Ltd [2004] NSWSC 954 ........................................... 291
Slim v Daily Telegraph [1968] 2 QB 157 ............................................. 154, 162, 253, 258
St Amant v Thompson 390 US 727, 88 S Ct 1323, 20 L Ed 2d 262, 1 Med L Rptr 1586
(1968) ........................................................................................................................ 196
xvii
Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd (1994)
ACTSC 717 ................................................................................................................... 1
Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd [1994]
ACTSC 717 ............................................................................................................... 301
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 ........................ 36, 217
Stern v Piper [1997] QB 123 ........................................................................................ 326
Street v NBC, 645 F 2d 1227 (1981) ..................................................................... 221, 233
Subramaniam v Public Prosecutor [1956] 1 WLR 965 ................................................ 326
Sullivan v Moody (2001) 207 CLR 562 ........................................................................ 154
Sun Earth Homes Pty Ltd & Ors v Australian Broadcasting Corporation [1993] FCA
467 ............................................................................................................................. 322
Sun Earth Homes Pty Ltd & Ors v Australian Broadcasting Corporation No NG 164 of
1990 FED No 671 ....................................................................................................... 18
Sutcliffe v Pressdram Ltd [1991] 1 QB 153 .......................................................... 321, 372
Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139 ............................... 240, 241
Sutherland v Stopes [1925] AC 47 ................................................ 243, 276, 277, 278, 313
TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682 ........................ 291, 292
Templeton v Jones [1984] 1 NZLR 448 ................................ 294, 296, 300, 307, 308, 309
Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 .... …2, 3, 4, 5, 6, 11,
13, 17, 22, 23, 32, 36, 55, 152, 153, 157, 206, 217, 225, 233, 324, 389
Thoma v Luxembourg (2003) 36 EHRR 21 .................................................................. 330
Thomas Sheridan v News Group Newspapers Ltd, Court of Session, Edinburgh, 14 July
2006 ........................................................................................................................... 142
Thompson v Australian Consolidated Press Ltd (1968) 3 NSWR 642 ......................... 327
Three Rivers District Council and others v Bank of England (No 3) [2001] 2 All ER 513
................................................................................................................................... 335
Time, Inc. v Firestone, 424 IS 448, 1 Media L Rep 1665 (1976) ................................. 219
Tipene v Apperley HC Wellington, 16 October 1980, A 161/75 .................................. 335
Tournier v National Provincial Bank [1924] 1 KB 461 ............................................... 249
v Western Australia (1996) 186 CLR............................................................................ 389
Waldbaum v Fairchild Publications 627 F 2d, at 1292, 5 Media L Rep 2629 ............. 219
Wallis v Wallis [2001] WASC 134 ............................................................................... 299
Waterhouse & Anor v Hickie (1995) Aust Torts Reports 81-347 ......... 287, 288, 292, 293
West & Anor v Nationwide News Pty Ltd [2003] NSWSC 505 .... 254, 258, 277, 278, 279
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 ........................................ 241
Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 .. 285, 288, 289, 295,
297, 302, 303, 304, 310, 311, 312, 313, 316, 317
Wieman v Updegraff 344 US 183, 195 (1952) .................................................................. 3
William Coulson and Sons v James Coulson and Co (1887) 3 TLR 846 ..................... 183
Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1 ........................................ 104
Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 ...... 240, 284,
289, 295, 307, 308, 309, 311, 312, 315, 316, 349, 354
Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581 .................................. 244, 249
Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 759 ........................ 294, 301
xviii
TABLE OF STATUTES
AUSTRALIA
COMMONWEALTH
Acts Interpretation Act 1901 (Cth)
s 15AA: 119, 213
Anti-Terrorism Act (No 2) 2005 (Cth): 63, 388
Australian Security Intelligence Organisation Legislation Amendment
(Terrorism) Act 2003 (Cth): 63
Australian Security Intelligence Organisation Act 2001 (Cth): 63
Broadcasting Services Act 1992 (Cth):
s 3(1)(g): 222
s 3(1)(i): 222
s 5(1)(b)(ii): 202
s 202(4): 114, 331
s 202(5): 1, 114
Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth): 115, 330
s 126A: 115
s 126B: 115, 327
Evidence Act 1995 (Cth): 115
s 55(1): 105
s 56(1): 323
s 59(1): 326, 328
s. 59(3): 326
s 60: 329
s 126B(4): 332
Freedom of Information Act (Cth):
s 3: 64, 213
xix
s 11(1)(a): 16
Migration Act 1958 (Cth): 63
Security Legislation Amendment (Terrorism) Act 2002 (Cth): 63
Telecommunications (Interception) Amendment (Stored Communications)
Act 2004 (Cth): 63
Trade Practices Act 1974 (Cth): 364
s 65A(1): 195
s 65A(2): 195
s 65A(3): 195
Uniform Defamation Acts:
s 2: 28
s 3: 14, 24
s 3(a): 150
s 3(b): 212, 213, 214, 215, 270, 382
s 3(c): 24
s 4: 276, 278, 280, 283
s 6(1): 167
s 6(2): 14, 15, 167, 247, 274
s 7(2): 348
s 18: 367
s 21: 15, 268
s 21(1): 262, 269
s 21(3): 262, 269
s 22: 12, 15
s 22(3): 265
s 22(4): 343
s 23: 12, 343
s 25: 2, 12, 14, 73, 148, 151, 163, 239, 276
s 26: 14, 151, 239, 284, 285, 289, 319
s 30(3): 196, 197, 200
s 30(3)(a): 214
s 30(3)(e): 214
xx
s 31: 194, 243
s 31(1)(b): 214
s 31(2)(b): 214
s 31(5)(a): 149
s 34: 343
s 35(1): 342, 343
s 35(2): 342, 356, 366
s 38(1): 317, 349
s 38(1)(a): 359
s 38(1)(b): 359
s 38(2): 349
s 42: 140
AUSTRALIAN CAPITAL TERRITORY
Civil Law (Wrongs) Act 2002 (ACT):
s 135: 12, 197
Human Rights Act 2004 (ACT): 34
s 12: 210
s 16: 9
NEW SOUTH WALES
Defamation Act (1974) NSW: 245
s 13: 349
s 15: 288, 300
s 16: 288
s 16(1): 285
s 16(2): 285
s 47: 171, 349, 350
s 47(b): 351
s 48: 351
Defamation (Amendment) Act 1994 (NSW):
s 7A: 237, 264
xxi
Evidence Act 1995 (NSW): 114, 327
s 126A: 114
s 126B: 114, 115
Supreme Court Act 1970 (NSW):
s 108(3): 263
NORTHERN TERRITORY
Defamation Act 2006 (NT):
s 22: 12
QUEENSLAND
Defamation Act 2005 (Qld):
s 25: 12
TASMANIA
Defamation Act 2005 (Tas):
s 25: 12
Defamation Act 1957 (Tas):
s 18: 286
VICTORIA
Charter of Human Rights and Responsibilities Act 2006 (Victoria): 34
s 13: 210
s 15: 9
WESTERN AUSTRALIA
Fair Trading Act 1987 (WA): 364
Freedom of Information Act 1992 (WA):
s 3: 64
xxii
Interpretation Act 1984 (WA):
s 31: 119
CANADA
Charter of Rights and Freedoms (Canada): 9
s 1: 40
s 2(b): 9, 40
NEW ZEALAND
Bill of Rights Act 1990 (NZ): 388
s 5: 40
s 14: 9, 40
Defamation Act 1992 (NZ):
s 8(1): 3
s 8(2)(b): 306
s 8(3)(b): 306
SCOTLAND
Civil Evidence Act 1988 (Scotland):
s 2(1): 330
SOUTH AFRICA
Law of Evidence Amendment Act No 45 1988 (South Africa):
s 3(c): 330
UNITED KINGDOM
Defamation Act 1952 (UK):
s 5: 285, 311, 318
Human Rights Act 1998 (UK): 36, 38, 173
s 12: 184, 386
xxiii
s 12(4): 36
Libel Act 1792 (England) 32 Geo III c 60: 20
INTERNATIONAL INSTRUMENTS
European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950: 36
Art 10: 38, 184, 227, 347, 386
Art 10(1): 40
Art 10(2): 40
International Covenant on Civil and Political Rights: 16, 32, 35
Art 17: 210
Art 17(1): 32
Art 19(1): 32
Art 19(2): 9, 16, 35, 40
Art 19(3): 35, 40, 206
Universal Declaration of Human Rights 1984:
Art 11: 172
Art 12: 206, 210
xxiv
ABBREVIATIONS – LAW REFORM BODIES
ALRC Law Reform Commission (Australia)
ACTLRC Law Reform Committee of the Australian Capital Territory
NSWLRC New South Wales Law Reform Commission
NZLRC Law Commission (New Zealand)
VLRC Victoria Law Reform Commission
WALRC Law Reform Commission of Western Australia
1
CHAPTER 1
Reforming the Truth Defence
Never mind the manner,
which may or may not be good;
but think only of the truth of my words,
and give heed to that:
let the speaker speak truly and the judge decide justly.1
Truth is always an approximation.
We may never have the whole story,
but this does not mean that we may not have part of the story,
which may mean widening our search
to embrace not just philosophy but also
psychology, literature, poetry, drama, art and mysticism.2
1. Introduction
This thesis is aimed at reforming the truth defence in Australian defamation law. This
work argues that the Australian truth defence has failed media defendants – the term
―media‖ is used broadly3 – because of the strict demands of the defence. This work
argues for an alleviation of these strict demands to enable the media to more freely
1 Plato, ―Apology‖, in Plato – Selected Dialogues, Franklin Library, Franklin Center, Pennsylvania,
1983, at 3.
2 Vardy P (1997), What is truth?, UNSW Press, Sydney, at 188.
3 It has been suggested that there is a distinction between newspapers and the broadcast media: see
Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd (1994) ACTSC 717,
Crispin J, Para 35 for a discussion on transient publication. In this thesis, the term ―the media‖ refers
broadly to print and broadcast media who are primarily engaged in the dissemination of news and in
the journalistic discussion of current affairs. The Australian Law Reform Commission has described
the terms ―news‖, ―current affairs‖ and ―documentary‖ as ―terms of wide import‖: see Australian
Law Reform Commission (September 2007), Review of Australian Privacy Law, Discussion Paper
No 72, Vol 3, Para 38.68.
Butler D and Rodrick S (2007), Australian Media Law, 3rd Edn, Lawbook Co, Pyrmont, NSW, at
525, observe that the remarkable technological changes of the last two decades have made it far
more difficult to identify the boundaries of ―the media‖ and to determine how new media forms
should be regulated. The authors note the view of commentators that it is no longer sufficient to
think of the media through the traditional distinction between the electronic (television and radio)
and print media (newspapers and magazines). More recently journalism Associate Professor Martin
Hurst has noted: ―Old certainties about who journalists are and what they do are no longer clear‖:
see Hirst M (February/March 2008), ―Blackboards, keyboards and motherboards‖, Issue 49 The
Walkley Magazine, at 19. See also the discussion on this point in Chapter 3 heading 3 and heading
5.3.1. The Broadcasting Services Act 1992 (Cth) also contains a definition of ―journalist‖ for the
purposes of section 202 of the Act: see section 202(5):
For the purpose of this section, journalist means a person engaged in the profession or practice
of reporting for, photographing, editing, recording or making: (a) television or radio programs;
or (b) datacasting content.
See also Chapter 3 fn 280 on the Australian Law Reform Commission‘s proposal for the definition
of ―journalism‖.
2
publish matters of public concern unbridled by the fear of litigation. As a result of the
present onerous demands of the truth defence, the journalistic articulation of matters of
public concern is under constant constraint, to the detriment of Australian society.4 This
constraint is inconsistent with freedom of speech values espoused, for instance, in
international instruments and freedom and rights charters in established democracies.5
A reform of the truth defence is essential to strike a more appropriate balance between
freedom of speech and protection of reputation and to facilitate the publication of
matters of public concern. While legislators and the media have, for decades, exercised
their minds on defamation law reform, surprisingly meagre attention has been paid to
meaningful reform of the truth defence.
The reforms proposed in this thesis include the following: (a) reducing the burden
and complexity of the truth defence for media defendants; (b) introducing measures to
promote ―quality control‖ and to forestall the publication of falsity; (c) resuscitating
defamation law‘s original vindicatory objective by further promoting corrective
publication; and (d) generally restoring the historical status of the truth defence as ―the
principal defence to defamation actions.‖6 While the focus of this enterprise is to
recommend reforms to the truth defence, it will be necessary to consider ancillary
aspects, with the result that some of the reforms will have broader ramifications.7
At the outset, it should be noted that this thesis employs the term ―truth‖ rather
than the term ―justification‖. Four reasons may be cited for this preference: (a) the
proving of truth or substantial truth is a cornerstone of this defence;8 (b) in at least one
4 See, for example, the discussion below under headings 1.1 and 1.2. Note, further, the view of Justice
Michael McHugh writing as a judge of the New South Wales Court of Appeal in Hon McHugh J
(October 1986), ―First Amendment Freedom in the United States and Defamation Law in News
South Wales‖, Vol 1 No 3 Gazette of Law and Journalism 10, at 12.
If the conduct of public institutions and officials is to be properly scrutinised, it is only to be
expected that erroneous, hurtful and defamatory statements will be made…[T]he public
interest in robust, wide ranging debate on matters of public concern requires that the interests
of individuals in their reputations must give way to the right to make good faith statements.
Moreover, public officials undoubtedly have greater access to the media than other citizens.
They are usually in a position to correct untrue statements.
5 See, for example, the discussion on this point in Chapter 2 generally; and in Chapter 10 under
heading 5.
6 Australian Law Reform Commission (1979), Unfair Publication: Defamation and Privacy, Report
No 11, Para 120.
7 One such example pertains to the reforms proposed to the establishment of the cause of action where
it is proposed that the plaintiff be made to shoulder the burden of proving falsity when commencing
an action: see Chapter 5.
8 Milmo P and Rogers WVH (2004), Gatley on Libel and Slander, 10th Edn, Sweet & Maxwell,
London, at 267; Gillooly M (1998), The Law of Defamation in Australia and New Zealand,
Federation Press, Sydney, at 104; section 25, Uniform Defamation Act. In Theophanous v Herald
and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron JJ, at 138, observed
that the determination of the truth or untruth of the defamatory imputation is ―the gravamen of the
3
instance, this priority has been reflected by the renaming of the defence from
―justification‖ to ―truth‖;9 (c) the term ―justification‖ is vulnerable to confusing
application;10
and (d) the term ―justification‖ may erroneously suggest that there must
be good reason for the publication:
The name [justification] is unfortunate because while its meaning may be clear to lawyers it
may convey to lay people the idea that there must be some good reason for the publication,
whereas in fact, with one minor exception, it is not actionable as defamation maliciously to
publish the truth.11
1.1 The “chilling effect”
Defamation law has often been blamed for exerting a ―chilling effect‖12
on speech. This
―chilling effect‖ has been variously described.13
In England in Derbyshire CC v Times
Newspapers Lord Keith said:
The threat of a civil action for defamation must inevitably have an inhibiting effect on
freedom of speech…What has been described as the ―chilling effect‖ induced by the threat
of civil actions for libel is very important. Quite often the facts which would justify a
plaintiff‘s complaint in most cases‖ (italics added). For an American view on this point, see Dun &
Bradstreet Inc v Greenmoss Builders Inc 472 US 749 (1985), White J, at 771.
9 See section 8(1) Defamation Act 1992 (NZ). See also Burrows J and Cheer U (2005), Media Law in
New Zealand, 5th Edn, Oxford University Press, Melbourne, at 144.
10 See, for instance, New South Wales Law Reform Commission (August 1993), Defamation,
Discussion Paper No 32, Para 6.8 which refers to ―three different justification defences‖ and then
goes on to describe them as defences where: (a) the imputation is substantially true and relates to a
matter of public interest; (b) the imputation is substantially true and is published under qualified
privilege; and (c) the imputation is false, but the substantial truth of other ―contextual‖ imputations
also conveyed by the published matter does not further injure the plaintiff‘s reputation. The inclusion
of the ―qualified privilege‖ defence in the foregoing list of justification defences is not an approach
that is generally found in defamation law texts.
11 Gatley (2004), above fn 8, at 267, citing criticisms by the Faulks Committee, Cmnd. 5909 (1975)
Para 129 – (footnote references omitted). Walker, however, has said that the defence is ―more
correctly known‖ as ―justification‖ but did not explain the basis for this view: see Walker S (May
1997), ―Defamation law reform: the New South Wales Defamation Bill 1996 and the Australian
Capital Territory‘s Report‖, Vol 5 No 1 Torts Law Journal 88, at 89.
12 The origins of the term ―chilling effect‖ is discussed in an anonymous student article, ―The Chilling
Effect in Constitutional Law‖ (1969) 69 Columbia Law Review 808, at 808 where the writer notes
that the US Supreme Court first referred to the ―chilling effect‖ in a constitutional context in Wieman
v Updegraff 344 US 183, 195 (1952). See also Barendt E, Lustgarten L, Norrie, K and Stephenson H
(1997), Libel and the Media: The Chilling Effect, Oxford University Press, Oxford, at 190 fn 2.
13 It has been referred to as an ―inhibiting effect‖: see Derbyshire C.C. v Times Newspapers [1993] AC
534, at 547-548; ―the deterrent effect‖: see NSWLRC Discussion Paper No 32, above fn 10, Para
10.5; ―self-censorship‖ (Para 10.21); and ―preventive self-censorship‖: Barendt et al (1997), above
fn 12, at 192; and the effect is ―to deter‖: Theophanous v Herald and Weekly Times Ltd (1994) 182
CLR 104, Deane J, at 184.
Note, further, Mark Twain‘s allusion to the ―chilling effect‖ in 1897, in Following the Equator
(Chapter XX), re-published in Mark Twain in Australia and New Zealand (1973), Penguin,
Blackburn, Victoria, at 195:
It is by the goodness of God that in our country we have those three unspeakably precious
things: freedom of speech, freedom of conscience, and the prudence never to practise either of
them.
4
defamatory publication are known to be true, but admissible evidence capable of proving
those facts is not available.14
Whatever the precise origins of the term it has come to be widely applied in
discussions on free speech. The term, according to Barendt et al, was developed by the
US Supreme Court in a number of areas of free-speech law and applied to libel cases:
It refers to the effect of the rules of law, whether criminal or civil, and of official practices
on the exercise of freedom of speech and of the media. Administrative censorship and court
injunctions prevent publication in an immediate and straightforward manner. In contrast,
the threat of a criminal prosecution or a civil action for damages may deter the media from
publishing a story, even though if a prosecution (or action) were brought, the press (or other
media outlet) would be able to defend the action. The law of libel exercises a chilling
effect, it is said, because the defences of justification, fair comment, and privilege do not
adequately safeguard the interest of the media (and the public) in freedom of expression.15
This thesis is concerned with the fear of the threat of action referred to in the
above quotation (what Deane J referred to as ―a threat or perceived risk of defamation
proceedings‖16
) and with the difficulty in mounting a successful truth defence under
current civil law. This thesis is not concerned, however, with other defamation defences
or with ―actual administrative censorship or court injunctions that prevent publication in
an immediate and straightforward manner‖17
or with the ―deeper, and subtler way in
which libel inhibits media publication [which] may be called the structural chilling
effect‖.18
The fear of the threat of action encompasses what the High Court majority
described as ―the chilling effect of large awards‖.19
Further, although it can be said that
the chilling effect can arise in a variety of contexts,20
this thesis is concerned only with
14 [1993] AC 534, at 547-548. In Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord
Cooke, at 640 said:
It is true that the restrictions on freedom of speech that have been thought necessary to give
reasonable protection to personal reputation may have a tendency to chill the publication, not
only of untruths, but also of that which may be true but cannot be roved to be true (italics
added).
15 Barendt et al (1997), above fn 12, at 190.
16 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, at 174. See further Deane J, at
184, on the ―crushing financial consequences‖ of a defamation action; Deane J, at 185, on the
―chilling effect of a perceived risk or an actual threat of defamation proceedings‖; and the
observation of Mason CJ, Toohey and Gaudron JJ, at 131, that ―the existence of that tendency [of
defamation law to induce a chilling effect‖] has been noted‖ in Australia.
17 Barendt et al (1997), above fn 12, at 190. Generally see this text at 189-194 for a discussion on the
―chilling effect‖.
18 Barendt et al (1997), above fn 12, at 192 (italics in original), where the authors describe the
structural chilling effect as follows:
It is not manifest through alteration or cancellation of a specific article, program, or book.
Rather it functions in a preventive manner: preventing the creation of certain material.
Particular organizations and individuals are considered taboo because of the libel risk; certain
subjects are treated as off-limits, minefields into which it is too dangerous to stray. Nothing is
edited to lessen libel risk because nothing is written in the first place (italics mine).
19 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 135.
20 As Barendt et al (1997), above fn 12, at 190 note:
5
the chilling effect on publication caused by risks – perceived or real – associated with
inadequacies in the truth defence as it operates in Australia.
1.2 Does the “chilling effect” exist in Australia?
The existence of the ―chilling effect‖ in Australia is amply acknowledged.21
The
Australian Law Reform Commission has reported that the law of defamation ―unduly
impedes the flow of information on public affairs.‖22
The Australian High Court in
Theophanous v Herald & Weekly Times referred to authorities that ―speak eloquently‖
of the chilling effect.23
In that case Mason CJ, Toohey and Gaudron JJ in the majority
noted that it is ―often difficult to prove the truth of the alleged libel in all its
The law of libel exercises a chilling effect, it is said, because the defences of justification, fair
comment, and privilege do not adequately safeguard the interest of the media (and the public)
in freedom of expression.
A major Australian newspaper group has stated:
The media generally is acutely sensitive to the financial perils of publishing contentious
material, which is why large media organizations retain lawyers on a full-time basis to give
prepublication advice and conduct extensive educational programs for journalists in media law.
On their advice stories which are likely to involve any financial liability for the publisher are
‗pulled‘ as a matter of course: see News Limited Submission: Defamation Amendment Bill
1995, at 4. Retrieved 14 January 2004, from <http://www.austlii.edu.au/cgi-
bin/disp.pl/au/other/media/Australian%20Law%reform/News%20limited%submission%20Def
amation%20>
21 See fn 29 below. See further the discussion in Chapter 2 under heading 4.
22 ALRC Report No 11, above fn 6, Summary, at x. The ALRC also states:
The law takes little account of changed social conditions, technological advances and the
growth of national consciousness and national communication (Summary, at ix).
In Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Kirby J, at 561-562 said:
This appeal from the Full Court of the Supreme Court of South Australia concerns defamation
law and practice. This is one of the most criticised areas of the law. The commonest criticism
is that both law and practice are unnecessarily complicated. Such complexity has consequences
which are often unfortunate for plaintiff and defendant alike. But also for the public which has
its own interest, particularly where, as here, the matter complained of involves issues of more
than private concern (footnote references omitted).
23 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 131, cite various authorities, including New York Times v Sullivan 376 US 254 (1964), when
noting that:
[The authorities] speak eloquently of the tendency of the law of defamation to inhibit the
exercise of the freedom of communication - "the chilling effect" - in the United States and the
United Kingdom. In Australia also the existence of that tendency has been noted [citing
NSWLRC, Defamation, Discussion Paper No 32]. Nonetheless, there is an argument that,
despite that tendency of the law of defamation, it does not amount to an infringement of the
freedom because the common law of defamation has endeavoured to achieve an acceptable
balance between the public interest in giving effect to freedom of speech and the competing
public interest in protecting the reputation of individuals who are defamed.
Their Honours noted further, at 133, that ―the common law defences which protect the reputation of
persons who are the subject of defamatory publications do so at the price of significantly inhibiting
free communication.‖ To be sure, in Theophanous the High Court provided a significant fillip to
freedom of speech but only in respect of ―political communication‖.
6
particulars‖.24
Deane J in the majority expressed similar views noting various
―important‖ developments since 1901 (including ―the extraordinary development and
increased utilisation of the means of mass communication‖) that have combined to
transform the nature and extent of political communication and to translate the
Constitution‘s theoretical doctrine of representative government into practical reality.25
Deane J noted that in the same period the use of defamation proceedings had led to a
widespread public perception – whether exaggerated or unjustified – that such
proceedings ―represent a valued source of tax-free profit for the holder of high public
office who is defamed and an effective way to ‗stop‘ political criticism.‖26
His Honour
noted further that the effect of this widespread public perception was ―to intensify the
chilling effect of a threat or perceived risk of defamation proceedings.‖27
Deane J
concluded:
…the effect of the applicability of State defamation laws is to deter the ordinary citizen
from publishing even true defamatory statements or fair defamatory criticism if there be a
perceived risk or actual threat of defamation proceedings.28
The media and others engaged in publishing activity too have often discussed the
chilling effect of defamation law on publication.29
One survey by the Australian Press
Council states:
24 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 132; Burrows and Cheer (2005), above fn 9, at 144.
25 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Deane J, at 173-174.
26 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, at 174.
27 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, at 174.
28 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, at 184.
29 Provided below is a sample of the views expressed by a variety of media and other commentators on
the ―chilling effect‖ of defamation law on freedom of speech:
(a) Martin B (1998), Information Liberation, Freedom Press, London, at 110-111. Retrieved 22 July,
2005 from <http://www.uow.edu.au/arts/sts/bmartin/pubs/98il/il06.html>:
People say and write defamatory things all the time, but only a very few are threatened with
defamation. Sometimes gross libels pass unchallenged while comparatively innocuous
comments lead to major court actions. This unpredictability has a chilling effect on free
speech. Writers, worried about defamation, cut out anything that might offend. Publishers,
knowing how much it can cost to lose a case, have lawyers go through articles to delete
anything that might lead to a legal action. The result is a tremendous inhibition of speech.
(b) Stutchbury M (2002), International Media Ethics Conference (Speech), Canberra, 4 July, in ―The
Rising Culture of Suppression‖ by Michael Stutchbury and Crikey‘s Team of Defamation
Researchers. Retrieved 12 January 2004, from <http://www.crikey.com.au/media/2002/06/09-
hugodefo.html>:
Defamation laws have a chilling effect on the public‘s right to be informed and the media‘s
ability to vigorously probe controversies in the church, the boardroom, the accountancy firms,
the police force, the law firms, the defence forces and the government.
In the same speech Stutchbury advocated the deregulation of free speech ―by sweeping away
defamation law.‖
(c) Barendt et al (1997), above fn 12, at 191:
7
Opinion is divided when considering how much defamation law restricts the press – 38 per
cent think reporting of matters of public interest is stopped too frequently, 37 per cent do
not, while 38 per cent think it restricts the free flow of information.30
This [an unacceptable risk of legal action and an award of damages] produces the attitude
exemplified by most magazine editors and publishers: ‗if in doubt, strike it out‘. ‗Doubt‘ here,
it should be emphasized relates to their ability to present a legally sustainable defence, not to
the editor‘s view of the validity of the story. [Thus] passages may be rewritten to alter
meaning, remove an innuendo, or recast statements of fact into those of opinion…Hence the
work of editing and ‗legalling‘ for libel is one of the processes directly shaping the finished
product. This conscious inhibition, or self-censorship within the organization, remains hidden
from the public who are unaware of how their television program, book, or newspaper is
actually produced.
(d) Electronic Frontiers Australia (a grouping comprising publishers operating in the electronic
medium), Defamation Laws and the Internet. Retrieved 4 March 2008, from
<http://www.efa.org.au/Issues/Censor/defamation.html>:
In theory, the objective of defamation laws is to balance protection of individual reputation
with freedom of expression. In practice, defamation laws are frequently used as a means of
chilling speech. A threat of (costly) defamation proceedings and damages, whether or not a
plaintiff‘s claim is likely to be upheld by a court, is often, used to silence criticism not only by
a particular person or group but also as a threat to others.
(e) Sheehan P, (2003), The Electronic Whorehouse, Pan Macmillan, Sydney, at 273:
…Australian law is willing to impose substantial damages for defamation even if the report is
true. The law is biased in favour of lawyers and in favour of wealth. Anyone not willing to put
$100,000 on the table and lose the lot is not advised to commence an action for defamation
against a big media company or a wealthy adversary.
(f) Marjoribanks T and Kenyon AT, ―Negotiating news: Journalistic practice and defamation law in
Australia and the US‖ (December 2003) Australian Journalism Review 31, at 32, although they note
that critical questions remain about whether a chilling effect exists concede that:
…defamation law is perceived to have a more direct, and potentially chilling, effect in
Australia.
The authors also note that:
In sum, the interviews in Australia provided a clear indication that defamation does figure in
the minds of news producers, in terms of both journalistic practice and cost (at 38).
(g) Pearson M (2007), The Journalist’s Guide to Media Law, 3rd Edn, Allen & Unwin, Crow‘s Nest,
NSW, at 198:
This [various studies cited by the author] indicates that defamation is to a large extent a
privilege of the wealthy. It also lends support to the oft-mouthed assertion that wealthy and
powerful people in society use defamation to intimidate journalists.
(h) Lawrence J (1992), ―The defamation industry‖ (Chapter), in Issues in Australian Journalism,
Longman, Cheshire, Melbourne, at 167, noting the case of The Age newspaper which was sued for
more than $20 million in NSW and Victoria over a series of articles about an international company,
states:
Defamation laws do impinge on professional activities of journalists and the ability, if not the
willingness, of the media to disclose facts and information that the public should know. Some
media organizations, intimidated by defamation laws, frequently choose not to allow
journalists to proceed with worthwhile investigations. In some cases it is not timidity, merely
prudence…With a few notable exceptions, it‘s not so much that defamation laws act to prevent
the publication of such material; rather it‘s that they effectively deter the search for it. The
result is the suppression of information the public has a right to receive.
30 Herman JR (ed) (1996), ―Australian Press Council Survey of Complainants [and Survey of
Editors]‖, Twentieth Anniversary Papers – Vol 4, at 9. The percentages in the quotation pertain to
separate questions, one concerning whether matters of public interest are stopped from publication
and the other concerning whether the free flow of information is restricted. The study was confined
to 736 former complainants to the Australian Press Council, of whom 269 complainants responded
(at 4).
8
A more recent study shows, however, not only that the chilling effect does occur
in Australia, but also that it hinders publication to an unreasonable extent.31
This study,
which reports on a comparative content analysis of more than 1400 Australian and US
newspaper articles published in 2003,32
notes:
The study suggests that in the US – where defamation plaintiffs face much heavier burdens
than those under Australian law – defamatory allegations are made more frequently against
both political and corporate actors than in Australia. The US articles contained apparently
defamatory allegations at nearly three times the rate of the Australian sample. In particular,
the Australian media appeared to be less comfortable making allegations in relation to
corporate affairs than its US counterpart.33
A contemporary illustration of the ―chilling effect‖ was the decision by the
Australian Broadcasting Corporation not to publish the book by investigative journalist,
Chris Masters, entitled Jonestown. Noting Barendt et al‘s view that the ―conscious
inhibition, or self-censorship within the organization, remains hidden from the public
who are unaware of how their television program, book, or newspaper is actually
produced‖,34
the Jonestown saga provides a rare insight into how the chilling effect may
occur.35
In contrast, in neighbouring New Zealand, a study carried out in 2001
31 Dent C and Kenyon A, ―Defamation law‘s chilling effect: a comparative content analysis of
Australian and US newspapers‖ (June 2004) Vol 9 No 2 Media and Arts Law Review 89, at 89 and
111 note that newspaper content in Australia is chilled in comparison to the US. Ruehl states that in
one year NSW had one defamation writ per 79,000 population, while in England it was one per
121,000: Ruehl P (2002), ―The truth hurts if you play the defame game‖, Australian Financial
Review, 25 May. Baker, however, states that there was one writ per 128,000 Australians, compared
with one writ per 200,000 people in England and Wales: Baker R (2003), ―Third person singular?
Instructing the defamation jury‖ (Paper), Jury Research Conference, 17 October, Communications
Law Centre, fn 1.
Note also the examples cited in fn 44 below.
32 Dent and Kenyon (2004), above fn 31, at 101.
33 Dent and Kenyon (2004), above fn 31, at 89.
34 Barendt et al (1997), above fn 12, at 191.
35 The Australian Broadcasting Corporation declined to publish the work after reportedly investing
$100,000 in the project citing ―purely commercial grounds‖ for the decision: see ―ABC Enterprises:
Jonestown Book‖ (2006), Media Release, 29 June. Retrieved 5 March 2008, from
<http://www.abc.net.au/corp/pubs/media/s1674993.htm>
Lawyers acting for the key figure in the book, prominent broadcaster Alan Jones, wrote to the ABC
claiming the materials for the book were ―defamatory and their publication is not defensible on any
basis‖: see Kearney S, 2006, ―Lawyers gave ABC go-ahead on Jones‖, The Australian, 4 July, at 4.
The threat of defamation is contained in a letter written by Mr Jones‘ lawyers: see Gilbert & Tobin
letter to ABC dated 5 June 2006, which in part reads:
The materials we have seen are replete with false and inappropriate sexual innuendo. They are
defamatory and their publication is not defensible on any basis…We are instructed to put you
and Mr Masters on notice that our client will not hesitate to commence defamation proceedings
against all those involved in the publication of such defamatory materials, including all
distributors.
This letter marked ―private and confidential‖ is available on Media Watch, 2006, television program,
ABC Television, ―The ABC Board and Jonestown‖, July 3 (transcript). Retrieved 4 July 2006, from
<http://www.abc.net/mediawatch/transcript/s1677791.htm>
See also Simper E and Ong T (2006), ―ABC accused of surrender over book on Jones‖, The
Weekend Australian, 1-2 July, at 8; and Norington B (2007), ―Threats have ABC cowering:
9
concluded that the operation of defamation law in that country ―does not produce
excessive chilling effects although clearly it does produce some‖ and that the ―balance‖
(between free speech and the protection of reputation) is ―about right‖.36
This may be
attributable to New Zealand‘s enactment of a Bill of Rights.37
Although not supreme law, the rights in the Bill are having life breathed into them by our
judiciary on a daily basis and have become part of the consciousness of New Zealand
citizens, including the media.38
Australia does not have such a Bill of Rights at a national level although Bill of
Rights type legislation containing ―Freedom of expression‖ provisions have been
introduced in the Australian Capital Territory39
and Victoria.40
Other factors that contribute to the chilling effect can be briefly identified as
follows: the ease in commencing an action because ―the defamation threshold is set
rather low, that is, the matters that a plaintiff must prove in order to establish a prima
facie case are not particularly demanding‖;41
the often confusing and burdensome
nature of the defences;42
and the absence of special allowances for the media43
thereby
Masters‖, The Australian, 10 September, at 3. The true reasons for the ABC backdown remain
obscure. The book, however, was eventually published and grossed almost $600,000 in its first
week, topping the best-seller list: see Lalor P and King D (2007), ―Jones book rakes in $600k‖, The
Weekend Australian, 4-5 November, at 3. The book was also short-listed for the New South Wales
Premier‘s Literary Award with judges praising the author‘s ―depth of research‖: see Kearney S
(2007), ―Jonestown journalist fires back‖, The Australian, 9 May, at 19.
36 Cheer U (2005), ―Myths and realities about the chilling effect: The New Zealand media‘s experience
of defamation law‖, 13 Torts Law Journal 259, at 299.
37 Section 14 Bill of Rights Act 1990 (NZ) provides:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and
impart information and opinions of any kind in any form.
38 Cheer (2005), above fn 36, at 300.
39 Section 16, Human Rights Act 2004 (ACT) provides:
(1) Everyone has the right to hold opinions without interference.
(2) Everyone has the right to freedom of expression. This right includes the freedom to seek,
receive and impart information and ideas of all kinds, regardless of borders, whether orally, in
writing or in print, by way of art, or in another way chosen by him or her.
40 Section 15 Charter of Human Rights and Responsibilities Act 2006 (Victoria) has a provision similar
to the one referred to in above fn 39. Western Australia was considering similar legislation: see
section 13 Human Rights Bill 2007 (draft for public comment), while the Commonwealth
government is also considering similar legislation: see Pelly M (2007), ―Labor to push on with new
charter‖, The Australian, 7 December, at 29.
These rights are in terms similar to those found in Article 19(2) of the International Covenant on
Civil and Political Rights and section 2(b) of the Canadian Charter of Rights and Freedoms. See also
and discussion in Chapter 2 under heading 1.1.
41 Gillooly (1998), above fn 8, at 15.
42 Gillooly describes the Australian defamation defences as ―unprincipled mishmash‖: Gillooly M
(2004), The Third Man: Reform of the Australasian Defamation Defences, Federation Press: Sydney,
at 3. Magnusson RS (2001), ―Freedom of speech in Australian defamation law: Ridicule, satire and
other challenges‖, 9 Torts Law Journal 269, at 296 states that in defamation law, freedom of speech
―tends to be obscured by doctrinal technicalities.‖ See also extracurial observation by Mr Justice
10
discouraging publication of matters of ―public interest‖ which the media ―believes to be
true but cannot establish to the extent judged sufficient to avoid an unacceptable risk of
legal action and an award of damages‖.44
A further point deserves noting under the present heading. Although major
publishers report ―a downturn in defamation actions since the introduction of the
[UDA]‖ it is ―too soon to tell whether the reforms had prompted the downturn, because
there had also been significant fluctuations in previous periods.‖45
In any event, the
object of this thesis is to alleviate the chilling effect through measures that more directly
David Hunt in Fricke G (1984), Libels, Lampoons and Litigants, Hutchinson Publishing, Hawthorn,
Vic, Foreword:
Any law which attempts to grapple with [the conflict between free speech and the protection of
reputation] must inescapably be complex in nature. Defamation litigation thrives upon those
complexities.
43 Gillooly (1998), above fn 8, at 16.
44 Barendt et al (1997), above fn 12, at 191. Following are three examples of claims that the media was
discouraged from publication or being found liable for defamation although the intended or actual
publications were true:
(a) Journalist Ross Coulthart says he withheld publication of bribery information he had on
politician Andrew Theophanous for five years until after Theophanous was charged in
court – because of a fear of litigation: The Media Report (2002), ABC Radio National,
―Press freedom in Australia‖, November 21 (transcript, at 6). Mr Theophanous was jailed
on bribery and conspiracy charges in 2002.
(b) The former leader of the British Conservative party Jeffrey Archer perjured and won a
defamation case against the Daily Star ―after the Daily Star’s (true) report that he slept with
a prostitute‖: Ponsford D (2005), ―Is the libel wheel loaded against free speech‖, Online
Press Gazette, 2 June 2005. Retrieved 25 April 2007 from,
<http://www.pressgazette.co.uk/article/020605/is_the_libel_wheel>
The paper printed that he had an affair with a prostitute, paid her ―hush money‖, and falsified
records. The paper's allegations were later proved accurate. He was sentenced to four years in jail
and fined $250,000. The newspaper later demanded that he ―repay the £500,000 damages it was
forced to give him, plus hundreds of thousands of pounds of compensation it now wants‖: see BBC
News Online, 2001, ―Papers revel in Archer verdict‖, July 20. Retrieved July 11, 2006 from,
<http://news.bbc.co.uk/1/hi/uk/1448075.stm>
(c) More recently it has been claimed that successful defamation plaintiff John Marsden who
was awarded substantial damages in an action he brought against Channel Seven which
broadcast claims in 1995 that he was a paedophile did not deserve to succeed in the action
in light of a case in which a man was paid $40,000 in compensation ―for being sexually
abused as a boy by the late Sydney lawyer John Marsden‖: Merritt C (2006), ―Evidence
denied to Marsden hearing‖, The Australian, 6 June, at 3. The newspaper report refers to
NSW District Court judge Ken Taylor‘s finding that ―on the balance of probabilities he [the
man] had been sexually assaulted between 1967 and 1968‖. In the same report the
newspaper claims that defamation trial judge Levine J ―ruled that it would be unfair to
Marsden to call him [the man, as a witness] at such a late stage in the trial‖. Marsden was
awarded $525,000 in damages: Marsden v Amalgamated Television Services Pty Ltd [2001]
NSWSC 541.
With legal costs included Channel Seven is reputed to have settled for $6 million to $9 million: see
Heaton G (2004), ―Privacy – boldly going where defamation hasn‘t gone before‖ Vol 9 No 4, Media
and Arts Law Review 295, at 296 (citing Ackland R, 2003, ―Fibs yes, but not enough for it to count‖,
The Sydney Morning Herald, 10 October). Also see Amalgamated Television Services Pty Ltd v
Marsden [2002] NSWCA 419; Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC
510; and Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158.
45 Pearson M (July 2007), ―A review of Australia‘s defamation reforms after a year of operation‖, Vol
29(1) Australian Journalism Review 41, at 47.
11
address the inadequacies of the truth defence, rather than, as the UDA reforms46
did,
deploy miscellaneous reforms that largely ignored the flaws in the truth defence.
1.3 Putting the “chilling effect” into context
The ―chilling effect‖ as discussed in this thesis is concerned with the unreasonable
chilling of speech in respect of matters that may be true and not with the overall chilling
effect that defamation law ought properly to have on speech. Defamation law‘s chilling
effect on speech is not altogether an unintended one. As Brennan J noted:
The defamation law, it is said, has a ―chilling effect‖ on the freedom to discuss
government, governmental institutions and political matters which is inconsistent with the
freedom. The submission does not illuminate the answer to the relevant question. It simply
translates into tendentious language the legal truism that the tort of defamation achieves its
purpose of providing protection for personal reputations by providing the remedy of
damages against the tortfeasor. If the publication of defamatory matter were not chilled by
the remedy, there would be no sanction for publications that are neither justified nor
excused.47
Likewise, the New South Wales Law Reform Commission offered the following
justification for the ―chilling effect‖ in explaining its opposition to a ―public figure
defence‖ to defamation in Australia:
The public figure test removes the "chilling" effect on the media by removing liability for
even gross negligence, where stories about public figures are concerned. The test
encourages publication and contribution to the flow of information available to the public.
However, it places little or no value on truth or care, and in fact encourages the
dissemination of totally false information, which the media need not even investigate. The
test thus encourages careless and irresponsible journalism and does not satisfy the public
interest in fairness and accuracy.48
Elsewhere the Commission has noted:
It is trite that a successful legal system must seek the optimum balance between the
protection of reputation and the promotion of freedom of speech. That balance is variously
struck in different ages and in disparate contexts.49
A century ago the accepted wisdom was that holders of public office ―are entitled
to the protection of such character and reputation as naturally belongs to such office.‖50
46 See discussion under heading 2 below, and especially fn 52.
47 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, at 155 (italics added).
48 NSWLRC Discussion Paper No 32, above fn 10, Para 10.39.
49 New South Wales Law Reform Commission (October 1995), Defamation, Report No 75, Para 2.2.
Retrieved July 25, 2005 from, <http://www.austlii.edu.au/au/other/nswlrc/reports/75/>
50 See NSWLRC Report No 75, above fn 49, Para 2.2, quoting J Paterson, The Liberty of the Press,
Speech and Public Worship, Being Commentaries on the Liberty of the Subject and the Law of
England, 1880, Macmillan & Co, London, at 179 (where the author was speaking of holders of
honorary office, though, at 180, he points out that the view is stronger in the case of a holder of an
office of profit since in that case there is potentially tangible financial damage). Paterson's view
probably mirrors that which led to the emergence of the earlier action, scandalum magnatum,
12
In the free speech cases of the 1990s, however, the High Court‘s view was the balance
had tilted ―too far in favour of personal reputation at the expense of freedom of
communication.‖51
Likewise this thesis will argue that the pendulum has swung too far
against freedom of speech and, in particular, the media find little assistance from the
truth defence in its present form.
2. The Uniform Defamation Acts
Australian defamation law underwent a major review in 2004-2005 resulting in the
introduction in 2006 of what are now commonly referred to as the Uniform Defamation
Acts (―UDA‖).52
That review resulted in model provisions devised by the Australian
States and Territories and it was agreed among them that these model provisions would
form the basis of ―uniform‖ law.53
That review, however, paid scant attention to
reforming the truth defence.
Many features of the previous law remained unchanged including, for example,
the elements of the cause of action.54
That is, all that the plaintiff is required to do is
show that publication occurred; that the plaintiff was identified; and that the matter was
defamatory.55
Once these matters are established the burden shifts to the defendant.56
Or
as Walters expressed it, the plaintiff ―can sit back and wait until the defendant proves
derived from a criminal statute of 1275, which provided a remedy to men of high position who had
been scandalised (see Paterson, at 180-182).
51 NSWLRC Report No 75, above fn 49, Para 2.2.
52 The term Uniform Defamation Acts or UDA is used as a short form in this thesis and can be viewed
as a ―colloquial‖ term, in the same way that the Australian Law Reform Commission noted of the
―Uniform Evidence Acts‖ which is a loose reference to the Commonwealth, New South Wales and
Victorian evidence Acts: see ―Submission to House of Representatives Standing Committee on
Legal and Constitutional Affairs Inquiry into Harmonisation of Legal Systems (16 March 2006)‖.
Retrieved 14 February 2008, from <www.alrc.gov.au/submissions/ALRCsubs/2006/1603.htm>
Where reference is made to sections of the Act, it refers to the provisions in the majority of the Acts,
given that some sections are numbered differently in some of the jurisdictions. To illustrate the point
see the provision on the defence of truth: section 25 Defamation Act 2005 (WA); section 25
Defamation Act 2005 (NSW); section 25 Defamation Act 2005 (Vic); section 25 Defamation Act
2005 (Qld); section 23 Defamation Act 2005 (SA); section 25 Defamation Act 2005 (Tas); section
135 Civil Law (Wrongs) Act 2002 (ACT); section 22 Defamation Act 2006 (NT).
53 The provisions were based on the States and Territories Model Defamation
Provisions (d04) released on 5 November 2004. Retrieved 4 March 2008, from
<http://www.lawlink.nsw.gov.au/lawlink/legislation_policy/ll_lpd.nsf/pages/lp_draft_bills>
54 See the remarks of WA Attorney General Hon Jim McGinty, Defamation Bill 2005 (WA) Second
Reading, Assembly, Hansard, 17 August 2005, at 4130:
[One of the objectives of the Bill is] to retain, with appropriate modifications, the common law
of defamation; that is, the uniform legislation will not affect the operation of the general law
concerning defamation except to the extent that the legislation so provides.
55 See Gillooly (1998), above fn 8, at 22.
56 Robertson G and Nicol A (2002), Media Law 4th Edn, Penguin, London, at 108.
13
some defence.‖57
The main area of controversy in much defamation litigation is not
whether the elements of the cause of action have been established but whether any
defence has been made out.58
This work turns to the defences because that is where the
real battles often lie as the defences ―have been developed with a view to resolving the
tension‖ between freedom of speech and the protection of reputation.59
As Gillooly
notes:
…the imposition of liability discourages publications in similar circumstances in future,
and thereby deprives potential recipients of that information. Conversely, recognition of a
defence removes the threat of legal action, and promotes future publications in like
situations. In other words, the defensive regime embodied in the law of defamation plays a
pivotal role in controlling the flow of information within the community.60
While there are many defamation defences,61
this work focuses on what has been
described as the ―principal defence‖62
– the truth defence. The reasons for this are
explained in the next section. Before that, it is useful to note that under the UDA certain
aspects of Australian defamation law have been rendered obsolete. Arguably, one of the
most significant – and controversial63
– aspects of the UDA was the consensus reached
among the Australian jurisdictions to make truth (or truth simpliciter) a complete
defence. This change consigned to the annals of history the requirement in some
jurisdictions that the truth defence be accompanied by either a public interest or public
benefit element. This requirement was successfully argued as operating to the media‘s
57 Walters B (2003), Slapping on the Writs, UNSW Press, Sydney, at 11. See also Theophanous v
Herald and Weekly Times Ltd (1994) 182 CLR 104, Deane J, at 175:
Proof of the mere publication of the defamatory statement discharges the plaintiff‘s onus and
casts upon the defendant the burden of positively establishing some defence.
58 Gillooly (1998), above fn 8, at 15.
59 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 131.
60 Gillooly (2004), above fn 42, at 23.
61 Walker S (2000), Media Law Commentary and Case Materials, LBC Information Services,
Pyrmont, NSW, at 156 lists a range of defences comprising: justification; fair comment; absolute
privilege, qualified privilege; innocent distribution, unintentional defamation; triviality; and apology.
62 ALRC Report No 11, above fn 6, Para 120 citing Gatley, 7th edition. More recently the truth defence
has been described as one of two main defamation defences – the other being the defence of
comment: see Dent and Kenyon (2004), above fn 31, at 93.
63 For example, see Gatley (2004), above fn 8, at 267: ―Whether truth should in all circumstances be a
defence is controversial‖.
See also the observation that the rationalisation for the truth simpliciter defence is ―unsatisfactory in
several respects‖: Gillooly (2004), above fn 42, at 51. The grounds cited there are: (a) it sits rather
uncomfortably with the rest of the law of defamation which is essentially concerned with protecting
actual rather than merited reputation; (b) it blurs the distinction between the consequences flowing
from the plaintiff‘s own conduct and those that follow from the unauthorised dissemination of details
of that conduct by the defendant; and (c) the recognition of a truth alone defence undermines the
(human) right to privacy (at 51-52, authorities omitted).
14
disadvantage,64
and the UDA abandoned this requirement for the truth defence. Of
course, this change only affected those jurisdictions which provided for a truth plus
public benefit or public interest defence.65
The UDA truth defence creates two truth defences – the defence of substantial
truth66
and the defence of contextual truth.67
The UDA, however, also provides that the
operation of the general law in relation to defamation is not affected ―except to the
extent that‖ the Act provides.68
Thus, certain aspects of the general law continue to be
relevant.69
The precise application of general law in relation to defamation remains to
be conclusively worked out, especially as the UDA acknowledges that the former may
apply even ―by necessary implication‖.70
While the UDA is described widely as
―uniform‖ legislation, and the objects section clearly states that the Act‘s object is,
among other things, ―to enact provisions to promote uniform laws of defamation in
Australia‖71
the description of the new legislation as ―uniform‖ is not entirely accurate
64 See, for example, the view expressed by the Australian Press Council in ―Submission of the
Australian Press Council to the Act Legislative Assembly Standing Committee on Justice and
Community Safety on the Defamation Bill 1999‖. Retrieved 13 February 2008, from:
<http://www.presscouncil.org.au/pcsite/fop/fop_subs/actdef.html>
Truth alone should be a defence. If a statement accurately and fairly presents information to the
public, there should not be some other hurdle that the conveyer of that information should have
to overcome. People should be prepared to live with true statements about them. The press has
the ability to judge whether what it is saying is correct. It has much greater difficulty in
assessing whether the information that it wishes to present is for the public benefit.
65 At common law, prior to the uniform legislation, truth was a complete defence in WA, Northern
Territory, South Australia and Victoria. In Queensland, Tasmania and the ACT it was also necessary
to prove that it was for the public benefit that the imputation was made: Amalgamated Television
Services Pty Ltd v Marsden [2002] NSWCA 419, Para 810. In NSW, it had to either relate to a
matter of public interest or have been published under qualified privilege: Gillooly (1998), above fn
8, at 104. In Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254, Higgins J considered the
question whether public benefit is a different concept from public interest (Paras 59-63). Higgins J‘s
view was:
There is no discernible difference. Indeed, it is difficult to conceive of a situation where one
criterion would be satisfied but not the other (Para 63).
66 Section 25 UDA is titled ―Defence of Justification‖ and it provides:
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.
67 Section 26 UDA is titled ―Defence of contextual truth‖ and it provides:
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.
68 Section 6(2) UDA.
69 As will be seen in Chapter 8 below, for instance, the general law continues to operate in regards to
the truth defence.
70 See, for example, section 6(2) UDA.
71 See, for example, section 3 UDA.
15
because ―there remain some differences between jurisdictions‖.72
A further point
worthy of brief mention is the lack of unanimity even within the media fraternity as to
whether the UDA, as a whole, is a boon to the media. Some have welcomed the uniform
legislation. The Australian Press Council, for instance, has stated:
Defamation law should be about finding the balance between competing demands of the
private right to reputation and public right to information, with an emphasis on the
restoration of reputation where it has been unfairly traduced. Until the beginning of 2006,
Australian defamation law did not meet this criterion.73
Other commentators have, however, expressed reservations about the adequacy of
the new defamation regime.
The challenge is now to the High Court of Australia as to whether they are going to bring
Australian media law into the 21st century by catching up to the English, the Americans and
72 See Ryan I (February 2006), ―New Defamation Laws: A Guide‖, Australian Press Council News,
Vol 18 No 1, at 6 where the writer notes that:
…Tasmania has elected not to adopt the clause that precludes actions on behalf of deceased
persons in other states. The publication in Tasmania of material that results in injury to the
reputation of a deceased person may result in litigation. There are also variations in the way a
defamation action is tried by the courts in different states. The uniform legislation includes two
sections that deal with juries. Section 21 allows the parties to request trial by jury (although the
court may refuse), while section 22 specifies that the amount of damages is to be determined
by the judge. Both of these sections have been omitted from the South Australian legislation.
See also remarks by WA Member of Parliament Hon Sue Walker that there are ―major differences
between the bills‖ introduced in the various states: Defamation Bill 2005 (WA) Second Reading,
Assembly, Hansard, 13 September 2005, at 5162; and Todd R (2006), ―Uniform Defamation
Legislation: Lessons Learnt and Pivotal Reforms and Implications‖, Paper, LexisNexis Defamation
Sydney Conference, April 5-6:
…the law of defamation in Australia is now essentially uniform but not unified. The law of
defamation has not grown out of clearly articulated unified principles to which the law gives
effect.
See further Pearson (July 2007), above fn 45, at 42.
73 Australian Press Council (2006), Annual Report No 30, 30 June, at 9. Also see the Council‘s view in
State of the News Print Media in Australia Report (October 2006), Sydney, at 83:
Early indications are that the emphasis in the [uniform] legislation on restoring reputation,
rather than on damages, has led to a significant increase in the number of matters settled early
in the process…The defamation reforms appear to have made actions on defamation more
about reputation than mulcting of funds.
Media, Entertainment and Arts Alliance Federal Secretary, Christopher Warren, in his Introduction
to an MEAA Report, The Media Muzzled: Australia’s 2006 Press Freedom Report, Redfern, NSW,
at 3 states:
First, the good news: After decades of campaigning, we‘ve finally won uniform defamation
laws that focus on prompt correction of errors rather than massive payouts…in defamation at
least, press freedom is better off than it was 12 months ago.
See also Attard M (2006), Media Watch ABC Television, ―Front page – Truth, defamation and
privacy‖, April 10 (transcript) (Retrieved 20 February 2007 from
http://www.abc.net.au/mediawatch/transcripts/s1613045.htm):
Our new defamation laws tip the balance in favour of media organizations.
Further, see Merritt C (2006), ―Complete picture about a little matter of privacy‖, The Australian, 20
April, at 16 (agreeing with Attard):
Monica Attard got two things right last week. The first was that the balance in the new
defamation laws is more favourable to the media.
16
everyone else…Australia has the most antiquated libel laws in the English-speaking world
and we are falling behind.74
3. The reasons for focusing on the truth defence
The truth defence has been selected as the focus of this thesis because of its
fundamental importance to the law of defamation. The reasons for this focus include:
(a) Truth is the ―oldest of all libel defences – and certainly the most obvious‖;75
(b)
historically, truth has been ―the principal defence‖76
and traditionally an ―important‖
defence;77
(c) the truth defence manifests the broad recognition of the public ―interest in
the facilitation of the public‘s right to know‖;78
(d) the impact of the truth defence on
the public interest ―in the discovery of truth‖,79
and the ―value of speech for the
discovery of truth‖;80
(e) the tendency for a conflict between the truth imperative in
74 See Wilson P (2006), ―We lag the world on libel law‖, The Australian, 13 October, at 6, quoting
barrister Geoffrey Robertson QC. Others who have expressed reservations about the uniform
defamation law include the chairman and chief executive of News Limited, which publishes The
Australian, John Hartigan, referred, without elaborating, to ―the inadequacies of the new national
defamation regime‖ – see Hartigan J (2006), ―High Court rules against Freedom of Information
case‖, Media Release, News Limited Corporate Affairs, 6 September.
See also the view that defamation law is ―still a publisher‘s nightmare‖: Day M (2006), ―Freedom of
speech undefined‖, The Australian, 12 April, at 12.
75 Overbeck W (2007), Major Principles of Media Law, Thomson Wadsworth, Belmont, CA, at 126.
76 See text accompanying fn 6 above.
77 Pember DR (2003/2004), Mass Media Law, McGraw-Hill, New York, at 201. It should be noted,
however, that for a significant period of English history, notably the period of the Star Chamber, the
position taken by the law was ―the greater the truth, the greater the libel‖: see Nationwide News Pty
Ltd v Wills (1992) 177 CLR 1, Deane and Toohey JJ, at 67–68.
78 NSWLRC Report No 75, above fn 49, Para 2.1. Save in limited circumstances, such as those
afforded through a legally enforceable ―right‖ contained in Freedom of Information legislation (for
example, see section 11(1)(a), Freedom of Information Act 1982 (Cth)), it is incorrect to broadly
identify this justification as a ―right to know‖.
For some examples of questionable reference to this ―right‖ see: (a) the ―Australia‘s Right to Know‖
campaign promoted by major Australian publishers, that resulted in a lengthy report (Moss, I (2007),
―Report of the Independent Audit into the State of Free Speech in Australia‖, 31 October); and (b)
Burgman C (2006), ―High Court Chipps back right to know‖ (On-line Opinion), 29 September.
Retrieved 6 March 2008, from <http://www.onlineopinion.com.au/view.asp?article=4971> where
the author states:
It [the right to know] is a right that Australia has committed itself to by signing the
International Covenant on Civil and Political Rights (italics added).
The International Covenant on Civil and Political Rights, in Article 19(2) provides:
Everyone shall have the right to freedom of expression this right shall include freedom to seek,
receive and impart information and ideas of all kinds…
This provision does not prescribe a ―right to know‖ as such, but a freedom to seek the information. It
would be more appropriate to view the interest in question as the ―need to know‖: see Gillooly
(2004), above fn 42, at 24, especially fn 63.
79 NSWLRC Report No 75, above fn 49, Para 2.1. See also Barendt E (2007), Freedom of Speech,
Oxford University Press, Oxford, at 7–13; and discussion on the ―search for truth‖ in Sadurski W
(1999), Freedom of Speech and Its Limits, Kluwer Academic, London, at 8-16.
80 Butler and Rodrick (2007), above fn 3, at 7. The authors cite the argument that ―speech should be
protected because truth can only be discovered where there is a circulation of all ideas, regardless of
their perceived value at any given time‖ (ibid).
17
judicial81
and media contexts82
and the ambiguous nature of truth in these two
contexts;83
(f) a recognition of truth as a primary human need;84
(g) the recognition that
an important yardstick in assessing defamation law is the extent to which defamation
law promotes the public adjudication of truth or falsity in cases of public interest;85
and
(e) the ―very conception of defamation involves the idea of falsity‖.86
4. The purpose of defamation law – the truth rationale
In defamation law, a central concern is the truth or falsity of the matter published.87
The
truth defence originates from English law where it was recognised that it is ―a complete
answer to a civil action that the defamatory matter complained of was true‖.88
The
rationale for this view was expressed in Street ACJ‘s famous passage in Rofe v Smith’s
Newspapers Ltd:
The reason upon which this rule of law rests, as I understand, is that, as the object of civil
proceedings is to clear the character of the plaintiff, no wrong is done to him by telling the
truth about him. The presumption is that by telling the truth about a man, his reputation is
not lowered beyond its proper level, but is merely brought down to it.89
This purpose, however, often gets lost in the maze of rules that govern defamation
law. As Overbeck has noted ―it is easy to get lost in the details, overlooking some of the
major principles‖.90
It is said that the ―real question‖ in relation to the defence of truth is
―whether the imputations were true, or substantially true.‖91
So powerful is the truth
81 Ipp DA (1995), ―Reforms to the Adversarial Process in Civil Litigation – Part I‖ 69 ALJ 705, at 714
where the author notes:
Nevertheless, over the last 20 years there has been a gradual, but clearly discernible trend
towards accepting that the ultimate purpose of our adversarial system is to resolve disputes by
pursuing the truth.
82 It is said, for instance, that journalism ―has a lofty ideal; the communication of truth‖: see Burns LS
(2002), Understanding Journalism, Sage, London, at 23. The author notes that:
Journalists work to that end [the notion of service to the public interest] by truth-telling, even
when the truth is unpalatable and unwelcome (at 29).
83 This is discussed in Chapter 3.
84 Weil S (1978), The Need for Roots: Prelude to a Declaration of Duties Towards Mankind,
Routledge and Kegan Paul, London, at 35 in a section entitled ―The needs of the soul‖.
85 Chesterman M (2000), Freedom of Speech in Australian Law, Ashgate, Hants, England, at 168.
86 TA Street, Foundations of Legal Liability (1906), Vol 1, at 300, cited in Howden v “Truth” and
“Sportsman” Ltd (1937) 58 CLR 416, Evatt J, at 431. See also fn 8 above citing Theophanous v
Herald and Weekly Times Ltd (1994) 182 CLR 104, where Mason CJ, Toohey and Gaudron JJ, at
138, observed that the determination of the truth or untruth of the defamatory imputation is ―the
gravamen of the plaintiff‘s complaint in most cases‖ (italics added).
87 See text accompanying fn 84 above.
88 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4, Street ACJ, at 21 (italics added).
89 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4, at 21-22.
90 Overbeck (2007), above fn 75, at 116.
91 Sun Earth Homes Pty Ltd & Ors v Australian Broadcasting Corporation No NG 164 of 1990 FED
No 671, Wilcox J, Para 108.
18
alone defence that if the defendant can establish that the imputation in question is ―true
in substance and in fact…there can be no inquiry into the alleged malice or other
conduct of the defendant. It is enough that the imputation was true.‖92
However, as
Tobin and Sexton note, ―[t]his apparently straightforward principle has…given rise to
some extremely difficult and still unsettled issues of law.‖93
While theoretically the truth
defence appears to provide a carte blanche for truth-telling,94
the reality as we shall see
is markedly different, thus making the truth defence ―an extremely controversial one.‖95
The truth defence is an important part of defamation law, and to appreciate its
importance it is useful to address another preliminary question – what is the aim of
defamation law generally?
4.1 A brief history of defamation law
One account is that defamation ―began in the eleventh century‖ as a creation of the
ecclesiastical courts to deal with those who disobeyed the injunction of Leviticus:
―Thou shalt not go up and down as a tale-bearer among the people.‖96
However, a
considerably earlier beginning can be traced to as long ago as the twenty-fourth century
BC. Ptahhotpe, the vizier of the Fifth Dynasty king Izezi,97
commanded: ―Do not repeat
slander; you should not hear it, for it is the result of hot temper.‖98
Calumny has also
been condemned since the time of Moses, ―with the Romans expanding its punishment
92 Tobin TK and Sexton MG (1990), Australian Defamation Law and Practice, Butterworths, Sydney,
Para 11,001. LexisNexis (Online).
93 Tobin and Sexton (1990), above fn 92, Para 11,001 (italics added).
94 ALRC Report No 11, above fn 6, Summary, at x, for example, reinforces the view that the truth
alone defence is a blank cheque for truth-telling:
In those jurisdictions where truth alone, is a defence the law of defamation imposes no
inhibition upon the publication of personal information. Intimate facts, having no relevance to
public affairs or to the public activities of the subject, may be published without restriction
provided that, if the statements are defamatory, they are accurate (italics added).
95 Law Society of NSW (2004), ―Proposal for Uniform Defamation Laws: Standing Committee of
Attorneys General Working Group‖ (Submission), 2 September; see the discussion there, under
Recommendation 14.
96 Robertson and Nicol (2002), above fn 56, at 73. For a summary of the history of proceedings aimed
at protecting the reputation of an individual see Manning v Hill (A-G for Ontario & Ors, interveners)
(1995) 126 DLR (4th) 129, at 160-163. For a more recent work tracing the development of
defamation law see Mitchell P (2005), The Making of the Modern Law of Defamation, Hart
Publishing, Oxford. The author states, at 277:
The making of the modern law of defamation was a lengthy and complex process. No single
factor can be highlighted to explain what happened; rather, a host of different influences were
at work, sometimes in combination, more often independently.
97 Williams RJ (April-June 1972), Vol 92 No 2 Journal of the American Oriental Society 214, at 215.
98 See Australian Capital Territory Community Law Reform Committee (1995), Defamation, Report
No 10, section on ―Background‖, citing ―The Maxims of Ptahhotpe [c. 2350BC], maxim No 23.‖
See that section generally for a useful summary of the history of defamation law.
19
to include written defamation as far back as the fifth century before the common era.‖99
Defamation law can also be found in ―the first stages in the development of organised
society‖.100
The Germanic (Teutonic) people observed a law called the Lex Salica,
which was ―much concerned with foul language.‖101
In England, the first statute came in 1275 creating the offence of scandalum
magnatum to protect ―the great men of the realm‖ against stories that might arouse the
people against them.102
It is also said that initially, defamation law represented ―an
attempt by government to establish a forum for persons involved in a dispute brought
about by an insult or by what we today call a defamatory remark‖.103
The offence was
aimed at enabling the courts to ―punish the defamer so that people would not resort to
violence against her or him [a rationale that] has influenced the development of the
common law.‖104
Britain‘s Star Chamber is said to have enforced the libel laws with
monumental ferocity – a penal jurisdiction that was always exercised on the basis of an
apprehended threat to peace:
William Prynne had his ears cut off for criticising the immorality of courtiers; when he
repeated his accusations in a News of the World style polemic entitled ―Women Actresses –
99 Hirth JA (2004), ―Laying to Rest the Ecclesiastical Presumption of Falsity: Why the Missouri
Approved Instructions Should Include Falsity as an Element of Defamation‖, 69 Missouri Law
Review 529, at 529. A well known injunction in the Ten Commandments is: ―You shall not give
false evidence against your neighbour‖ (Exodus 20:16, The New Jerusalem Bible (1985), Doubleday,
New York). See also Deuteronomy 5:20 (―You must not give false evidence against your fellow‖,
ibid); and Leviticus 19:16 (― You will not go about slandering your own family…‖, ibid).
100 Van Veeder V (December 1903), ―The History and Theory of the Law of Defamation‖ Vol 3 No 8
Columbia Law Review 546, at 548.
101 Van Veeder (December 1903), above fn 100, at 548. In the Lex Salica scheme, if one called a man a
―wolf‖ or ―hare‖ he had to pay three shillings; for a false imputation of unchastity against a woman
the penalty was forty-five shillings; if one falsely called another ―thief‖ or ―manslayer‖ he had to pay
damages, and, holding his nose with his fingers, had to publicly confess himself a liar (ibid,
references omitted).
102 Robertson and Nicol (2002), above fn 56, at 73. See also the reference to defamation‘s early
objective of protecting the interests of the lords rather than the peasants (see text accompanying fn
109 below). The original statute of 1275 provided:
Whereasmuch as there have been aforetimes found in the country of devisers of
tales…whereby discord or occasion of discord hath arisen between the kind and his people or
great men of this realm…it is commanded that none be so hardy as to tell or publish any false
news or tales whereby discord or occasion of discord or slander may grow between the king
and his people or the great men of the realm; he that doth so shall be taken and kept in prison
until he hath brought him into the court which was the first author of the tale (cited in Van
Veeder (December 1903), above fn 100, at 553).
A later statute describes the ―great men of the realm‖ as Prelates, Dukes, Earls, Barons and great
men of the realm and also of the Chancellor, Treasurer, Clerk of the Privy Seal, Steward of the
King‘s House, Justices of the one bench or the other, and of other great officers of this realm (ibid,
fn 3).
103 Pember (2003/2004), above fn 77, at 132. As to the question what is defamatory see the discussion
in Chapter 7 under heading 3.
104 Walker (2000), above fn 61, at 339. See also Allan v Bull (1836) 1 Legge 70 (NSW); O’Kane v
Sellheim (1882) 1 QLJ 85, at 88.
20
Notorious Whores‖ they cut off the stumps of his ears, and branded his forehead with the
letters ―SL‖ for ―seditious libeller‖.105
The defamation pendulum swung from its thirteenth century criminal offence
thrust, through the offence of scandalum magnatum to protect the socio-political elite,
to Fox’s Libel Act,106
establishing the right of juries rather than judges to decide
whether words were defamatory and imposing many burdens on the claimant.107
In the
nineteenth and twentieth centuries the common law was refashioned to serve the British
class system ―from the perspective of that extraordinary institution, the Victorian club‖,
giving rise to a law ―heavily weighted towards reputation over free speech.‖108
Historically defamation law was designed, as one commentator crudely put it, to protect
the lords rather than the peasants.109
The idea that large sums of money must be awarded to compensate people for words which
―tend to lower them in the estimation of right-thinking members of society‖ directly derives
from an age when social, political and legal life was lived in gentlemen‘s clubs in Pall
Mall, an age when escutcheons could be blotted and society scandals resolved by writs for
slander.110
Judges then helped these upper-class claimants by creating ―presumptions‖ that
any slur on their character must be false, published maliciously and would do their
reputations serious damage in ―right-minded society‖.111
4.2 Modern defamation law rationales
Defamation law‘s modern rationales are markedly different from those mentioned
above and still lack consistency. A random survey of opinion suggests that defamation
law‘s aim is: ―to strike an appropriate balance between two largely incompatible
105 Robertson and Nicol (2002), above fn 56, at 73.
106 Libel Act 1792 (England) 32 Geo III c 60.
107 The plaintiff bore the burden of proving that the words were false, had been published or spoken
maliciously, and had caused real damage: see Robertson and Nicol (2002), above fn 56, at 73.
108 Robertson and Nicol (2002), above fn 56, at 74.
109 Ruehl P (2004), ―To tell the truth, these laws are screwy‖, Australian Financial Review, 30 March,
at 56.
110 Robertson and Nicol (2002), above fn 56, at 74.
111 Robertson and Nicol (2002), above fn 56, at 74. Also see Whitton E, ―High Court seeks to raise the
quality of journalism‖ Australian Press Council News Vol 10 No 1 February 1998. Retrieved July 1,
2006 from <http://www.presscouncil.org.au/pcsite/apcnews/feb98/evan.html>
In this article the author refers to ―seven presumptions‖ saying they ―are all false‖ viz:
A slur is always false. The author of a slur is always guilty. The subject of a slur is always
innocent. A slur always causes damage. Appearance (reputation) is always preferable to reality
(character). The private right to reputation is always to be preferred to the public right to
information. The seventh false presumption is that a slur is always deliberately intended to
cause damage.
21
interests: protection of reputation, and freedom of speech‖;112
―the public protection of
individual reputation‖;113
―concerned with the protection of reputation‖;114
―to provide
compensation for injury to reputation and feelings‖115
(the New South Wales Law
Reform Commission in one report suggested that this objective is a ―primary‖ one116
and in another it has stated that ―to vindicate the plaintiff‘s reputation [is] the primary
objective of the law of defamation‖117
); to provide ―control of the exercise of power in a
democratic society;‖118
―to compensate the victims of defamatory communications‖;119
―to punish [those] critical of the plaintiff, and to warn others not to publish or broadcast
112 Gillooly (1998), above fn 8, at 15; NSWLRC Report No 75, above fn 49, Para 2.1; Lange v
Australian Broadcasting Corporation (1997) 189 CLR 520, at 568. A similar view was expressed in
Lange v Atkinson [1997] 2 NZLR 22, at 30. See also Gillooly (2004), above fn 42, at 2; Butler and
Rodrick (2007), above fn 3, at 27; and Horrocks v. Lowe (1975) AC 135, Lord Diplock, at 149-150.
While the reference in that quotation to ―largely incompatible interests‖ leaves room for the
existence of ―some‖ compatible interests or purposes, note the description in Armstrong et al of the
two purposes as ―necessarily conflicting purposes‖: Armstrong M, Lindsay D and Watterson R
(1995), Media Law in Australia 3rd Edn, Oxford University Press, Melbourne, at 11.
The point concerning ―balance‖ is discussed further in Chapter 4 under heading 4
113 Fleming JG (1992), The Law of Torts, 8th Edn, Law Book Co, Sydney at 524; NSWLRC Report No
75, above fn 49, Para 2.1; Holsinger R and Dilts JP (1997), Media Law, 4th Edn, McGraw-Hill, New
York, at 121.
114 Tobin and Sexton (1990), above fn 92, Para 1001. The same text in an earlier version said
defamation law is ―primarily concerned with the protection of reputation‖: see Tobin TK and Sexton
MG (1999, Service 8), Australian Defamation Law and Practice, Butterworths, Sydney. This
modified description appears to acknowledge that in the present day that the protection of reputation
is not the primary concern of defamation law, although the premise for this review is unclear. It
should be noted further that while the year of this text on the LexisNexis Online Service is indicated
as ―1990‖, this (and not the ―1999‖ text) is the more up-to-date text.
115 NSWLRC Discussion Paper No 32, above fn 10, Para 2.1 (although it may be asked whether the
Commission‘s view that this is the ―primary purpose of the current defamation law‖ has been
superseded by the law as it stands under the Uniform acts). A similar view is expressed in the US,
viz., that defamation actions ―are legal actions to compensate the victims of…communications that
tend to injure someone‘s reputation‖: Overbeck (2007), above fn 75, at 115.
In Bashford v Information Australia (Newsletters) Pty Ltd [2000] NSWSC 665, Davies AJ Para 42
said, that in awarding damages:
If the person is particularly sensitive, this is a matter which has to be taken into account, for the
damages include compensation for injured feelings. Thus, in Humphries v TWT Ltd (1993) 114
ACTR 1, at 17, Miles CJ took into account the fact that, ‗he [the plaintiff] is a person of
sensitivity, with a particular consciousness of his own sense of morality, so that he was likely
to be particularly hurt if he thought that his own propriety was questioned or under attack.
116 NSWLRC Discussion Paper No 32, above fn 10, Para 2.1. Magnusson (2001), above fn 42, at 278,
describes as ‗wise counsel‘ Walker‘s argument (Walker S (1994), ―Regulating the Media:
Reputation, Truth and Privacy‖, 19 MULR 729, at 734-5) that defamation law should stick to its
primary role of compensating people for damage to their reputations.
117 NSWLRC Report No 75, above fn 49, Para 2.35; Packer v Meagher [1984] 3 NSWLR 486, at 492;
R v Editor of the Daily Mail; Ex parte Factor (1928) 44 TLR 303, at 306; Carson v John Fairfax &
Sons Ltd (1993) 178 CLR 44, Brennan J Para 5; Dingle v Associated Newspapers Ltd (1964) AC
371, Lord Radcliffe, at 396: ―[a] libel action is fundamentally an action to vindicate a man‘s
reputation on some point as to which he has been falsely defamed‖. See also Walker (2000), above
fn 61, at 85-86
118 Ballina Shire Council v Ringland (1994) 33 NSWLR 680, Mahoney J, at 723.
119 Overbeck (2007), above fn 75, at 115.
22
similar criticism‖120
; to deter ―unjustified attacks on reputation, and so regulating the
conduct of the media‖ (this has been described as a ―related purpose‖);121
and ―to
vindicate the plaintiff‘s reputation‖.122
The NSW Law Reform Commission opened a
chapter entitled ―The Objectives and Context of Defamation Law‖ in its 1995 report
with the following succinct statement: ―The law of defamation exists to protect
reputation.‖123
The ensuing discussion in that report, however, plainly reveals that this
is not the sole raison d’etre for defamation law.124
It is acknowledged also that
defamation law‘s varying function is not confined to a historical continuum but extends
also to ―disparate contexts‖.125
4.3 A brief critique
Some observations may be made about the foregoing potpourri of defamation law
rationales. First, the High Court has played a critical role in positioning the fulcrum on
the free speech see-saw as seen in its recognition of the need for freer speech in respect
of political communication in recent years.126
The same freedom, however, has not yet
been found appropriate in scrutinising the affairs of others in the public eye (i.e. those to
whom the public figure, or Sullivan, test would apply)127
because ―it tilts the balance
unduly in favour of free speech against protection of individual reputation‖.128
Second,
several of the rationales either do not sit well together or present a potential tension. For
example, the NSW Law Reform Commission identified the following as ―primary‖
purposes or objectives of defamation law: (a) ―to provide compensation for injury to
reputation and feelings‖;129
and (b) to ―vindicate the plaintiff‘s reputation‖.130
It may be
120 Pember (2003/2004), above fn 77, at 129.
121 NSWLRC Discussion Paper No 32, above fn 10, Para 2.20.
122 NSWLRC Report No 75, above fn 49 Para 2.35.
123 NSWLRC Report No 75, above fn 49, Para 2.1.
124 For instance, see the Commission‘s observation:
It is trite that a successful legal system must seek the optimum balance between the protection
of reputation and the promotion of freedom of speech (NSWLRC Report No 75, above fn 49,
Para 2.2).
125 NSWLRC Report No 75, above fn 49, Para 2.2 cites the example of balances that are tilted in favour
of or against free speech at a given time as seen in the High Court‘s recognition of the need for freer
speech in respect of political communication in recent years. The same freedom is not available in
scrutinising the affairs of others in the public eye.
126 For a discussion of the three stages of the development of the implied freedom of political
communication see Gillooly (1998), above fn 8, at 188–196.
127 Named after New York Times v Sullivan 376 US 254 (1964). This principle is discussed in Chapter 6
under heading 4.1.
128 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 134.
129 NSWLRC Discussion Paper No 32, above fn 10, Para 2.1.
23
argued that the Commission identified both as primary purposes of defamation law
because one alone was insufficient. That said, however, the former does not necessarily
lead to vindication per se, whereas the latter clearly favours vindication, which may not
necessarily entail compensation, although vindication is perhaps presumed to
accompany compensation.131
Third, defamation law‘s avowed goal of balancing two
largely incompatible interests – the protection of reputation and freedom of speech – is
not without problems. One outcome of this balancing approach is the tendency then to
treat various concerns for or against free speech as a mechanism for attaining the
balance sought. For example, a reluctance to incorporate the public figure test is not
primarily due to the view that public figures should be immune to public scrutiny but
that the introduction of this rule would inappropriately tilt the balance – as perceived by
the High Court or Parliament – against the protection of reputation.132
Furthermore,
some Australian jurisdictions
which incorporated a de facto privacy protection
mechanism in their defamation law133
through the additional requirement of public
interest or public benefit134
recently gave up this element in favour of a truth alone
defence.135
4.4 Restoring the primacy of vindication
Amongst the above goulash of rationales for defamation law it is clear that one
―primary objective of the law of defamation‖ is to ―vindicate the plaintiff‘s reputation‖.
A person‘s reputation consists of the opinions that others hold of that person‘s
130 NSWLRC Report No 75, above fn 49, Para 2.35. See also Reynolds v Times Newspapers Ltd & Ors
[1999] 4 All ER 609, Lord Cooke, at 641:
The whole purpose of defamation law is to enable a plaintiff to clear his or her name (italics
added).
131 NSWLRC Report No 75, above fn 49, Para 2.8 observes on this point: ―Vindication ought not be
left, as it currently is, to an inference drawn from the size of the damages award‖.
132 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 134. For a detailed discussion of the public figure test see Chapter 6 heading 4.1.
133 See Gillooly (1998), above fn 8, at 113; NSWLRC Report No 75, above fn 49, Para 123; and the
following view expressed in the WA Defamation Law Reform Committee (September 2003), Report
on Reform to the Law of Defamation in Western Australia, Para 34:
In our view that requirement [that truth should only be a defence if publication was also in the
public interest] can only be justified in the interests of protecting privacy. But those interests
are best protected by a law specifically directed to privacy rather than attempting to indirectly
protect privacy through the law of defamation.
134 See fn 65 above.
24
character.136
Further, it is clear that the protection of reputation is to be achieved by
vindicating the defamed individual:
Except where publication is merely threatened (where an injunction is potentially
available), and except where the interest in reputation is purely financial (as in the case of a
trading corporation), the most obvious form of protection for reputation is some public
vindication of it. As a demonstrable mark of the wrong done to the plaintiff, vindication
―sets the record straight‖, restores the plaintiff‘s standing in the community and, ideally,
assuages any desire for revenge.137
While the UDA provides for the resolution of disputes without litigation through
an ―offer of amends‖ and ―apologies‖ regime,138
the law does not go far enough to
attain full vindicatory potential. Although the UDA declares the provision of ―effective
and fair remedies‖139
as one of its four objects, it does not specifically refer to
―vindication‖ nor does the Act contain any guarantees of vindication or correction if the
135 Interestingly, WA was prepared to introduce the public interest/public benefit requirement if it was
the price of national uniformity‖: see WA Defamation Law Reform Committee Report (September
2003), above fn 133, Para 34.
136 Gatley on Libel and Slander, 8th Edn (1981), Sweet & Maxwell, London Para 203. For a judicial
discussion, see Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, at
399. See also NSWLRC Report No 75, above fn 49, Para 2.35:
Where, overall, [the opinions others hold of a person‘s character] are favourable, the law
protects, in a defamation action, the esteem, goodwill or confidence which they generate:
Bower GS (1923), A Code of the Law of Actionable Defamation, 2nd ed, Butterworth & Co,
London, at 243.
137 NSWLRC Report No 75, above fn 49, Para 2.5 (references omitted)). The Commission adds:
Vindication does not come from a finding that a publication is defamatory. To determine that
the publication reduces the plaintiff‘s standing in the eyes of the community in itself does
nothing to restore the plaintiff‘s reputation in that community. Only a finding that what was
published is false can do so (Para 2.6).
The Commission states that:
[Based on the discussion in Para 2.6 and Chapter 4 of the Report] a defamation action ought to
promote express findings on the issue of truth or falsity if it is effectively to vindicate the
plaintiff‘s reputation. Vindication ought not be left, as it currently is, to an inference drawn
from the size of the damages award (Para 2.8).
The Commission also states:
Once falsity is made an ingredient of the cause of action, every judgment for the plaintiff will
necessarily involve a finding that the imputations (of statements of fact) are false – except
where the plaintiff says only that the imputation does not relate to a matter of public interest.
Accordingly the plaintiff need not generally point to the size of the award to claim restoration
of reputation, but need only point out that the judge found the issue of falsity in his or her
favour (Para 2.9).
138 See Part 3 UDA, sections 12-20. See also Australian Press Council (2006), Annual Report No 30, 30
June, at 9:
Early indications are that the emphasis in the legislation on restoring reputation, rather than on
damages, has led to a significant increase in the number of matters settled early in the process.
139 Section 3(c) UDA. The other three objects listed in section 3 are: (a) to enact uniform legislation; (b)
to ensure free speech is not unduly constrained; and (c) to promote speedy and non-litigious dispute
resolution.
25
defendant is found liable. This thesis will argue for a greater prominence for defamation
law‘s vindicatory aim.140
5. Overview of chapters
A brief account of the chapters of this thesis is set out here. The introductory and
concluding chapters perform their traditional functions of setting the stage for the
discussion and drawing it to a conclusion – they are contained in Parts I and IV. The
eight chapters in between are collected together into two groups – Part II and Part III.
Part II examines certain fundamental threshold matters, whilst Part III focuses
specifically on the problems inherent in the current legal regime, and the recommended
solutions and model legislative provisions.
Part II – Threshold matters
Given that the primary concern of this thesis is to propose reforms to address
inadequacies in Australian defamation law‘s truth defence, so as to enhance freedom of
speech, two threshold questions arise. One is, what does ―freedom of speech‖ mean?
The other is, what does ―truth‖ mean? Both terms have a seductive appeal and are often
invoked by the media to justify publication, even of harmful matter of questionable
public interest value.141
These two terms – ―freedom of speech‖ and ―truth‖ – will be
examined in Chapters Two and Three, respectively. Chapter Two discusses the
theoretical justifications for freedom of speech and locates the relevance of truth in that
scheme. Chapter Three examines the meaning of ―truth‖ in three settings pertinent to
the thesis – in philosophy, law and in journalism. The truth defence lies at the
confluence of two discourses – law and journalism – and the philosophical notion of
truth provides a critical reference point for any discussion on their interaction. ―Truth‖
140 See Chapter 9 heading 4.5.
Note also that ―what plaintiffs most want is public vindication of their reputation‖: see Chesterman
(2000), above fn 85, at 169 (italics added). The NSW Law Reform Commission states that except in
limited circumstances ―the most obvious form of protection for reputation is some public vindication
of it‖: Report No 75, above fn 49, Para 2.5. See also NSW Attorney-General‘s Task Force on
Defamation Law Reform (2002), ―Defamation Law – Proposals for Reform in NSW‖, at 3. The chair
of the WA Defamation Law Reform Committee Wayne Martin QC was quoted as saying:
The important objective was to have uniform laws in a country where the media is national and
business is increasingly national. The Act gives a clear statement of the law. People know
where they stand. One would hope that some of the quainter parts of the law will fade into
oblivion and we can get on with what the law is about, protecting and vindicating reputation,
rather than pursuing large claims for pots of gold (italics added): Lang M (2006), ―Common
sense cuts through logjam of defamation reform‖, The West Australian, 23 January, at 17.
141 See Chapter 2 heading 1 (Introduction).
26
constitutes the pith of philosophy, a discipline which boasts an illustrious tradition of
intellectual exercise that far exceeds legal and journalistic inquiry into truth.142
Part III – Problems and solutions
Chapter Four will set the scene for the discussion of the problems and solutions that are
examined in detail in Chapters Five to Nine. In Chapter Five this thesis embarks on its
first reform topic by examining a pivotal ―burden‖ question arising at the outset of the
defamation action. An argument is advanced in that chapter for a reversal of the burden
so that in cases involving public figures who are suing media defendants on a
publication concerning a matter of public concern the plaintiff should carry the burden
of proving falsity. Chapter Six is devoted to further defining the circumstances in which
such a burden reversal should operate. Chapter Seven will examine issues raised by the
determination of defamatory meaning while Chapter Eight considers the full range of
truth defences that are available under the UDA and at common law. Chapter Nine
discusses some remaining hurdles for media defendants, among them, difficulties
presented by the onus and standard of proof. Chapter Nine also advances an argument
for court-ordered corrections.
6. Conclusion
Notwithstanding the UDA reforms, the truth defence is fraught with difficulty and may
―in some circumstances not be an attractive one for the media, even where it is
confident that the material published is correct.‖143
The following pre-UDA observation
by Armstrong et al is typical of a view held by many commentators and which, in the
writer‘s view, remains valid today:
The difficulty of legally proving truth constitutes ‗a powerful brake on public debate and
the flow of information by underscoring the wisdom of caution and self-censorship‘. Such
censorship may have a ‗chilling effect‘ not only on false or inaccurate publications, but also
on true publications‖ (italics mine, footnote references omitted).144
While there can be no justification for a defamation regime that condones or
fosters the publication of false or inaccurate material,145
it is a matter of concern when
142 See Chapter 3 heading 2.
143 Butler and Rodrick (2007), above fn 3, at 52. The authors made the same observation in their pre-
UDA edition of the same text: see Butler D and Rodrick S (2004), Australian Media Law, 2nd Edn,
Lawbook Co, Pyrmont, NSW, at 52.
144 Armstrong et al (1995), above fn 112, at 31; Barendt et al (1997), above fn 12, at 67–68.
145 Note, for instance, the classic suggestion that ―in the interests of freedom of speech, actions for
defamation should have no place in the law‖: ALRC Report No 11, above fn 6, Para 30. The report
attributes this view to a judge in the United States:
27
material that is true and of public interest remains unpublished. The introduction in
2006 of the uniform defamation law regime presented a unique opportunity to examine
the truth defence. In the event, the reforms generally did not go far enough. This may be
attributed to the ―considerable pressure‖146
under which the reforms were produced – in
particular the Federal Attorney-General‘s ultimatum to the States and Territories to
introduce uniform laws147
– and the conflicts between interested parties.148
The result,
In 1962 Mr Justice Black, of the United States Supreme Court, proffered the opinion that no
law imposing legal sanctions upon freedom of speech was compatible with the protection of
freedom of speech and of the press, contained in the First Amendment to the United States
Constitution: ―Justice Black and the First Amendment ‗Absolutes‘: A Public Preview‖, (1962)
37 NYULR 549, at 557-8.
146 Pearson M (July 2007), above fn 45, at 41.
147 Ruddock P (2003), ―Australian government pushes for uniform defamation laws‖, Media Release
R026/2003, 14 November. The Federal Attorney-General subsequently released a Draft National
Defamation Bill – ―Outline of possible national defamation law‖ (March 2004). He set a further
deadline of July 2004 for the States and Territories to agree on the new laws and threatened to
override them if they did not agree: see Saunders M and Morris S (2004), ―Ruddock lays down libel
law deadline‖, The Australian, 17 March, at 2; Pearson (July 2007), above fn 45, at 41, refers to the
―considerable pressure on attorneys-general by the Federal Government‖ and others. As a result of
the decision by the States and Territories to introduce uniform national defamation law the federal
government ―pulled back from its threat to introduce a national defamation law‖: Ryan (February
2006), above fn 72, at 1.
148 In July 2004 the Standing Committee of Attorneys-General (SCAG) Working Group of State and
Territory Officers released a ―Proposal for Uniform Defamation Laws‖. The Federal Attorney-
General Philip Ruddock said this document ―failed to address significant issues and demonstrates the
lack of commitment by the States to achieving a genuine uniform law‖: Ruddock P (2004), ―State
defamation paper falls short of mark‖, Media Release 135/2004, 30 July. Subsequently, NSW
Attorney-General Bob Debus said Mr Ruddock‘s ―proposal for a single national law proposes no
solution…more than create a ninth jurisdiction‖: see ―Ruddock‘s ninth law‖ (2004), Letter to the
Editor, The Australian, 5 August, at 10. The States and Territories Attorneys-General subsequently
described Mr Ruddock‘s push as ―a cynical attempt to undermine and criticise the work of
collaborating states in the lead-up to the federal election‖: see Hulls R, Jackson J, Stanhope J,
Welford R, McGinty J, Atkinson M, Debus B and Toyne P (2004), ―Defame old story‖, The
Australian, 12 August, at 11. On November 5, 2004 the States and Territories Attorneys-General
released the Model Defamation Provisions (States and Territories Model Provisions – d04), but Mr
Ruddock reportedly said the proposed laws fell short of what was needed: Author Unknown (2004),
―States propose libel law shake-up‖, The Weekend Australian (AAP Report), 6-7 November, at 6;
and Williams R (2004), ―Ruddock in clash with States over defamation‖, The West Australian, 6
November, at 8. Subsequently the situation was described as a ―deadlock‖ between Mr Ruddock and
Mr Debus: see Merritt C (2005), ―Push for court-ordered corrections‖, The Australian (Media), 24
March, at 21. Australian journalism‘s peak body the Media, Entertainment and Arts Alliance
(MEAA) said the proposed laws:
…risk imposing more restrictions on what we can report, not less. The state governments have
put up a uniform proposal that avoids the extreme measures in the federal bill: Warren C
(2005), ―Freeing up the media‖ (Editorial), The Walkley Magazine, Issue 31 February/March,
at 4.
The States and Territories subsequently ―presented a compromise proposal to the federal
Government aimed at ending the stand-off over the structure of the uniform defamation laws‖:
Merritt C (2005), ―States offer compromise on defamation‖, The Australian, 19 May, at 17. For
conflicting views as to who should be credited for hastening the moves towards uniform defamation
laws see, Merritt C (2005), ―Ruddock drove states to accord on defamation‖, The Australian, 15
December, at 14; and Herman J (2005), ―Ruddock‘s role overplayed‖ (Letter to Editor), The
Weekend Australian, 17-18 December, at 16.
28
crudely put, was a ―probably defective‖149
legislative ―bare skeleton‖ based on ―the
lowest common denominator‖150
and ―which appears to have been cobbled together in
the east.‖151
One State Attorney General has conceded that sacrifices were made.152
Clearly the reform emphasis was heavily on achieving uniform legislation,153
rather
than on reforming specific contentious aspects of the substantive law. This outcome has
met with scepticism and has been described as a ―hodge-podge‖.154
While the UDA
reforms included a reform of the truth defence, this reform has gone no further than the
attainment of agreement to abandon the truth plus defences in favour of the truth alone
defence (based on section 29 of the Model Provisions). There has been no specific
move – either in the Model Provisions, or in defamation reform discussions generally –
towards lowering the high threshold the law requires the media defendant to pass in
seeking to rely on the truth defence, or in standardising the truth-based defences
available at common law.155
149 See the quotation attributed to South Australia‘s Hon V Chapman, Defamation Bill 2005 (SA),
Second Reading, Debate, Hansard, 13 September 2005, at 1840ff, in below fn 150.
150 See Hon V Chapman, Defamation Bill 2005 (SA), Second Reading, Debate, Hansard, 13 September
2005, at 1840ff:
[The Defamation Bill 2005 (SA)] is probably defective in that it does not cover the field
completely with respect to having a uniform defamation law of a high standard which is able to
operate and which covers all of the matters which are important in this area. We have a
negotiated settlement between the states which really is the lowest common denominator in
relation to achieving uniformity. I expect and hope that this government or subsequent
governments will carefully monitor this legislation…to ensure that we actually have a very
effective system, not just a bare skeleton from which to start (italics added).
151 See Hon Sue Walker, Defamation Bill 2005 (WA), Consideration in Detail, State Legislative
Assembly, Hansard, 15 September 2005, at 5486:
That [the lack of a correction order from a judge] is another gaping hole in this bill, which
appears to have been cobbled together in the east. It is disappointing that there is no provision
in the bill for a correction order.‖
152 See Hon Jim McGinty, Defamation Bill 2005 (WA), Consideration in Detail, State Legislative
Assembly, Hansard, 15 September 2005, at 5486:
Yes, and I guess we sacrificed some aspects a little as we proceeded with the attempt to
achieve national uniformity on this issue (italics added).
153 The Australian Press Council described it as ―the real priority‖: see Australian Press Council (1998),
―Submission of the Australian Press Council to the Federal, State and Territory Attorneys-General‖,
13 October.
154 Ackland R (2005), ―Correction not cash‖, The Walkley Magazine, Issue 32 April/May, at 37:
The latest effort is a reworked hodge-podge of the existing common law and legislation. This is
not to say that some of the proposed changes are unwelcome, but underpinning the edifice
there remains a highly legalistic, slow, expensive and outdated method to achieve a result.
155 Note that section 2 of the Defamation Act 2005 (WA) provides that the Act does not affect the
operation of the general law in relation to this tort except as provided expressly or by necessary
implication. For a publisher‘s response to this point see The West Australian (2006), ―Free speech
still hobbled under uniform defamation law‖ (Editorial), 23 January, at 16:
Under WA law media proprietors have always been protected from defamation claims if they
can prove what they publish is true, but the practical reality is that the truth can be difficult,
even impossible, to prove in court. Though the new law is a step in the right direction, it still
puts an unfair burden on the media to prove the truth of the offending material. The boot
29
Whilst there has been considerable support for the truth alone defence, including
from ―most media organizations‖,156
substantial difficulties157
in successfully deploying
the truth defence remain. The primary contention of this thesis is that there should be an
overall lessening of the burden currently imposed on the media on the issue of the truth
of the defamatory material.158
should be on the other foot – it should be up to the person suing for damages to prove that the
material was false (italics added).
156 For a range of views in support of the truth alone defence see: McKinnon K and Herman JR (August
2004), ―Uniform defamation law‖, Australian Press Council News Vol 16 No 3, at 7. This view was
echoed in a message to State Premiers and the Territory Chief Ministers following the release of the
Model Provisions: see Australian Press Council News (February 2005), ―Defamation‖, Vol 17 No 1,
at 4. See also Day M (2005), ―Hopeful signs on the road to defamation reform‖, The Australian, 17
March, at 22. See also the ACT Report on Defamation (Community Law Reform Committee for the
ACT Attorney-General) which cites the following groups as some advocates of the truth alone
defence – Australian Society of Authors; John Fairfax Group; and Free Speech Committee: see
Chapter ―Reform of the Substantive Law of Defamation‖. See also Cameron C (2004), ―Media
companies‘ wish list‖, The Australian, 15 April, at 19.
157 This difficulty is summed up by a lawyer-journalist, Chris McLeod – see McLeod C (May 2000),
―ACT Defamation Reform‖, Australian Press Council News Vol 12 No 2, at 1:
Let‘s not get carried away with truth as a defence. It‘s just too simplistic to say ―publish what
is true and you won‘t have a problem.‖ This puts an incredible onus on a publisher and I don‘t
think there are many outside journalism who appreciate just how difficult it is…the reality is if
we had to prove the absolute truth of everything we published we probably wouldn‘t publish
anything. That‘s because truth is a little like beauty – it‘s in the eye of the beholder.
158 For a discussion on the ―mixed message‖ from the High Court on the reasonableness requirement on
the belief in the truth of a publication in see: NSW Attorney-General‘s Task Force Defamation Law
Reform, Defamation Law – Proposals for Reform in NSW (2002), at 26-27. Retrieved 19 January
2005, from <http:www.lawlink.nsw.gov.au/report/lpd_reports.nsf/pages/def_law_proposal>
31
CHAPTER 2
Freedom of speech
Since in this world liars may win belief,
Be sure of the opposite likewise –
that this world
Hears many a true word and believes it not.1
To assert freedom of expression under the law
is to make a statement exhaustive of a wide range of possibilities
including comprehensive censorship. A person may say and write what he pleases
except in so far as he may not.2
1. Introduction – why examine freedom of speech?
While this thesis specifically concerns the strictness of the defence of truth in
defamation law and legal reform to alleviate this strictness for the media, at a broader
level this thesis can be characterised as being about freedom of speech itself. That is, by
proposing reforms that enable the media to more readily satisfy the demands of the truth
defence we would, in effect, set the stage for the attainment of a higher level of freedom
of speech. The treatment of defamation actions, as prominent free speech scholar Eric
Barendt has noted, ―is central to the application of the free speech principle.‖3 This
principle provides a useful basis for an examination of the current truth defences and the
proposed solutions.
Given that the primary concern in this thesis is to propose reforms to address
inadequacies in Australian defamation law‘s truth defence, so as to enhance freedom of
speech, two threshold questions then arise. One is, what does ―freedom of speech‖
mean? The other is, what does ―truth‖ mean? Both terms have a seductive appeal and
are often invoked by the media to justify publication, even of harmful matter of
questionable public interest value.4 These two terms – ―freedom of speech‖ and ―truth‖
– will be examined in this and the following chapter.
1 Aristotle, ―Rhetoric‖ in Rhetoric and on Poetics (1981), Franklin Library, Franklin Center,
Pennsylvania, at 129.
2 Brown & Ors v Members of the Classification Review Board of the Office of Film and Literature
Classification (1998) 154 ALR 67, French J, at 76.
3 Barendt E (1985), Freedom of Speech, Clarendon Press, Oxford, at 314 (italics added).
4 Some common examples of such matter are those that identify sexual assault victims, underage
persons or other vulnerable members of society caught up in the justice system, or disclose
information that is otherwise of an intensely private or confidential nature: see Jane Doe v
32
―Freedom of speech‖ arises for consideration because it has a close nexus with the
truth theory generally, and with defamation law, in particular. Why this is so is briefly
explained here. Defamation law‘s conventional dichotomy is represented as being one
between two primary ―competing interests‖5 or ―public interests‖.
6 Broadly stated these
two interests are the protection of reputation on the one hand, and freedom of speech on
the other, as expressed unanimously by the High Court in the following principle:
The purpose of the law of defamation is to strike a balance between the right to reputation
and freedom of speech.7
The precise formulation of the principle has differed between the cases and
between jurisdictions in respect of two matters in particular. One is the descriptor given
to the two competing matters, that is, whether they are ―public interests‖8 or
Australian Broadcasting Corporation & Others [2007] VCC 281; and R v WA Newspapers Ltd &
Another; Ex Parte A-G (WA) [2005] WASCA 161. An illustration of more extreme proportions
involves a more recent phenomenon – Internet Radio or Net FM – where the operators wilfully set
out to be ―rude and offensive‖: see Attard M (2007), Media Watch, ABC television, ―Radio Without
Rules‖, 4 June (transcript). Here the NetFM General Manager, Nicholas Baltinos, in response to the
interviewer‘s question whether the program ―sets out to be rude and offensive‖ answers:
It‘s the angle we chose, no one else is doing it. Everyone out there is doing boring old radio.
The usual morning crews of two, three, four people are doing the usual run of the mill stuff you
hear on every other station. We decided to take a bit, not a bit but a lot of risqué angle and test
it out, see what happened and it was welcomed.
5 See Australian Capital Territory Law Reform Commission (1995), Defamation, Report No 10,
Community Law Reform Committee for the Attorney-General, for a discussion on ―competing
interests‖. The report, in the Introduction, states that the Committee takes as its ―starting point‖ the
International Covenant on Civil and Political Rights which gives expression to a number of
―fundamental rights‖. The original terms of the defamation reference issued on 7 September 1990
state that there is a need to strike a contemporary balance ―between two competing rights‖. The two
ICCPR provisions referred to are:
Article 17 (1): No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2)
Everyone has the right to the protection of the law against such interference or attacks.
Article 19(1): Everyone shall have the right to hold opinions without interference. (2)
Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice. (3)
This exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary: For respect of the rights or reputations
of others; For the protection of national security or of public order (order public), or of public
health or morals.
See similar provisions in various national instruments, below fn 32.
6 New South Wales Law Reform Commission (October 1995), Defamation, Report No 75, Para 2.1.
7 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, at 568. It would also be useful
to note the discussion in Chapter 1 heading 4.2 entitled ―Modern defamation law rationales‖.
8 See NSWLRC Report No 75, above fn 6, Para 2.1. In Theophanous v Herald and Weekly Times Ltd
(1994) 182 CLR 104, Mason CJ, Toohey and Gaudron JJ at 131, state:
…the common law of defamation has endeavoured to achieve an acceptable balance between
the public interest in giving effect to freedom of speech and the competing public interest in
protecting the reputation of individuals who are defamed.
33
―fundamental rights‖9 or neither.
10 The other concerns the nature of the relationship
between the two, that is, whether it is merely an ―interaction‖,11
or a ―collision‖.12
Whatever terminology is used, the essence of the view as to which two interests or
rights are involved is widely accepted13
and endorsed by judges, parliamentarians and
law reformers.14
That there is some degree of conflict between the two interests or
rights is also well recognised:
The law [of defamation] presents conflicts between two well-established rights: freedom of
speech and the right to reputation.15
The authorities show that the rights in conflict may be described in various ways.
For example:
The conflict is between two public interests: on the one hand, the interest in the public
protection of individual reputation and the provision of an orderly means of achieving it by
process of law; on the other hand, the interest in the facilitation of the public‘s right to
know and in the discovery of truth.16
This variation in the formulation need not detain us, however, because the
primary aims in this chapter are: (a) to show that there is a significant conflict, with the
protection of reputation on one side, and freedom of speech on the other; and (b) to
The term ―public interest‖, however, has ―never been defined‖: Reynolds v Times Newspapers Ltd &
Ors [1999] 4 All ER 609, Lord Nicholls, at 615.
9 In Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 612, referred to
it as ―the interaction between two fundamental rights: freedom of expression and protection of
reputation.‖
10 In Lange v Atkinson [1997] 2 NZLR 22, Elias J, at 30 adopted a neutral reference:
The modern law of defamation represents compromises, which seek to achieve balance
between protection of reputation and freedom of speech.
11 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 612.
12 In Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 627, referred to it
as ―the colliding right of free speech and the right to reputation‖.
13 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Cooke, at 641:
The constitutional structures vary, but the pervading ideals are the same. Freedom of speech on
the one hand and personal reputation on the other, have the same importance in all
democracies.
14 As noted by Gillooly M (2004), The Third Man: Reform of the Australasian Defamation Defences,
Federation Press, Sydney, at 20 (authorities omitted). Gillooly‘s view that this dichotomy is
―fundamentally flawed‖ in the context of his ―third man‖ analysis, is not relevant for present
purposes.
15 Barendt E (2007), Freedom of Speech, 2nd Edn, Oxford University Press, Oxford, at 198. Barendt
also notes that few areas of the law present ―such baffling problems‖ for the application of a free
speech principle (ibid), while Schauer notes that these ―opposing considerations‖ is continually an
issue in formulating defamation law rules, and ―no complete accommodation is possible, of course,
because of the very incompatibility of the basic principles‖: Schauer F (May 1980), ―Social
foundations of the law of defamation – a comparative analysis‖, Vol 1 No 1, Journal of Media Law
and Practice 3, at 3.
16 NSWLRC Report No 75, above fn 6, Para 2.1 (italics added). The term ―right to know‖ was
discussed in Chapter 1. The meaning of ―truth‖ from the perspective of philosophy, the courts and
journalism is examined in the next chapter.
34
examine the place of ―truth‖ in the context of freedom of speech. No pretence is made
that the discussion in this chapter constitutes a comprehensive explication of the issue.
Rather, it is hoped that the discussion here provides a useful foundation for a
consideration of the broader issues considered in this thesis. It is also noteworthy that,
notwithstanding the significance of a freedom of speech principle, in Australia, unlike
in the United States, there is a paucity of cases that examine freedom of speech issues:
Because the number of cases in Australia that directly address free speech issues is so few
and the period of time in which they have come about is so short, drawing reliable
empirical conclusions as to ―who benefits‖ and as to historical trends on this issue is clearly
not feasible.17
A further limitation is evident in Chesterman‘s observation that in developing the
notion of an implied freedom of political communication, the High Court ―has not
expressly relied on any political or philosophical theory of freedom of speech.‖18
Notwithstanding claims that Australia subscribes to freedom of speech, such as through
being a signatory to the International Covenant on Civil and Political Rights, and the
occasional media optimism,19
the reality is sobering:
Despite an all-pervasive liberalism, the idea of freedom of speech has not been a central
value of Australian political culture. In fact, a look at the relationship between law and free
speech since Federation suggests that it would be optimistic even to imply a commitment to
freedom of speech.20
17 Chesterman M (2000), Freedom of Speech in Australian Law: A Delicate Plant, Ashgate Dartmouth,
Hants, England, at 308. For list of cases that consider the Australian implied freedom of political
communication see 309-315.
18 Chesterman (2000), above fn 17, at 19. He notes further:
In so far as a theoretical underpinning can be inferred, it can usefully be identified by reference
to the theories explored in the many decisions and commentaries elaborating upon the First
Amendment to the American Constitution (ibid, italics added).
19 See Australian Press Council (October 2006), State of the News Print Media in Australia, Report,
Sydney, at 65, where the council notes that ―Australia is among the most liberal societies in the
world‖ and it cites international rankings by media monitors such as Freedom House and Reporters
sans Frontieres, which ―note the Australian press is fundamentally free‖. See also The Australian
(2006), ―Free press makes society free‖, The Australian (Editorial), 28 March, at 16, where a
national newspaper expresses the view that ―comment and analysis in print, on radio and television,
and increasingly via the Internet, have never been more vigorous and critical.‖ As will be argued
below (see heading 4), however, the prevailing media consensus is that the freedom of speech
climate in Australia has come under increased pressure in recent years.
20 Jones M (1997), ―Free speech revisited: The implications of Lange and Levy‖, Vol 4(1), Australian
Journal of Human Rights 188, at 188. The author notes also, at 188-189:
The two free speech cases [Lange and Levy] represent a retraction from the strong free speech
position which had been assumed to emanate from the Constitution…With no Bill of Rights,
the history of freedom of speech in Australia is one of occasional suggestion that the right to
freedom of expression should be recognised, and many examples of specific interference with
freedom of speech.
The author‘s claim that there is no Bill of Rights must be qualified in light of the subsequent
introduction of the Human Rights Act 2004 (ACT), and the Charter of Human Rights and
Responsibilities Act 2006 (Victoria).
35
Another point to note here is the vexed question as to what the aim of defamation
law is. This question was discussed in the previous chapter where various, often
conflicting, objectives were canvassed, and the broad observation was made that the
modern defamation law rationales still lack consistency.21
For the purpose of the present
chapter, three justifications may be offered in support of the contention that freedom of
speech merits closer examination in this work. Each of these justifications is discussed
in turn next.
1.1 Freedom of speech an important value recognised by law
There is abundant judicial authority in Australia22
and elsewhere that exalts freedom of
speech as a fundamental value or a right. The European Court of Human Rights, in one
of its first major judgments23
on Article 10, the free speech provision, of the European
Convention on Human Rights, held:
Freedom of expression constitutes one of the essential foundations of a society, one of the
basic conditions for its progress and for the development of every man.24
The freedom of speech principle can be found in a number of important
―locations‖. It is a principle contained in international law – the International Covenant
on Civil and Political Rights.25
Australia acceded to that covenant although it did not go
so far as to enshrine it in Commonwealth legislation.26
However, two Australian
jurisdictions have adopted the principle.27
Freedom of speech has been described as a
principle of the common law.28
However, freedom of speech has also been said to have
21 See Chapter 1 heading 4.2.
22 See especially the ―free speech cases‖: see below fn 31.
23 Handyside v UK (1976) 1 EHRR 737.
24 Handyside v UK (1976) 1 EHRR 737, Para 49. Subject to paragraph 2 of Article 10, it is applicable
not only to ―information and ideas‖ that are favourably received or regarded as inoffensive but also
to those that offend, shock or disturb the state or any sector of the population. Such are the demands
of pluralism, tolerance and broadmindedness without which there is no ―democratic society‖.
It is convenient to note here that the terms ―freedom of speech‖ and ―freedom of expression‖, in the
present context, are treated as equivalent. On this point see heading 2.1 below.
25 See above fn 5.
26 Although Australia acceded to the Optional Protocol to the 1966 International Covenant on Civil
and Political Rights, thereby undertaking in international law to guarantee to all Australian residents
the right of freedom of expression established by Article 19(2) subject to a number of limitations set
out in Article 19(3) ―this created no enforceable right in Australian domestic law‖: see Chesterman
(2000), above fn 17, at 3.
27 See above fn 20.
28 NSWLRC Report No 75, above fn 6, Para 2.1. For a more recent affirmation of freedom of speech in
Australia see the decision of the Full Court of the Federal Court of Australia in Evans v State of New
South Wales [2008] FCAFC 130, French, Branson and Stone JJ, Para 7:
36
―limited status‖.29
To some extent freedom of speech is also a constitutional principle.30
In Australia it came to be recognised through a series of landmark High Court
decisions between 1992 and 1997.31
In England the constitutional right to freedom of
expression was identified much earlier, and more emphatically.32
Less overt instances
of recognition of the value of free speech also exist within statutory and common law
principles.33
Australia is, however, still some way off from enthusiastically embracing freedom
of speech.34
In terms of political or philosophical theory, freedom of speech receives
We have applied a principle of interpretation in favour of that freedom which has been
accepted by the Courts of this country since federation and which has its roots deep in the
common law inherited from the United Kingdom at the time of colonisation.
See also Hoffmann LJ in R v Central Independent Television plc [1994] Fam 192 (CA), at 203,
where his lordship expressed reservations about the wisdom of creating judge-made exceptions in
any area of human rights like freedom of speech. Barendt (2007), above fn 15, at 41, writes:
English common law, therefore, does not now treat freedom of speech as a merely residual
liberty. It is a legal principle, to which courts must pay attention when interpreting, say, public
order or obscenity legislation, or when considering the defences to an action for libel or breach
of confidence or contempt of court proceedings.
29 Barendt (2007), above fn 15, at 42. Note also the view of Brennan J, in Nationwide News Pty Ltd v
Wills (1992) 177 CLR 1, at 48, that ―at common law there is no right to free discussion of
government‖ (italics in original).
30 NSWLRC Report No 75, above fn 6, Para 2.1.
31 For a discussion of Australia‘s constitutional implied freedom of political communication, see what
Chesterman (2000), above fn 17, at 15 refers to as ―the seven major ‗free speech‘ cases in
constitutional law which gave birth to the constitutional principles‖: Nationwide News Pty Ltd v
Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR
106; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian
Newspapers Ltd (1994) 182 CLR 211; Cunliffe v Commonwealth (1994) 124 ALR 121; Lange v
Australian Broadcasting Corporation (1997) 189 CLR 520; and Levy v The State of Victoria & Ors
(1997) 189 CLR 579.
32 See Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 628, citing
Broome v Cassell & Co Ltd [1972] AC 1027, Lord Kilbrandon, at 1133A-B. In Reynolds Lord Steyn
also noted that the ―constitutional dimension of freedom of expression‖ was reinforced by the
Human Rights Act 1998 (UK), which incorporated the European Convention on Human Rights into
the English legal order thus reinforcing the ―constitutional dimension of freedom of expression‖ and
creating a ―new landscape…of great importance‖ (at 628). The incorporation of the European
Convention occurs through Section 12(4) Human Rights Act, which provides that the court ―must
have particular regard to the importance of the Convention right to freedom of expression‖.
Article 10 of the European Convention, inter alia, provides:
Everyone has the right to freedom of expression.
33 Chesterman (2000), above fn 17, at 4, observes, however, that to find freedom of speech in
Australian law it is not enough just to investigate the implied constitutional freedom of political
communication, as the following cases show: Commonwealth v John Fairfax & Sons Ltd (1980) 147
CLR 39, at 52; and Ballina Shire Council v Ringland (1994) 33 NSWLR 680.
34 See Chesterman (2000), above fn 17, at 73:
Since Lange, it [the implied freedom] is a good deal more docile, but might well merit the label
―awkward‖ rather than wayward. It is docile by virtue of the Court‘s insistence that it protects
freedom of political communication only so far as ―text and structure‖ of the Constitution
necessarily require, and with significant leeway for legislatures to restrict this freedom in the
pursuit of countervailing purposes.
37
protection in its own right.35
While the tension between the two interests – the
protection of reputation and freedom of speech – is obvious, it may be asked whether
one deserves a higher priority. For instance, it is said that ―[b]oth values are important.
Both are public interests based on fundamental human rights.‖36
The High Court has
referred to freedom of speech as having ―cardinal importance‖ even if the comment is
―mistaken or wrong-headed‖.37
American law is less ambivalent about freedom of
speech in that equation. There, ―the balance must favour speech and the press, a pre-
ordained result not necessary in English law‖38
or for that matter, in Australian law.
That said, however, the English courts appear to have moved closer towards the
American ―pre-ordained result‖, following the House of Lords decision in Reynolds v
Times Newspapers, which held that when there is doubt the courts should favour
freedom of speech.
Above all, the court should have particular regard to the importance of freedom of
expression. The press discharges vital functions as a bloodhound as well as a watchdog.
The court should be slow to conclude that a publication was not in the public interest and,
therefore, the public had no right to know, especially when the information is in the field of
political discussion. Any lingering doubts should be resolved in favour of publication.39
This position was reaffirmed more recently in Jameel where the House of Lords
acknowledged that in Reynolds it had attempted to redress the balance ―in favour of
greater freedom for the press to publish stories of genuine public interest‖.40
As further
35 Chesterman (2000), above fn 17, at 2 (italics in original).
36 Lange v Atkinson [1997] 2 NZLR 22, Elias J, at 30. The judgment was subsequently approved on
appeal: see Lange v Atkinson [1998] 3 NZLR 424 (NZCA); and on further appeal: Lange v Atkinson
[2000] 3 NZLR 385, at 394-5, 399. See also Gillooly (2004), above fn 14, at 2 fn 6.
37 Gallagher v Durack (1983) 152 CLR 238, Gibbs CJ, Mason, Wilson and Brennan JJ, at 243.
Holding such a view, however, does not necessarily ensure that judgment will favour the free speech
proponent. In Gallagher v Durack, in spite of the majority‘s advocacy of freedom of speech, their
decision ―implemented a conflicting principle‖: see Chesterman (2000), above fn 17, at 12.
38 Schauer (May 1980), above fn 15, at 13.
39 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 626 (italics added).
See further Barendt‘s observation that the English common law ―does not now treat freedom of
speech as a merely residual liberty‖: Barendt E (2007), Freedom of Speech, Oxford University Press,
Oxford, at 41. Barendt notes further, at 41-42:
It (freedom of speech) is a legal principle to which courts must pay attention when interpreting,
say, public order or obscenity legislation, or when considering the defences to an action for
libel or breach of confidence or contempt of court proceedings…where free speech is
constitutionally guaranteed, the argument should normally be whether the is a sufficiently
strong justification for restricting its exercise; either there is a presumption in favour of free
speech, or at least it is assumed that it is entitled to as much weight in the completing interest,
say, in personal privacy or in reputation.
40 Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, Lord Hoffmann, at 1292. In the
same judgment, Baroness Hale, at 1322-1323, offers a clue as to the contemporary English position
that is informed by ―modern circumstances‖:
Among those modern circumstances is the importance now attached in all developed
democracies to freedom of expression, especially on matters of political interest. South Hetton
38
observed in Reynolds, freedom of expression against the backdrop of the Human Rights
Act 1998 (UK) is ―the starting point today‖41
for any consideration of defamation law.42
In that case, freedom of expression was described as ―a right based on a constitutional
or higher legal order foundation‖.43
Butler and Rodrick go even further in recognising
the important place of freedom of speech in media regulation discourse:
In order to both understand and critically evaluate media regulation, a consideration of free
speech is essential.44
It should come as no surprise that the media invariably argues that when public
interests compete, freedom of speech should take precedence. The media finds
Australian defamation law inimical to freedom of speech;45
an ineffective mechanism
(a case which held that a company is in the same position as an individual) was decided before
there was universal suffrage in this country, so before we were a proper democracy. Since then,
we have acceded to several international instruments which guarantee freedom of speech. The
most important is Article 10 of the European Convention on Human Rights, because we have
not only an international but also a domestic obligation to comply with it.
41 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 624 (italics added):
…the starting point today is freedom of expression and limitations on this freedom are
exceptions.
Earlier in the same judgment, Lord Nicholls, at 17 said:
My starting point is freedom of expression. The high importance of freedom to impart and
receive information and ideas has been stated so often and so eloquently that this point calls for
no elaboration in this case.
See also Lord Steyn‘s reference to ―the starting point‖, below fn 43.
42 Milmo P and Rogers WVH (2004), Gatley on Libel and Slander, 10th Edn, Sweet & Maxwell,
London, at 14, makes the same point.
43 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 628, where his
lordship referred to ―the backcloth against which the present appeal must be considered‖, that is,
―the reality that the Human Rights Act 1998 will soon be in force‖:
The new landscape is of great importance inasmuch as it provides the taxonomy against which
the question before the House must be considered. The starting point is now the right of
freedom of expression, a right based on a constitutional or higher legal order foundation.
Exceptions to freedom of expression must be justified as being necessary in a democracy. In
other words, freedom of expression is the rule and regulation of speech is the exception
requiring justification. The existence and width of any exception can only be justified if it is
underpinned by a pressing social need. These are fundamental principles governing the balance
to be struck between freedom of expression and defamation (at 628–629, italics added; see also
above fn 37 for similar views about the ―starting point‖).
In the same case, Lord Nichols, at 17, referred to the regard to be had also for Article 10 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms (Cmd. 8969)
and the relevant decisions of the European Court of Human Rights (sections 6 and 2):
To be justified, any curtailment of freedom of expression must be convincingly established by
a compelling countervailing consideration, and the means employed must be proportionate to
the end sought to be achieved.
44 Butler D and Rodrick S (2007), Australian Media Law, 3rd Edn, Law Book Co, Pyrmont, NSW, at 3
(italics added).
45 Macfarlane D (2002), ―Defamation laws are undemocratic: editor‖, The Australian, 5 July 2002, at 3
where the editor of The Australian newspaper quoted from his address at a media ethics conference,
describes defamation law as:
39
for protecting reputation;46
and as embodying an approach that falls far short of that
taken in the United States47
and more recently in England. A related point, in the
present context, is that freedom of speech has a fluctuating standard – one that must
take prevailing circumstances into account. This view is reflected in the reference to
―modern circumstances‖ in Jameel,48
and in the view that the balance between the
protection of reputation and the freedom of speech ―is variously struck in different ages
and in disparate contexts‖.49
So, for instance, it has been noted:
In the United States, and to a lesser extent many common law jurisdictions, the clear trend
in the last few decades has been to give increasing protection to freedom of speech to the
cost of rights or interests in reputation or privacy.50
In short, freedom of speech is an important value, and there is recognition of its
increasing, not decreasing, importance.
1.2 Freedom of speech a promoter of truth
The promotion of truth51
is one of the important rationales for freedom of speech, as the
discussion below will show, but which may be briefly noted here:
…one of the great institutionalised barriers to free speech and an open society…The
defamation laws are the single biggest impediment by a long way to new entrants in serious
public interest journalism.
The newspaper‘s view, which typifies a broader media view, is that in Australia ―reputation has the
upper hand‖: see The Australian (2005), ―Free speech is the main game‖ (Editorial), 19 May, at 10.
See also The West Australian (2006), ―Free speech still hobbled under uniform defamation law‖
(Editorial), 23 January, at 16:
Defamation laws, which aim to protect individuals from unwarranted slurs on their reputation,
have to tread a fine line to avoid stifling our right to free speech and an unfettered media.
46 See The Weekend Australian (2001), ―Defamation law‘s bad reputation‖ (Editorial), 30 June–1 July,
at 18:
Let‘s do away with the nonsense that the courts can restore or avenge reputations without
jeopardising free speech. The most efficient and democratic arbiter of truth is the court of a
fully informed public opinion.
47 Day M (2006), ―Freedom of speech undefined‖, The Australian, 12 April 2006, at 12:
…Australia‘s laws are still a million miles away from those in the US, where freedom of
speech, guaranteed by the first amendment to the constitution, is paramount.
48 See the view of Baroness Hale in Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER
1279, above fn 40.
49 NSWLRC Report No 75, above fn 6, Para 2.2. In Reynolds v Times Newspapers Ltd & Ors [1999] 4
All ER 609, at 616–617, Lord Nicholls drew attention to the contemporariness imperative when
discussing the question of when an occasion is regarded as privileged for the purpose of defamation
law:
In determining whether an occasion is regarded as privileged the court has regard to all the
circumstances…And circumstances must be viewed with today‘s eyes…The requirements at
the close of the twentieth century may not be the same as those of earlier centuries or earlier
decades of this century (authorities omitted).
50 Barendt (2007), above fn 15, at 199 (italics added). Note also the free speech protections contained
in various national and international instruments, above fns 4, 19 and 39.
51 The relevance of truth to this thesis was discussed in Chapter 1 under heading 3.
40
…the best test of truth is the power of the thought to get itself accepted in the competition
of the market.52
Hence the public interest ―in the discovery of truth‖ is pronounced as one of the
important competing interests in defamation law. 53
1.3 Freedom of speech and the media imperative
A third justification for considering freedom of speech arises from its status as a
frequently-invoked mantra, often used in an absolutist54
sense, and often emanating
from media in a manner that tends to marginalise compelling countervailing
considerations.55
Freedom of speech is not an absolute right and this is amply
manifested in national and international instruments,56
widely acknowledged
commentary,57
and in judicial statements:
In most jurisdictions in which there is a guarantee of freedom of communication, speech or
expression, it has been recognised that the freedom is but one element, though an essential
element, in the constitution of ―an ordered society‖ or a ―society organised under and
controlled by law‖. Hence, the concept of freedom of communication is not an absolute.
52 Abrams v United States (1919) 250 US 616, Holmes J, at 630, echoing John Stuart Mill. See also R v
Secretary of State for the Home Department, Ex Parte Simms [2000] 2 AC 115 (HL), Lord Steyn, at
126.
53 NSWLRC Report No 75, above fn 6, at Para 2.1. The relevant quotation is extracted above in the
text accompanying fn 16 above.
54 Walker S (2000), Media Law Commentary and Case Materials, LBC Information Services,
Pyrmont, NSW, at 5, contrasts the ―absolutist‖ approach to freedom of speech, with the ―balancing
approach‖. On the absolutist approach all speech is absolutely immune from abridgement: see
Barendt (2007), above fn 15, at 76.
55 See Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 622, where his
lordship used the expression ―compelling countervailing consideration‖. In Brown & Ors v
Classification Review Board of the Office of Film and Literature [1997] 145 ALR 464, Merkel J, at
474, used the expression ―legitimate countervailing interests‖.
56 See, for example, Articles 19(2) and 19(3) of the International Covenant on Civil and Political
Rights (ICCPR), which is extracted more fully, above fn 5. Article 19(2) provides: ―Everyone shall
have the right to freedom of expression…‖. Article 19(3) provides: ―The exercise of the rights
provided for in paragraph (2) of this Article carries it with special duties and responsibilities. It may
therefore be subject to certain restrictions…‖. Likewise Article 10(1) and 10(2), European
Convention for the Protection of Human Rights and Fundamental Freedoms 1950 as amended by
Protocol No 11 (1989); Article 13(1)-(5); Canadian Charter of Rights and Freedoms (1982), Part 1,
Sections 2(b) and (1); and Bill of Rights Act 1990 (NZ), Sections (14) and (5) – all have provisions
that correspond to Articles 19(2) and (3) of the ICCPR.
57 Note the oft-cited view of Sir William Blackstone, cited in Holsinger R and Dilts JP (1997), Media
Law, 4th Edn, McGraw-Hill, New York, at 37:
Every freeman has an undoubted right to lay what sentiments he pleases before the public; to
forbid this is to destroy the freedom of the press: but if he publishes what is improper,
mischievous, or illegal, he must take the consequences of his own temerity.
See also Brennan J in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, at 48, citing AV Dicey:
…it is ―essentially false‖ to say that "the right to the free expression of opinion, and especially
that form of it which is known as the ―liberty of the press‖, are fundamental doctrines of the
law of England [and] that our courts recognize the right of every man to say and write what he
pleases, especially on social, political, or religious topics without fear of legal penalties"
(italics added).
41
The guarantee does not postulate that the freedom must always and necessarily prevail over
competing interests of the public.58
Notwithstanding that freedom of speech may be a right, it may be overridden not
only by other rights, but also by other ―considerations‖;59
by ―such restrictions as are
prescribed by law and are necessary in a democratic society‖;60
and provided ―no
wrongful act is done‖.61
The media, not surprisingly, are not enamoured of such
qualifications, despite occasional acknowledgments of the need for restraint, for
instance when a publication concerns matters of security62
and threats to social
harmony.63
In other areas of media reporting, however, such concessions are not readily
made.64
Media commentary on freedom of speech generally, however, tends to
characterise such ―other rights or considerations‖ – or what might be called ―compelling
58 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, Mason CJ, at 142.
59 Levy v The State of Victoria & Ors (1997) 189 CLR 579, Kirby J, at 644-645:
Even in terms of individual human rights, freedom of expression, however important, is not
absolute. International statements of human rights themselves acknowledge other rights or
considerations which may conflict with free expression and which should also be respected
and upheld (italics added).
60 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 622.
61 Bonnard v Perryman [1891] 2 Ch 269, Lord Coleridge CJ, Lord Esher MR and Lindley, Bowen and
Lopes LJJ concurring.
62 See Australian Press Council State of the News Print Media in Australia, above fn 19, at 66:
The press has recognised the necessity of additional legislation to address the community‘s
concerns with the possibility of terrorism in Australia.
63 See, for instance, the position taken by Freedom House, an organization that describes itself as ―an
independent non-governmental organisation that supports the expansion of freedom in the world‖, in
the wake of the controversy involving the publication in Denmark of caricatures of Prophet
Mohammed in 2005: see Freedom House (2006), ―Freedom House Statement on Freedom of
expression and the Danish Cartoons‖ (Press Release), Washington DC, 9 March 2006. Retrieved 27
April, from <http:www.freedomhouse.org/template.cfm?page=70&release=340>
Some argue that these two core democratic principles – free expression on the one hand and respect
for religious diversity on the other – are at odds in the recent controversy over the Danish cartoons.
We disagree. At the heart of the cartoon controversy is the right, now and in the future, of an
independent and uncensored press…to comment on the issues of the day without interference from
the state or threat from discomfited or aggrieved groups. Like others, Freedom House was dismayed
by the publication of those cartoons that many Muslims have deemed offensive to their religion and
their Prophet. In their writings and depictions, journalists and artists have an obligation to respect
the values and sensitivities of religious believers and minority groups (italics added).
64 An example of such an area can be seen in what has been described as ―feeding frenzies‖ such as, for
instance, the one noted by newspaper columnist Day M (2007), ―Paddling up the creek in a glass-
bottomed canoe‖, The Australian (Media), 15 February, at 18:
…I find myself wondering why I feel so uncomfortable with this week‘s over-welling of sleaze
and slops in the form of media frenzies unleased by the death of [US celebrity] Anna Nicole
Smith and the renewed did-she-or-didn‘t-she tug of war over [convicted Australian drug
smuggler] Schapelle Corby. It‘s feeding time at the zoos that sustain our two nightly half-hours
of trash: Today Tonight on Seven and A Current Affair on Nine, and the lurid weekly comic
magazines that share the spoils, Woman’s Day, NW, Famous and New Idea…It‘s eggbeater
journalism, whipped up by the clever manipulation of people, situations, allegations, fixations
and the almighty dollar. It takes it (sic) cue from the results it gets, not from the facts of the
matter. Its sole justification lies in the next morning‘s ratings figures or last week‘s circulation.
42
countervailing considerations‖65
– primarily as obstacles to the media‘s freedom66
and
obstacles to truth-telling.67
These countervailing considerations could also be
characterised as issues concerning the respective interest being protected. For example,
the law of sub judice contempt is aimed at prohibiting the publication of material that
might prejudice a particular civil or criminal proceeding whilst that proceeding is
pending.68
While this prohibition poses a freedom of speech obstacle for the media, it is
concerned with ―the most fundamental tenet of fairness extended to accused persons,
the presumption of innocence‖.69
Likewise, the law‘s quest to protect personal
reputation is not solely a freedom of speech issue, but one that recognises that
―reputation, too, has a value‖70
and the ―protection of reputation is conducive to the
public good.‖71
Notwithstanding the need for limits to be placed on freedom of speech,
there is little doubt that without freedom of speech the media would be unable to
operate:
Without freedom of expression by the media, freedom of expression would be a hollow
concept. The interest of a democratic society in ensuring a free press weighs heavily in the
balance in deciding whether any curtailment of this freedom bears a reasonable relationship
to the purpose of the curtailment.72
65 To blend the words of Lord Nicholls in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER
609, at 622; and Merkel J in Brown & Ors v Classification Review Board of the Office of Film and
Literature [1997] 145 ALR 464, at 474.
66 See, for instance, Australian Press Council (2006), Annual Report No 30, 30 June, at 3, section
entitled ―Report on free speech issues‖.
67 See discussion in previous chapter Item 1.2 under the heading ―Does the chilling effect exist in
Australia?‖.
68 Butler and Rodrick (2007), above fn 44, at 229. See also Gallagher v Durack (1983) 152 CLR 238,
Gibbs CJ, Mason, Wilson and Brennan JJ, at 243, for a freedom of speech conflict in another
contempt of court context:
The law endeavours to reconcile two principles, each of which is of cardinal importance, but
which, in some circumstances, appear to come in conflict. One principle is that speech should
be free, so that everyone has the right to comment in good faith on matters of public
importance, including the administration of justice, even if the comment is outspoken,
mistaken or wrong-headed. The other principle is that "it is necessary for the purpose of
maintaining public confidence in the administration of law that there shall be some certain and
immediate method of repressing imputations upon Courts of justice which, if continued, are
likely to impair their authority" (italics added): R. v Dunbabin; Ex parte Williams (1935) 53
CLR, Dixon J, at 447.
69 Western Australia Law Reform Commission (June 2003), Review of the Law of Contempt, Report
No 93, at 18.
70 Gatley (2004), above fn 42, at 14.
71 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 622.
72 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 622.
43
2. Some issues in defining freedom of speech
Having identified the locus of ―freedom of speech‖ in the context of this thesis, our
focus now shifts to the limits of that concept: what does ―freedom of speech‖ mean?73
The defining of free speech is an effect and a manifestation of particular relationships of
political, social, cultural, economic and legal power over the past four centuries.74
The
search for a definition is a difficult task because the history of free speech is partly a
struggle to control its meaning.75
Scanlon provides a convenient formulation of the
principle:
The doctrine of freedom of expression is generally thought to single out a class of
―protected acts‖ which it holds to be immune from restrictions to which other acts are
subject. In particular, on any very strong version of the doctrine there will be cases where
the protected acts are held to be immune from restriction despite the fact that they have as
consequences harms which would normally be sufficient to justify the imposition of legal
sanctions.76
The term, however, is often invoked loosely to justify speech with scant attention
to the term‘s nuances and express limitations.77
The capacity of humans to know truth
through independent and critical thought characterised the Enlightenment78
during the
18th
century and it saw a distinct shift in philosophical thought within which lies the
73 Legal academic Professor Michael Chesterman in his book Freedom of speech in Australian law: A
delicate plant, above fn 17, at 1, notes the importance of establishing the meaning of ―freedom of
speech‖ at the start of his first chapter:
Freedom of speech is increasingly recognised as a value to be protected in Australian law. This
poses three important questions: what freedom of speech means, why its protection should be
thought desirable and how it may be protected in a way which does not unduly impair other
important interests.
It may be noted, however, that the answer to the question – ―what freedom of speech means‖ is not
easily found in the book and it appears to be left largely to inference.
74 Butler and Rodrick (2007), above fn 44, at 3.
75 Butler and Rodrick (2007), above fn 44, at 3.
76 Scanlon T (1972), ―A theory of freedom of expression‖, Vol 1 No 2 Philosophy and Public Affairs
204, at 204.
77 See, for example, fn 56 above.
78 The term ―Enlightenment‖ is not to be confused with the goal of Asian religious mysticism.
―Enlightenment‖ in the present context refers to the European and North American movement
flourishing in the 18th century, which stressed tolerance, reasonableness, common sense and the
encouragement of science and technology: see Bullock A, Stallybrass O and Trombley S (1988),
Fontana Dictionary of Modern Thought, 2nd Edn, Fontana Press, London, at 272. John Stuart Mill‘s
On Liberty, published in 1859, is a seminal text advocating free speech and a free press in light of
the political structure of the day and Enlightenment thought. The philosophical insights of the
Enlightenment and its concern with individual liberty till today form the backdrop for the free
speech debate: see Butler and Rodrick (2007), above fn 44, at 6. On Liberty is generally taken to
reflect the argument for free speech. Mill‘s theory contains both the basis of the doctrine and the
inevitability of its unsustainability. Mill assumed that society was monocultural and that neither class
nor gender affected his assumed level playing field. Mill believed that if each individual were free to
develop her or his potential, then society would progress to a higher state. Following Mill, liberal
theorists offered three reasons why speech should be free: see Jones M (2000), ―Free speech and the
village idiot‖ Vol 23(1) UNSW Law Journal 274, at 276-7.
44
start of contemporary free speech theory.79
This period witnessed a rejection of
knowledge derived through tradition and authority.80
Instead, the fundamental source of knowledge about the physical and human world became
reason – that is, the capacity of human beings to know truth through independent and
critical thought.81
2.1 Freedom of speech, expression, communication
Freedom of speech, freedom of expression, and freedom of communication are some of
the expressions commonly employed in discussions in the present context and these
terms are often used interchangeably.82
But do these terms mean the same thing?
―Freedom of speech‖, for instance, can be considered to be different from ―freedom of
expression‖. The former may be said to cover speech per se – the physical act of speech
whether written or spoken. As Gillooly notes, in its ―ordinary and natural meaning,
‗speech‘ refers to the act of speaking‖.83
―Freedom of expression‖ may be said to
include actions – so that it covers words, gestures, actions or signs that express our
thoughts,84
and even instances when ―not a single word is uttered‖.85
In the United
States a ―silent demonstration‖ has been held to constitute constitutionally-protected
speech, as has ―peaceful picketing‖ and it has been held that the notion of freedom of
expression ―conveys not only ideas capable of relatively precise, detached explication,
79 Butler and Rodrick (2007), above fn 44, at 5. For a work that traces the origins of the right to
freedom of speech see Hargreaves R (2002), The First Freedom: A History of Free Speech, Sutton
Publishing, Stroud, England.
80 Butler and Rodrick (2007), above fn 44, at 5.
81 Butler and Rodrick (2007), above fn 44, at 5.
82 Alexander L (2005), Is there a right of freedom of expression?, Cambridge University Press:
Cambridge, at 7, notes that freedom of speech is ―often used synonymously with freedom of
expression‖.
83 (2004), above fn 14, at 27. It must be pointed out, however, that Gillooly‘s observation was made in
a speaker-listener context. See Barendt (1985), above fn 3, Chapter 2, at 37-77, for an examination
of the ―meaning of speech‖. The author states, after identifying instances in which ―non-linguistic
symbols‖ were used as a mode of communication:
The contrast between these cases indeed shows that it would be wrong to equate action or
behaviour with speech. All conduct is admittedly in a sense able to communicate some idea or
information to its observers (at 41).
84 See Butler and Rodrick (2007), above fn 44, at 3. See also Levy v The State of Victoria & Ors (1997)
189 CLR 579, Toohey and Gummow JJ, at 613; and Kirby J, at 638. Brennan CJ, at 594 said:
Speech is the chief vehicle by which ideas about government and politics are communicated.
Hence it is natural to regard the freedom of communication about government and politics
implied in the Constitution as a freedom of speech. But actions as well as words can
communicate ideas (italics added).
85 Levy v The State of Victoria & Ors (1997) 189 CLR 579, Kirby J, at 638:
Lifting a flag in battle, raising a hand against advancing tanks, wearing symbols of dissent,
participating in a silent vigil, public prayer and meditation, turning away from a speaker, or
even boycotting a big public event clearly constitutes political communication although not a
single word is uttered. The constitutionally protected freedom of communication in Australia
must therefore go beyond words (italics added).
45
but otherwise inexpressible emotions as well.‖86
The term ―acts of expression‖ has been
described, from a theoretical perspective, as covering any act intended to communicate
a proposition or attitude, rendering the definition extremely broad.87
This is an extremely broad class. In addition to many acts of speech and publication it
includes displays of symbols, failures to display them, demonstrations, many musical
performances, and some bombings, assassinations, and self-immolations. In order for any
act to be classified as an act of expression it is sufficient that it be linked with some
proposition or attitude which it is intended to convey. Typically, the acts of expression with
which a theory of ―free speech‖ is concerned are addressed to a large (if not the widest
possible) audience, and express propositions or attitudes thought to have a certain
generality of interest.88
Alexander notes that the term ―freedom of speech refers to – and is frequently
referred to as – freedom of expression or freedom of communication.‖89
He favours the
term ―freedom of communication‖ to cover both, freedom of speech and freedom of
expression (or what he calls ―symbolic speech‖) because any attempt at distinction
proves illusory.90
Another definitional issue arises concerning the meaning of ―free‖. When Butler
and Rodrick pose the question ―what is meant by free speech‖, they answer the question
in the following way:
In short, free speech is generally understood as speech that is not subjected to regulation by
the state. In Western liberal democracies, the state is the primary regulator of activities
between citizens and it is the state which will, in certain circumstances, prevent its citizens
from engaging in certain types of speech. Importantly, it is the state itself which enacts
laws to protect certain kinds of speech.91
The reference to state regulation and enacted law in that definition renders it
unsatisfactory for the purposes at hand. This thesis is concerned with freedom of speech
in the context of civil defamation, where the courts – more so than the state, through
86 See Levy v The State of Victoria & Ors (1997) 189 CLR 579, McHugh J, at 623.
87 Scanlon (1972), above fn 76, at 206.
88 Scanlon (1972), above fn 76, at 206. As Scanlon notes further, the requirement of a communication
to a wide audience would explain the reluctance to regard the communication from the average bank
robber to the teller he confronts, as an act of expression in the relevant sense, unless the robber
specifically seeks to spread a particular message through the action (at 207).
89 Alexander (2005), above fn 82, at 8 (italics in original).
90 Alexander (2005), above fn 82, at 8:
It is commonplace to distinguish between ―speech‖ and ―symbolic speech‖…however, that
distinction is illusory. All speech employs symbols, whether they be sounds, shapes, gestures,
pictures, or any other medium. There is thus no such thing as non-symbolic speech; there is
only speech that employs symbols that are less or more conventional. The same point also
applies to any purported distinction between speech or expression and ―conduct‖ or ―action.‖
All expression requires conduct of some sort, and ay conduct can be communicative. The
conclusions to be drawn are that freedom of speech or expression should be thought of as
freedom of communication, and that there are no a priori limits on the media of
communication that such freedom encompasses.
91 Butler and Rodrick (2007), above fn 44, at 3 (italics added).
46
enacted law – play the primary role in regulating media publication of defamatory
matter.92
In this thesis, the term ―freedom of speech‖ will be employed in its broadest sense
to encompass not only the act of speaking but also any form of expressive conduct, even
where not a word is spoken. The freedom envisaged is freedom from legal constraint,
whether statutory or common law, unless the context otherwise indicates.
2.2 A fundamental value with varying justifications
Freedom of speech is often described as ―a fundamental value.‖93
Philosophical
justifications for free speech, in different ways, all relate to a fulfilment of the human
condition through liberty.94
The relevance of truth in the free speech discourse is located
within various justifications advanced for free speech, in ―the messy world of multiple
rationales‖.95
While the literature identifies these justifications in varying descriptions
and numbers (up to eight justifications have been suggested)96
unanimity as to the
descriptions is elusive. It is harder still to assure that there is no overlap:97
92 For a detailed discussion of ―defamatory matter‖ see Gillooly M (1998), The Law of Defamation in
Australia and New Zealand, Federation Press, Sydney, Chapter 3. As noted there defamatory matter
includes oral statements; radio and television broadcasts; newspaper and magazine articles; books
letters; circulars; photographs; posters; messages on a computer screen; and even non-verbal
defamation such as occurred in Monson v Tussauds Ltd [1894] 1 QB 671, where the complainant‘s
effigy was placed near the museum‘s Chamber of Horrors, so as to depict him as a murderer (at 33-
34).
93 Walker (2000), above fn 54, at 5.
94 Butler and Rodrick (2007), above fn 44, at 6.
95 Campbell T (1994), ―Rationales for freedom of communication‖ (Chapter 2), in Campbell T and
Sadurski W (eds) Freedom of Communication, Dartmouth, Sydney, at 19.
96 The length of the list varies with the classifications adopted. The Western Australia Law Reform
Commission cites three justifications for freedom of speech: see WALRC Report No 93, above fn
69, at 20; Butler and Rodrick (2007), above fn 44, at 6 offer three justifications; Jones (2000), above
fn 78, at 277 offers three; Sadurski offers four: see Sadurski W (1999), Freedom of Speech and Its
Limits, London: Kluwer Academic Publishers, Chapter 1; Schauer F (1982), Free Speech: A
philosophical inquiry, Cambridge University Press, Cambridge (Sadurski called Schauer‘s book
―arguably the most important contemporary book on this subject in English-language literature‖, at
2); Barendt offered three main theoretical rationales for the concept of freedom of speech in his 1985
work, above fn 57; but in 2007, he outlined ―four arguments commonly put forward‖: see Barendt
(2007), above fn 15, at 6.
For a critique of these justifications see: (1) Sadurski (1999), this footnote, Chapter 1; (2) Greenwalt
K (1989), ―Free speech justifications‖ 89 Columbia Law Review 119; and (3) Campbell (1994),
above fn 95, Chapter 2.
97 Campbell (1994), above fn 95, at 39 provides a convenient example of an ―overlap‖ between the
argument based on ―truth‖ and the argument based on ―self-determination‖:
The argument for democracy overlaps both with the argument from truth, in that what is
required for genuine choice or control is informed consent, and the argument from self-
determination, particularly in its instrumental form, since political expression can be used to
make others aware of one‘s views or demands (italics in original).
For another example of overlap see Chesterman (2000), above fn 17, at 22, where the author notes
that the values inherent in both the ―self-fulfilment‖ and ―marketplace of ideas‖ justifications can be
discerned in some versions of ―the argument from self-government.‖
47
Freedom of speech, freedom of expression, freedom of communication – whatever term of
identification we care to use – has suspiciously many rationales. There are the classic trio
of (1) the sole path to truth, (2) the right to self-determination and (3) the presupposition of
democracy. To which we may add (4) the stimulus to tolerance, (5) the flourishing of
plurality and (6) the efficient allocation of resources. Should seven theories seem more
rounded, there is (7) the intrinsic worth of the communicative experience.98
To that list may be added an eighth point – a ―suspicion of government.‖99
There
are ―counter justifications‖ too, but they are not relevant for the purposes at hand.100
In section 3 below, the main freedom of speech rationales are outlined. The
varying justifications for freedom of speech are grouped together under five headings:
(a) it enhances our humanity and dignity; (b) it enhances individual autonomy and self-
determination; (c) it promotes the right attitudes of tolerance among the audience; (d) it
enhances the possibilities and quality of democracy, and democracy, in turn, is good;
and, (e) it enables the discovery of ―truth‖. The last-mentioned justification is, of
course, the most pertinent to the present discussion.
These selected justifications are of course not without their limitations. Freedom
of speech, notwithstanding its character as a ―fundamental value‖ comes with varying
restrictions that qualify that freedom. As Sadurski notes:
Even the most ardent, card-carrying civil libertarians are not committed to an unconditional
defence of a right to [certain types] of public expressions, no matter what.101
The cumulative impact of the limitations (or negative factors or caveats) on free
speech, however, ―is alarming, particularly if what we are after is an absolute right to
freedom of communication‖.102
Even those who take an ―absolutist‖ approach to
98 Campbell (1994), above fn 95, at 17.
99 Barendt (2007), above fn 15, at 21. In Barendt‘s classification, this justification is one of four
justifications for free speech and he observes that Schauer ―places great emphasis on the argument.‖
100 For a list of ―persuasive counters on the negative side‖ of the free speech argument, see Campbell
(1994), above fn 95, at 17, where he identifies the following ―for starters‖: (1) the causation of
physical and psychic harm; (2) the dissemination of error; (3) the damage to reputation; (4) the
invasion of privacy; (5) the incitement of hatred; (6) causing offence; (7) breach of trust; (8) the
reinforcement of hierarchy; (9) the utility, and perhaps fairness, of intellectual property rights. To
these may be added other countervailing considerations, not in Campbell‘s list, such as the utility of
confidentiality and secrecy; seditious conduct; blasphemy; and contempt of court and parliament.
101 Sadurski (1999), above fn 96, Preface, at 1. These types of speech include pornography, racist hate
speech and religious bigoted expressions, defamation of politicians and of private persons, contempt
of court, incitement to violence, disclosure of military or commercial secrets, advertising of
merchandise such as alcohol or cigarettes or of services and entertainment such as gambling and
prostitution (ibid).
See also, above fn 54-57, for other authorities acknowledging that freedom of speech is ―not
absolute‖.
102 Campbell (1994), above fn 95, at 17. Campbell notes that even the labels for the free speech
rationales ―have powerful rhetorical force and carry the promise of weighty considerations in favour
of freedom of speech‖. On the other hand, it can be said that there are also compelling ―persuasive
counters on the negative side‖ (ibid).
48
freedom of speech, rather than a balancing approach, however, would generally not be
opposed to restrictions on the time, place and manner of the presentation of expression,
provided it did not interfere with the substance.103
It has always been assumed on all sides that there will be something left of the normal
limitations on expression exemplified by defamation, obscenity, breach of confidence,
regulation of the media and also perhaps sedition, copyright, blasphemy, pornography,
vilification, and so on…104
In considering the various rationales for free speech it is useful to keep in mind
that there is no one rationale and no one conception of freedom of speech.
Speech is an element in almost every worthwhile human activity, and is central to many of
the forms of conduct which have most bearing on human well-being. Once we depart from
unhelpful generalities we must expect to find multiple reasons for its nurture.105
3. Some rationales for freedom of speech
The above list of justifications for free speech will now be considered along with some
examples of the limitations that each justification encounters. It should be noted that
these rationales are not watertight compartments, and there may be some overlap
between them.
3.1 It enhances our humanity and dignity
The ―humanity/dignity‖ justification for freedom of speech is based on the view that
speech is a uniquely human activity and is valuable of itself.106
The strength of this
rationale may vary with the type of speech . For example, it may be argued that
―aesthetic and self-expressive‖ speech, such as through art forms, has a stronger claim
[These include] (1) the causation of physical and psychic harm, (2) the dissemination of error… (3)
the damage to reputation…(4) the invasion of privacy, (5) the incitement of hatred and (6) causing
offence…(7) breach of trust…(8) the reinforcement of hierarchy and (9) the utility (and perhaps the
fairness) of intellectual property rights (ibid).
103 Walker (2000), above fn 54, at 5.
104 Campbell (1994), above fn 95, at 17. See also, above fn 67, for a list of ―persuasive counters on the
negative side‖. For a discussion of the tendency to abuse and speech-harm arguments, see Campbell,
where the author adopts the view that although harm may result from speech, these results are
normally produced non-coercively in that their eventuality depends on others adopting certain
perceptions or attitudes, thus, barring certain exceptions (where harm results despite the lack of
coercion as in a case where the ―speaker‖ takes out a murder contract), the speaker is not responsible
for the harm unless she has been coercive or has applied improper pressure (ibid, at 28-30).
Scanlon (1972), above fn 76, at 207 states:
…since acts of expression can be both violent and arbitrarily destructive, it seems unlikely that
anyone would maintain that as a class they were immune from legal restrictions.
105 Campbell (1994), above fn 95, at 22.
106 Butler and Rodrick (2007), above fn 44, at 6.
49
to this justification.107
Other considerations may be cited under this heading, for
example, utilitarian arguments for free speech on the ground that ―it promotes the
greatest net balance of pleasure over pain among all sentient creatures.‖108
Alternatively, it may be suggested that free speech is not just about getting more
information and ideas needed to make good decisions, nor just about having the
freedom to express ourselves as we see fit:
…but more importantly, and more broadly, about how to think, about such matters as our
beliefs and about the fears and angers we bear towards the contrary beliefs and behaviour
of others.109
This rationale has been described as the ―intellectual‖ argument for free speech.110
On
the other hand, while the argument that speech is intrinsically valuable militates for
greater protection of aesthetic and self-expressive speech, the same cannot be said for
protection of speech that serves underlying or ulterior purposes aimed at achieving
some other goal.
For example, advertising, pornography or political protest marches may be better
interpreted as forms of expression aimed at achieving goals rather than speech that fulfils a
speaker‘s humanity.111
3.2 It enhances individual autonomy and self-determination
Under this argument for free speech, the rationale for free speech is grounded in
concerns about individual rights that fall into the following realms – individual
autonomy, self-expression, self-development, self-determination and self-fulfilment.
Given the difficulties flagged above concerning terminology and categorisation we need
not be detained by the varying terms that the theorists use. The prime concern in this
area can be simply stated as follows:
Restrictions on what we are allowed to say and write, or (on some formulations of the
theory) to hear and read, inhibit our personality and its growth. A right to express beliefs
and political attitudes instantiates or reflects what it is to be human.112
107 Butler and Rodrick (2007), above fn 44, at 6.
108 Richards DA (1988), ―Toleration and free speech‖ Vol 17 No 4 Journal of Philosophy 323, at 326.
109 Bollinger LC (January 1983), ―Free speech and intellectual values‖, Vol 92 No 3 Yale Law Journal
438, at 445. This observation was made in the context of a discussion of the US First Amendment.
110 See Bollinger (January 1983), above fn 109, where he argues the ―intellectual justification‖:
Free speech becomes a concept under which an area of social organization is effectively carved
out and rendered immune not for its uniquely important role in assisting decision-making, but
as a way of pressing for an intellectual capacity or perspective that is also thought to be of
direct value elsewhere (italics added, at 472).
111 Butler and Rodrick (2007), above fn 44, at 7.
112 Barendt (2007), above fn 15, at 13.
50
One way to distinguish this justification for free speech from, say, the democracy
justification or the discovery of truth justification is that this rationale ―is not necessarily
consequentialist‖ – that is, this theory might regard freedom of speech as ―an intrinsic
good‖113
and not dependent on outcomes or consequences. One formulation of the
―individual autonomy‖ justification is that free speech facilitates an awareness of
alternatives and as autonomous beings we have a right to reach decisions independently
having access to all the necessary information.114
This autonomy is achieved even when
the individual is subject to the state‘s commands through law. On this view:
An autonomous man may, if he believes the appropriate arguments, believe that the state
has a distinctive right to command him. That is, he may believe that (within certain limits,
perhaps) the fact that the law requires a certain action provides him with a very strong
reason for performing that action…How strong this reason is – what, if anything, could
override it – will depend on his view of the arguments for obedience to law. What is
essential to the person‘s remaining autonomous is that in any given case his mere
recognition that a certain action is required by law does not settle the question of whether
he will do it. That question is settled only by his own decision…115
The autonomy goal is said to be ―one of the defining features of liberal theory‖.116
It ―boils down to the fundamental principle that autonomy of action is, in general, a
more important good in liberal theory than the worth of the substantive consequences of
one‘s action, precisely because it is a condition of human self-expression and self-
fulfilment.‖117
In the context of the self-determination argument a sharp distinction can
be made between the intrinsic individual right, and the instrumental individual right.118
The intrinsic right derives from the inherent value of individuals expressing themselves
(the ―self-expression‖ argument) while the instrumental right involves individuals using
the opportunity to express themselves in order to protect their interests or further their
113 Barendt (2007), above fn 15, at 13. Barendt notes, however, that at the level of general philosophy it
is reasonable to ask why freedom of speech is particularly important to a person‘s self-fulfilment – it
is far from clear that unlimited free speech is necessarily conducive to personal happiness or that it
satisfies more basic human needs and wants than, for example, housing and education. On the other
hand, it may be argued that there is perhaps something uniquely valuable in intellectual self-
development – the reflective mind ―distinguishes human beings from animals‖ (ibid).
114 Scanlon (1972), above fn 76, at 221-222, argues that because autonomous human beings have a right
to make up their own minds they also have a right to all the information that is necessary for them to
do that. See also Butler and Rodrick (2007), above fn 44, at 6. Bollinger (January 1983), above fn
109, at 471 notes:
An interest in acquiring relevant information cuts far more broadly through human activity,
encompassing non-speech conduct as well as speech…a right to gather information is itself
premised on a belief that non-speech conduct is vitally related to the acquisition and
distribution of relevant information.
115 Scanlon (1972), above fn 76, at 216.
116 Sadurski (1999), above fn 96, at 16.
117 Sadurski (1999), above fn 96, at 16-17.
118 Campbell suggests that the intrinsic worth of self-expression may lie at the base of some of our most
profound intuitions about the significance of freedom of expression and the tendency to regard it as a
distinct and inviolable right: Campbell (1994), above fn 95, at 34.
51
projects beyond mere self-expression (the ―self-projection‖ argument).119
The ―self-
expression‖ right embodies values of authentic self-expression and honest and frank
communication with other people, while the ―self-projection‖ right helps the individual
―get what she wants, to influence others, or to protect herself‖.120
While the ―self-
projection‖ right is a defeasible one,121
a conflict is evident in respect of the breadth of
the ―self-expression‖ right – the question is whether this right is a defeasible one. One
view is that harmful self-expressing and self-fulfilling speech should be curtailed. If the
publication of ―bad‖ speech is necessary for one‘s sense of unrestrained self-expression
and self-fulfilment, instances of ―bad‖ speech must submit to the same limits that we
accept with regard to any conduct.122
If one believes that the ―harm to others‖ principle best grasps a view about the limits of
state coercive power towards the individual, then ―harm to others‖, as a practical standard
of protecting individual autonomy, must be applied to freedom of speech. This is because
speech is an important, but not the only, means of self-expression and self-realisation;
indeed, compared to other aspects of individual behaviour, there is nothing particularly
outstanding about speech, as a vehicle of expressing an agent‘s identity, desires,
preferences etc.123
3.3 It promotes the right attitudes of tolerance
One formulation124
of the ―tolerance‖ justification for free speech is that it is based on
the principle that promoting the attitude of tolerance towards the speaker helps to create
119 Campbell (1994), above fn 95, at 34.
120 Campbell (1994), above fn 95, at 34-35. Note also Campbell‘s view when discussing the ―frank and
honest communication‖ argument for self-expression that since this is a two-way process, expression
is then seen to have intrinsic importance both for the recipient and for the speaker: Campbell (1994),
above fn 95, at 35 (italics added). As Campbell notes, this requires an acknowledgement of the
change of terminology from freedom of expression to freedom of communication.
121 Particular exercises of that freedom would not be protected, for example, in the face of evidence that
particular exercises of that freedom do not protect the speaker‘s interests, and in light of the quality
of the speaker‘s objectives. Instrumental arguments vary enormously in their strength in accordance
with the ends to which expression is regarded as a means. In this context, journalists would have
more at stake in relation to instrumental freedom of expression: see Campbell (1994), above fn 95, at
36-37.
122 Sadurski (1999), above fn 96, at 18. Examples of ―bad‖ speech would include racist speech,
offensive pictures, incitement to commit crimes etc. See also Campbell (1994), above fn 95, at 35:
Self-expression has to take its place along with different and often competing justifications of
freedom of communication. For instance, self-expression may get in the way of self-projection:
individuals may not do their projects any good by over-exercising a right to speak out.
123 Sadurski (1999), above fn 96, at 18. See also Campbell (1994), above fn 95, at 35:
…the intrinsic value argument…can still be overridden by harmful or otherwise unacceptable
side-effects of expression and communication (for example) when the chosen sphere of self-
expression has a general communicative objective – such as art, music and literature – rather
than expressions which flourish in more private contexts.
124 For two more functions identified as being served by the tolerance principle see Bollinger (January
1983), above fn 109, at 460, where he notes, first, the well-known advantages of extremes in an
instructional or pedagogical context. A second and more substantive gain from tolerance is the
following:
52
a general intellectual character and enhances the capacity for general tolerance.125
This
theory, simply put, advocates curbs on the speech recipient‘s ability to curtail the
speaker‘s harmful speech, to protect something important about the recipient.126
On this
approach even hate speech should be protected despite the harms it inflicts because such
protection promotes the more important good of a tolerant society.127
Sadurski describes
such an approach as ―moralized paternalism‖.128
The tolerance (or toleration) theory
protects even extremist and harmful speech that may produce little ostensible good
because such protection ―offsets the political evil of pervasive intolerance‖.129
In
opposition to this argument it is said that the ―net aggregate of pleasure over pain is
often advanced, not frustrated, by the restriction of speech…‖130
3.4 It enhances the possibilities and quality of democracy
The pursuit of democracy justification discussed under this heading and the discovery
of truth justification discussed under the next heading – are the two goals that are
―usually said to require free speech‖.131
The argument that the pursuit of truth enhances
To a society that seeks to develop a certain capacity, especially one of security and control,
toleration can help to establish or prove symbolically the arrival of that capacity. Often, the
harder something is to do the more symbolic meaning the doing of it carries…Through
toleration, in short, we create the community, define the values of that community and affirm a
commitment to and confidence in those values.
125 Sadurski (1999), above fn 96, at 31-32, citing Lee Bollinger‘s ―influential book‖: Bollinger L
(1986), The Tolerant Society: Freedom of Speech and Extremist Speech in America, Oxford
University Press, London, at 134, 124 and 182.
126 See Sadurski (1999), above fn 96, at 32.
127 See Richards (1988), above fn 108, at 335. Schlag asks in the context of the chants of Nazis
marching in the heavily Jewish community of Skokie, Illinois:
…can you imagine telling Jewish survivors of the concentration camps that the major (the
only?) reason the Nazis must be allowed to march is to enable the Jews and the rest of the
community to learn the virtues of tolerance?: Schlag P (1986), ―Freedom of speech as Therapy
(Book Review)‖, 34 UCLA Law Review 265, at 279.
128 Sadurski (1999), above fn 96, at 32-33. He explains it as follows. It is paternalistic because the good
claimed to be protected is the good of the constrained (the recipient of the speech) and it is moralistic
because the nature of the alleged ―harm‖ is ―moral harm‖ which is not a genuine harm to one‘s
interests but rather a ―harm‖ in not having the virtues which are through to be morally worth having
(ibid, citing Joel Feinberg (1984), Harm to Others: The Moral Limits of the Criminal Law, Vol 1,
New York: Oxford University Press, at 65-70).
129 Richards (1988), above fn 108, at 325.
130 Richards (1988), above fn 108, at 326.
…large populist majorities often relish (hedonically speaking) the repression of outcast
dissenters, the numbers and pains of dissenters are by comparison small, and there is often no
offsetting future net aggregate of pain over pleasure to make up the difference (ibid).
131 Butler and Rodrick (2007), above fn 44, at 7.
53
the possibilities and quality of democracy is ―perhaps the most popular basis for the
assertion of an absolute right, at least to freedom of political expression‖.132
So far as the democratic rationale is concerned, it is hard to quarrel with the assertion that
the public airing of all species of political opinion, including the far right as well as the far
left, should be permitted, at least prima facie, within a genuinely democratic society.133
This observation, however, offers only qualified support for freedom of speech
and some reasons for this qualification are evident in the following discussion. The
―pursuit of democracy‖ justification encompasses two strands. The first sees the content
of speech as information and, through access to information, the attainment of a
healthier democracy. The second sees the content of speech as normative or political
opinion ―where more speech provides a wider choice of views and ethical
alternatives.‖134
It is suggested that the ―pursuit of democracy‖ justification is
―straightforward‖135
and ―probably the most easily understandable, and certainly the
most fashionable, free speech theory in modern Western democracies‖.136
As Sadurski
states:
…democracy requires that citizens be free to receive all information which may affect their
choices in the process of collective decision-making and, in particular, in the voting
process. After all, the legitimacy of a democratic state is based on the free decisions taken
by its citizens regarding all collective action. Consequently, all speech that is related to this
collective self-determination by free people must enjoy absolute (or near-absolute)
protection.137
The ―democracy justification‖ for free speech, however, is not without its flaws.
This justification is not so ―straightforward‖ if one considers the ―nature of acceptable
democratic processes‖ and the variety its elements permit and, importantly, the
influence this has on the particular freedom of communication rights intrinsic to
democracy.138
The protection of democracy is ―puzzling‖ as a ground for free speech
because:
132 Campbell (1994), above fn 95, at 37.
133 Chesterman (2000), above fn 17, at 308.
134 Butler and Rodrick (2007), above fn 44, at 9.
135 Sadurski (1999), above fn 96, at 20.
136 Barendt (2007), above fn 15, at 18.
137 Sadurski (1999), above fn 96, at 20. Likewise, Brandeis J said in Whitney v California 274 US 357
(1927), at 377:
If there be time to expose through discussion the falsehood and fallacies, to avert the evil by
the processes of education, the remedy to be applied is more speech, not enforced silence. Only
an emergency can justify repression. Such must be the rule if authority is to be reconciled with
freedom.
138 Campbell (1994), above fn 95, at 37. The nature of the democracy will have a bearing on the content
of the right – will it have majority election of rulers; equal distribution of political power, pursuit of
consensus; recognition of diversity; involves a process of deliberation etc?
54
…the idea of democracy is essentially contestable; views differ as to what is and what is
not essential to a well-functioning democracy, or, conversely, what counts as democratic
―pathology‖ for purposes of determining the legitimate scope of free speech.139
A second notable criticism is that justifications for restrictions on speech may be
found within the democracy argument. On the view that democracy ―cannot flourish
where one group is able arbitrarily to suppress the voices of another‖ it is suggested
that:
…the sophisticated democracy to which we aspire in Australia is not simply
majoritarianism writ large, but a complex system of ―checks and balances‖ with various
components, including the legal system and the media, performing vital functions.
Therefore democracy not only can, but should, impose some restrictions, even on
democratic institutions.140
A third criticism of the democracy justification for free speech is that this theory
protects only political speech and on this view it is ―unduly restrictive‖, or it is
―virtually meaningless‖ because it enlarges the meaning of ―political‖ so as to include
every expression deserving protection regardless of its place in the political process.141
This criticism, however, does not accurately reflect the position in Australia where a
freedom of political communication has been recognised since the implied freedom of
political communication first emerged as a principle of constitutional law in late
1992.142
That implied freedom does not establish a ―public figure‖ defence akin to that
available in the United States.143
Furthermore, as Butler and Rodrick note: ―The
meaning of the expression ‗communication about a government or political matter‘ is
imprecise.‖144
For the time being whether something is a ―government or political
matter‖ falls to be determined on a ―case by case basis.‖145
While the High Court has
…perhaps the most important thing about the argument for democracy is that the particular
freedom of communication rights intrinsic to democracy will vary with the model of
democratic process that is adopted (ibid).
139 Richards (1988), above fn 108, at 326. Richards argues that the legitimate scope of democratic
debate may, for example, be interpreted narrowly or broadly. The former limits such debate to the
issues directly in controversy among the main contenders for majoritarian political power, while the
latter accommodates debate on any possible issue, including the very legitimacy of political power
and democracy. He argues further that neither interpretations is satisfactory – the first approach
trivialises free speech by excluding the dissenting discourse outside the political mainstream often
crucial to critical examination of central issues of justice and the common good, while the latter
seems to compromise democratic legitimacy by protecting attacks on the foundations of such
legitimacy, including attacks on free speech itself (at 326-327).
140 WALRC Report No 93, above fn 69, at 21 (italics added).
141 Sadurski (1999), above fn 96, at 21-22.
142 Chesterman (2000), above fn 17, at 309.
143 As recognised in New York Times v Sullivan 376 US 254 (1964): see Amalgamated Television
Services Pty Ltd v Marsden [2002] NSWCA 419, Paras 1180 and 1184.
144 Butler and Rodrick (2007), above fn 44, at 79.
145 Butler and Rodrick (2007), above fn 44, at 79.
55
identified a lengthy list of matters that qualify as matters of government or politics,146
this list is not exhaustive,147
but some areas have already been ruled as not qualifying.148
A fourth criticism is that the principle of self-government itself may justify
restrictions on speech ―if the people themselves, acting after full and open discussion,
decide in accordance with democratic procedures that some speech will no longer be
tolerated‖.149
A final point may be made about the pursuit-of-democracy justification for free
speech. The right to freedom of communication as an instrumental social right raises the
question of ―access to information, as well as the opportunity to disseminate it‖ bringing
together the rationales for freedom of communication and freedom of information.150
On one view, democracy, however it is defined:
146 For the time being whether something is a ―government or political matter‖ would seem to embrace
the following: (a) a system of representative government involving members of the House of
Representative sand the Senate being chosen by the people; (b) functioning of government; (c)
policies of political parties and candidates for election; (d) voting in a referendum; (e) conduct of
executive branch of government including ministers and public servants; (f) conduct of statutory
authorities and public utilities obliged to report to the legislature or to a minister; (g) discussion by
electors of political matters; (h) functions and powers vested in public representatives and officials
by the legal and bureaucratic apparatus funded by public monies; (i) performance of public
representatives and officials invested with functions and powers of concern to the community; (j)
information concerning matters relating to the exercise of public functions and powers vested in
public representatives and officials; and (k) discussion of government or politics at state, territory
and local government level: see George P (2006), Defamation Law in Australia, LexisNexis
Butterworths, Chatswood, NSW, at 295-296, citing Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520. See also Butler and Rodrick (2007), above fn 44, at 79-80; and Gillooly
(1998), above fn 92, at 190-191.
147 The High Court said in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, at 570,
that a narrow approach should not be adopted as to what is political or government matter.
148 It has been held that the following situations are not covered by the implied freedom: (a) discussion
concerning the ordinary working of the courts including discussion critical of judicial decisions and
judicial officers: Popovic v Herald & Weekly Times Ltd (2002) VSC 174, Paras 30-33; John Fairfax
Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694; (b) purely commercial speech
aimed, for example, at selling goods and enhancing profit-making activity: Theophanous v Herald
and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron JJ, at 124; (c)
communications about public figures who do not hold official or government position: Theophanous
v Herald and Weekly Times Ltd (1994) 182 CLR 104, at 134; (d) discussion on the performance of
government employees who can influence the resolution of public issues: Theophanous v Herald
and Weekly Times Ltd (1994) 182 CLR 104, at 134; (e) discussion on private conduct unless it bears
upon the person‘s official conduct: Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR
104, Deane J, at 179-80; (f) discussion of religious matters or religious organisations: Arkianakis v
Skalkos (1999) 47 NSWLR 302; and (g) to company directors of a collapsed company: John Fairfax
& Sons Ltd v Vilo (2001) 52 NSWLR 373, Para 113.
149 Bollinger L (1986), above fn 125, at 50 (italics in original). Note, however, Bollinger‘s caveat:
An individual or society could not claim to be self-governing if it decided, even unanimously,
not to consider or hear a particular idea, and especially not if the reason behind the exclusion or
suppression what that the idea was determined to be hateful, frightening, or wrong…The
essence of self-governance is the willingness to confront every idea, everything that is being
said; it is the absence of censorship: Bollinger (January 1983), above fn 109, at 458.
150 Campbell (1994), above fn 95, at 37.
56
…is a matter of degree, so that the free speech which is partly constitutive or causally
required for it may also be a matter of degree.151
3.5 It enables the discovery of truth
This justification for freedom of speech has been described as ―the most dated of the
standard rationales‖.152
Before proceeding to discuss this justification, it should be
noted that the term ―truth‖ itself is a fraught one, and it is examined in more detail in the
next chapter.153
The discussion here, however, sets the scene for the discussion in the
next chapter. Historically, the ―discovery of truth‖ justification for free speech is also
said to have been ―the most durable argument for a free speech principle‖.154
The
―discovery of truth‖ justification for freedom of speech is one of three arguments most
commonly advanced for freedom of speech155
and it is based on the argument truth can
only be discovered if ideas can circulate freely regardless of the ―perceived value‖ of
the ideas.156
This idea has been expressed in American jurisprudence in Holmes J‘s
well-known ―marketplace of ideas‖ dictum – which advocates the free entry of ideas
into the marketplace, and for the truth to emerge through a collision of ideas.157
Similarly, American jurisprudence has held that its ―Constitution does not make the
dominance of truth a necessary condition of freedom of speech‖.158
According to the
―discovery of truth‖ rationale for freedom of speech, the interests of the hearers – the
community as a whole – are the principal focus of concern, and not the intellectual and
moral development of individual hearers.159
The origins of the marketplace notion are
151 Campbell (1994), above fn 95, at 39.
152 Campbell (1994), above fn 95, at 23.
153 Barendt (2007), above fn 15, at 7, alludes to this difficulty:
A theory resting the special status of speech on the value of truth should, one might think,
assume that truth is a coherent concept, and that particular truths can be discovered and
justified. Relativists contest this assumption.
154 Barendt (2007), above fn 15, at 7.
155 What Campbell referred to as the ―classic trio‖: Campbell (1994), above fn 95, at 17. Chesterman
(2000), above fn 17, at 20, states that the ―traditional account of theories of freedom of speech
generally identifies three justifications‖, and truth is one of them.
156 Butler and Rodrick (2007), above fn 44, at 7.
157 Holmes J, dissenting (Brandeis J agreeing) in Abrams v United States 250 US 616 (1919), at 630:
But when men have realised that time has upset many fighting faiths, they may come to believe
even more than they believe the very foundations of their own conduct that the ultimate good
desired is better reached by free trade in ideas – that the best test of truth is the power of the
thought to get itself accepted in the competition of the market, and that truth is the only ground
upon which their wishes safely can be carried out. Retrieved 7 September 2005, from
<http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0250_0616_ZD.html>
158 American Booksellers Association v Hudnut, 771 F.2d 323 (7th Cir. 1985), Easterbrook J, at 330 .
159 Chesterman (2000), above fn 17, at 302. Chesterman adds:
This is not to say that individual members of the community derive no benefit at all from such
truths as emerge from free and unfettered public debate – of course they do. The point is
57
said to lie in 17th century work by John Milton,160
and two centuries later, by John
Stuart Mill161
– these works ―played some part in the theorising of American judges‖.162
The ―marketplace of ideas‖ principle has attracted criticism, and these criticisms are
formulated in different ways.163
They include the criticism that this principle
presupposes that justified belief is the result of a selection between the widest possible
range of different assertions available in the market.
The market model suggests that justified belief is the result of a preference selection
between the widest possible range of different assertions on the basis of the tastes and
purposes of the ―purchaser‖. The more opinions available, the more likely that the seeker
after truth will find what she is looking for. By being able to make comparisons, the truth-
hunter will get the best bargain relative to her needs…However, the fact that someone
―selects‖ an opinion is not in itself evidence of its truth. Nor is ―market success‖ (namely
the fact that an opinion is selected by [a] large number of people) convincing evidence of
its accuracy.164
A further criticism of the marketplace theory is that the unfettered entry of ideas
into the marketplace must allow for the entry of ideas that might be false – even
patently false ones. In such a case, it may be asked, what is the justification for arguing
that true statements of fact deserve protection, and not false ones? The answer to this
―paradox‖ may, as Sadurski suggests, be that legal protection for true statements of fact
(but not for false ones) may be consistent with the marketplace of ideas theory.165
False statements of fact are particularly valueless; they interfere with the truth-seeking
function of the marketplace of ideas and they cause damage to an individual's reputation
that cannot easily be repaired by counterspeech, however persuasive or effective.166
simply that this rationale envisages the benefits to hearers from freedom of speech as public
and social, rather than private and individual, benefits (ibid).
160 Milton J (1644), Areopagitica: A Speech for the Liberty of Unlicensed Printing, cited in Barendt
(2007), above fn 15, at 7.
161 Butler and Rodrick (2007), above fn 44, at 5, state that Mill‘s On Liberty (1859) is ―perhaps the key
text‖, which advocates the necessity of free speech and a free press.
162 Barendt (2007), above fn 15, at 7. For criticisms of Mill‘s truth argument see 8–11.
163 Campbell (1994), above fn 95, at 24-26, notes that other flaws with the ―marketplace‖ model
include: (a) the fact the market model is better suited to the idea of a market in information that is
not directly concerned with the discovery of truth, but its distribution. Such a model, however,
assumes the ownership of ideas and the right to control their circulation – a notion that is inimical to
freedom of speech; (b) the mere existence of freedom of expression, even if it is widely utilised, is in
no way a guarantee that truth will emerge. Campbell also notes that truth is not readily recognisable,
and as such freedom of speech is not a sufficient condition for the emergence of truth.
See also Barendt (2007), above fn 15, at 12, for criticisms of Holmes J‘s marketplace theory. After
observing that Holmes J‘s version of the truth argument ―rests on shaky grounds‖ the author notes of
the marketplace theory that: (a) it does not acknowledge that one proposition can be stronger than
another; (b) the marketplace is not open to everyone who wants to communicate an idea; (c) it does
not discriminate against ideas that are put in the marketplace for purely commercial reasons –
regardless of the speaker‘s sincerity – for example, to achieve increased newspaper sales; and (d) it
assumes that the recipients of the ideas will consider claims made in the marketplace rationally.
164 Campbell (1994), above fn 95, at 24.
165 Sadurski (1999), above fn 96, at 10.
166 Hustler Magazine Inc et al v Jerry Falwell 485 US 46, at 52 (1988).
58
On one view, it is better for the pursuit of truth to err on the side of protection of
falsity in the design of legal liability. This view is based on the sociological observation
that the presence of falsity has a comparatively less pervasive effect on people‘s minds,
in reaching their own views about a given matter, than the less-than-full presence of the
truth.167
However, a public presence of falsity can have enormous distorting effects
upon the formation of public views about facts, and there is no reason to believe that
this distorting effect is, as a general rule, less damaging to the truth itself.168
The validity of the ―pursuit of truth‖ justification for free speech is also doubted
on the ground that it ―assumes there is a ‗truth‘ to be attained‖.169
Is it possible then, to
discover ―truth‖? This question is explored more fully in the next chapter. For present
purposes we may note that Butler and Rodrick suggest that there are two responses to
this question, a traditional and a more recent one. The traditional response ―does not
rely on the existence of the attainment or existence of truth itself, but on degrees of
certainty.‖170
The argument on this approach is that even if truth cannot be ascertained
―more knowledge will still be better than less knowledge.‖171
With more ideas available, we are in a better position to make a decision about what will
constitute the good life.172
This, as Barendt notes, raises a paradox about Mill‘s thesis – the argument for truth
tends to be more relevant to speech that does not assert any coherent proposition or
make a claim that can be objectively tested.173
The argument for a free speech principle from truth is said to be particularly applicable to
types of expression, which can only rarely, if ever, establish truths with the same degree of
assurance that obtains in mathematics or the natural sciences.174
The more recent response to the question ―is it possible to discover truth?‖ is the
anti-foundationalist position. In recent times, a number of movements have come
167 Sadurski (1999), above fn 96, at 12.
168 Sadurski (1999), above fn 96, at 12.
169 WALRC Report No 93, above fn 69, at 21.
170 Butler and Rodrick (2007), above fn 44, at 8.
171 Butler and Rodrick (2007), above fn 44, at 8.
172 Butler and Rodrick (2007), above fn 44, at 8. Campbell espouses the view that even the weakest
version of the argument for truth can make an important and distinctive contribution to knowledge
(above fn 91, at 28).
173 Barendt (2007), above fn 15, at 10.
174 Barendt (2007), above fn 15, at 10, noting further:
Truth, of course, is not to be equated with certainty, and the fact that there are better and worse
arguments in political and moral discourse is enough to substantiate Mill‘s conclusion that the
prohibition of such discussion by the government is (at least generally) wrong on the truth
argument (ibid).
59
together which appear to justify the view that there is no absolute truth and that truth is
radically multiple.175
One of these movements176
is commonly referred to as post-
modernism,177
which rejects any single truth and sees truth as being ―entirely dependent
on the viewpoint from which truth is seen.‖178
According to this view, ―it is simply not
possible to discover truth because all claims to knowledge are claims to power.‖179
That
is, any claim to a moral principle which can apply to other people is a claim to
exercising power because the proposed ethical norm is from a particular position (that
of self) and necessarily cannot take account of the experiences of the object of that
principle (the other), yet this norm would be imposed upon all universally.180
At its strongest, this position may imply that everything is relative and there is no such
thing as truth; all claims to truth are matters of perspective and no one can make
authoritative judgments about right and wrong.181
175 Vardy P (1999), What is truth?, UNSW Press, Sydney, at 10.
176 Other movements can be found in ethics and aesthetics (where the perception of what is right and
wrong, beautiful or ugly is widely accepted as depending on culture and tradition and having no
independent reality, that as Hamlet put it, ―There is nothing good or bad but thinking makes it so‖);
philosophy of religion (where religious truth is seen as internal to the language game being played or
the story being told, they are not discovered, they are made); and mainstream analytic philosophy
(where it is generally accepted that the search for any metaphysical underpinning for knowledge is
folly): Vardy (1999), above fn 175, at 10, 65.
177 The term ―post-modernism‖ itself is a fraught one according to Vardy (1999), above fn 175, at 95:
There is no clear point in time when post-modernism began, nor is there a clear definition of
what it is. In fact there is no single position which is ―the‖ post-modern position, as it covers a
range of different responses to the modern world…
Vardy notes further, at 115:
…there is no single position that may be regarded as ―the‖ post-modern. The whole enterprise
is vague, diffuse and complex and resists easy categorisation. However, broadly, the essential
elements include the following: (1) Reality is a product of constant change and flux, of
interpretation and reinterpretation. There are no fixed certainties, no objectivity. (2) Language
plays an active role in forming our perceptions of reality and these perceptions govern who we
are. There is no pure knowledge outside of society or culture or language and its symbolism.
(3) Human beings are not separate from this reality, and there is no one reality. Instead, what
we perceive and made sense of as real is itself ever changing…
The term ―post-modernism‖ is also discussed in Chapter 3: see, for example, text accompanying fn
14.
178 Vardy (1999), above fn 175, at 10.
179 Butler and Rodrick (2007), above fn 44, at 8. For an introduction to law and post-modern thought,
see Murphy P (1991), ―Post-modern perspectives on justice‖, 30 Thesis Eleven 117. For an anti-
foundationalist reading of free speech, see Fish S (1994), There’s no such thing as free speech: and
it’s a good thing too, Oxford University Press, New York. In this work, Fish proclaims the
―unavoidable truth [that] freedom of speech is a conceptual impossibility because the condition of
speech‘s being free in the first place is unrealisable‖ (at 115).
180 Butler and Rodrick (2007), above fn 44, at 8.
181 Butler and Rodrick (2007), above fn 44, at 8-9. This approach at once places journalism and the
courts, to the extent that they pursue the truth, in an invidious position. The journalist‘s predicament,
for instance, is illustrated in the following observation by Tickle S (2001), ―The truth, the whole
truth, and nothing but…‖ (Chapter), in Tapsall S and Varley C, Journalism: Theory in Practice,
Oxford University Press, Sth Melbourne, at 93:
60
Thus, from a post-Enlightenment perspective, there is greater awareness that
much of actual speech has little truth-value because it is either not aimed at expressing
justified belief or it is not the sort of expression capable of having a truth-value.182
It is
also argued that there may be an argument to offer greater protection to speech where
the objective truth may be physically provable (eg. in the realm of science) whereas in
other categories of knowledge, closer examination may be warranted when exploring
the extent of protection that should be afforded them.183
In other words, the
development and implications of the argument for truth depend ―on establishing an
acceptable range of working epistemologies.‖184
A further difficulty potentially arises when the terms ―knowledge‖ and ―truth‖ are
applied loosely.185
Knowledge may be taken to refer more broadly to awareness of
information that may, if properly combined, lead to the truth. Put differently, knowledge
is the means to the attainment of the truth. Further, the value of truth can be analysed
from instrumental and intrinsic perspectives (this mode of analysis was applied above
in the discussion on the ―individual autonomy‖ justification). The instrumentalist form
The secular post-modern perspective that has held sway recently…rejects previous efforts to
find a unifying or totalising theory of knowledge in favour of the thesis that all human thought
is ultimately generated and bound by an infinite number of idiosyncratic cultural-linguistic
forms of life. Thus human knowledge is inherently chaotic and is the historically contingent
product of linguistic and social practices. No interpretation of a text can claim decisive
authority – there are as many truths as there are readings of the texts. Since there are no
uncontested versions of the truth, the most one can hope for is ―to be temporarily useful or
edifying, emancipatory or creative – though it is recognised that in the end these valuations are
themselves not justifiable by anything beyond personal and cultural taste‖ (Tarnas (1991), at
400). The post-modern condition has been criticised as being dogmatically relativist, detached,
and sceptical, and in its extreme form paralysingly nihilist (a nihilist is an extreme sceptic, one
who denies that there is an objective basis for truth or that existence is real). Of concern is that
if one accepts the nihilist philosophy of nothingness – that life is merely an occasion of
sensations and fleeting experiences – then it makes no sense to try to explain events or
phenomena, to describe the past, or to predict the future. Certainly it places journalism in an
invidious position. If journalists subscribe to post-modernism, whose truth are they going to
tell (italics added)?
182 Campbell (1994), above fn 95, at 23.
183 Butler and Rodrick (2007), above fn 44, at 9.
184 Campbell (1994), above fn 95, at 23. Thus, a mere accumulation of communications is in itself
generally of no significance if they have little epistemological weight (ibid).
185 Take, for instance, the following argument by Campbell (1994), above fn 95, at 30-31:
Assuming, then, that institutional objectivity in speech-limitation is approachable and that
actual and ostensibly truth-oriented assertions may be harmful, where does this leave the
argument for truth? A great deal depends here on the sort of value we ascribe to truth.
Knowledge may be valued for its own sake, as an intrinsically worthwhile possession or state
of mind. Thus, it may be valued simply as the object of a desire: curiosity or, more grandly, the
thirds for knowledge for its own sake. Value of this type must vary with the sort of knowledge
in question. Are we after deep scientific understanding or finding out what it is that the
neighbours are up to in their garage? Only in relation to significant truths [as opposed to
prurient interest in others‘ affairs] can knowledge for its own sake claim to have overriding
importance (italics added).
61
provides ―a means whereby the individual may acquire useful information which
enables her to protect her own interests.‖186
The value of this form of truth may be
viewed as high in relation to such matters as applied science, organisational efficiency
and legal justice, although in itself being morally neutral and being a matter of means
not ends.187
The intrinsic value of truth, on the other hand, ―may be vindicated as
enhancing the speaker‘s grasp of the truth for its own sake‖188
and its value in relation
to the instrumentalist value of truth would depend on how grand the object of the desire
is, that is, whether it merely satisfies a prurient interest, or aspires to a loftier goal. On
this basis, a further rule, ―albeit of less than universal application‖189
is suggested:
In the interests of truth, special weight could be given to the communications of those who
are in a position to contribute significantly to the search for truth, such as eyewitnesses,
knowledge experts or skilled analysts.190
The foregoing arguments clearly present a dilemma – speech can be prioritised,
with some categories of speech capable of commanding greater freedom than others.
Such prioritisation favours the instrumentalist view of truth, for example, in matters of
applied science, organisational efficiency and legal justice.191
The reason for such a
bias, as Schauer notes, is because not all knowledge is ―in the same epistemic
category‖.192
Such an approach, however, is open to the criticism that it is subject to the
vagaries of the rational thinking process.193
186 Campbell (1994), above fn 95, at 32.
187 Campbell (1994), above fn 95, at 31:
The point at which the presumption of freedom is overridden will depend on the value which
we attribute to knowledge for its own sake, the scale of values used to measure harm, and the
available capacity to control the uses of new knowledge and the benefits it might bring (ibid).
188 Campbell (1994), above fn 95, at 32.
189 Campbell (1994), above fn 95, at 32.
190 Campbell (1994), above fn 95, at 32 (italics added). The author also refers to ―journalistic‖ research,
and observes that this is one of the areas for which resources are scarce.
191 See text accompanying fn 187 above.
192 Schauer (1982), above fn 96, at 30. He adds:
Knowledge in mathematics and logic is more certainly attainable than is knowledge in many
other areas, and an argument based on the possibility of error cannot fail to recognise the
difference. The argument from truth may easily be characterised as an argument from
uncertainty. Uncertain of our beliefs, we allow, perhaps even encourage, the expression of
opposing views in order to have the opportunity of rejecting or modifying our erroneous
beliefs. The more (properly) certain we are of our beliefs, the less likely we are to advance
knowledge by the expression of opposing views. The more certain we are, the less telling is the
uncertainty we may sometimes have about our opinions (at 30-31).
193 See the caution expressed by Schauer (1982), above fn 96, at 30:
62
4. Constraints on freedom of speech
From the above discussion we may conclude that the ―freedom of speech‖ principle –
notwithstanding definitional issues, the varying rationales and their accompanying
imperfections and any other recondite theoretical underpinning – is identifiable enough
to constitute a tangible value that occupies a hallowed place in democratic society.194
Furthermore, it has been said that freedom of speech is ―intrinsically important‖ and
―the lifeblood of democracy.‖195
It is a ―cardinal principle that must be observed‖ and
that any incursion into press freedom by the law ―should go no further than is
necessary‖ to hold the balance between freedom of speech and the protection of
reputation.196
Despite the broad recognition for freedom of speech as an important value,
however, this value remains under constant threat. This has been particularly so in the
post-September 11 era – the period following the 2001 terrorist attacks in the United
States of America.197
Legislative change ostensibly aimed at safeguarding society
against the threat of terrorism has seen the advent of various well-catalogued measures,
legislative and otherwise, that impede the media‘s ability to report properly on matters
of public interest and importance.198
The ―chilling effect‖ on freedom of speech
The argument from truth presupposes a process of rational thinking. Indeed, one of its virtues
may be that it encourages this process. Yet because the process of rational thinking is the
foundation of the theory, the theory weakens or dissolves when the process does not obtain.
Even if we assume that rational thinking is the norm, there may be times when the process does
not function properly.
See also Schauer (1982), above fn 96, at 33:
Because of errors in observation, interpretation and description, the factual statement we accept
as true may be false, and the statement we reject as erroneous may be true…
194 See generally the discussion under heading 3 above.
Note, however, that it has also been argued that there is no human right of freedom of expression:
see Alexander L (2005), above fn 78, at 193:
There are many good reasons for governments not to regulate expression for the purpose of
affecting messages, but that freedom of expression is a human right is not one of them. There
is no human right of freedom of expression.
195 R v Secretary of State for the Home Department, Ex Parte Simms [2000] 2 AC 115, Lord Steyn, at
126.
196 Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, Lord Hope, at 1309.
197 For a discussion on the ―rush to new [anti-terror] legislation‖ in the United States of America, see
Klosek J (2007), The War on Privacy, Praeger, London, at 1-11.
198 Australia‘s peak media voices have expressed concern at the passage of a raft of counter-terrorism
legislation which ―threaten journalistic independence‖ (Media, Entertainment and Arts Alliance
(2005), Turning Up The Heat: The Decline of Press Freedom in Australia 2001-2005 (Report),
Redfern, NSW, at 6); and which constitute ―a significant impediment to free speech‖ (Australian
Press Council (2005) Annual Report No 29, 30 June, at 13). The legislation in question include the
Security Legislation Amendment (Terrorism) Act 2002 (Cth); Australian Security Intelligence
Organisation Legislation Amendment (Terrorism) Act 2003 (Cth); Telecommunications
(Interception) Amendment (Stored Communications) Act 2004 (Cth); Anti-Terrorism Act (No 2)
63
permeates not just the area covered by defamation law, as argued in Chapter 1,199
but a
breadth of areas. Professor Ken McKinnon, the head of the Australian Press Council,
arguably the most important media grouping concerned with free speech issues, has
stated that ―the report card on press freedom in Australia must be characterised as
chilling.‖200
Another peak journalism organisation, the Media, Entertainment and Arts
Alliance has noted201
that, against an ―anti-terrorism‖ backdrop, new laws and the
unprecedented enforcement of pre-existing laws effectively limit free speech and civil
liberties in a number of ways, for example by: exerting further pressure on journalists
to reveal the identities of their confidential sources; exposing journalists to increased
restrictions in reporting on matters of national security; tilting the balance in favour of
security investigators and law enforcers; and further insulating the Australian Security
and Intelligence Organisation from public scrutiny.202
―Abuses‖ of existing law include
threats to journalists for trespass and constrictions on the flow of information –
2005 (Cth); and Freedom of Information legislation that broadened the “exemption categories” to
reflect the confidentiality provisions in the Australian Security Intelligence Organisation Act 2001
(Cth) and the Migration Act 1958 (Cth). See further Australian Press Council (2006), Annual Report
No 30, above fn 66; Australian Press Council (October 2006), State of the News Print Media in
Australia, above fn 19; Media, Entertainment and Arts Alliance (2006), The Media Muzzled:
Australia’s 2006 Press Freedom Report, Redfern, NSW; and Media, Entertainment and Arts
Alliance (2007), Official Spin: Censorship and Control of the Australian Press 2007 (Report),
Redfern, NSW. In this last-mentioned report, the Federal Secretary of the alliance Chris Warren
states ―the freedom of our press seems increasingly under threat‖ (at 3) while Professor George
Williams, Director of the Gilbert and Tobin Centre of Public Law (University of NSW) refers to
examples that ―demonstrate how fragile freedom of speech is in Australia‖: see Williams G (2006),
―Fragile Freedom‖, The Age, 8 July. Retrieved 14 July 2008, from
<http://www.theage.com.au/news/opinion/fragile-freedom/2006/07/07/1152240485688.html>
See also Fernandez JM (2006), ―Free speech and journalism: Australia Joins the Race to Tighten
Up‖, Vol XXXV No 1, Insaf (Malaysian Bar Journal) 15.
199 See heading 1.1.
200 McKinnon K (May 2006), ―Press Freedom in Australia in 2006‖, Australian Press Council General
Press Release No 271. He added:
It is not an iron curtain over access to information, but for some forms of information of public
interest it might as well be. Public discourse is increasingly hindered by restricted information
cover-ups, deliberate misleading spin and suppression. It is not just the effects of recent
draconian security laws. More serious is the cynical, even ruthless inhibition of the previous
reporting of normal government and other public activity.
201 MEAA Report (2005), Turning Up The Heat, above fn 198, at 4.
202 The expanded ASIO powers and powers to demand documents are discussed in the Senate Legal and
Constitutional Committee Report (November 2005), ―Provisions of the Anti-Terrorism Bill (No 2)
2005‖, Chapter 6.
See also the concerns expressed by the Australian Press Council in its report State of the News Print
Media in Australia Report, above fn 19, at 66, where it states that ―the contemporary reality of
terrorism has led to legislation that has had the consequence of exacerbating the tendency of
governments towards secrecy‖.
The Council notes further that much of the new anti-terrorism legislation, however necessary it may
be deemed, ―constitutes a significant threat to free speech…Many provisions included in [the Acts
proposed] seem draconian and to go farther than necessary‖ (at 67).
64
―paradoxically‖ under freedom of information (FOI) law. FOI, as it is popularly referred
to, is often argued as not fully serving its intended purposes, particularly in facilitating
access to policy-related information.203
A core objective of freedom of information law
is to provide a mechanism to facilitate effective public participation in governance.204
This mechanism has even been formulated as a ―right‖.205
However, its operation
attracts a grim assessment from the media who constantly lament its efficacy.206
Even
some members of the High Court appear to share this view as seen in McKinnon v
Secretary, Department of Treasury.207
203 While the difficulty in accessing information using the freedom of information
mechanism is a common media lament, this difficulty is acknowledged even by the
Commonwealth Ombudsman: see McMillan J (2005), ―Freedom of Information and
Whistleblower Legislation: An Australian Perspective‖, (Paper), 9th Asian Ombudsman
Association Conference, Hong Kong, 30 November. Retrieved 16 November 2006 from,
<http://www.comb.gov.au/commonwealth/publish.nsf/Content/research_speeches_2005>:
In Australia, there is a view that the FOI Act works well in facilitating public access to
personal information, but not to policy-related information – particularly when that information
is likely to be politically sensitive or is claimed to be ―Cabinet-in-Confidence‖. There is
general recognition that there is an uneven culture of support for FOI amongst government
agencies, which may reflect their different responsibilities, the views of their respective
Ministers, or the culture created under a particular Secretary (at 6).
204 See, for example, section 3, Freedom of Information Act 1982 (Cth) which identifies the Act‘s
objective as being ―to extend as far as possible the right of the Australian community to access to
information in the possession of the Government of the Commonwealth‖.
See also section 3, Freedom of Information Act 1992 (WA) which is more committal, viz., the Act‘s
objects are ―to enable the public to participate more effectively in governing the State‖ and to make
the government ―more accountable to the public.‖
See further Australian Law Reform Commission (1995), Open Government: A Review of the Federal
Freedom of Information Act 1982, Report No 77, whose recommendations include amendments to
the Act‘s object clause so as to explain that ―the purpose of the Act is to provide a right of access
which will enable people to participate in the policy, accountability and decision making process of
government; open the government‘s activities to scrutiny, discussion, comment and review; and
increase the accountability of the Executive‖ (Appendix D, Chapter 4, Recommendation 1).
205 See McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, Gleeson CJ and Kirby J,
dissenting, at 427: ―We emphasise the repeated use of the word ‗right‘.‖
206 News Limited chairman and chief executive John Hartigan commenting on the outcome of the
newspaper‘s failed Freedom of Information challenge in the High Court – McKinnon v Secretary,
Department of Treasury (2006) 228 CLR 423 – notes in a media release (―High Court rules against
Freedom of Information case‖, Media Release, News Limited Corporate Affairs, 6 September 2006):
On a broader note, I repeat what I have said in other forums, freedom of speech – including
freedom of the press – is under renewed and intensifying threat in Australia. Australians need
to become well informed about the threats to this basic democratic freedom which is occurring
on numerous fronts. Increasing attempts to foil FOI requests, the widespread use of
suppression orders and the inadequacies of the new national defamation regime are, with the
proliferation of spin and political correctness, undermining the public‘s right to know how
government, institutions and business are managed and to what standards they should be held
accountable.
207 In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, Gleeson CJ and Kirby J,
dissenting, at 432, pointedly state that they ―cannot accept‖ the view of the Full Court of the Federal
Court that an application for a review of a decision refusing to grant access to a document must fail
―so long as there is anything relevant to be said in support of the view that disclosure would be
contrary to the public interest‖. Gleeson CJ and Kirby J ask: ―How, then, could an applicant ever
succeed?‖ (ibid, italics added).
65
In short – ―there has been a steady deterioration of freedom of the press since
2001‖208
even if, on occasion, it may appear that some parts of media – or more
precisely, some media commentary – present an opposing view.209
A whistleblower was
found guilty of leaking a classified report to a newspaper, which resulted in coverage
that the newspaper claims led to ―the biggest overhaul of airport security in the nation‘s
history‖.210
Two journalists were convicted of a contempt of court after they refused to
reveal their confidential sources.211
A newspaper office was raided in relation to a
publication of information that was claimed to be confidential.212
A grouping of major
Australian media organisations has also launched a ―free speech campaign‖213
to arrest
the decline.214
This grouping has stated:
208 MEAA Report (2005), Turning Up The Heat, above fn 198, at 4.
209 Consider, for instance, an editorial column written after the launch of the free speech campaign (see
below fn 213) where it is suggested that claims that Australia is becoming increasingly authoritarian
are difficult to sustain ―at a time when the marketplace of ideas has never been so crowded‖: see The
Australian (2007), ―Reality Bites the Psychotic Left‖ (Editorial), The Australian, 11 June, at 9.
210 Kearney S (2007), ―Airport whistleblower guilty‖, The Australian, 28 March, at 3.
211 R v Gerard Thomas McManus & Michael Harvey [2007] VCC 619. See also Harvey & Another v
County Court of Victoria & Ors [2006] VSC 293. The two journalists were charged after they
refused to ―reveal the key source of an article that revealed plans to reject a $500 million boost to
war veterans‘ pensions‖: see MEAA (2006), The Media Muzzled, above fn 198, at 9.
212 See Australian Press Council News (May 2008), ―Raid on Sunday Times‖ Vol 20 No 2, at 6.
According to the Council the raid was aimed at seeking material related to a story that may have
―embarrassed a senior Minister of the government but was otherwise unrelated to any serious breach
of the law‖ (ibid).
213 Joint Statement by a coalition of prominent Australian news publishing organisations calling itself
Australia‘s Right to Know Coalition, released by John Hartigan (Chairman/CEO, News Limited),
David Kirk (CEO, Fairfax Media), Mark Scott (MD, Australian Broadcasting Corporation), David
Leckie (CEO Network Seven and Chairman Free TV Australia), Shaun Brown (MD, Special
Broadcasting Service), Michael Anderson (CEO Austereo and Chairman, Commercial Radio
Australia), Clive Marshall (CEO, Australian Associated Press), and Angelos Frangopoulos (CEO,
Sky News): see ―Joint Statement—Australia‘s Right to Know‖ (n.d.). Retrieved 12 June 2007, from
<http://static.townsvillebulletin.com.au/FreeSpeech/jointstatement.html>
214 The Joint Statement by the Right to Know coalition, above fn 213, while announcing the launch of a
―national audit of the state of free speech in Australia‖, also states:
We have joined together because we are deeply troubled by the state of free speech in
Australia…Our freedom to express an opinion, honestly and openly, is under threat. Equally,
our ability to report to Australians facts about how they are governed and how our courts are
administering justice is being severely hampered. Australia now lags well behind most major
democracies. The latest worldwide press freedom index, compiled by the independent
organisation Reporters Without Borders, ranks Australia 35th – equal with Bulgaria and behind
nations such as Bolivia (16th) and South Korea (31st).
See also McIlveen L (2007), ―Freedom fighters‖, The Sunday Times, 13 May, at 34. The report
quotes News Limited Chairman/CEO John Hartigan as saying:
Australians are not being given the information needed to make informed decisions. Our
freedom of speech is not free, certainly as much as we would wish it to be, and the slide, if
anything, is accelerating…By international standards we are a lightweight democracy. We
should be up there with other democracies that are way in front of us. Instead, our freedom of
speech ranks us below Bosnia and Bolivia and, indeed, just in front of El Salvador.
66
Australian laws now contain more than 500 separate prohibitions and restrictions on what
the public is allowed to know. Some vary from state to state, creating huge barriers to
accurate and full reporting.215
A comprehensive report commissioned by the grouping found that ―[b]y many
accounts, media freedom has deteriorated in Australia over recent years.‖216
The declining state of media freedom is set against a backdrop of a growing
culture of lying and possibly a greater acceptance of lying, by society.217
An important
focus for concern in Australia in recent years has been ―the question of truth in politics,
and so of honesty and deceit‖.218
Truth has been a central issue in debates about the
justification for the war in Iraq. It remains an issue in the response to the so-called
terrorism threat, and it has encompassed immigration, the economy and business
activity.219
Recent Australian history reveals many examples of difficulty in gaining
access to the truth in respect of government and private sector conduct. They include
the following examples: the ―children overboard saga‖;220
the bans on the media to
215 ―The State of Free Speech In Australia‖ (n.d.), Media Statement, released at the launch of the free
speech campaign by Australia‘s Right to Know Coalition: see above fn 213. See similar views
expressed on The Media Report (2007), ABC Radio National, ―Australia‘s Right to Know‖, 31 May.
216 Moss I (2007), Report of the Independent Audit into the State of Free Speech in Australia, 31
October, at 9. The author of the report, Irene Moss noted that the media faced ―a litany of problems‖
including ―more than 500 legal restrictions on journalists including 335 specific secrecy problems
withholding vital information from the public; regular rejections of FOI applications [and] more than
1000 court suppression orders in force across Australia at any one time, many granted on flimsy
grounds‖ (see Australia‘s Right to Know Coalition (2007), ―Irene Moss releases national audit of
free speech‖, Media Release, 5 November). See also Media, Entertainment and Arts Alliance,
Western Australia Branch (March 2008), ―Shield Law for Journalists‖, Submission to Attorney-
General of Western Australia, Item 5, where the Alliance expresses concerns about ―flagrant
incursions into the domain of legitimate journalistic activity‖ by the State‘s Corruption and Crime
Commission, which had ordered journalists to appear before it. Following an order to a journalist
from Perth‘s The Sunday Times to appear before a WA Parliament Upper House inquiry to reveal a
confidential source the Alliance‘s WA Branch secretary said journalists were ―threatened with jail if
they didn‘t reveal private conversations‖: see Sinclair-Jones M (2008), ―New shield laws needed to
protect public right to know‖, Media Release, Media, Entertainment and Arts Alliance (WA), 10
March. See also International Federation of Journalists (2008), ―IFJ says Western Australia
Government must stop campaign of harassment‖, Media Release, 9 July. See also Campbell K
(2008), ―Opposition renews push for press shield laws‖, The West Australian, 3 July, at 4.
217 See Mackay H (2005), ―Truth is we‘re just more open to lying‖ (Column – The Moral Maze), The
West Australian, 10 September, at 18. The well known social scientist and commentator notes:
I recently heard a judge bemoaning the fact that people appearing in her court…seem
increasingly willing to lie under oath. Until recently, she said, people seemed to take the oath
seriously and to feel that dire consequences might flow from lying in court, whereas lying now
seems to be regarded as just another strategy…
218 Malpas J (2005), ―Truth, lies and democracy: Ethical practice in contemporary Australia‖ (Lecture),
5 October, Curtin Annual Ethics Lecture, at 1.
219 Malpas (2005), above fn 218, at 1.
220 The saga in which the Prime Minister was said to have falsely accused refugees of throwing their
children into the sea (see The Australian (2006) ―A self-serving story‖, (Editorial), 28 February, at
13; and Ward I (2002), ―The Tampa, wedge politics, and a lesson for political journalism‖, Vol 24(1)
Australian Journalism Review 21. For an earlier catalogue of instances of ―sustained‖ attack on
dissent see Maher LW (June 2001), ―Free Speech and its Postmodern Adversaries‖, Vol 8 No 2,
Murdoch University Electronic Journal of Law 12.
67
prevent interviews with ―wrongly‖ detained asylum seekers;221
the attempts by the
Immigration Department to ―cover up‖ details concerning wrongful deportations of
citizens;222
privacy impediments to the release of information concerning dubious
medical practitioners;223
the event known as the ―AWB Scandal‖;224
and the torture of
Australians held in detention in Guantanamo Bay.225
There is an increasing tendency
towards ―spin‖ and obfuscation,226
leading occasionally to the creation of commissions
221 See Mistilis E (2005/2006), ―The dangers of Queensland‘s jails‖, The Walkley Magazine, Issue 36
December /January, at 5).
222 Two such citizens in particular were Vivian Alvarez and Cornelius Rau: see Colman E (2005),
―Minister firm on Alvarez‖, The Australian, 7 October, at 2; and Stapleton J (2005), ―Cornelia
‗treated like an animal‘‖, The Australian, 18 July, at 5). In response to the government‘s advice
concerning media coverage of the Alvarez and Rau cases that ―the media should be cautious not to
report hearsay, rumour and innuendo or present as fact claims made by advocates who have little or
no connection to the case‖ one journalist correctly suggests that the government ―must also bear
some responsibility for any shortcomings in coverage‖ of the cases: see Stewart C (2005), ―Don‘t let
facts get in the way‖, The Weekend Australian, 28-29 May, at 29. Stewart writes further:
[The Minister] would no doubt lay blame at the feet of bleeding-heart editors, but her
government must also bear some responsibility for any shortcomings in coverage…the
government has fuelled this trend (of deep-seated suspicion of the government) by choosing
silence over explanation time and time again, leading journalists to seek other voices to fill in
the gaps…Despite any shortcomings in its coverage, the media has driven both the Rau and
Alvarez stories; indeed, it was the media coverage that led directly to both women being
rediscovered. Relentless media coverage is also forcing the government to adopt a less hard-
hearted approach to some asylum-seekers and detainees.
223 See The Australian (2005), ―Shining a light on the rough operators‖ (Editorial), 9 June, at 10. In this
instance, privacy legislation was said to obstruct the release of details about a surgeon who ―has had
48 patients die over two years. But nobody is allowed to know who he or she is‖.
224 See the reported claims by the United Nations that the Australian Department of Foreign Affairs and
Trade showed that the relevant Minister had suppressed cables written in 2001, describing in detail
methods used by the Australian Wheat Board (AWB) to pay ―kickbacks‖ to Iraq‘s Saddam Hussein:
Martin B (2006), ―UN papers show Downer blocked Iraq wheat probe‖, The West Australian, 24
March, at 4. An inquiry headed by Commissioner Terence Cole, ended with a 2065-page report
tabled in Parliament and that report held that 11 former executives of the AWB had engaged in an
elaborate deception that illegally funnelled $290 million to Saddam Hussein‘s regime: see
Overington C (2006), ―Cole‘s dirty dozen face jail‖, The Australian, 28 November, at 1.
225 See Neighbour S (2007), Four Corners, ABC Television, ―Ghost Prisoners‖, 11 June (transcript).
226 Australian Press Council (October 2007), ―State of the News Print Media in Australia: A
Supplement to the 2006 Report‖ (Report), Sydney, at 33-34 discusses ―the pervasiveness of spin‖
citing examples, and notes further that the ―federal government‘s attitude to the use of spin has been
noticeably amoral, demonstrating a serious lack of consistency and integrity.‖ The term ―spin‖ has
been described as ―that black art of pulling the wool over someone‘s eyes‖: see Teadgold T (2008),
―Sense lost along the way as business spin wins the day‖, The West Australian (Business), 26 April,
at 75. ―Spin‖ has also been referred to as ―normally imparted by exaggeration/understatement and
subjective selection of facts [and] is usually distinguished from outright lies, but is designed to
ensure the recipient of information receives an impression that is at variance from the unvarnished
truth‖: see Moss (2007), above fn 216, at 38.
One news report suggested that total ―marketing costs‖ in the two years to June 2005 had risen to
$332 million (Sinclair L (2006), ―Coalition ‗masking‘ millions spent on PR‖, The Australian, 24
January, at 2). See also Strutt J (2006), ―Labor chief gets $100,000 to run ‗propaganda‘ unit‖, The
West Australian, 20 May, at 4; Dayton L (2006), ―Media management spins out of control‖, The
Australian (Higher Education), 3 May, at 26; Ester H (2007) ―Fear and loathing in Canberra‖,
Walkley, Issue 44 Apr/May, 21, at 22, where the writer refers to a ―government campaign of
censorship and misinformation‖; Banks A (2007), ―Spinning out of control‖, The West Australian,
13 August, at 1; Banks A (2007), ―Danger of media spin ‗as bad as ever‘‖, The West Australian, 13
August, at 10; and Burton B (2007), Inside Spin: The Dark Underbelly of the PR Industry, Allen &
68
of inquiry.227
Even ―the gospel truth‖, is apparently no longer what it once was228
with
one prominent bishops‘ grouping acknowledging inaccuracy in the gospel.229
The situation is exacerbated by the fact that freedom of speech in Australian law
has generally lacked a constitutional basis. Consequently, freedom of speech is ―a
residual liberty. It is what is left over after legislation, and the creeping amendments of
the common law, have taken effect.‖230
The continuing reluctance of Australian courts
to explicitly recognise ―journalists‘ privilege‖ and other immunities that might
distinguish the rights of the media from those of ordinary citizens means that the
media‘s freedom to speak and to protest remains co-extensive with the citizen‘s
freedom.231
5. Conclusion
This chapter was aimed at identifying the conceptual locus of freedom of speech in the
context of this thesis. It was also aimed at identifying a significant conflict, with the
protection of reputation on one side, and freedom of speech, on the other. In so doing,
this discussion identified the nexus between truth, defamation and freedom of speech.
Unwin, Crows Nest, NSW. See also Australian Press Council (2005), ―Report on Free Speech Issues
2004-2005‖. Retrieved 6 January, 2006, from <http://www.presscouncil.org.au/pcsite/fop/fop_ar/ar05.html>:
Never before have journalists had to cut their way through so much flak and spin to get the real
story. Governments (and corporations imitating their ‗success‘) all have highly paid public
relations outfits whose role is to market the approved or sanitised version of a story. The
journalist‘s role is to cut through this static and get to the facts, including those with warts.
Note also more recent guidelines issued by the Public Service Commission urging public servants to
adopt the ―useful strategy‖ of referring all approaches by journalists to an official spokesman: see
Ryan S (2007), ―Public servants shielded‖, The Australian, 13 December, at 5.
227 Some examples of this are the Cole inquiry into the Australian Wheat Board‘s dealings with the
former Iraqi president (see fn 224 above); and the Palmer inquiry resulting in the Palmer Report
2005 which documented ―the terrible failure of the immigration detention system which has resulted
in the most serious of consequences for [two] women and their families‖ and which ―highlighted two
major inadequacies in the way Australian authorities deal with mental illness‖: see Australian
Human Rights and Equal Opportunity Commission (2005), ―Palmer inquiry highlights immigration
detention and mental health services inadequacies in Australia‖, Media Release, Sydney, 14 July.
Retrieved 4 April 2007, from <http://www.hreoc.gov.au/media_releases/2005/27_05.html>
228 Gledhill R (2005), ―Catholic Church no longer swears by truth of the Bible‖, The Times, 5 October.
Retrieved 12 April 2007, from <http://www.timesonline.co.uk/tol/news/world/europe/article574768.ece>
The Times article cites ―The Gift of Scripture‖ (2005), released by the Catholic Bishops‘ Conferences of
England and Wales, and of Scotland, published by the Catholic Truth Society, London, Prot No 134/2005, 6
July. Retrieved 17 March 2006, from <http://www.catholic-ew.org.uk/nav/giftofscripture.htm>
229 The ―Gift of Scripture‖ (2005) document, above fn 228, states, at 18:
We should not expect to find in Scripture full scientific accuracy or complete historical precision.
The Western Australia Catholic Education Department has reportedly endorsed that position: see Titelius R
(2005), ―Not all the Bible is gospel, say bishops‖, The West Australian, 6 October, at 3.
230 Magnusson RS (2001), ―Freedom of speech in Australian defamation law: Ridicule, satire and other
challenges‖, 9 Torts Law Journal 269, at 297.
231 Magnusson (2001), above fn 230, at 297.
69
This chapter considered some definitional challenges and it critiqued major rationales
advanced for freedom of speech. From the broader free speech/freedom of
expression/freedom of communication perspective, Campbell has helpfully summed up
the complexity of the situation:
…the determination of what rights of free communication ought to be secured is a complex
and open-ended matter which cannot be reduced to easy arguments from simple and
straightforward premises.232
This complexity, notwithstanding, it is clear that freedom of speech is an
important value, and an important principle in law. Freedom of speech is, however,
under-developed in Australian legal discourse although there is growing interest in this
area.233
Freedom of speech, as a principle, has received inadequate analytical treatment
even in the classic ―free speech‖ cases identified above.234
While the extent of
explication of the freedom of speech principle in this chapter suffices for present
purposes, the principle deserves greater attention in Australian judicial deliberations
that confront the tensions between the media‘s freedom to publish and other
countervailing public interests.
232 Campbell (1994), above fn 95, at 43.
233 Increasingly legal texts are devoting more attention to this topic: see Butler D and Rodrick S (1999),
Australian Media Law, LBC Information Services, Pyrmont, NSW, Chapter 1; Walker (2000), above
fn 54, Chapter 1; Pearson M (2004), The Journalist’s Guide to Media Law, 2nd Edn, Allen &
Unwin, Crows Nest, NSW, Chapter 3 on ―freedom of the press‖; and Breit R (2007), Law and Ethics
For Professional Communicators, LexisNexis Butterworths, Chatswood, NSW, Chapter 2.
234 See above fn 31.
70
CHAPTER 3
An exploration of the meaning of truth in philosophy, law and
journalism
There was things which he stretched,
but mainly he told the truth.
That is nothing.
I have never seen anybody but lied, one time or another…1
The need for truth is a need more sacred than any other need.
Yet it is never mentioned. One feels afraid to read once one has
realised the quantity and monstrousness of the material
falsehoods paraded…Thereafter one reads as though one were
drinking from a contaminated well.2
1. Introduction
This chapter has a bold objective. It inquires into the meaning of the term ―truth‖, a
term that ―has always been at the centre of human endeavours‖,3 and of interest ―not
only to philosophers but to all those who desire to know about anything whatsoever‖.4 It
is a term that has exercised minds over the millennia and still eluded definition. Such an
inquiry is a formidable one in any circumstance, and more so against the backdrop of a
single chapter in a work of this nature. This inquiry, however, must occur regardless of
the boldness of the enterprise or any alleged futility. This inquiry must occur because
this thesis is concerned with the defence of truth in defamation law, the difficulties it
imposes on media defendants and the need to alleviate the strictness of this defence.
The term has a central place in this thesis, located as it is, at the confluence of two
discourses – the law and journalism – where they meet in defamation law‘s truth
defence. It is important to examine the term‘s role so as to expose a significant
disjuncture in the role truth plays in each of these discourses. Such an examination
contributes to the foundation for the thesis argument that defamation law‘s truth defence
requires reform to enable media defendants to more successfully rely on this defence.
The term ―discourse‖ is a critical one as it aids in an understanding of the term
―truth‖, in defamation law and in journalism because it sets out the ground rules to
1 Twain M (1979), The Adventures of Huckleberry Finn, Franklin Library, Pennsylvania, at 3.
2 Simone Weil (1978), The Need for Roots: Prelude to a Declaration of Duties Towards Mankind,
Routledge and Kegan Paul, London, at 35, in the section entitled ―The needs of the soul‖.
3 Vardy P (1999), What is Truth?, UNSW Press, Sydney, at 5.
4 Johnson LE (1992), Focusing on Truth, Routledge, London, at 1.
71
facilitate the communication of ideas.5 It will be shown that there is considerable
variance in the meaning of ―truth‖ between the different discourses. There are, for
example, semantic, terminological and epistemological variations, so that in the final
analysis, it is not possible to say that there is one true answer to the question, what is
truth? The traditional lexical reference – the dictionary – generally provides little
succour. The Australian Reference Dictionary provides only the following meanings for
―truth‖: ―1. The quality or state of being true or truthful. 2. What is true.‖6 The same
dictionary defines ―true‖ in the present context as follows: ―1. In accordance with fact.
2. In accordance with correct principles or an accepted standard; rightly or strictly so
called; genuine, not false. 3. Exact, accurate…‖.7 The same degree of brevity can be
observed with other everyday dictionaries.8 The Butterworths Australian Legal
Dictionary9 defines neither ―truth‖ nor ―true‖. An intellectual examination of the
meaning of truth requires an elaboration of the lexical definition.
5 The following explanations of the term ―discourse‖ offer assistance:
(a) Thwaites T, Davis L, and Mules W (1996), Tools for Cultural Studies: An Introduction,
MacMillan Education, Melbourne, at 135:
A discourse is a set of textual arrangements which organises and coordinates the actions,
positions and identities of the people who produce it. Discourse locates and orientates talkers
with respect to one another. It defines protocols. Discourse structures, in an institutional
setting, the genres and texts that people use…One of the key effects of this is that discourse
produces addressers and addressees as social identities. In discourse, people are placed, and
place themselves, in institutionally located roles (italics in original).
(b) O‘Sullivan T, Hartley J, Saunders D and Fiske J (1992), Key Concepts in Communication,
Routledge, London, at 73-74:
Discourse is the social process of making and reproducing sense(s). Discourses are the product
of social, historical and institutional formations, and meanings are produced by these
institutionalised discourses.
6 (1991), Oxford University Press Australia, Melbourne, Victoria, at 828. Webster‘s Everyday
Dictionary (2002), Random House, London, at 567, explains truth as follows:
1. the true or actual state of a matter. 2. Conformity with fact or reality. 3. A verified or
indisputable fact, proposition, etc. 4. The state or character of being true.
As will be seen below, these meanings encounter difficulty upon examination from a philosophical
perspective. The etymological origins of the English word ―true‖, deriving from Middle English
trewe and Old English treowe (loyalty, trusty), appear to be connected with Old English treow
(loyalty, fidelity) and with treow and treo, the roots of our word ―tree‖, giving us the sense of ―as
firm and straight as a tree‖: see Partridge E (1958), Origins: A Short Etymological Dictionary of
Modern English, Routledge & Kegan Paul, London, at 740.
7 Above fn 6, at 828. Webster‘s Everyday Dictionary, above fn 6, at 566, defines ―true‖, in the present
context, as follows: ―1. conforming to reality or fact. 2. Real; genuine.‖
8 See, for instance, Macquarie Dictionary (2005), 4th Edn, Macquarie University, NSW. Multi-
volume encyclopaedic dictionaries provide more detailed treatments but do not resolve the issues
raised in this thesis: see, for instance, The Oxford English Dictionary (1989), 2nd Edn, Vol XVIII,
Clarendon Press, Oxford; and Webster’s Third New International Dictionary (Unabridged) (1986),
Vol III, Encyclopaedia Britannica, Inc., Chicago. See, however, the brief treatment of ―truth‖ in The
Oxford Encyclopaedic English Dictionary (1991), Clarendon Press, Oxford.
9 (1997), Butterworths, Melbourne, Victoria.
72
1.1 A framework for the truth inquiry
A central question in this chapter is what does truth mean in the contexts under
examination? This question lies within the broader framework of this thesis‘ aim. The
purpose of the enterprise in this chapter, briefly stated, is to underscore the argument
that the absence of unanimity as to what truth means should facilitate the readjustment
of the truth benchmark that the law sets for defamation defendants relying on the truth
defence. In the specific realm of the law it does matter that ―truth‖ cannot be defined
universally. Common to the contexts under examination is the quest to identify the real
state of things.10
It must be declared at the start that this work does not aim for an
analysis, exegesis or explication of truth theory. It aims to expose the multiplicity of the
term‘s meanings, which in turn exposes a significant conundrum for defamation law‘s
truth defence, and flags the ways truth is thought about in the disciplines selected for
discussion in this chapter.11
These disciplines are philosophy, the law and journalism.
Beyond, however, lies an expansive field of thought comprising a multitude of theories
and a distinguished line of thinkers.12
No exercise of the kind would be complete
without a mention of ―post-structuralism‖ which ―names a theory, or a group of
theories, concerning the relationship between human beings, the world, and the practice
of making and reproducing meanings.‖13
That term is closely linked with ―post-
modernism‖, a term which is regarded in a general sense ―as a rejection of many, if not
10 In philosophy see, for instance, Aristotle‘s dictum cited in Johnson (1992), above fn 4, at 6:
To say of what is that it is not, or of what is not that it is, is false, while to say of what is that it
is, or what is not that it is not, is true; so that he who says of anything that it is, or that it is not,
will say either what is true or what is false.
Blackburn S and Simmons K (1999), Truth, Oxford University Press, Oxford, at 53, at 1, state that
this is ―perhaps the first expression of the correspondence theory of truth‖.
11 See, for instance, the method of inquiry discussed in Pivcevic E (1997), What is Truth?, Ashgate,
Hants, England, at 19. Pivcevic discusses three basic approaches to an analysis of truth conditions,
which he calls the naturalistic, the phenomenological and the socio-historical approach. He states
that his objective is not to attempt a classification or exegesis of any existing theory, and that his use
of these terms is merely ―a convenient device for flagging out certain ideal theoretical positions or
models of reasoning about truth‖.
12 Some leading thinkers are mentioned here in no particular order: Michel Foucault, Jacques Derrida,
Friedrich Nietzsche, Claude Levi-Strauss, Roland Barthes, Luce Iirigaray, Jurgen Habermas, Judith
Butler, Immanuel Kant, Friedrich Hegel, Karl Marx and John Stuart Mill.
13 Belsey C (2002), Poststructuralism: A Very Short Introduction, Oxford University Press, Oxford, at
5. Sim S (2005), The Routledge Companion to Postmodernism, 2nd Edn, Routledge, London, at 289,
observes:
In general, postmodernism can be regarded as part of a longer-running philosophical tradition
of scepticism, which is intrinsically anti-authoritarian in outlook and negative in tone: more
concerned with undermining the pretensions of other theories than putting anything positive in
their place.
A useful starting point for this subject is Jean-Francois Lyotard (1984), The Postmodern Condition:
A Report on Knowledge (Translation by Bennington G and Massumi B), University of Minnesota
Press, Minneapolis.
73
most, of the cultural certainties on which life in the West has been structured over the
past couple of centuries.‖14
These are by no means exclusive domains and their
elements permeate the philosophical truth theories discussed below.
In the philosophical debates about freedom of speech, the discovery of truth is one
of the key justifications for free speech.15
In law, defamation law in particular, the truth
defence enjoys pride of place as ―a principal defence‖.16
Such is its importance that it is
a ―complete‖ defence in all Australian jurisdictions – that is, the defence protects the
speaker of the defamatory material even if publication of the material concerned was
not in the public interest.17
This unanimity is relatively recent. It came about after
Australian jurisdictions that hitherto refused to recognise truth as a complete defence18
abandoned their opposition to the ―truth alone‖ defence, as part of a national move
towards uniformity.19
As seen in Chapter 1, the speaking of the truth about a person
constitutes a historically important principle based on the view that no harm is done to a
person by telling the truth about that person.20
In journalism, as will be noted below, it
14 Sim (2005), above fn 13, Preface, at vii. The author notes:
It is a cliché by now to say that we live in a postmodern world, and indeed ―postmodern‖ has
become one of the most used, and abused, words in the language. Yet it is striking that few
people can say with any sense of assurance what that term ―postmodern‖ actually means or
involves (ibid).
See also Chapter 2 fns 177 and 181 for an earlier reference to this term..
15 See Chapter 2 heading 3.5. Barendt cites ―truth‖ as the first of four arguments for a free speech
principle: Barendt E (2007), Freedom of Speech, 2nd Edn, Oxford University Press, Oxford, at 7.
For another useful discussion see Greenwalt K (1989), ―Free Speech Justifications‖, 89 Columbia
Law Review 119. See also de Beer AS and Merrill JC (2004), Global Journalism: Topical Issues and
Media Systems, 4th Edn, Pearson, Boston, at 16-17, where the authors say the libertarian freedom
assumptions – including the view that freedom is needed for the discovery of truth – promulgated by
the stalwarts of liberty represent a Western philosophical perspective.
16 Australian Law Reform Commission (1979), Unfair Publication: Defamation and Privacy, Report
No 11, AGPS, Para 120.
17 In England it is a ―complete answer‖ to a civil action that the defamatory matter complained of was
true: see Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4, at 21: see also Gillooly M (1998),
The Law of Defamation in Australia and New Zealand, Federation Press, Sydney, at 104. In the
United States, at least in cases that raise First Amendment concerns, the Court has held ―that truth
can never be libellous, no matter what the reason for publishing it‖: see Holsinger R and Dilts JP
(1997), Media Law, 4th Edn, McGraw-Hill, New York, at 119; Pember DR (2003/4), Mass Media
Law, McGraw-Hill, Boston, at 201.
18 These were the Australian Capital Territory, Queensland, Tasmania and New South Wales.
19 Compare, for instance, Section 25 Defamation Act 2005 (NSW), with the position in that state
previously that required the truth defence to be accompanied by proof that the publication related to
a matter of public interest or that it was published under qualified privilege: see Gillooly (1998),
above fn 17, at 104.
20 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4, at 21. The principle is extracted in full in
Chapter 1 heading 4. See also Lange v Atkinson [1998] 3 NZLR 424, at 435. It is arguable that what
the law seeks to proscribe is ―undeserved‖ harm to reputation from speaking the truth. The
traditional formulation, however, does not make such a qualification even though in reality good
sense would militate for the prevention of undeserved harm caused by speaking the truth. However,
with one minor exception it is not actionable as defamation maliciously to publish the truth (italics
74
is said that the profession‘s ―first obligation‖ is to the truth21
and the quest for truth has
historically been identified as a cornerstone of the journalistic pursuit22
even though as
will be evident from the discussion below23
this profession‘s definition of truth is hazy.
A further reason is offered as to why the term requires closer examination. As Vardy
observes, ―truth is seen increasingly as a dirty word‖24
and he cautions that ―[u]nless
there is truth to be sought, the distinction between truth and untruth becomes
meaningless…[t]his is highly dangerous.‖25
1.2 “Truth” – a fraught term
Notwithstanding the significance of ―truth‖, it is a fraught term. Vardy notes that today,
more than ever, the search for truth seems to be folly.26
Philosophers have considered it
to be ―an indefinable concept‖.27
The vexed nature of ―truth‖ is illustrated in the oft-
cited classic biblical retort from Pontius Pilate to Jesus:
―Truth?‖ said Pilate. ―What is that?‖28
Even the truth as to Jesus‘ answer to that question is elusive. Jesus did not reply.
―Was it simply that he could not answer?‖29
Was it that jesting Pilate ―would not stay
for an answer?‖30
Or, did this exchange in fact occur, considering latter day doubts
about Scripture accuracy?31
The question – what is truth? – is one that ―people of every
added): Milmo P and Rogers WVH (2004), Gatley on Libel and Slander, 10th Edn, Sweet &
Maxwell, London, at 267.
21 See heading 5.1 below.
22 See heading 5.2 below.
23 See heading 5 below and its various subheadings.
24 Vardy (1999), above fn 3, at 4.
25 Vardy (1999), above fn 3, at 3. See also, at 6–7:
Once truth is abandoned, the distinction between truth and falsity disappears…one of the
features of evil forces is their association with lies. Propaganda aims precisely to undermine
the distinction between truth and lies. The idea that there is no distinction would be its greatest
achievement and allows those with the loudest media voice to determine and control not just
morality but human perceptions of reality itself. Fundamental human rights as well as duties
and obligations become radically undermined once truth is denied.
26 Vardy (1999), above fn 3, at 65.
27 Davidson D (1996), ―The folly of trying to define truth‖, Vol 93 No 6 Journal of Philosophy 263, at
265 referring to the work of GE Moore, Bertrand Russell, Gottlob Frege, and Alfred Tarski.
28 The New Jerusalem Bible (1985), Doubleday, New York, The Gospel of St John, Verse 18:38.
29 Vardy (1999), above fn 3, at 179.
30 Hintikka J (2002), ―What is truth? Stay for an answer‖ (Chapter), in Schantz R (Ed), What is Truth?,
Vol 1, De Gruyter, Berlin, at 238.
31 For an illustration of doubts concerning the accuracy of the Scripture see Gledhill R (2005),
―Catholic Church no longer swears by truth of the Bible‖, The Times, 5 October. Retrieved 12 April
2007, from <http://www.timesonline.co.uk/tol/news/world/europe/article574768.ece>
75
kind have struggled to answer.‖32
Is it a valid question in the first place? At one extreme
is the view that truth is dead.33
At the other it is said: ―It is a reasonable and a very fair
question that has been asked by philosophers down the centuries.‖34
It is also suggested
that the conclusion that we tend to presuppose in the question – what is truth? – ―is
unjustified and false‖35
and it is ―the wrong question.‖36
The term ―truth‖ is said to have
―a complex structure…No simple formula can fully capture its meaning‖.37
Needless to
say, newspeople – the community at the forefront of the present inquiry – must live
within the larger ambiguities about truth in Western scholarship and culture today.38
Notwithstanding the befuddlement and despair reflected in the foregoing discussion
some truth theorists hold the view that: ―Truth is a simple logical notion, which does not
require any ‗substantial‘ explanation theory.‖39
And further, that truth does not have
―some hidden structure awaiting our discovery‖40
and that ―truth is entirely captured by
the initial triviality, so that in fact nothing could be more mundane and less puzzling
32 Christians C, Fackler M, Rotzoll K and McKee K (2001), Media Ethics: Cases and Moral
Reasoning, 6th Edn, Longman, Sydney, at 59.
33 See Kovach B and Rosenstiel T (2001), The Elements of Journalism, Three Rivers Press, New York,
at 40. The authors note:
An epistemological scepticism has pervaded every aspect of our intellectual life, from art,
literature, law, physics, to even history. Columbia University historian Simon Schama has
suggested that ―the certainty of an ultimately observable, empirically verifiable truth‖ is dead.
Truth, it seems, is too complicated for us to pursue. Or perhaps it doesn‘t even exist, since we
are all subjective individuals.
In the book review that the authors cite, the reviewer Gordon Wood also refers to ―the destructive
scepticism that is troubling us today‖: Wood G (1991), ―Novel History‖, The New York Review of
Books, 27 June, at 16.
34 Vardy (1999), above fn 3, at 179.
35 Horwich P (1990), Truth, Basil Blackwell, Oxford, at 2. Horwich states that linguistic analogy is the
main cause of the misconception that truth has some hidden structure awaiting our discovery and
that hinging on this discovery is our ability to explain central philosophical principles concerning
truth. Just as the term ―is magnetic‖, designates a feature of the world, magnetism, whose structure is
revealed by quantum physics, and ―is diabetic‖ describes a group of phenomena, diabetes,
characterizable in biology, so it seems that ―is true‖ attributes a complex property, truth – an
ingredient of reality whose underlying essence will, it is hoped, one day be revealed by philosophical
and scientific analysis:
The trouble is that this conclusion – which we tend to presuppose in the question, ―What is
truth?‖ – is unjustified and false…Unlike most other predicates, ―is true‖ is not used to
attribute to certain entities (i.e. statements, beliefs, etc) an ordinary sort of property – a
characteristic whose underlying nature will account for its relations to other ingredients of
reality. Therefore, unlike most other predicates, ―is true‖ should not be expected to participate
in some deep theory of that to which it refers – a theory that goes beyond a specification of
what the word means…The role of truth is not what it seems (italics added).
36 Malpas J (2005), ―Truth, lies and democracy: Ethical practice in contemporary Australia‖ (Lecture),
5 October, Curtin Annual Ethics Lecture.
37 Pivcevic (1997), above fn 11, at 15. Pivcevic also cautions ―that truth is a complex concept, and that
any reductionist treatment of truth conditions is misconceived and should be rejected‖ (at 27).
38 Christians et al (2001), above fn 32, at 59.
39 Pivcevic (1997), above fn 11, at 28.
40 Horwich (1990), above fn 35, at 2.
76
than the concept of truth.‖41
This is an argument on the side of functionality and
pragmatics, such that ―truth‖ does not have to have a universal essence in order to
function well under certain (discursive) conditions. So, while there may not be a
universal definition of ―truth‖, a good working definition is possible.
The foregoing discussion provides a foretaste of the challenge afoot. The
character of truth is, as Horwich notes, ―peculiarly enigmatic‖ although he describes as
―wholly wrong‖ the impression that ― its underlying nature appears to be at once
necessary and impossible.‖42
The following discussion reveals a plethora of attitudes
and approaches towards truth within philosophy, within the law and within journalism
and between all three spheres. This chapter aims to examine these attitudes and
approaches to ―truth‖ and to determine what difficulties, if any, are presented by such
attitudes in the courts and in journalism. It is a daunting task to attempt to define ―truth‖
in a single chapter in a work of this nature, but the attempt must be made. A logical
starting point for the present discussion is a discussion of the meaning of ―truth‖ in
philosophy. This will be followed by a discussion of the term in the judicial and
journalism contexts.
2. Truth and philosophy
It is necessary to confront the meaning of truth in philosophy because the term cannot
be divorced from philosophy.43
―Truth‖ is a core concern of philosophy44
and unlike the
law and journalism, it boasts an illustrious tradition of intellectual exercise with respect
to it. The inquiry in this chapter must occur even if it ultimately leads to a view that it
contributes minimally to the broader inquiry.45
The hurdle needs to be surmounted
41 Horwich (1990), above fn 35, Preface, at xi.
42 Horwich (1990), above fn 35, at 2. He rejects the view that truth has some hidden structure awaiting
our discovery; and, second, that hinging on this discovery is our ability to explain central
philosophical principles such as those just mentioned, and thereby to solve a host of problems in
logic, semantics and epistemology.
43 The following observation by Bakewell reinforces this point – see Bakewell CM (November 1908),
―On the meaning of truth‖ Vol 17 No 6 The Philosophical Review 579, at 590-591.
There is not one context, but many of them. And we can take a fact in one context, and regard
its relations in all other contexts as irrelevant. True. But if the object has relations in those
other contexts, while we may find it convenient for certain purposes to ignore them, it is
equally clear that we cannot discover the whole truth about the object in question until we
conceive it also in those neglected contexts. Until we do so we are viewing the object under a
partial aspect, are dealing with an abstraction, or, if you prefer, a sort of legal fiction about the
fact, and not with the fact in its full concrete significance.
44 Plato, in the Republic, characterised the genuine lovers of wisdom – the genuine philosophers – as
―those whose passion it is to see the truth‖: see Malpas J (May 1996), ―Speaking the Truth‖, Vol 25
Economy and Society No 2 156, at 156.
45 Johnson (1992), above fn 4, at 12-13 has useful advice:
77
notwithstanding the earlier observation among philosophers that truth is ―an indefinable
concept.‖46
As Davidson notes, however, being indefinable:
…does not mean we can say nothing revealing about it: we can, by relating it to other
concepts like belief, desire, cause, and action. Nor does the indefinability of truth imply
that the concept is mysterious, ambiguous, or untrustworthy. Even if we are persuaded that
the concept of truth cannot be defined, the intuition or hope remains that we can
characterize truth using some fairly simple formula.47
In the realm of philosophy the time-honoured question – what is truth? – has been
―a focal point of philosophical discussion‖.48
Competing answers have been given: truth is correspondence, truth is coherence, truth is
pragmatical utility, truth is a primitive unanalysable property, and truth is a disquotation. At
first glance, this plurality of answers might strike one as surprising. Is there not a rather
simple answer to this venerable question…?49
Alongside the preoccupation with that venerable question is the suggestion that ―a
characteristic feature of contemporary thought is a turn away from the notion of truth‖,
that in many intellectual circles, the notion is ―unfashionable‖ or ―barely even
mentionable‖.50
The implied proposition in the above quotation that there is no simple
answer to this question becomes evident in the following discussion aimed at
identifying some theories of truth and the major philosophical debates throughout much
of this century. The author does not suggest that the following constitutes a
comprehensive inventory of relevant theories and debates (of which there are several in
ethics, philosophy of language, and metaphysics) or that the labels adopted here are
necessarily clear cut ones. Indeed it may even be tautologous to argue that the concept
of truth is contested philosophically because if a concept is central to philosophy as
truth is, it follows that it remains contested. The following is merely a modest collation
of key truth theories from the philosophical debates.
From the literature considered one clear determination is possible – in the
epistemological heartland of ―truth‖, opinion as to what the term means is deeply
divided. There is debate even as to how many theories of truth there are. On Vardy‘s
If it were to turn out in the end that we cannot answer, or develop, a worthwhile question, then
in finding that out, and finding out why, our investigations would have come up with
something well worth knowing.
46 Davidson (1996), above fn 27, at 265, citing the positions of GE Moore, Bertrand Russell, Gottlob
Frege and Alfred Tarski.
47 Davidson (1996), above fn 27, at 265.
48 Schantz (2002), above fn 30, at 1.
49 Schantz (2002), above fn 30, at 1. After all, as Schantz asks, has the answer not already been given
by Aristotle when he said: ―To say of what is that it is not, or what is not that it is, is false, while to
say of what is that it is, or of what is not that it is not, is true‖.
50 Malpas (May 1996), above fn 44, at 156.
78
count there are ―two basic theories of truth‖ – realism and anti-realism.51
Schantz refers
to three ―substantive‖ theories of truth – correspondence, coherence, and pragmatic.52
The Fontana Dictionary of Modern Thought refers to four not necessarily identical
groups.53
It shortly becomes clear that these are not necessarily discrete or easily
categorised theories. Furthermore the list, in fact, extends much further into a broader
penumbra of complexity that is exacerbated by perplexing terminology,54
terms
imposed by the marketplace and which lack precision,55
and what may appear to be
abstract philosophical theorising. For present purposes, the various theories will be
51 Vardy (1999), above fn 3, at 28. Between the two approaches he favours the latter, arguing that in
the absence of adequate and generally accepted grounds for realist truth claims ―it would appear that
anti-realism is the most persuasive and rational course to follow. It allows truth claims to be
accepted but sees these claims as being dependent on the system within which they are made.‖ For a
summary of the nature of the debate between the two theories see Patterson D (1996), Law and truth,
Oxford University Press, Oxford, at 4:
The realism/anti-realism debate is over how best to characterise the relationship between the
theory of meaning (semantics), the theory of knowledge (epistemology), and the theory of truth
(metaphysics). The debate looks at questions like the following: Can there be truths of which
we are unaware? Does language reflect the world? Do we have knowledge beyond our senses?
What is the ground of knowledge? What is the nature of ―truth‖, ―language‖, ―the world‖?
52 Schantz (2002), above fn 30, at 5. The well-known philosopher, Bertrand Russell, identifies four
theories in philosophy as to truth or some concept which is thought preferable – see Russell B
(1963), An inquiry into meaning and truth, Pelican, Middlesex, UK, at 272.
(a) the theory which substitutes ―warranted assertibility‖ for ―truth‖…(b) the theory which
substitutes ―probability‖ for ―truth‖; (c) the theory which defines ―truth‖ as ―coherence‖; and
(d) the correspondence theory of truth, according to which the truth of basic propositions
depends upon their relation to some occurrence, and the truth of other propositions depends
upon their syntactical relations to basic propositions.
53 Bullock A, Stallybrass O and Trombley S (Eds) (1988), The Fontana Dictionary of Modern
Thought, 2nd Edn, Fontana Press, London, at 876. They add, at 876-877:
There have been many theories of the nature of truth. The most common sees it as a
correspondence between a proposition and the fact, situation, or state of affairs that verifies
it…[A second view is that held by some] philosophers, holding that all awareness of facts is
itself propositional, i.e. that it necessarily involves the assertion of some proposition, maintain
the truth is a relation of coherence between propositions. [A third is that held by pragmatists
who] define truth in terms of the satisfactoriness of belief, the empirically verifying fulfilment
of expectations being only one form of this. [A fourth view holds that occasionally] truth has
been taken to be a quality rather than a relation, a view which has some plausibility in
connection with analytic propositions whose truth depends not on something external to them
but on the meaning that is intrinsic to them.
54 Bakewell (1908), above fn 43, at 579.
55 Bakewell (1908), above fn 43, at 579 identifies the dilemma, noting that philosophers labour under a
difficulty because the terms they employs are, almost without exception, ―literary terms‖:
They have no single determinate meaning. They cover a variety of meanings which
imperceptibly shade into one another. They are like living things, and in the actual business of
intellectual intercourse they have a bland and genial way of adapting themselves to the
company they keep…We are forced to speak the language of the market-place, which means
we must use terms that lack precision, – until he is brought to book and asked to define his
meaning. Then he finds it well nigh impossible so to define his meaning as to make it include
all he intends the term to cover without at the same time including a great deal more. Truth is
just such a term. We all use it, and all know what it means, until we try to make that meaning
definite and explicit. Then even those who should be experts are nonplussed.
79
grouped under two headings – ―substantive‖ theories and ―deflationary‖ theories.56
Each is discussed in turn as follows.57
2.1 Substantive Theories
2.1.1 Realism/correspondence
Realism involves a claim to reference or correspondence.58
It is a ―venerable notion‖
that truth is the property of corresponding with reality.59
The most common way of understanding truth, and the way that has often been assumed
outside philosophy as well as within it, has been to treat it as simply a matter of
correspondence between statements or sentences (which may be taken to express, for
example, beliefs or particular theoretical claims) and the world or parts of the world.60
According to the classical correspondence theory ―a statement is true just in case
it corresponds to a fact, and false just in case it does not correspond to a fact.‖61
The
correspondence theory ―is at base simply the proposition that when this or that happens,
it really is so and that the statement concerning it is true.‖62
For the realist, the meaning
of a sentence is given by the conditions that make it true.63
There are three main
categories of realists: (a) naïve realists; (b) critical realists; and (c) internal realists.64
56 See Gupta A (1999), ―A critique of deflationism‖ (Chapter), in Blackburn S and Simmons K, Truth,
Oxford University Press, Oxford, at 282, for another suggested way of ―organising‖ the
philosophical debate categories. Gupta states that throughout much of this century there have been
two types of philosophical debates over the concept of truth: (a) the substantive type; and (b) the
metaphilosophical type. In the substantive type, we find rival theories of truth put forward that seem
to have, and whose proponents have taken them to have, significant metaphysical, epistemological
and philosophical implications. Debates of this type presuppose that truth has a substantial role to
play in philosophical inquiry. An example of this type of debate is what notion of truth is admissible
– the anti-realist argues for a notion of truth that is constrained by evidence, while the realist defends
the admissibility of a radically non-epistemic notion. The metaphilosophical debate, on the other
hand calls the substantive presupposition into question. An early example of this type is the debate
over the claim that truth is a metaphysical concept and hence ought to be banished from all rigorous
and scientific thought.
57 I am assisted in arriving at this ―structure‖ by Pivcevic (1997), above fn 11, at 29; and Schantz
(2002), above fn 30, at 1-8.
58 Vardy (1999), above fn 3, at 15.
59 Horwich (1990), above fn 35, at 9, where the author also provides a useful summary of the varying
formulations of the correspondence theory.
60 Malpas (May 1996), above fn 44, at 158.
61 Schantz (2002), above fn 30, at 1. See also below fn 68 on this point.
62 Bankowski Z (1988), ―The Jury and Reality‖ (Chapter), in Findlay M and Duff P, The Jury Under
Attack, Butterworths: North Ryde, Sydney, at 8.
63 Patterson (1996), above fn 51, at 5. For examples of how this idea works see below fn 68.
64 Vardy (1999), above fn 3, at 13. Each, respectively, briefly explained are: (a) naïve realists maintain
that language is to be taken literally as referring to the object is seeks to describe (eg. God is angry
or God walked in the garden is held to mean that there is a God and this God really is angry or
literally walked in the garden); (b) critical realists maintain that language need not be taken literally
but we can refer to states of affairs without describing them literally (eg. Light is a wave is not
literally true but it is a helpful way of talking about light); (c) internal realists argue that there may
be no single way of referring to a state of affairs, but this does not mere that reference does not
80
They all use a correspondence theory of truth, that is, they maintain that the truth of any
statement is based on successful reference.65
It is said that nearly every philosopher
reflecting on the nature of truth before the eighteenth century implicitly or explicitly
accepted the correspondence theory.66
Realists affirm bivalence, that is, they maintain
that a statement is either true or false depending on whether it does or does not
correspond to the state of affairs it sets out to describe.67
This theory of truth claims that
a statement is true if it corresponds to the state of affairs that it attempts to describe.68
This does not mean that we can necessarily KNOW whether a given statement is either true
or false, but this epistemological uncertainty does not undermine the claim that there is a
truth to be known. Realists maintain that truth claims are verification transcendent – they
do not depend on their ability to be verified.69
This theory of truth confronts a number of difficulties. The notion that truth is a
kind of ―correspondence with the facts‖, and which Horwich has described as a
―common-sense notion‖, however, ―has never been worked out to anyone‘s
satisfaction.‖70
It is suggested further that many philosophers think that the traditional
attempts to explain the notions of fact and correspondence ―have generated nothing but
empty pseudoexplanations [and it is] a bad metaphysical theory because the central
occur. There may be various ways in which reference may be made to the same reality and each
different way may approximate the reality that is described (ibid).
65 Vardy (1999), above fn 3, at 13-14.
66 Schantz (2002), above fn 30, at 1.
67 Vardy (1999), above fn 3, at 13.
68 Vardy (1999), above fn 3, at 12. This statement can be illustrated by looking at three examples. In
the first example, Vardy states that a statement that ―the cat sat on the mat‖ is true if, and only if,
there is a cat which is sitting on the mat. One might, however, detect a difficulty with this ―cat sat on
the mat‖ example. It is arguable that ―the cat sat on the mat‖ is not necessarily true in the conditions
that Vardy describes. That is because ―sat‖ is in the past tense, while ―is sitting‖ is in the present
tense. Thus, the statement that ―the cat sat on the mat‖ is true if, and only if, the cat did at some time
previously, sit on the mat. That is, the cat does not have to be still sitting on the mat for it to be true
that the cat sat on the mat. The second example, from Schantz (2002), above fn 30, at 1, is less
contentious. Schantz notes that according to the classical correspondence theory of truth:
…a statement is true just in case it corresponds to a fact, and false just in case it does not
correspond to a fact. The statement that grass is green is true because it corresponds to the fact
that grass is green, and the statement that horses can fly is false because it does not correspond
to any fact.
In the third example, from Patterson (1996), above fn 51, at 5, the sentence ―My car is parked in the
front of the house‖ is true if, and only if, there is a car, it is my car, and it is indeed parked in front of
the house‖. Patterson notes further that for the realist, one knows the meaning of a sentence when
one knows what it would take for that sentence to state a truth. Hence, the proposition is true if the
conditions that would make the proposition true obtain. In this way, we see that, at least for the
realist, truth depends on a certain sort of approach to meaning, which may be characterised as truth-
conditional in nature.
69 Vardy (1999), above fn 3, at 13 (capital letters in original).
70 Horwich (1990), above fn 35, at 1.
81
concepts it invokes possess no explanatory value at all.‖71
Another difficulty with the
correspondence theory is that it is typically and naturally associated with metaphysical
realism – the view that there is an objective reality whose existence and structure are
independent of our language and thought.72
A very popular objection to this
combination of the correspondence theory and metaphysical realism is that it leads to
epistemological scepticism.73
For the correspondence theorist, truth is an epistemically
unconstrained concept, hence, whether a statement is true does not depend on any
epistemic virtue it displays.74
Johnson speaks of ―severe problems‖ with the
correspondence theory using the ―coffee cup on the table‖ analogy.75
Certainly there is a great deal of intuitive plausibility to a correspondence theory in that it
tells us that what is true is true because it fits (corresponds to) the facts. If I state or believe
that a coffee cup is on the table, what I say or believe is true because it fits the fact that
there is a coffee cup on the table. If I say that there is an elephant on the table, that does not
fit the facts. These things are true or false by virtue of how what they say fits with what
they say them about. What could be simpler or more obvious? The coffee cup is or is not on
the table, without our having to concern ourselves with how that fits in with everything else
or with some ineffable Absolute. Even so, while the correspondence theory as so presented
may appear to be obviously correct, it comes to appear much less plausible and much less
meaningful when we try to work out just what it actually amounts to.76
And there lies the conundrum. As Johnson points out, first it must be explained
what is this correspondence relationship which, when it obtains, makes true things true;
and second, it must be asked what is related in that correspondence relationship.77
It is
one thing to say that true beliefs and statements or propositions (or whatever the
relevant truth-bearers are said to be) correspond to the facts: ―But what are facts? What
do they have to do with coffee cups and other things in the world?‖78
For the
correspondence theorist truth is not a matter of whether a statement is justified,
warranted or rational – truth is objective and hinges only on the way the world is.79
The
criticism, then, is that on classical correspondence realism we can never determine
whether statements or beliefs are true because we cannot compare them with the facts to
71 Schantz (2002), above fn 30, at 2. Schantz states further that the critics of the correspondence theory
maintain that it is a bad metaphysical theory because its central concepts have no explanatory value
at all, and instead, can be understood only in terms of what they are supposed to explain and further,
that all that we seem to gain by introducing facts and the relation of correspondence is the ability to
say, in esoteric language, that a statement is true.
72 Schantz (2002), above fn 30, at 2.
73 Schantz (2002), above fn 30, at 2.
74 Schantz (2002), above fn 30, at 2.
75 Johnson (1992), above fn 4, at 40.
76 Johnson (1992), above fn 4, at 40 (italics in original).
77 Johnson (1992), above fn 4, at 40.
78 Johnson (1992), above fn 4, at 40 (italics in original).
79 Schantz (2002), above fn 30, at 2.
82
see whether they correspond to them.80
Statements and beliefs, so it is usually argued,
may be compared with other statements or beliefs to see if they harmonise with each
other but we can never compare or confront statements or beliefs with the facts or with
reality.81
There is, so it is often said, no way to get outside our language or outside the
circle of our beliefs and explore the facts themselves.82
This epistemological objection
was the main reason many philosophers renounced the classical correspondence theory
and began to offer alternative substantive theories promising to be more faithful to our
epistemic situation in the world.83
2.1.2 Anti-realism/coherence etc
In contrast to realism, anti-realism rejects correspondence and instead maintains that
statements are true because they cohere with other true statements made within a
particular form of life.84
A system of beliefs is said to be coherent when its elements are consistent with one another
and when it displays a certain overall simplicity. In that case…the whole system and each
of its elements are true. Thus truth is the property of belonging to a harmonious system of
beliefs.85
The coherence theory is one ―which measures truths by their ‗fit‘ within a given
system.‖86
Anti-realists do not dispute the realist‘s contention that truth is a matter of
conditions – where they part company is over the question of whether truth conditions
may be ―recognitionally transcendent.‖87
Anti-realists reject all attempts to make
language mirror reality, and instead maintain that truth is essentially a human
construct.88
They reject bivalence and instead assert that truth claims are internal to the
80 Schantz (2002), above fn 30, at 2.
81 Schantz (2002), above fn 30, at 2.
82 Schantz (2002), above fn 30, at 2 (italics added).
83 Schantz (2002), above fn 30, at 3.
84 Vardy (1999), above fn 3, at 14. See also Blanshard B (1939), The Nature of Thought, Vol II, Allen
& Unwin, London, at 264:
That view is that reality is a system, completely ordered and fully intelligible…at any given
time the degree of truth in our experience as a whole is the degree of system it has achieved.
The degree of truth in a particular proposition is to be judged in the first instance by its
coherence with experience as a whole, all-comprehensive and fully articulated, in which
thought can come to rest.
85 Horwich (1990), above fn 35, at 9 (italics in original).
86 Bankowski (1988), above fn 62, at 9.
87 Patterson (1996), above fn 51, at 5:
For realists, the truth conditions for a proposition may lie beyond our capacities to recognise
them (a lack of epistemic access). This is of no moment to the realist, for she believes that
propositions may be true quite independently of our ability to recognise and discern their truth.
This is precisely what the anti-realist denies.
88 Vardy (1999), above fn 3, at 14.
83
community in which these truths are expressed, that is, truth depends on what is agreed
within the community and that depends on the rules of the language game, not on
dispassionate inquiry.89
With many philosophers renouncing the classical
correspondence theory, epistemic accounts ―began to flourish, claiming that the truth of
a statement does not consist in an external relation to a feature of reality but in its
possessing a positive epistemic status within our conceptual scheme or within our
experience.‖90
These theories hold that the truth of a judgment consists in its being a
member of a comprehensive system of beliefs which is consistent and harmonious.91
The ―basic core‖ of the coherence theory of truth is the conception that beliefs,
judgments or whatever truth-bearers are taken to be are ―true or false according to
whether or not they fit in – cohere, with the body of other beliefs (or whatever) that are
true.‖92
A related term when discussing coherence is verificationism which, simply put,
espouses the view that the meaning of a word or combination of words is ―determined
by a set of rules which regulate their use‖.93
The coherence theory has characteristically
been the theory of truth espoused by idealists – those who maintain that reality, at least
in so far as we can be aware of it, is of an inherently mental nature.94
One criticism of the coherence theory is that it has ―condemned itself to
incoherence‖ by closing off any possibility of the common-sense response that certain
principles it holds are ―not in fact our principles at all‖.95
Another objection to the
coherence theory is that there might be more than one coherent system, equally
89 Vardy (1999), above fn 3, at 14. Thus, a statement that there will be a murder tomorrow will draw
the following responses: (a) the realist will maintain that either this statement is true or it is false.
We may not know whether it is true or false, but it is either the one or the other because the
statement corresponds to whatever will be the state of affairs tomorrow; (b) in contrast, the anti-
realist will maintain that there is no truth to be known because until tomorrow comes and either a
murder has occurred or has not occurred, the statement cannot be either true or false. It simply has
no truth value at all.
90 Schantz (2002), above fn 30, at 3.
91 Schantz (2002), above fn 30, at 3.
92 Johnson (1992), above fn 4, at 15. The author states that coherence is not to be confused with mere
consistency (at 18).
93 Schlick M (July 1936), ―Meaning and Verification‖, Vol 45 No 4 The Philosophical Review 339, at
341. The author notes, at 340:
[V]ery often we do not know how to handle our own words; we speak or write without having
first agreed upon a definite logical grammar which will constitute the signification of our
terms. We commit the mistake of thinking that we know the meaning of a sentence (i.e.,
understand it as a proposition) if we are familiar with all the words occurring in it. But this is
not sufficient…every word has a definite signification only within a definite context into which
it has been fitted; in any other context it will have no meaning unless we provide new rules for
the use of the word in the new case, and this may be done, at least in principle, quite arbitrarily.
94 Johnson (1992), above fn 4, at 16, or as Kant pointed out, that our knowledge of the world is given
shape by our own mind (see Johnson, at 15).
95 Walker RCS (2002), ―A problem about truth‖ (Chapter), in Schantz R (Ed), What is Truth, Vol 1, De
Gruyter, Berlin, at 311-2.
84
consistent, equally interconnected by mutual implication, and both of sufficiently wide
scope.96
It is argued that the coherence theory of truth ―does not provide an adequate
account of the nature of truth‖ notwithstanding its redeeming features.97
A further
criticism of the coherence theory of truth is ―its refusal to endorse an apparently central
feature of our conception of truth, namely the possibility of there being some
discrepancy between what really is true and what we will (or should, given all possible
evidence) believe to be true.‖98
2.1.3 Pragmatic
The pragmatic theory, it is said, is primarily a method of settling metaphysical99
disputes that otherwise might be interminable.100
Pragmatic theories of truth insist that
there is a close connection between the concept of truth and our human experience and
practice.101
According to the pragmatic maxim, the meaning of a concept or an idea
consists in the practical consequences of its use and truth consists, primarily, in
agreement with the world.102
Thus, the pragmatists‘ approach to truth was to ask what
difference it makes whether a belief is true.103
Pragmatists approach truth from an
96 Johnson (1992), above fn 4, at 27-28. Johnson illustrates the problem, at 28:
When more than one story hangs together, how are we tose [sic] between them? If the two
stories are compatible there is no problem, as they can be united in a wider coherence. The
problem comes when different seemingly coherent systems are incompatible. Are we to say
that both of two incompatible systems are each true? Maybe so, but those would be two totally
independent worlds having absolutely nothing to do with one another, and the question would
remain of which world we actually live in. Something must be true in this world, and it cannot
be two incompatible things (italics in original).
97 Johnson (1992), above fn 4, at 38.
98 Horwich (1990), above fn 35, at 10 (italics in original).
99 ―Metaphysics‖ is described as the investigation of the world, or of what really exists, generally by
means of rational argument rather than by direct or mystical intuition: see Bullock et al (1988),
above fn 53, at 524.
100 Russell B (1999), ―William James‘s conception of truth‖ (Chapter), in Blackburn S and Simmons K,
Truth, Oxford University Press, Oxford, at 71. Russell critiques the ―pragmatic method‖ in this
chapter, and he cites the following description of the ―pragmatic method‖ by James W (1909),
Pragmatism: A New Name for Some Old Ways of Thinking, Longmans, Green & Co, New York, at
45-47:
The pragmatic method is primarily a method of settling metaphysical disputes that otherwise
might be interminable. Is the world one or many? – fated or free – material or spiritual? – here
are notions either of which may or may not hold good of the world; and disputes over such
notions are unending. The pragmatic method in such cases is to try to interpret each notion by
tracing its respective practical consequences. What difference would it practically make to
anyone if this notion rather than that notion were true? If no practical difference whatever can
be traced, then the alternatives mean practically the same thing, and all dispute is idle.
Whenever a dispute is serious, we ought to be able to show some practical difference that must
follow from one side or the other‘s being right.
101 Schantz (2002), above fn 30, at 3.
102 Schantz (2002), above fn 30, at 3.
103 Schantz (2002), above fn 30, at 3.
85
epistemic point of view, which incorporates basic elements of coherence.104
Pragmatic
theories of truth are based on the pragmatist‘s conception of meaning, according to
which all meaning is grounded in practice, with all difference in meaning involving
some difference in practice, that is, truth is a matter of fitting in with practice.105
Pragmatism, as expressed by William James, takes the following view: ―True ideas are
those that we can assimilate, validate, corroborate and verify. False ideas are those we
cannot. That is the practical difference it makes to us to have true ideas; that, therefore,
is the meaning of truth, for it is all that truth is known-as.‖106
One criticism of the pragmatic theory is that pragmatists are guilty of a
fundamental error, confusing criteria of truth with the nature of truth.107
It is suggested
that it is not that pragmatists were ―too stupid‖ to differentiate between criteria and
essence – because they were well aware of the putative distinction. The objection rather
is that the distinction is not viable in the long run.108
Difference in meaning, the critics
argue, must make a difference in real or possible practice, so any difference in meaning
between being true and meeting the criteria of truth must indicate some possible
difference in practice.109
Johnson states that there are ―problems for the pragmatist‘s
conception of truth, and we may wonder whether they have successfully balanced the
claims of brute reality with the relativity of our experience.‖110
It is said further:
A pragmatist turns his back resolutely and once for all upon a lot of inveterate habits dear
to professional philosophers. He turns away from abstraction and insufficiency, from verbal
solutions, from bad a priori reasons, from fixed principles, closed systems, and pretended
absolutes and origins. He turns towards concreteness and adequacy, towards facts, towards
actions and towards power.111
104 For a more detailed discussion of the pragmatic theory see Schantz (2002), above fn 30, at 3-4; and
Johnson (1992), above fn 4, at 64-74.
105 Johnson (1992), above fn 4, at 64.
106 James W (1999), ―Pragmatism‘s conception of truth‖ (Chapter), in Blackburn S and Simmons K,
Truth, Oxford University Press, Oxford, at 54 (italics in original). James, however, notes:
Truth, as any dictionary will tell you, is a property of certain of our ideas. It means their
―agreement‖, as falsity means their disagreement, with ―reality‖. Pragmatists and
intellectualists both accept this definition as a matter of course. They begin to quarrel only after
the question is raised as to what may precisely be meant by the term ―agreement‖, and what by
the term ―reality‖, when reality is taken as something for our ideas to agree with (at 53).
107 Johnson (1992), above fn 4, at 66.
108 Johnson (1992), above fn 4, at 66.
109 Johnson (1992), above fn 4, at 66.
110 Johnson (1992), above fn 4, at 66.
111 Russell (1999), above fn 100, at 70-71, citing James W (1909), Pragmatism: A new name for some
old ways of thinking, Longmans, Green & Co, New York, at 51.
86
The pragmatists are accused also of being ―absolutely dogmatic‖, to the extent
that ―the hypothesis that pragmatism is erroneous is not allowed to enter for the
pragmatic competition; however well it may work, it is not to be entertained.‖112
2.2 Deflationary Theories
These are a radical alternative to traditional views (discussed above), and they comprise
a family of arguments from those who hold deflationary or minimalist views of truth.
According to these views the concept of truth is a clear and uncontentious concept – one
that is philosophically much less interesting than the proponents of robust theories
think. The deflationists claim that truth has no substantive role to play in philosophy.113
Their view is that a search for a ―substantial‖ theory of truth is due to a
misunderstanding, and they dismiss the difficulties besetting such an enterprise ―as
windmills of muddled thought.‖114
Deflationary views of truth ―deflate the lofty
pretensions of more ‗robust‘ theories of truth, such as the correspondence and epistemic
theories.‖115
Deflationary theories of truth hold that truth is a relatively trivial concept
with no important connections with other concepts such as meaning and reality.116
Various brands of deflationism are advanced as a ―radical alternative to traditional
views‖.117
Common to the various deflationary views is the conviction that substantive
or robust theories of truth – such as correspondence or coherence or pragmatic theories
– are ―all on the wrong track‖.118
According to deflationism, substantive theories share
the assumption that truth has an inner nature, a nature which can be analysed in
epistemic or semantic or metaphysical terms.119
Deflationists categorically reject this
assumption and hold the view that there is no single substantive property all true
statements share and that truth has no underlying nature, no hidden essence.120
The concept of truth expresses neither a natural or real property nor a natural or real
relation. For this reason it cannot play a causal or explanatory role in good systematic
theories. Since there are no interesting connections between the concept of truth and
112 Russell (1999), above fn 100, at 70.
113 Schantz (2002), above fn 30, at 5.
114 Pivcevic (1997), above fn 11, at 28.
115 Lynch MP (1998), Truth in context: An Essay on Pluralism and Objectivity, MIT Press,
Massachusetts, at 111.
116 Davidson (1996), above fn 27, at 265.
117 Schantz (2002), above fn 30, at 5. See Schantz for a discussion of the various brands of deflationism,
which include the redundancy, performative, prosentential, disquotationalist and minimalist theories
(ibid, at 6-8).
118 Schantz (2002), above fn 30, at 5.
119 Schantz (2002), above fn 30, at 5.
120 Schantz (2002), above fn 30, at 5.
87
fundamental philosophical concepts, such as meaning, belief, statement, translation, and
synonymy, the concept of truth should not be given a central place in our philosophical
reflections. Rather, truth is a purely formal or logical concept whose correct explanation
requires far less extravagant conceptual resources than advocates of substantive theories
believe.121
Furthermore deflationary theories dismiss the problem of the inner nature of truth as a
―pseudoproblem‖ and that ―there is no ‗problem of the nature of truth‘ because there is
nothing picked out by the words ‗true‘ or ‗truth‘ that could have a nature.‖122
Deflationary theory critics argue that the ―main problem with deflationism‖ lies in
the descriptive account it gives of ―true‖.123
It is said further that the analysis the
deflationists offer is simple, but, unfortunately, it makes truth far too complicated – it
attributes to truth a vast ideology.124
The deflationary account makes (and, to sustain its conclusions, needs to make) some very
strong claims about the meaning of ―true‖ – claims that on examination prove to be highly
problematic…On the other hand when it is taken in the weaker way, the description is
correct enough, but does not yield the deflationary conclusions…Deflationists take the
concept of truth to be transparent, one capable of a complete and simple philosophical
analysis…truth is a highly puzzling notion, one that defies all our attempts at its
analysis.125
Critics of the deflationary theory argue that deflationism deflates truth itself.
Devitt states:
Deflationism is really a sort of eliminativism, or antirealism, about truth: it deflates truth
itself. We might say, very roughly, that according to deflationism, there is no reality to
truth. Since there is no reality to truth there is nothing positive to be said about the nature of
truth. However, unlike some early eliminativists, deflationists have no objection to the use
of the term.126
Another problem with the deflationary theory is the tendency of deflationism to
―blur the distinction between the linguistic and the metaphysical‖ and the difficulty in
capturing ―the deflationary metaphysics of truth.‖127
The complaint, in particular, is that
remarks that should be about the truth term are often presented as being about truth
itself, revealing sloppiness and confusion in the use of the term.128
121 Schantz (2002), above fn 30, at 5-6 (italics added).
122 Lynch (1998), above fn 115, at 112.
123 Gupta (1999), above fn 56, at 284. For a more detailed discussion on the criticisms against the
deflationary theory, see Schantz (2002), above fn 30, Part III ―Deflationism Attacked‖, at 161–222.
124 Gupta (1999), above fn 56, at 307.
125 Gupta (1999), above fn 56, at 284 (italics added).
126 Devitt M (2002), ―The metaphysics of deflationary truth‖ (Chapter), in Schantz R (Ed), What is
Truth, Vol 1, De Gruyter, Berlin, at 60 (italics in original).
127 Devitt (2002), above fn 126, at 61. For a discussion of two other difficulties in locating the
difference between the deflationary theory and the correspondence theory see Devitt, at 60-61.
128 Devitt (2002), above fn 126, at 61.
88
2.3 Summary
It is clear from the foregoing discussion that philosophical discussion on the meaning of
truth is steeped in complex terminology and a tangle of issues that confounds even the
philosophers. Johnson adequately captures the essence of the problem when he notes
that ―much of truth theory, and not just the correspondence theory, has been
undermined by conceptual muddles about what is related and about how they are
related.‖129
The various positions represent a difference between a search for the
universal essence of truth and an acceptance of pragmatic truth conditions. The
conflicts, despite the long philosophical history behind the question of truth, and despite
philosophy itself being capable of being regarded as constituted precisely through its
interest in truth,130
remain unresolved. The philosophical labouring, however, persists
and remains robust. Eminent French philosopher Michel Foucault has commented that
―[t]he task of speaking the truth is an infinite labour: To respect it in its complexity is an
obligation that no power can afford to short-change, unless it would impose the silence
of slavery.‖131
And the philosophers also generally recognise, perhaps, that ―if
contemporary thought does indeed involve a move away from the notion of truth, then
so too will contemporary thought involve a turn away from philosophy as a distinctive
area and mode of inquiry.‖132
3. Truth in the context of courts, journalism and defamation – overview
We now turn to a consideration of ―truth‖ in the context of the courts, journalism and
defamation. The foregoing discussion has provided a foretaste of the onerous challenge
confronting the inquirer. It reveals striking disparities in the meaning of the term and
attitudes towards it within the realm of philosophy – to the point that some schools of
thought altogether dismiss the need to pursue a meaning for the term. The discussion
presses on to consider the meaning of truth in the two contexts particularly relevant to
the present inquiry – the courts and journalism. The foregoing discussion, by showing
how truth can function in different discourses, provides a useful backdrop for the
discussion below because it facilitates an appreciation of the variants of ―truth‖. In the
129 Johnson (1992), above fn 4, at 40.
130 See Malpas (May 1996), above fn 44, at 156.
131 Cited in Malpas (May 1996), above fn 44, at 173.
132 Malpas (May 1996), above fn 44, at 157. For example, the author notes that within philosophy the
rise of the redundancy view of truth seems almost to eliminate truth as a significant and interesting
notion (at 156-157).
89
two spheres discussed below, even if consensus as to the meaning of the term is elusive,
there is no suggestion at all that a pursuit of truth be abandoned.
Two preliminary matters should be noted before we proceed further. The first
concerns the meaning of the ―courts‖ and ―journalism‖ in the present discussion. The
term ―courts‖ is used to refer to the fora overseen by the judiciary in the administration
of justice. The term ―truth‖ in this context is considered in respect of the way the courts
approach their task of dispensing justice generally. The court‘s specific approach to the
truth defence in defamation law is left to the next chapter. The term ―journalism‖ is
used broadly to encompass the work performed by ―the media‖133
primarily in the area
of news and current affairs, in particular, the work that generates output that in turn
renders the media liable to defamation actions. Journalism in this sense refers to the
craft practised by those engaged in the production of news and current affairs material
in the various media. Questions about what this entails in a ―professional‖ sense are
discussed in further detail below.134
Second, the broad aim of the remaining discussion in this chapter is to identify the
existence of ―truth‖ discourses that differ from the one seen above. Both the courts and
journalism attract a constant public gaze and public confidence in each has had mixed
fortunes, if it was not altogether wanting. In respect of the courts, for instance, a
significant factor in negative public views was once identified as a perception that the
courts are not sufficiently concerned with the truth.135
An Australian Supreme Court
justice has made the following concession:
Pessimism and cynicism about justice and the legal system abound. This has led to what
has been described as a loss of faith in the adversary system. The public looks on with
dismay as respect for the administration of justice erodes.136
133 A related term, ―the media‖, was discussed in Chapter 1, see especially fn 3.
134 See heading 5.3.1.
135 This point is discussed more fully under heading 4 below.
136 Ipp DA (1995), ―Reforms to the Adversarial Process in Civil Litigation – Part I‖, 69 Australian Law
Journal 705, at 705.
See also Resnik J (1986), ―Failing faith: Adjudicatory Procedure in Decline‖ 53 University of
Chicago Law Review 494.
Public opinion polls, for whatever they are worth, also illustrate the point. The Roy Morgan Poll for
professional ethics and honesty, in the 2005 findings (Finding No 3938, 24 November 2005), shows
that only about 65 per cent of Australians view Supreme Court and High Court judges, at eighth and
ninth positions, respectively, as having high or very high standards of ethics and honesty, behind
nurses (89 per cent); pharmacists (84 per cent); doctors (79 per cent); school teachers (74 per cent);
engineers (68 per cent); dentists (67 per cent); and police (65 per cent): see Roy Morgan
International (2005), ―Image of business executives and politicians down, while nurses once again
most ethical and honest profession‖, News Release. Finding No 3938, 24 November. Retrieved 3
March 2007, from <http://www.roymorgan.com/news/polls/2005/3938/> (see also below fn 260 for
rankings in other professions). This finding has remained consistent over a period of time.
90
It has been said further, the courts ―can no longer assume public confidence in the
courts and respect for the judiciary‖.137
O‘Donnell refers to ―the widely-held views of journalism and law as truth seeking
and fact based institutions.‖138
A scrutiny of the attitudes and practices in both sectors,
however, reveals a clear ambivalence and muddled approaches towards the search for
truth. This is not surprising if we accept that the term does not mean quite the same
thing in each of these spheres. The courts and the media each appear to construe truth
differently. This disjuncture arises partly because of material differences between the
courts and journalism, as to the meaning of truth, modes of establishing truth and
towards the standard of proof. On the former count, the disjuncture is not surprising
given the different meanings truth can assume in the two contexts. This lack of
unanimity is also not surprising given the profound difficulty in defining ―truth‖, seen in
the discussion so far.
4. Truth and the courts
It has been said that the ―law has an extraordinary regard for truth‖.139
An examination
of the attitude of the courts towards truth in the administration of justice, however,
reveals a mixed response over the centuries, and shows a tension. This tension is
between the pursuit of truth, on the one hand, and on the other, ensuring that the judge
remains a passive spectator in the contest between the parties.140
There are long held
views that the truth in a trial context is subservient to justice; that truth is not the
Notwithstanding the foregoing views and the poll data it is useful to note that the courts are largely
dependent on the mass media for the public perception of it. Note also the caution about such polls
from the Chief Justice of the High Court, Murray Gleeson, who takes a more positive view of public
confidence in the courts and has correctly noted that things that shake confidence in an institution are
―more likely to be newsworthy‖: see Gleeson M (2007), ―Public confidence in the courts‖ (Speech),
National Judicial College of Australia, 9 February, Canberra, ACT, at 2-3. Retrieved 28 March 2007,
from <http://www.highcourt.gov.au/speeches/cj/cj_9feb07.pdf> See also the observation by the
Chief Justice of the Supreme Court of Western Australia, Wayne Martin, that media criticism of the
judiciary is not a recent phenomenon: Martin W (2007), ―Access to justice – the media, the courts
and the public record‖ (Speech), Australian Press Council Address, 22 March, Perth, Western
Australia, at 9.
137 A view expressed by Doyle CJ in Fife-Yeomans J (1998), ―Judges defend maligned courts‖, The
Australian, 7 September, at 2.
138 O‘Donnell M (December 2003), ―Preposterous trickster: myth, news, the law and John Marsden‖,
Vol 8 No 4 Media and Arts Law Review 282, at 282. In the view of the author of this thesis, it is
probably more accurate to say ―journalism and the courts‖, rather than ―journalism and the law‖
because the law, per se, refers to a system of rules rather than an institution charged with a mission,
such as to seek the truth.
139 Weir T (1992), A Casebook on Tort, 7th Edn, Sweet & Maxwell, London, at 508.
140 Ipp (1995), above fn 136, at 713 where the author describes the tension as ―the inherent dichotomy‖.
This inherent dichotomy may also be expressed as ―the inherent contradiction‖.
91
primary goal of the justice system; and that proof rather than the truth is the justice
system‘s major concern. These views will now be considered in more detail.
4.1 Some preliminary matters
A discussion on the role of truth in the judicial system requires an appreciation of a key
aspect of the justice system itself – a feature that is commonly referred to as the
―adversarial system‖ with its bipolar configuration, in which is embedded notions about
truth-seeking. There is a ―common belief‖ that the adversarial system is ―the best which
can be devised for revealing the truth and ensuring fairness between the parties.‖141
The
―dominant pattern‖ in the Australian justice system is broadly described as
adversarial142
although it has been noted that changes have occurred in our system that
make our civil justice system ―less adversarial than it was 30 or 40 years ago.‖143
Some
attributes of the adversarial system are that ―the parties are in charge of the action‖144
and judges play a passive role.145
At the risk of over-simplification, the adversarial
system may be contrasted with the ―major alternative‖146
– the inquisitorial system.147
141 See Davies GL (2002), ―The reality of civil justice reform: Why we must abandon the essential
elements of our system‖ (Paper), 20th Australian Institute of Judicial Administration Annual
Conference, Brisbane, Australia, 13 July, at 2. Retrieved 29 March 2007, from
<http://www.courts.qld.gov.au/hidden/ca_davies.htm>
142 Vines P (2005), Law and Justice in Australia, Oxford University Press, South Melbourne, Victoria,
at 241.
143 Davies (2002), above fn 141, at 1.
144 Giannarelli v Wraith (1988) 165 CLR 543, Brennan J, at 578:
The purpose of court proceedings is to do justice according to law. That is the foundation of a
civilized society. According to our mode of administering justice, parties with inconsistent
interests are cast in the role of adversaries and the court or judge is appointed to be an impartial
arbiter between them.
See also Mason CJ in the same case, at 556-557, on the same point. See further, Vines (2005), above
fn 142, at 241:
Theoretically in the adversary system the parties are in charge of the action – they initiate it, set
it up, call the evidence, call witnesses and merely use the court as a forum.
This statement must, however, be viewed in light of the court‘s approach enumerated by Brennan J,
in Giannarelli v Wraith, at 578, where his Honour reminds that while counsel may appear to
represent the adversaries, their primary duty is to assist in the administration of justice, rather than to
secure a judgment in favour of the client. Mason CJ, in the same case, at 557, similarly observed that
―a lawyer, not being a mere agent for the litigant, exercises an independent judgment in the interests
of the court.‖
145 Sanders A and Young R (1994), Criminal Justice, Butterworths, London, at 7.
146 Sanders and Young (1994), above fn 145, at 7.
147 Vines (2005), above fn 142, at 241 notes that this is a procedural classification:
It is usual to compare the common law systems with civil law systems…by noting that the
common law systems are adversarial and the civil law systems are inquisitorial.
There are other ways to classify the law. For example, the ―traditional‖ classification divides the law
between public law and private law under which there are further sub-categories; or it can be
classified according to the remedies it can give rise to or according to its source (at 239-240). Note
also, that epithets such as ―adversarial‖ and ―inquisitorial‖, though convenient, can be misleading
when applied generally to common law and civil law systems: see McKillop B (1997), ―The
92
In the inquisitorial system the courts theoretically play a dominant role.148
It is said that
―adversarial systems focus on proof, and inquisitorial systems on truth.‖149
This
distinction, however, is neither clear nor conclusive because, there is a common belief
that the adversarial system better serves truth-seeking.150
The two systems function in
ways not always consistent with the theory.151
For instance, within the elements of the
adversarial system there is a great deal of scope for flexibility and adaptation but there
is ―no unanimity in this regard‖.152
It has also been said that both systems are essentially
adversarial and that there are more similarities than differences between them.153
It is
said further that anything resembling a truly inquisitorial system is impossible to find.154
Both the adversarial and inquisitorial systems are also recognised as having inherent
structural shortcomings.155
In turning to the ―truth‖ discussion in the context of the courts, there is a
pronounced lack of definition, analysis or critique of the term ―the truth‖ in legal
literature in comparison with other discourses, for example, in philosophy, religion and
social science.156
The reason for a lack of legal analysis of the meaning of ―truth‖ will
ALRC‘s Issues Paper on the Federal Civil Litigation System: Contesting the Adversarial‖, Vol 8
Public Law Review 139, at 139. It is, however, generally accepted that the adversarial system
contains the following elements: (1) adjudication by a neutral tribunal, acting with a considerable
degree of passivity; (2) the preparation and presentation of the case by the parties; and (3) a
structured procedural system governing the proceedings: see Fuller LL (1978), ―The forms and
limits of adjudication‖, 92 Harvard Law Review 353. For a convenient list of the essential features of
the adversarial and inquisitorial systems see Australian Law Reform Commission (1997), Review of
the Adversarial System of Litigation: Rethinking the Federal Civil Litigation System, Issues Paper
No 20, Para 2.6–2.7.
148 Sanders and Young (1994), above fn 145, at 7.
149 Sanders and Young (1994), above fn 145, at 8.
150 See, for example, text accompanying above fn 141 and above fn 159.
151 Western Australia Law Reform Commission (1997-1999), ―Review of the Criminal and Civil Justice
System‖, Report No 92, Para 6.3.
152 Ipp (1995), above fn 136, at 712.
153 Davies (2002), above fn 141, at 5. For a classic exposition of the trial features of both systems see
Damaska M (1973), ―Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A
Comparative Study‖, 121 University of Pennsylvania Law Review 506.
154 McEwan J (2004), ―Ritual, Fairness and Truth: The Adversarial and Inquisitorial Models of
Criminal Trial‖ (Chapter), in Duff A, Farmer L, Marshall S and Tadros V, The Trial on Trial, Hart
Publishing, Oxford, at 52.
155 WALRC Report No 92, above fn 151, Para 7.2. It is stated there:
In terms of protecting rights and ensuring reliable outcomes both the adversarial and
inquisitorial criminal justice systems have inherent structural shortcomings in providing
acceptable standards for the prosecution of cases.
For a discussion on the complexity confronting review efforts in the context of the Federal civil
justice system see Australian Law Reform Commission (2000), Managing Justice: A Review of the
Federal Civil Justice System, Report No 89, Paras 1.50 and 1.111–1.152.
156 This is so, even in literature critical of the law‘s marginalisation of ―the truth‖. Evan Whitton, a critic
of the law‘s approach to truth, in his book devotes a chapter entitled ―What is Truth? Said Jesting
Pilate‖ – but the entire chapter covers only one page and gives the matter casual treatment: see
93
become clearer in the discussion below, but briefly stated, the reason is that in law truth
is ―not an explanatorily useful concept.‖157
4.2 A historical backdrop
In respect of truth in the courts, we may begin by considering views expressed by
judges over time on the role and place of truth in a court of law. Two starkly contrasting
views are evident. On the one hand, there are affirmations of the truth imperative. On
the other, there are disavowals of the truth imperative altogether, or at least a view that
the truth does not trump other priorities. The latter position, one appeal court justice has
noted, ―may come as a considerable surprise to most members of the public who see the
legitimacy of our system in its capacity to ascertain the truth whilst according
procedural fairness.‖158
The following discussion illustrates this claim by reference to
various judicial statements in England and Australia over a long period.
In England Lord Eldon‘s classic view expressed in 1822 was that ―truth is best
discovered by powerful statements on both sides of the question.‖159
Whether such an
approach does in fact foster the emergence of the truth has since been seriously
questioned, but the approach nonetheless did not deny truth a place in the justice
process. It, however, stipulates what the proposer considers to be the ideal means to
achieve it. Four years later, Sir James Knight-Bruce would put even greater distance
between truth-seeking and the judicial mission. His Lordship observed: ―Truth, like all
other good things, may be loved unwisely – may be pursued too keenly – may cost too
much.‖160
More than a century later Viscount Simon went even further in expressing
Whitton E (1998), The Cartel: Lawyers and Their Nine Magic Tricks, Herwick, Glebe, NSW,
Chapter 3, at 37.
157 Patterson (1996), above fn 51, at 3.
158 Davies (2002), above fn 141, at 4.
159 Lord Eldon in Ex Parte Lloyd (5 November 1822), reported as a note in Ex Parte Elsee (1830) Mont.
69, at 70n, at 72. See also the view of Brennan J in Giannarelli v Wraith (1988) 165 CLR 543, at
578, citing Lord Eldon with approval and noting that the ―purpose of court proceedings is to do
justice according to the law.‖
160 Pearse v Pearse (1826) 1 De G & Sm 12; 63 ER 950, at 957:
And surely the meanness and the mischief of prying into a man‘s confidential consultations
with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, and
suspicion and fear, into those communications which must take place, and which, unless in a
condition of perfect security, must take place uselessly or worse, are too great a price to pay for
truth itself (ibid).
This view is applied in recognition of competing public interests, for example, the public interest in
the protection of the individual from unlawful and unfair treatment. As noted by the High Court in
Bunning v Cross (1978) 141 CLR 54, Stephen and Aickin JJ, at 72 (Barwick CJ agreeing), citing R v
Ireland (1970) 126 CLR 321:
Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.
Hence the judicial discretion [to reject certain types of evidence].
94
reticence towards the truth. His Lordship said a court of law ―is not engaged in
ascertaining ultimate verities: it is engaged in determining what is the proper result to be
arrived at, having regard to the evidence before it.‖161
In 1960, almost 140 years after
Lord Eldon‘s classic truth statement, Viscount Kilmuir reinforced this view in what Ipp
J has described as ―[p]erhaps the frankest exposition‖162
of the approach that a court of
law is not engaged in ascertaining ultimate verities.
Now the first and most striking feature of the common law is that it puts justice before
truth. The issue in a criminal prosecution is not, basically ―guilty or not guilty?‖ but ―can
the prosecution prove its case according to the rules?‖ These rules are designed to ensure
―fair play‖ at the expense of truth. Perhaps the most obvious example of this principle is the
rule that a prisoner cannot be made to expose himself to cross-examination if he does not
want to. The attitude of the common law to a civil action is essentially the same: the
question is ―has the plaintiff established his claim by lawful evidence?‖ Not ―has he really
got a good claim?‖ Again, justice comes before truth.163
Those views stand in contrast with Lord Denning‘s qualified rejection, a few
years earlier, of the view that disputes should be resolved entirely in accordance with
the rules of the ―game‖, without being concerned in any way with discovering the
truth.164
His Lordship, while appearing to accord an over-riding role for truth-seeking
simultaneously qualifies this prioritisation, as seen in the following passage from Jones
v National Coal Board,165
where his Lordship captures the limitation upon a judge‘s
truth-seeking portfolio:
In the system of trial which we have evolved in this country, the judge sits to hear and
determine the issues raised by the parties, not to conduct an investigation or examination
on behalf of society at large, as happens, we believe, in some foreign countries. Even in
England, however, a judge is not a mere umpire to answer the question ―How‘s that?‖ His
object, above all, is to find out the truth, and to do justice according to the law…166
In Mann v Carnell [1999] HCA 66 (21 December 1999), Gleeson CJ, Gaudron, Gummow and
Callinan JJ, Para 114 expressed a similar view in respect of information obtained under legal
professional privilege. For other judicial adoptions of this view see: Clemesha v The Queen [1978]
WAR 193, at 201; and R v Bailey [1956] SASR 153, at 161.
161 Hickman v Peacey [1945] AC 304, at 318, per Viscount Kilmuir, cited in Ipp (1995), above fn 136,
at 714.
162 Ipp (1995), above fn 136, at 714.
163 (1960) LQR 41, at 42-43 (italics added).
164 Ipp (1995), above fn 136, at 713.
165 [1957] 2 QB 55.
166 Jones v National Coal Board [1957] 2 QB 55, at 63 (italics added). That view was echoed by
Brennan J in Giannarelli v Wraith (1988) 165 CLR 543, at 578. The origins of this view can be
traced to a much earlier time. A noted English jurist, Frederick Pollock in Essays In the Law 275
(Oxford 1922), cited in Summers RS (1999), ―Formal Legal Truth and Substantive Truth in Judicial
Fact-Finding – Their Justified Divergence in Some Particular Cases‖, 18 Law and Philosophy 497, at
500 wrote:
Perhaps the greatest of all the fallacies entertained by lay people about the law is one which,
though seldom expressed in terms, an observant lawyer may quite commonly find lurking not
far below the surface. This is that the business of a court of justice is to discover the truth. Its
real business is to pronounce upon the justice of particular claims, and incidentally to test the
95
Justice Davies of the Supreme Court of Queensland Court of Appeal has noted,
however, that ―at least by the 1980s, judges had come to recognise that, however good
our system might be at ensuring fairness between the parties, it was not effective to
ascertain the independent truth‖.167
His Honour illustrated the point with observations
by Lord Wilberforce and Lord Denning. The former, in Air Canada, said: ―It often
happens, from the imperfections of evidence, or the withholding of it, sometimes by the
party in whose favour it would tell if presented, that an adjudication has to be made
which is not, and is not known to be, the whole truth of the matter…‖ and that there was
―no higher or additional duty to ascertain some independent truth‖.168
In the same case,
Lord Denning said that ―when we speak of the due administration of justice this does
not always mean ascertaining the truth of what happened. It often means that, as a
matter of justice, a party must prove his case without any help from the other side.‖169
In Australia the ambivalent judicial attitude towards the truth in the trial process is
illustrated in the following blunt observation in R v Whithorn:
A trial does not involve the pursuit of truth by any means. The adversary system is the
means adopted and the judge‘s role in that system is to hold the balance between the
contending parties without himself taking part in their disputations. It is not an inquisitorial
role in which he seeks himself to remedy the deficiencies of the case on either side.170
Prominent Australian jurist Sir Owen Dixon in a book in the mid-sixties noted
that ―the object of the parties is always victory, not abstract truth‖.171
The point is to
win. Truth claims, as noted above, are internal to the community in which these truths
truth of the assertions of fact made in support of the claim in law, provided that those
assertions are relevant in law to the establishment of the desired conclusion; and this is by no
means the same thing (italics added).
167 Davies (2002), above fn 141, at 4. His Honour goes further to state that the general view that our
system is effective at achieving justice between the parties ―is also a misapprehension‖ (at 4).
168 Air Canada v Secretary of State for Trade [1983] 2 AC 394, at 438.
169 Air Canada v Secretary of State for Trade [1983] 2 AC 394, at 411.
170 R v Whithorn (1983) 152 CLR 657, Dawson J, at 682 (italics added). For a contrasting view see the
United States and New Zealand positions expressed in the following authorities: (a) In the United
States the theoretical proposition that truth should be the ultimate goal of the legal system has long
been espoused: Ipp (1995), above fn 136, at 715; (b) Report of the Torts and General Law Reform
Committee (1977), ―Professional Privilege in the Law of Evidence‖, New Zealand, at 1:
…courts are concerned to arrive at the truth…To the extent that material evidence is not placed
before the court, there is a risk of mistake and the consequent injustice…so far as practicable,
all relevant evidence should be brought forward and considered.
This view was expressed in the context of contempt of court and professional privilege in the law of
evidence, and the implications of a refusal to attend a court hearing, refusal to produce a document
or refusal to answer a question.
171 Dixon O (1965), Jesting Pilate, and Other Papers and Addresses, Law Book Co, Sydney, at 16.
96
are expressed.172
Another High Court justice expressed a similar view, albeit
extracurially, before his Honour‘s elevation to the High Court:
…the object of the parties is simple, to win the case. If in the course of winning the case,
the whole truth is unmistakably ascertained and all relevant facts exposed, then a desirable,
but nonetheless no more than incidental, result will have been achieved.173
It may be noted that in both instances it was the parties‘ ―object‖ that was
identified. What about the court‘s object, though? A New South Wales Court of Appeal
justice speaking extracurially several years later expressed what might be taken as the
response to that question:
Justice differs from, and should be placed before the truth, only if the search for the truth
results in unfairness in the proceedings. A legal system that is content for the judge to
resolve disputes without attempting, within the bounds of fairness and available resources,
to ascertain the truth, is a system that is fettered by a rigid formalistic structure, inherently
inimical to the consistent achievement of justice.174
Justice Ipp has noted the ―inherent dichotomy‖ in the quest for truth and for
justice, and identified the judge‘s truth-seeking limitation clearly: ―…the power of the
judge to find the truth is limited by the parties‘ ability and desire to lay all the relevant
facts before her or him.‖175
In the traditional Australian system, the way in which
lawyers practised ―was more likely to distort or even suppress relevant facts than to
reveal them.‖176
In similar vein Justice Kirby of the High Court of Australia observed:
Adversary trial limits most proceedings to a contest between particular parties who rarely,
if ever, have an esoteric interest in purely legal developments. They just want to win the
case.177
This point is reinforced by Ligertwood:
172 See text accompanying fn 89 above.
173 Callinan IDF (1988), ―Commissions of inquiry - a necessary evil?‖, Conference, Tasmanian Bar
Association, Hobart, Tasmania, 5 November (italics added), cited in Whitton (1998), above fn 156,
at 38.
174 Ipp (1995), above fn 136, at 716 (italics added). Justice Ipp was at the time serving as a member of
the WA Supreme Court bench.
175 Ipp (1995), above fn 136, at 714. For an illustration of this point see Bassett v Host [1982] 1
NSWLR 206, per Hope JA, at 207 (affirmed by the High Court (1983) 57 ALJR 681): ―…instead of
assisting the finding of the truth the system has prevented the court from having before it the only
witness who could have spoken directly as to what the truth was.‖ Note, however, the observation,
that the function of the courts is ―not to find out the truth‖ and further, the notion that ―conflicting
versions of the truth‖ are possible, in the following extract from Crawford J and Opeskin B (2004),
Australian Courts of Law, 4th Edn, Oxford University Press, South Melbourne, at 60:
Courts will decide only what parties in disagreement ask them to decide. Their function is not
to find out the truth but to determine, between conflicting versions of the truth, which is to be
preferred. Normally it is irrelevant that there may be a third version, truer than that presented
by either party. This principle was established for civil cases at an early stage (italics added).
176 Davies (2002), above fn 141, at 4.
177 Kirby M (1997), ―Judicial Activism‖ Vol 27(1) UWA Law Review 1, at 17.
97
It may be argued that parties, driven by self-interest, suppress hypotheses and evidence
which promote neither parties‘ cause, thereby hindering the search for the true facts.178
The restrictions on access to information available to the parties are ―[f]or the most part
inherent in the common law procedural system.‖179
If the parties choose not to call a
certain witness, however relevant that person‘s evidence might have been, there is
nothing the court can do about it.180
The judge must adjudicate questions of fact and
questions of law submitted to the court, ―but is not responsible for discovering the truth
or for settling the dispute to which those questions relate‖181
and ―comes to a conclusion
based upon selected evidence‖.182
One Law Reform Commission report has stated the
proposition bluntly: ―Like the civil trial…a criminal trial is not a search for truth.‖183
Justice Davies has echoed this view, noting that ―to invest our system with the virtues of
178 Ligertwood A (2004), Australian Evidence, 4th Edn, Butterworths, Sydney, at 40. See also Frank J
(1973), The Courts on Trial, Princeton University Press, Princeton, at 86:
…the partisan nature of the trial tends to make partisans of the witnesses. They come to regard
themselves, not as aids in an investigation bent on discovering the truth, not as aids to the
court, but as the ―plaintiff‘s witnesses‖ or the ―defendant‘s witnesses‖. They become soldiers
in a war, cease to be neutrals.
The argument that the self-interest premise produces the desired results has been challenged in the
United States where Judge Schwarzer has stated that judges constantly observe lawyers who through
indifference, ineptitude, or lack of resources, fail to prepare and present their cases effectively: see
Ipp (1995), above fn 136, at 714. See further a Commonwealth DPP‘s view that the ―principles and
procedures encompassed within the adversarial model in the criminal justice system allow tactics of
delay and obfuscation‖: Martin B (1997), ―The adversarial model in the criminal justice system:
what change is happening?‖ (Speech), Heads of Prosecuting Agencies in the Commonwealth,
Conference, 23-26 September, Wellington, New Zealand.
179 Ligertwood (2004), above fn 178, at 273 (italics added).
180 Sanders and Young (1994), above fn 145, at 8. See also WALRC Report No 92, above fn 151, Para
7.10.
181 See Australian Law Reform Commission (July 1997), ―Review of the adversarial system of
litigation‖, Introductory Pamphlet 1. Retrieved 22 March 2007, from
<http://www.austlii.edu.au/au/other/alrc/publications/intro/inquiry.html> See section entitled ―The problems
of an 'adversarial' system‖ for a convenient summary.
182 WALRC Report No 92, above fn 151, Para 7.4.
183 Australian Law Reform Commission (1985), Evidence (Interim), Report No 26, Ch 3, Para 58. The
report notes, citing Sallman PA (1983), ―The Criminal Trial on Trial: A Response to Some Recent
Criticisms‖, 16 ANZ Journal of Criminology 31:
…there is a fundamental idea in liberal, common law societies that ―truth‖ and convictions of
―guilty‖ persons are not to be pursued and obtained at virtually any cost. The very essence of
our system is certainly that conviction of the guilty is important for a number of reasons but
that for a whole host of other reasons accused persons are entitled to the benefits of certain
rights and protections as a matter of recognition of their personal dignity and integrity, and
also, on a far broader scale, as a measure of the overall fairness of the society to the individuals
within it. At a somewhat different level it is obviously important, strategically and
philosophically, to arm an accused person with some protections just in order to give
credibility, if not substance, to the idea of the adversary system as a genuine contest between
more or less equally placed forces, rather than a heavily one-sided affair.
On this point see also below fn 213. See also WALRC Report No 92, above fn 151, Paras 7.4 and
7.10.
98
ascertaining the truth or of achieving fairness between the parties does not stand up to
close examination. In truth, it achieves neither.‖184
The above views do not represent a coherent pattern of judicial positions on the
question of truth. Rather, they provide fleeting insights into occasional judicial
perspectives on the question. These perspectives appear to be ad hoc responses to broad
matters of prevailing concern rather than a holistic answer to the role of truth in the
justice process. In the administration of justice per se, in particular areas of the law, the
courts recognise a greater competing public interest than the public interest in the
discovery of the truth. Aside from defamation law, the subservience of truth to some
other public interest is seen for instance, in contempt law, confidentiality and copyright
law. In sub judice contempt cases, truth is not relevant.185
As Butler and Rodrick note, it
is ―clear that at least three factors are not relevant to an assessment of whether a
particular publication has a tendency to interfere with the administration of justice in a
particular case. The first is the truth of the published statements.‖186
Similarly, truth is
also subordinated to the public interest in the protection of confidential information in
an action for breach of confidence and in the protection of work protected by copyright.
In respect of confidentiality, unless the law permits disclosure the information is
protected regardless of whether the information disclosed is true. Examples of when the
confidentiality imperative may be trumped include, when the confidence is breached for
the purpose of exposing an inequity187
or when disclosure concerns misconduct that
should be disclosed in the public interest.188
In these circumstances, truth is only
tangentially relevant. Similar arguments may apply in respect of copyright.
Notwithstanding the foregoing observations, it is suggested that in Australia over
the last few decades there has been ―a gradual, but clearly discernible trend towards
accepting that the ultimate purpose of our adversarial system is to resolve disputes by
pursuing the truth; this goal to be limited only by considerations of fairness and
resources.‖189
That observation was made more than a decade ago. It is not clear that
major strides have been made in this regard since then. For the purposes at hand this
much is clear, the courts do not consider the pursuit of truth in its common sense to be
184 Davies (2002), above fn 141, at 5.
185 See cases cited in Butler D and Rodrick S (2007), Australian Media Law, Lawbook Co, Pyrmont,
New South Wales, at 268 fn 328: Skipworth’s Case (1873) LR 9 QB 230, at 234; R v Saxon,
Hadfield & Western Mail Ltd [1984] WAR 283, at 291; DPP v Australian Broadcasting
Corporation (1987) 86 FLR 153, at 163.
186 Butler and Rodrick (2007), above fn 185, at 268 (italics added).
187 Gartside v Outram (1856) 26 LJ Ch 113.
188 Initial Services v Putterill [1968] 1 QB 396.
99
their primary function – desirable, perhaps, but not the ultimate goal. Deeply entrenched
processes in the prevailing system render the pursuit of truth an incongruous objective.
And we shall see why.
4.3 Some criticisms of the notion of courts as a truth-seeking institution
Pursuant to the foregoing discussion, and at the risk of repetition, the adversarial system
is afflicted by several weaknesses190
that render truth a casualty.191
Parties control what
gets into court192
and may suppress evidence.193
The rules of evidence operate to enable
the exclusion of ―the truth‖,194
hence the epithet ―exclusionary rules‖.195
On occasion
these ―complex web‖196
of rules are referred to as ―inclusionary‖ rules.197
189 Ipp (1995), above fn 136, at 714 (italics added).
190 WALRC Report No 92, above fn 151, Para 7.10, notes that the adversarial system is ―often criticised
– and was subject to strong condemnation in public submissions [the WALRC received] because it is
not sufficiently concerned with finding the truth‖.
191 WALRC Report No 92, above fn 151, Paras 6.1 and 7.10. See also Frank (1973), above fn 178, at 86
and 102.
192 WALRC Report No 92, above fn 151, Para 7.3.
193 Sanders and Young (1994), above fn 145, at 9.
194 WALRC Report No 92, above fn 151, Paras 7.12, 20.8 and 24.1. Some examples: (a) The ―law of
evidence ‗conspires‘ to exclude ‗the truth‘ from legal proceedings…A classic example is evidence of
a defendant‘s ‗bad character‘ including prior convictions‖; (b) ―The insistence on oral evidence by
first-hand witnesses at trial, party control over the pre-trial stage and limited judicial intervention
create a potential for missing ‗the truth‘ at trial. This occurs because: evidence gathered before trial
is rejected in favour of evidence at trial; delay affects witness recall; and the obligation is on
defendants to find and adduce evidence in their favour when they may not have sufficient
resources‖; and (c) The right to silence may conflict with the community‘s interest in having all
relevant information available to both the investigating authorities and the courts.
195 Wootten H (2003), ―Conflicting Imperatives: Pursuing Truth in the Courts‖ (Chapter), in
McCalman, I and McGrath A, Proof and Truth: The Humanist As Expert, Australian Academy of the
Humanities, Canberra, at 22 notes:
…much of the law of evidence can be understood as a set of exclusionary rules, placing limits
on a search for truth (―the facts‖) that is otherwise conducted in accordance with the ordinary
principles of rational inquiry.
196 Sanders and Young (1994), above fn 145, at 9.
197 See McNamara P (1990), ―The canons of evidence – rules of exclusion or rules of use?‖ (Chapter),
in Twining W and Stein A, Evidence and Proof, Dartmouth, Hants, England, at 291, where he states:
If the common law rules of evidence are dominated by a single principle or set of principles,
they are dominated not by canons of exclusion but by the inclusionary principle that all
information sufficiently relevant to the facts in issue at a trial is not only admissible but
positively required to be admitted if elicited in proper form from a competent witness and for a
proper purpose. All other rules of evidence are both conceptually subordinate to and in
practical terms dwarfed by this single principle (italics added).
On the same page, however, McNamara identifies what ―the most respectable contemporary texts on
evidence‖ refer to as the four ―great canons‖ of exclusion as: (a) the hearsay rule; (b) the opinion
evidence rule; (c) the rule against prior consistent statements; and the rule in Makin v A-G (NSW)
[1984] AC 57, at 65. McNamara also identifies the following as being part of the framework of the
rules of evidence, and these further reveal how evidence may be included or excluded: (a) a principle
of inclusion; (b) a principle of exclusion; (c) four principles which restrict the use of relevant
evidence once admitted; (d) rules as to the competence and compellability of witnesses; (e) rules
conferring privileges on competent and compellable witnesses to withhold relevant information; (f)
rules as to the form of evidence; (g) rules regulating the manner of giving evidence; (h) rules
100
McEwan sums up the malaise well in her observation that ―many of the rules of
evidence which owe their existence to the structural demands of the adversarial system
are incompatible with the uncovering of the truth.‖198
These rules include: (a) legal
professional privilege; (b) the privilege in aid of settlement; (c) the privilege against
self-incrimination; (d) the immunity of judges and jurors from testifying on the reasons
for decisions; and (e) public policy restrictions upon access to information –
parliamentary privilege, restrictions protecting marriage and family relationships,
restrictions protecting confidential relationships, and public interest immunity.199
Adjudicative fact-finding then, is about probabilities, not about certainties, and the
uncertainty problem is further exacerbated by time constraints.
Adjudicators have to decide cases within reasonable time limits. Justice delayed is justice
denied. This requirement forces adjudicators to curtail their fact-finding inquiries and
decide cases based on limited informational resources. Facts contested in adjudication have
to be reconstructed on the basis of deficient evidence. Adjudicators have to determine those
facts by relying on accounts of fallible and biased witnesses; by not considering all
evidence that they possibly could consider; by invoking generalisations and inference that
are nothing but rough approximations; and, finally, by subjecting the existing evidence to
credibility tests that are never carried through to perfection.200
The parties‘ control of proceedings, the rules of evidence, and judicial and jury
passivity, furthermore, ―all combine to make the system open to manipulation by smart,
wealthy and determined criminals.‖201
It is said further that ―to treat law as, above all, a
fight surely cannot be the best way to discover the facts‖202
and that the view that
manipulation of evidentiary material by the parties best enables the court to determine
the truth is ―an assumption at best unproven and at worst highly implausible.‖203
qualifying or restricting the powers of the tribunal of fact; and (i) rules of law and of practice
conferring powers or imposing obligations on trial judges (at 293-294).
198 McEwan (2004), above fn 154, at 66. Note also the concession that the general duty of disclosure is
―subject to qualifications brought about principally by the essential characteristics of the adversarial
system. Thus, while lawyers are obliged to act honestly in all positive statements they make in the
court room, they are not ordinarily required to disclose the identity of an adverse witness to the other
side. Nor is counsel ordinarily obliged to call every available witness who is able to give relevant
testimony‖: Ipp DA (January 1998), ―Lawyers‘ Duties to the Court‖, Vol 114 Law Quarterly Review
63, at 68.
199 Ligertwood (2004), above fn 178, at 273-407.
200 Stein A (2005), Foundations of Evidence Law, Oxford University Press, Oxford, at 35.
201 WALRC Report No 92, above fn 151, Para 7.11. Justice Davies, above fn 141, at 1, has suggested
―essential elements of our system‖ be abandoned – (a) the requirement of oral evidence; (b) a single
climactic trial; (c) party control over the dispute resolution process; and (d) the view that the best
and fairest way to resolve a dispute is through a contest.
202 Frank (1973), above fn 178, at 102. According to Frank the nature of the adversarial system is such
that it is ridiculous to assert that it enables one to get at the truth.
203 Jorg N, Field S and Brants C (2002), in Harding C, Fennell P, Jorg N and Swart B (eds), Criminal
Justice in Europe: A Comparative Study, Clarendon, Oxford, at 43.
101
Another area of controversy in respect of the courts concerns the notion of
―objectivity‖.204
In classical democratic theory, both law (and by extension the courts)
and the media gain much of their power through their apparently neutral or objective
status, and in both cases, objectivity is seen traditionally ―as the guarantee of fairness
and fairness is seen as a mediator of justice.‖205
Recent theory in both media and
jurisprudential studies, however, would see objectivity as ―a complex and…far more
ambiguous phenomenon.‖206
In law, it has been suggested that there are three types of
objectivity, and different types of objectivity are manifested in ―common thinking about
law‖ and ―in courtrooms‖.207
4.4 Some responses to criticisms
In response to the criticisms above, it is argued that truth is best discovered by powerful
statements from the parties,208
evaluated by a passive and impartial adjudicator.209
It is
said further that the adversarial system does not devalue truth but takes the view that the
truth emerges from the presentation by the prosecution and the defence of alternative
versions of the facts, based on the evidence each side presents.210
It is, on this view, a
strategy for discovering the truth and this view resembles the view seen earlier
concerning the marketplace of ideas theory advanced in the discussion on free
speech.211
The relegation of the truth pursuit to second place is justified, it is said, by
the courts‘ primary mission – to deliver justice. It is said: ―It should be remembered,
204 See also heading 5.3.2.1 below.
205 O‘Donnell (2003), above fn 138, at 284. For a fuller quotation see below fn 333.
206 O‘Donnell (2003), above fn 138, at 284.
207 O‘Donnell (2003), above fn 138, at 284. The author cites Posner‘s identification of three types of
objectivity (Posner RA (1990), The Problems of Jurisprudence, at 7): (a) the most common –
ontological – understanding: objectivity as producing a direct correspondence to an external reality;
(b) the scientific of experimental view of objectivity, which relies on the evidence of independently
replicable results; and (c) the ―conversational objectivity‖, where a court is persuaded that
something is so. Posner points out that although the first two forms of objectivity underlie much
common thinking about law, the third form is by far the more common in courtrooms. He also notes
that the consensus achieved in conversational objectivity is largely dependent on cultural
convergence:
Legal thought cannot be made objective by being placed in correspondence with the ―real‖
world. It owes whatever objectivity it has to cultural uniformity rather than to metaphysical
reality or methodological rigour.
208 Ex Parte Lloyd (1822) Mont 70, at 72n.
209 Sanders and Young (1994), above fn 145, at 8.
210 WALRC Report No 92, above fn 151, Para 7.3.
211 See Chapter 2 heading 3.5 for a discussion of the marketplace of ideas concept.
102
however, that in every case the ultimate aim of the justice system must be to deliver
justice, which is not always the same as delivering truth.‖212
The courts then pursue justice through particular processes, whose main features
can be summed up as follows: (a) the court‘s role is to hand down a decision on the
evidence before it; (b) it is for the parties to produce the evidence; and (c) the evidence
must observe the limits of the evidentiary rules.213
It is also argued that having a judge
as umpire is ―a far better‖214
way as it is ―more likely that the ‗real truth‘ will
emerge‖.215
Also, criticism of the adversarial system, it is said, appears to be founded,
erroneously, on ―the idea that it is possible to get really true facts about the world but
that the adversary system is the wrong way of going about it.‖216
In defence of the rules
of evidence, it is said that the search for truth must have ―procedures for discovery‖217
212 WALRC Report No 92, above fn 151, Para 7.11. An illustration of the point can be seen in
circumstances where juries may sacrifice the truth to avoid a gross injustice because: (a) they reject
the law that criminalises the wrong for which the defendant is being tried; (b) they reject not the
criminalisation of the act but the level of sanction attached to it; or (c) they accept the law and
concomitant sanction but simply have no wish to see them applied to the particular defendant on
trial: see Matravers M (2004), ―More Than Just Illogical: Truth and Jury Nullification‖ (Chapter), in
Duff A, Farmer L, Marshall S and Tadros V, The Trial on Trial, Hart Publishing, Oxford, at 74
citing Allen D (2000), The World of Prometheus: The Politics of Punishing in Democratic Athens,
Princeton University Press, Princeton, at 5.
213 See Roberts G (1998), Evidence: Proof and Practice, LBC Information Services, North Ryde, NSW,
at 23:
The court‘s task is to decide whether, on [the] evidence, the party bearing the burden of
proof…has succeeded in discharging that burden. In other words, in the adversarial system of
justice a trial is not a fact-finding inquisition in the literal sense; the fact-finding has been
carried out by the parties before the trial as part of what is involved in the principle of party-
disposition (that is, that it is for the parties themselves and not the court to collect the evidence
and present it at the trial). The business of the court is therefore to adjudicate upon the
sufficiency of the evidence presented by reference to the standard of proof imposed upon the
party bearing the burden of proof. To put the matter another way, the question for the court, the
tribunal of fact, is not, “What is the truth of the case?‖ but, ―On the evidence presented, has the
prosecution (or the plaintiff) persuaded us to the requisite degree of satisfaction?‖ The court’s
decision is confined exclusively to the evidence presented to it (italics added).
214 Sanders and Young (1994), above fn 145, at 9.
215 Sanders and Young (1994), above fn 145, at 9.
216 Bankowski (1988), above fn 62, at 11. Bankowski illustrates the point thus, at 12:
[The sceptics] think that there must be a clear and obvious way which settles all that one needs
to do or should do to find the truth. The truth, then, is something that can directly be
discovered and we can test our artificial conventional games such as the trial by reference to
this direct discovery. The image of ―finding the truth‖ here is that of someone ―discovering‖
the source of a river in what seems the most obvious way, by sailing to its beginning. But is
that the end of the matter? Is that all I have to do to know that I have got to the source? That is
not the case, for I must also have a theory which will explain why, if I sail up the river as far as
it will go, I will have arrived at its source. The theory must be able to specify precisely what
the end of a river is to count as: it must distinguish, for example, between mainstreams and
tributaries or backwaters…Otherwise I might go up a backwater and declare its termination as
the source of the river, missing out the main stream that might go on for hundreds of
miles…―Go until you hit something‖ is not a clear enough theory; it is also necessary to have
some justification for counting what has been hit as ―discovery‖.
217 Bankowski (1988), above fn 62, 13; also see generally 12-15.
103
and that rules of evidence ensure integrity in collecting evidence and proving guilt.218
Inquisitorial systems, on the other hand, lack evidence-gathering rules because they
―may hamper the search for the truth.‖219
Claims that greater judicial pre-trial
supervision in inquisitorial systems220
is good, is disputable221
as the ―investigator‖ is
prone to bias.222
And, finally, a sacrosanct principle of the trial acts as a powerful
restraint on a court‘s initiative in pursuing the truth:
Perhaps the most sacred principle of the modern trial is that the court is forbidden from
acting upon its own knowledge of material facts in issue and from carrying out its own
investigation of those facts or otherwise relying upon extra-evidentiary curial
observations.223
…discovery is a purposive activity in the sense that it comprises actions which have to be
interpreted under some theory of justification, and thus ―discovery‖ cannot be independent of
justification; one cannot separate the two. Discovery includes justificatory activity [thus] we do
not have immediate access to the ―truth of the matter‖. We cannot…discover the Nile just by
sailing up it. We have to have procedures for discovery – the apprehension of truth – which
cannot be separated from the truth of the matter, justification. We cannot when talking of what
we know, separate the truth of the matter from our method of apprehending it. The facts we
know are constructs, partly determined by the procedures of discovery which in turn depend
upon procedures for justification. The search for truth is something we only undertake through
institutional procedures which give us criteria enabling us to describe our activity as truth
seeking (at 13).
218 Sanders and Young (1994), above fn 145, at 9. Ligertwood (2004), above fn 178, at 5, states that the
common law procedure is primarily concerned with discovering the facts that entitle a party to
remedy under a particular legal rule:
These facts may be referred to as the material facts…The rules of evidence are concerned with
the discovery of those material facts alleged by parties and upon which their legal remedies
depend (italics in original).
219 Sanders and Young (1994), above fn 145, at 9. I make only a passing reference to the inquisitorial
system as space limitations do not permit a more thorough examination.
220 WALRC Report No 92, above fn 151, Para 7.16.
221 Sanders and Young (1994), above fn 145, at 10. The authors note, for example, that the inquisitorial
approach can result in undue detention of suspects until the ―truth‖ is discovered.
222 Sanders and Young (1994), above fn 145, at 8. In Germany, for instance, it is noted that there is a
―close and trusting relationship from the very beginning‖ between the police and the prosecutor:
Leigh LH and Zedner L (1992), ―A Report on the Administration of Criminal Justice in the Pre-Trial
Phase in France and Germany‖, London: HMSO, at 28.
223 Ligertwood (2004), above fn 178, at 437-438 (authorities omitted). The author states that this
principle acts in four ways to ensure that justice is done and seen to be done: (a) it ensures the
impartiality of the court by refraining from actively forming hypotheses and seeking information and
thereby remaining beyond the conflict; (b) the presentation of all relevant information in open court
is ensured, thereby allowing opponents to comment upon and test all information; (c) interested
parties are most motivated to collect relevant information and therefore the information from which
material facts are inferred is maximised; and (d) by giving parties full control over the presentation
of information and full opportunity to comment, parties are discouraged from criticising the
evidentiary basis of a court‘s decision (at 438).
That said, however, a contrary position has established its creditworthiness and that is the role of
―tacit knowledge‖ which is ―[f]ormed by complex experiences and intuitions‖ and which are ―never
translatable into linguistic forms‖: see Stein (2005), above fn 200, at 37.
104
4.5 Summary
A number of points may now be made in summarising the role of truth in the justice
system.
First, two somewhat contrasting positions as to the role of truth have been
expressed in recent times in Australia. One is the view that there is ―a clearly
discernible trend towards accepting that the ultimate purpose of our adversarial system
is to resolve disputes by pursuing the truth‖.224
The other is that delivering justice and
delivering truth are ―not always the same‖ thing, and the justice system‘s ultimate aim
is to deliver justice.225
Furthermore, ―the characteristic mode of reasoning is induction;
the pursuit of truth as a means to justice under the law commands a high, but not
necessarily an overriding, priority as a social value.‖226
On the one hand it may be
argued that the two positions are not all that different as they both view the pursuit of
truth as a means to an end, and not an end in itself. On the other hand, it is arguable that
the justice system, not least of all because of trial methods and inquiry processes, does
not always facilitate the emergence of truth.227
Second, any profession of allegiance to truth in the justice system is a qualified
one, that is, the quest for truth must be limited by the scope of the judicial function.228
Questions of procedure, fairness and resources inevitably come into play. As Weinstein
has usefully summarised:
Even were it theoretically possible to ascertain truth with a fair degree of certainty, it is
doubtful whether the judicial system and rules of evidence would be designed to do so.
Trials in our judicial system are intended to do more than merely determine what happened.
Adjudication is a practical enterprise serving a variety of functions. Among the goals – in
addition to truth finding – which the rules of procedure and evidence…have sought to
satisfy are economising of resources, inspiring confidence, supporting independent social
policies, permitting ease in prediction and application, adding to the efficiency of the entire
legal system and tranquilising disputants.229
224 Ipp (1995), above fn 136, at 714.
225 WALRC Report No 92, above fn 151, Para 7.11.
226 Wootten (2003), above fn 195, at 31, citing Twining W (1990), Rethinking Evidence: Exploratory
Essays, Basil Blackwell, Oxford, notes:
…the pursuit of truth as a means to justice under the law commands a high, but not necessarily
an overriding, priority as a social value.
227 See, for example, the discussion under heading 4.3 above.
228 One definition of that function can be seen in the High Court‘s view in Wilson v Minister for
Aboriginal Affairs (1996) 189 CLR 1, at 11:
The function of the federal judicial branch is the quelling of justiciable controversies, whether
between citizens (individual or corporate), between citizens and executive government (in civil
and criminal matters) and between the various polities in the federation. This is discharged by
ascertainment of facts, application of legal criteria and the exercise, where appropriate, of
judicial discretion.
229 Weinstein J (1966), ―Some difficulties in Devising Rules for Determining Truth in Judicial Trials‖,
66 Columbia Law Review 223, at 241.
105
The variety of influences upon truth-seeking in the judicial process can be seen
further in the observation of Sanders and Young: ―Walking the tightrope separating one
value, truth, from the competing value of procedural fairness is clearly difficult. Other
values also come into play, such as economy and efficiency.‖230
These characteristics
might be seen as features of the practical exigencies of judicial decision-making, to
adapt Lord Hoffmann‘s description in a journalism context.231
The judicial approach to
truth may be contrasted with the pursuit of truth in, say, an esoteric sense or in the sense
of the philosophical debates that turn on epistemological, metaphysical and other bases.
In short, even if the pursuit of truth is accepted as being the ―ultimate aim‖ of the trial
process that aim comes with many qualifications.
Third, the courts‘ primary concern is with ―evidence‖ and ―proof‖.232
The law
inclines towards relevant ―information‖, ―facts‖, ―evidence‖ and ―proof‖ rather than
towards ―truth‖. As Wootten notes: ―The distinction between the facts and the law or
‗legal criteria‘ that are applied to them is fundamental to the judicial task.‖233
He
230 Sanders and Young (1994), above fn 145, at 12. Wootten (2003), above fn 195, at 19-20 notes that
other competing values include ―the requirement to finalise the dispute‖; and the need for ―a high
degree of predictability‖ as no society could bear either the cost of the system or the effect on the
society‘s functioning if every social and commercial transaction gave rise to a dispute, and every
dispute went to court, and every case went to hearing. He states the proposition simply (at 17):
What then are courts for? Fundamental is the fact that courts are not standing commissions to
search for the truth, but machinery to bring disputes between parties about certain kinds of
issues to an end in an acceptable way.
231 See below fn 394.
232 The meanings of the two terms are somewhat bound up in each other. Waight PK and Williams CR
(1995), Evidence – Commentary and Materials, 4th Edn, LBC Information Services, North Ryde, at
1, describe the law of evidence as consisting of ―the rules and principles which govern the proof of
the facts in issue at a trial.‖ The Evidence Act 1995 (Cth), Section 55(1) refers to ―relevant evidence‖
which it describes as ―evidence that, if it were accepted, could rationally affect (directly or
indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.‖
According to Stein, evidence, by its very definition, is an item of information that evidences
additional information: ―When witness W testifies about event H the information that this testimony
immediately provides is ‗W says H‘. This information, however, does not evidence H by itself. The
only proposition that transforms W‘s testimony into evidence is ‗W says H; therefore H‘. This
transforming proposition goes beyond W‘s testimony‖: Stein (2005), above fn 200, at 35, italics in
original. On the other hand, ―proof‖ is the establishment of the existence or non-existence of some
fact to the satisfaction of a legal tribunal charged with determining this fact in issue: Twining W
(1990), Rethinking Evidence, above fn 226, at 179. The standard of proof required is a variable one
and it fluctuates according to varying ―standards‖. As to what these standards are, see Wootten
(2003) extract below fn 237.
For more a detailed examination of what the Law of Evidence constitutes, see Twining (1990),
above fn 226. That discussion reveals a multiplicity of views about what the Law of Evidence is,
against Twining‘s ―central contention…that our rules of evidence consist of a series of disparate
exceptions to a single principle of freedom of proof‖ (at 178).
233 Wootten (2003), above fn 195, at 18.
It has long been the proud claim of our legal system that justice is administered through courts
that are honest, fair, independent, public, available to all, treat everyone equally and uphold the
rule of law.
106
observes further: ―The courts have no explicit theory of truth or knowledge‖ and ―are
much more likely to talk about ‗the facts‘.‖234
But does this mean that the justice system
is not concerned with the truth? Sanders and Young offer a more charitable view of
truth-seeking by courts in the adversarial system of justice, where they note: ―[I]t is
sometimes said that adversarial systems focus on proof, and inquisitorial systems on
truth. But this is too simplistic. Both systems are concerned with establishing the truth,
but they differ on the best way of achieving that end.‖235
They may also differ on what
―truth‖ means given that the term has several meanings, as seen in the discussion
above.236
It would be more accurate to say, however, that the kind of truth that the
courts pursue is a qualified one, and the nature of some of those qualifications are noted
by Wootten:
My point is not to glorify the system, but to bring out that the primary claim is not that it
gets things right, or discovers the truth, but that it gives parties a ―fair go‖…The system
seeks truth. That it should do so is implicit in the notion of a ―fair‖ hearing, and in our
law‘s concept of acting judicially, which ―excludes the right to decide arbitrarily,
irrationally or unreasonably‖. However truth is often very hard, sometimes impossible, to
find, and society cannot indefinitely postpone dispute settlement while the quest proceeds.
A number of things may deflect, override, or force compromises on, a court‘s search for
truth…our law privileges procedural justice over the search for truth…the quest for truth
remains, but is narrowed to what the parties choose to put in issue, and the use of the
evidence they choose to present.237
Fourth, in Australia there has been a ―quiet but enormously significant
revolution‖238
as courts move away from a passive role in civil litigation.239
The
rationale for this, however, is to target delays, and to promote early settlements and cost
reductions, and not the quest for truth specifically.240
234 Wootten (2003), above fn 195, at 31.
235 Sanders and Young (1994), above fn 145, at 8.
236 See discussion under heading 2 and its various subheadings.
237 Wootten (2003), above fn 195, at 18-19 (references omitted). He states further, at 20-21:
The system does not claim that its finding is a universal truth…A court‘s finding is always
subject to two caveats about treating it as the truth: it is based only on the evidence that the
parties have chosen to place before it, and it is at most a finding of probability, a mere balance
of probabilities in civil cases, a higher ―beyond reasonable doubt‖ standard in criminal cases. If
the court can‘t reach a conclusion, even as to the probabilities, it is still required to give a
decision, and does so in accordance with known rules about the ―burden of proof‖…in the end
a court‘s finding is not about the real world outside the court. It is only a finding that in a
particular case a party who has the burden of proving a fact has, or has not, succeeded in
persuading the court according to a certain degree of probability.
See also discussion under heading 4.3 above.
238 Sallmann PA (1992), ―Managing the business of the Australian Higher Courts‖ Vol 2 Journal of
Judicial Administration 80, at 80.
239 Ipp (1995), above fn 136, at 723.
240 Ipp (1995), above fn 136, at 723.
107
Fifth, a critical question remains – is truth attainable? The view from a legal
perspective is that truth is not always there to be found in a trial and furthermore, the
law‘s interest is in a truth that can be proved in keeping with the required standard of
proof through a particular procedure.241
It is suggested that the ―pursuit of truth‖
justification that is advanced in free speech discussions is attractive but elusive:
[It] is a very appealing metaphor, but it assumes that there is a ―truth‖ to be attained. At
times, however, there is no real objective truth to be found in a trial – particularly where the
issue is to do with a person‘s state of mind or motivation…we often do not know even our
own motivations. Therefore it is impossible to know with absolute certainty the motivation
of another person…the law is not interested in an objective truth so much as a truth that
can be proved beyond reasonable doubt (or, depending on the context, on the balance of
probabilities) by a rational and fair procedure. This, in essence, is the fundamental debate
underlying freedom of discussion and contempt law: when, if ever, should people be forced
to be satisfied with the legal truth and when should they be allowed access to ―the‖
truth?242
The reference here to ―legal truth‖ appears to have been made in passing but it
suggests the existence of ―a truth‖ that is unique to the justice system.243
Truth in the
legal sense, therefore, is another way of ascertaining what really happened – whether a
person did or did not commit a wrong244
– relying on a particular ―truth certifying‖
procedure245
and our knowledge of the facts and the truth is dependent on that
241 Western Australia Law Reform Commission (June 2003), Review of the Law of Contempt, Report
No 93. See also text accompanying fn 229 above on this point.
242 WALRC Report No 93, above fn 241, at 21 (italics added).
243 This is in the sense, as Bankowski suggests – the trial procedure does not constitute legal truth ―as
our more radical epistemological position would have it‖ (Bankowski (1988), above fn 62, 16-17).
244 Bankowski (1988), above fn 62, at 8-9, provides a useful discussion in the context of how the courts
go about establishing guilt:
―Guilt‖ is a word that is used internally to the law. It is an ascription that comes at the end of a
specifically legal procedure and must not be confused with lay views of whether ―he did it‖. In
other words the ascription ―he is guilty‖ is not the same as ―he did it‖ made by (say) a
policeman. What is the implication of this? It implies that legal procedure constitutes the truth
for the purpose of the law and legal truth is different from policemen‘s truth, from lay truth and
so on. It implies that there is no reality by which one can measure whether something is
truthful or not, and that truth is something that is constructed within particular language games.
The claim above, then, is that the ascription ―he is guilty‖ bears no relation to any such
ascription as ―he really did it‖ because they are constructed in different institutions or modes of
life…[The statements that ―he is guilty‖ and ―he really did it‖] are the end points of different,
unrelated methods for arriving at the truth. They do not constitute truth but are different ways
of ascertaining what really happened. However, this can only be done through truth certifying
procedures. The validity of these procedures cannot be judged by the criterion of truth since we
can only get at that through these different procedures. This has an effect on the truth that
comes out of them.
For a similar discussion see Matravers (2004), above fn 212, at 73-76.
245 See Bankowski (1988), above fn 62, at 15:
The trial then is an institution which gives the ground rules for the alternative verdicts ―guilty‖
or ―not guilty‖ which are internally linked to the propositions ―he did it‖ and ―he did not do it‖
of reality. How does the trial procedure then arrive at the ―truth‖? What is the point of the
process? The aim of the process is, I suggest, to produce a coherent story or picture of the
events and reality under dispute…the judicial process is simply a particular method of
attempting to get at the truth, a particular truth certifying procedure.
108
procedure.246
The term ―truth‖, however, does not appear to have become established as
a key component of legal nomenclature and discourse. Indeed, the available evidence
tends to point the other way, that is, it suggests that even where an interest in restoring
the primacy of truth-seeking is professed, there is keen appreciation of institutionally-
imposed impediments.
Sixth, the principles at work in different systems are influenced ―by history,
culture and underlying ideology‖.247
Clearly, the Australian approach has been heavily
shaped by historical developments and ―owes its form exclusively to history‖.248
Changing to a full-fledged truth seeking process would require change so fundamental
that it would be impossible.249
Seventh, and finally, we may take note of the constant reminder in the above
discussion of the difficulty in seeking truth. Twining refers to ―powerful reminders of
the difficulty of the enterprise of seeking after truth.‖250
He adds: ―That the pursuit of
truth is a difficult enterprise deserves the status of a truism; it is fair to say that within
evidence scholarship this has sometimes been part of ‗the neglected obvious‘‖.251
The
courts are constituted to serve an important social purpose – the administration of
justice. This brief demands something different from the ascertainment of ultimate
truths. It denies the courts the luxury enjoyed by philosophers (as seen above) and
journalists (to be discussed below) to defer their decisions until the truth imperative is
fully discharged assuming, of course, that such an ideal is attainable. The courts must
make decisions and they must make them efficaciously. They are in the business of
practical reasoning, as opposed to philosophy‘s tendency for theoretical reasoning, and
they must provide certainty and finality, as opposed to journalism‘s provisional
accounts.
Adjudication can never be halted in indecision. A decision not to decide the case is actually
a decision to reaffirm the status quo. Adjudicators have to resolve the disputed issues of
246 See Bankowski (1988), above fn 62, at 17:
―He is guilty‖ is an internal statement of that procedure and is constituted by it, but that
procedure also gives us a warrant for saying that there is a relation to the ―he did it‖ of reality.
However, the procedure one adopts affects…the end result. Our knowledge of truth and the
―facts of the matter‖ is inexorably linked with the procedure we adopt for certifying it, which
itself determines the outcome. But this does not make truth seeking and the pursuit of
knowledge a ―game‖ in the sense that it is purely and exclusively conventional and artificial.
247 Sanders and Young (1994), above fn 145, at 7.
248 Ipp (1995), above fn 136, at 711.
249 This was the view expressed in respect of any change from an adversarial to an inquisitorial system,
by England‘s Royal Commission on Criminal Procedure Report (1981), Cmnd 8092, HMSO,
London, Para 1.8 cited in McEwan (2004), above fn 154, at 51.
250 Twining (1990), above fn 226, at 128.
251 Twining (1990), above fn 226, at 128.
109
fact one way or another and are not authorised to withhold their decision in the presence of
uncertainty. This is what practical – as opposed to theoretical – reasoning is about.252
5. Truth and journalism
Like the mixed response to the status of truth in respect of the courts seen in the above
discussion, journalism too reveals a similar ambivalence although there are ―widely
held views of journalism and law as truth-seeking and fact based institutions‖.253
The
following discussion examines truth in the context of journalism.
5.1 Some preliminary matters
Many a journalist would profess – as Jesus did before Pilate – that theirs is a vocation to
bear witness to the truth.254
It is said that journalism ―has a lofty ideal – the
communication of truth‖255
and that it serves the public interest by truth-telling256
(we
may briefly note here that truth-telling is to be distinguished from the concept of truth,
the former giving rise to specific practical constraints that are not characteristic of truth
more generally). Kovach and Rosenstiel identify the classic conundrum that haunts
journalism:
Over the last three hundred years, news professionals have developed a largely unwritten
code of principles and values to fulfil the function of providing news – the indirect
knowledge by which people come to form their opinions about the world. Foremost among
these principles is this: Journalism’s first obligation is to the truth. On this there is
absolute unanimity and also utter confusion: Everyone agrees journalists must tell the truth.
Yet people are befuddled about what ―the truth‖ means.257
252 Stein (2005), above fn 200, at 34.
253 O‘Donnell (2003), above fn 138, at 283.
254 For a definition of journalist: see Western Australia Law Reform Commission (December 1991),
Professional Privilege for Confidential Communications, Discussion Paper, Project 90, Ch 7 fn 1 &
Para 7.2.2. See also Western Australia Law Reform Commission (May 1993), Professional Privilege
for Confidential Communications, Report, Project 90, Ch 4 Para 8. For a discussion on the
―attributes‖ of journalists see Conley D and Lamble S (2006), The Daily Miracle: An Introduction to
Journalism, 3rd Edn, Oxford University Press, South Melbourne, Victoria, at 16-18, 22, 80 and 237;
and for a discussion on journalists‘ ―character‖, see Stovall JG (2005), Journalism: Who, What,
When, Where, Why and How, Pearson, Boston, at 26-29. The question of whether journalism is a
profession is discussed below under heading 5.3.1.
255 Patterson P and Wilkins L (2002), Media Ethics: Issues and Cases, 4th Edn, McGraw Hill, New
York, at 18.
256 Burns LS (2002), Understanding Journalism, Sage, London, at 29. See also comments of Green K in
MacLean S (2004), ―Schools turning out ‗ideologues, not newshounds‘‖, The Australian (Media), 18
November, at 15: ―We‘re sending people out there saying you‘ve got to find the truth, and I think
that‘s what all journalists are after.‖
257 Kovach and Rosenstiel (2001), above fn 33, at 37 (bold type in original). The authors provide ―some
clear principles that journalists agree on‖ and what the authors call ―the elements of journalism‖. Of
these elements the ―first among them is that the purpose of journalism is to provide people with the
information that they need to be free and self-governing‖. To fulfil this task, there are a list of nine
obligations that the authors set out as follows (at 12-13):
1. Journalism‘s first obligation is to the truth. 2. Its first loyalty is to citizens. 3. Its essence is a
discipline of verification. 4. Its practitioners must maintain an independence from those they
110
The discussion below considers factors that contribute to the befuddlement. Our
immediate concern is to note the professional primacy ostensibly accorded to truth in
journalism and the profession‘s apparent unanimity in this regard.
This desire that information be truthful is elemental. Since news is the material that people
use to learn and think about the world beyond themselves, the most important quality is that
it be usable and reliable…Truthfulness creates, in effect, the sense of security that grows
from awareness and is at the essence of news. This basic desire for truthfulness is so
powerful, the evidence suggests it is innate.258
Journalists, it is said, have identified truth ―overwhelmingly as a primary
mission‖.259
Yet the public‘s scepticism of journalism‘s commitment to the truth is
reflected in varying forms260
and ―convincing individuals who have been battered by the
tabloid press that ‗truth in journalism‘ is not an oxymoron is becoming increasingly
difficult.‖261
5.2 A historical backdrop
Historically, the quest for ―the truth‖ was identified as a cornerstone of the journalistic
pursuit.
As the modern press began to form with the birth of democratic theory, the promise of
being truthful and accurate quickly became a powerful part of even the earliest marketing
of journalism. The first identifiable regular newspaper in England proposed to rely ―on the
best and most certain intelligence‖. The editor of the first paper in France, though his paper
was government owned, promised in his maiden issue, ―In one thing I will yield to nobody
– I mean in my endeavour to get at the truth.‖ Similar promises to accuracy are found in the
earliest papers in America, Germany, Spain, and elsewhere. 262
cover. 5. It must serve as an independent monitor of power. 6. It must provide a forum for
public criticism and compromise. 7. It must strive to make the significant interesting and
relevant. 8. It must keep the news comprehensive and proportional. 9. Its practitioners must be
allowed to exercise their personal conscience.
These principles, it must be pointed out, are the product of what the authors claim they have
―distilled from our search‖ (at 37), and these principles should be read with the various in-house,
national and international journalism codes of practice. The two main codes in Australia are the
Media, Entertainment and Arts Alliance Code of Ethics for journalists and the Australian Press
Council Statement of Principles: see below fn 293.
258 Kovach and Rosenstiel (2001), above fn 33, at 37-38.
259 Kovach and Rosenstiel (2001), above fn 33, at 37.
260 See, for example, Morgan Poll rankings on the professions where newspaper journalists rank at No
25, in between State MPs and Advertising People, and just four places from the bottom of the table:
see above fn 136.
261 Tickle S (2001), ―The truth, the whole truth, and nothing but…‖ (Chapter), in Tapsall S and Varley
C (eds), Journalism: Theory in Practice, Oxford University Press, Oxford, at 89.
262 Kovach and Rosenstiel (2001), above fn 33, at 39. See Stephens M (2007), A History of News, 3rd
Edn, Oxford University Press, New York, at xi-xxvii, for a convenient chronology of the
development of news, dating from ca 40,000 B.C. when news spread ―by word of mouth‖; and, in
the same work, Chapter 9 ―The First Newspapers – Expecting the News‖. A more conventional view
as to the origins of news dissemination, however, appears to be that cited by de Beer and Merrill
(2004), above fn 15, at 164, where it is suggested that ―news‖ (new information of topical interest)
111
The looseness of the term ―truth‖ in journalism is evident in the above quotation –
the authors appear to use ―truth‖ and ―accuracy‖ interchangeably, although the two do
not mean the same thing,263
as recognised early last century:
By the beginning of the twentieth century journalists were beginning to realise that realism
and reality – or accuracy and truth – were not so easily equated. In 1920, Walter Lippmann
used the terms truth and news interchangeably in ―Liberty and the News‖. But in 1922, in
Public Opinion, he wrote: ―News and truth are not the same thing…The function of news is
to signalise an event,‖ or make people aware of it. ―The function of truth is to bring light to
the hidden facts, to set them into relation with each other, and make a picture of reality
upon which men can act.‖264
It took another sixteen years before journalism textbooks ―were beginning to
question how truthful the news could really be.‖265
The debate continued over the next
fifty years and ―we have come to the point where some deny that anyone can put facts
into a meaningful context to report the truth about them.‖266
…the instinct for truth is no less necessary today – in the age of new media and
proliferating outlets – than it ever was…The need for truth is greater, not less, in the new
century, for the likelihood of untruth has become so much more prevalent. For that to
occur, the next step is that journalists must make clear to whom they owe their loyalty.267
The present state of affairs concerning journalism and truth will become clearer in
the discussion ensuing.
5.3 Some criticisms of the notion of journalism as a truth-seeking institution
An examination of journalism‘s attitudes towards truth reveals ambivalence similar to
that seen in the courts‘ approach to truth. Once again, the problem has its roots in the
discussion on truth and philosophy above.268
A number of factors come to bear on
journalism‘s truth-telling ability and the following does not purport to represent a
comprehensive catalogue but it is, nevertheless, a useful starting point. The following
discussion reveals how the journalistic craft, because of its ―infrastructural‖ features or
limitations, impairs the pursuit of truth. This discussion is organised under the following
main headings: (a) truth in the professional framework; (b) factors to consider in
first appeared on a regular basis in the West when Julius Caesar had a written version of the Senate
discussions, called the acta senatus, posted on the Forum outside the Senate building for the citizens
of Rome to read.
263 See discussion under heading 5.3.2.1 below. Note also that the dictionary definition of ―truth‖ in the
Introduction to the chapter above also appear to treat truth and accuracy synonymously.
264 See Kovach and Rosenstiel (2001), above fn 33, at 40.
265 Kovach and Rosenstiel (2001), above fn 33, at 40.
266 Kovach and Rosenstiel (2001), above fn 33, at 40.
267 Kovach and Rosenstiel (2001), above fn 33, at 47-48.
268 See heading 2 and its various subheadings.
112
journalistic truth; and (c) some responses to criticisms. An understanding of these
matters facilitates an appreciation of how the truth is constructed in journalistic
production.
5.3.1 Truth in the professional framework
It would be useful to first consider a threshold matter – what is a journalist, and is
journalism ―a profession‖? The answer to these questions will illuminate, among other
things, whether the grouping has any truth ―attributes‖269
or professional commitment to
truth, and whether there are other rules of conduct, peculiar to that grouping, which
potentially bear upon its pursuit and dissemination of truth. Such questions were not
asked of the judiciary because judges overcome demanding professional hurdles to
reach the Bench.270
In addition, various statutory instruments directly govern judicial
work.271
Membership of a profession traditionally signifies that the individual will be ―held
to a certain standard of conduct that goes beyond the norm for others‖272
through
written or unwritten rules and attributes. Telling the truth is one of two ―modern
responsibilities‖ imposed on journalists.273
Scholars, however, disagree on journalism‘s
status as a profession.274
Generally speaking, there are great difficulties in using the
term ―professional‖ because another part of the definition of a ―profession includes
entering an occupation that involves a form of learning or science…By contrast, in
269 For an example of such attributes see Millerson G (1964), The Qualifying Associations: A Study in
Professionalism, Routledge & Kegan Paul, London, at 5, where the author identifies the following
main attributes found by sociologists in determining a profession: (a) skill based and theoretical
knowledge; (b) the provision of training and education; (c) testing the competence of members; (d)
organisation; (e) an ethical code of conduct; and (f) altruistic service.
270 One commentator previously described the appointment of judges as ―not very exacting‖: Crawford
J (1993), Australian Courts of Law, 3rd Edn, Oxford University Press, Sth Melbourne, at 60.
However, this comment has been omitted in the subsequent edition of this text: Crawford and
Opeskin (2004), above fn 175, at 63. As authors note appointments are made by constitution or
statute, and the responsibility for appointment is vested in the executive – the Commonwealth
government for High Court and other Federal Court appointments, and State governments for State
court appointments; there are statutory criteria of eligibility which are usually limited to a period of
admission or practice as a barrister and/or solicitor (ibid). See also ALRC Report No 89, above fn
155, Chapter 2 ―Education, training and accountability‖.
271 For example, at Commonwealth level alone – Judiciary Act 1903 (Cth); High Court of Australia Act
1979 (Cth); Federal Court of Australia Act 1976 (Cth); and Family Law Act 1975 (Cth).
272 See Burns (2002), above fn 256, at 22.
273 The other is cited as the obligation to foster political activity: see Burns (2002), above fn 256, at 23.
The nature of the truth ―responsibility‖ is discussed below in the context of ethical code obligations:
see heading 5.3.1.
274 Burns (2002), above fn 256, at 23. Burns cites Lebacqz‘s view that to belong to a profession is
traditionally to be held to a certain standard of conduct that goes beyond the norm for others, and
that it is on this basis that scholars have both defended and rejected journalism‘s status as a
profession (at 22-23).
113
everyday language, we hear, for example, that a person is a carpenter or plumber by
profession.‖275
Journalism educator John Henningham has stated that many journalists
claim that theirs is a profession while others don‘t care.276
After examining journalism
in terms of five professional criteria – service, knowledge, autonomy, professional
organization, and ethical codes – he states that ―it is evident that the occupation is in a
somewhat ambiguous position‖277
but adds that despite the ambiguities there appears to
be ―a process of professionalisation within the occupation.‖ 278 In contrast, Baker
suggests that newspaper reporting is “not a profession – it‘s a craft, like making leather
sandals‖ although he observes that ―there are times when the level of required skill is as
high as that of any of the so-called professions.‖279
More recently the question of the
lack of definition of the term ―journalism‖ and ―media organisation‖ received attention
from the Australian Law Reform Commission and it identified four main options for
defining ―journalism‖.280
275 Ross S and MacFarlane P (1997), Lawyers’ Responsibility and Accountability: Cases, Problems and
Commentary, Butterworths, North Ryde, Sydney, at 19.
276 Henningham J (1992), Issues in Australian Journalism, Longman Cheshire, Melbourne, at 129. The
author has devoted an entire chapter to the question ―Is journalism a profession?‖ and he notes:
Concerns about the issue reflect a common view that achievement of professional recognition
is a desirable aim for an occupation, giving it status and allowing its practitioners certain
privileges together with particular responsibilities. Journalists have often rejected the term
―profession‖ in favour of a variety of labels for their occupation, including craft, trade, art,
business and job (references omitted).
For other discussions on this issue, see Schultz J (1994), ―The paradox of professionalism‖
(Chapter), in Schultz J (ed), Not Just Another Business: Journalists, Citizens and the Media, Pluto
Press, Sydney; and Ethics Review Committee Report (1997), Ethics in Journalism, Media,
Entertainment and Arts Alliance/Australian Journalists‘ Association Section, Melbourne University
Press, Carlton South, Victoria, at 3-6.
277 Henningham (1992), above fn 276, at 153.
278 Henningham (1992), above fn 276, at 153. The author notes further that the existence of an ethics
code does not in itself indicate that an occupation is a profession, nor does its absence indicate that
an occupation is not a profession (at 151). Ethicists Patterson and Wilkins are clearly of the view that
journalism is a profession. They argue that journalism is now a profession because of two modern
responsibilities imposed on journalists – a greater responsibility than other people to tell the truth,
and a greater obligation to foster political activity: see Patterson and Wilkins (2002), above fn 255,
at 18.
279 Baker B (2002), Newsthinking: The secret of making your facts fall into place, Allyn & Bacon,
Boston, at 9.
280 Australian Law Reform Commission (September 2007), Review of Australian Privacy Law,
Discussion Paper No 72, Para 38.64. The four options were: (a) the dictionary meaning; (b) the
definition proposed in the Privacy Amendment (Private Sector) Bill 2000 (Cth) which included the
word ―information‖; (c) the definition proposed in the Privacy Amendment (Private Sector) Bill
2000 (Cth) but excluding the word ―information‖; and (d) the definition in the Privacy Act 1993
(NZ).
The ALRC proposed that the term in the context of the Privacy Act should define ―journalism‖ to
mean the collection, preparation for dissemination or dissemination of the following material for the
purpose of making it available to the public: (a) material having the character of news, current affairs
or a documentary; or (b) material consisting of commentary or opinion on, or analysis of, news,
current affairs or a documentary (see Proposal 38-1). See also generally Paras 38.36–38.70. See
further Chapter 1 fn 3.
114
In the context of shield laws in the United States, journalism is very broadly
defined:
…anyone who is able to get news or comment in print with a recognized publisher, on the
air over a radio or television station, or even on the Internet…The modern tendency is to
broaden the laws to cover anyone whose primary purpose is to gather information for
dissemination to the public.281
It is also in the context of shield law discussion in Australia that journalism‘s
professional status, as will be shortly seen, has been affirmed. It may also be briefly
noted that shield laws have another relevance for present purposes and that is the
potential they offer for journalists to access the truth. As for journalism‘s ―professional
status‖ three Law Reform Commissions considered journalism ―a profession which falls
under sections 126A and 126B of the Evidence Act 1995 (NSW).‖282
These sections do
not expressly confer professional status on journalists but they created a category of
privilege called a ―professional confidential relationship privilege.‖ Those sections were
―not directed expressly to apply to journalists and their sources‖283
but in NRMA v John
Fairfax Publications284
they were applied to a journalist-source relationship and it was
held that the privilege was broad enough to encompass that relationship.285
The above-
named Law Reform Commissions recommended that the uniform Evidence Acts be
amended to provide for a professional confidential relationship privilege with some
281 Holsinger and Dilts (1997), above fn 17, 334. The authors add, however, that the courts look at the
circumstances and may, or may not, recognise a person as a journalist for the purpose of shield law
privilege. Thus, is a person is acting as a journalist and seeking information for dissemination to the
public, the courts have tended to hold that they can invoke the privilege, otherwise they may not be
protected.
282 Australian Law Reform Commission Report No 102 (2005), New South Wales Law Reform
Commission Report No 112 (2005) and Victoria Law Reform Commission Final Report (2005),
Uniform Evidence Law, Para 15.16. See also Section 202(4), Broadcasting Services Act 1992 (Cth)
which provides that it is a reasonable excuse for a journalist to refuse to answer a question or
produce a document if doing so would tend to disclose the identity of their confidential source.
283 Butler and Rodrick (2007), above fn 185, at 330.
284 [2002] NSWSC 563.
285 In that case Master Macready in reaching his view on journalism as a profession took various factors
into account, including whether the occupation involves skills which in the past were acquired by
practice and instruction as a cadet and now by tertiary courses; whether the journalist was acting in a
professional capacity; and to the extent that the provision in the Evidence Act 1995 (NSW) was
obscure about the meaning of the term, one could have regard to extrinsic materials such as the
second reading speech where the Attorney General, when introducing the amendments, indicated
that the definition may include confidences imparted to doctors, other health professionals,
journalists, social workers and other relationships in which confidentiality is an integral element
(italics added): see Paras 149-152.
See also the definition of ―journalist‖ in Section 202(5), Broadcasting Services Act 1992 (Cth), for
the purposes of Section 202(4) of the Act which protects journalists‘ confidential sources:
…journalist means a person engaged in the profession or practice of reporting for,
photographing, editing, recording or making – (a) television or radio programs; or (b)
datacasting content – of a news, current affairs, information or documentary character.
115
qualification.286
This led to Commonwealth legislation that provides limited recognition
for journalists‘ confidential sources287
and pressure on the States and Territories to
follow suit.288
These developments suggest that Australian law has moved closer to
affirming journalism as a profession. Such recognition has ramifications for the design
of liability that will be examined in Part III of this thesis.
That brings us to the main concern in this section – the role of truth in
journalism‘s professional schema. It is said that the journalist‘s ―sole duty is to
concentrate on discovering the truth‖289
and ―[v]irtually every code of ethics begins
with the newsperson‘s duty to tell the truth under all conditions.‖290
Codes of ethics can
generally be viewed as a declaration to others as to what the group subscribing to the
code is about.291
Despite avowals of the primacy of the truth obligation in journalism,292
some journalism ethics codes (a key component of media self-regulation) make no
reference to ―truth‖ per se293
although there are journalism ethics codes that do
286 See ALRC Report No 102, NSWLRC Report No 112 and VLRC Final Report, above fn 282, Para
15.36 and Recommendation 15–1.
287 The Evidence Amendment (Journalists’ Privilege) Act 2007 which amends the Evidence Act 1995
(Cth) passed both Houses of Parliament in mid-June 2007. The Commonwealth Attorney General,
Philip Ruddock said in applying the privilege the courts will be ―required to give consideration to the
protection of interests including freedom of the press and the public‘s right – or need – to know: see
Second Reading Speech, House of Representatives, Hansard, 31 May 2007, at 4. The relevant
sections of the new legislation are Sections 126A and 126B.
288 The Australian States and Territories have reached a stalemate on the introduction of similar
legislation: see Merritt C (2007), ―States reject journos‘ sources law‖, The Australian, 13 April, at
23. New South Wales has, however, proceeded to incorporate the ALRC‘s recommendations in
Report No 102, above fn 282, and introduced section 126B into the Evidence Act 1995, which
provides for a limited protection for information obtained from confidential sources. The Standing
Committee of Attorneys General endorsed the model uniform evidence laws on which the NSW
provision was based: see Standing Committee of Attorneys General (2007), Summary of Decisions,
26-27 July, Hobart, Item 4.
289 MacDougall CD (1968), Interpretative Reporting, 5th Edn, Macmillan Co, New York, at 13. See
introductory remarks under heading 5 above.
290 Christians et al (2001), above fn 32, at 59.
291 Ethics Review Committee Report (1997), above fn 276, at 1. Such codes are said to state the
purposes, values and standards that others may use to understand the group, form expectations of it,
and they also declare some of the standards by which the group wants to judge itself.
292 See introductory remarks under heading 5 above.
293 There is no reference to ―truth‖ in the following codes of practice: (a) The Australian Press Council
Statement of Principles; (b) the Australian Commercial Radio Codes of Practice and Guidelines
governing news and current affairs; (c) the Australian Commercial Television Industry Code of
Practice; (d) The Sydney Morning Herald code of practice; and (e) UK Press Complaints
Commission Code of Practice. There are a few noteworthy points about the foregoing list. First,
although the term ―truth‖ does not feature in the Australian Commercial Television Industry Code of
Practice provisions on News and Current Affairs, there is an oblique reference to truth in advertising
as contained in the preamble of the Australian Association of National Advertisers Code of Ethics:
―The object of this Code is to ensure that advertisements are legal, decent, honest and truthful…‖.
Retrieved 20 March 2007, from <http://www.aana.com.au/3_self_regulation/3_1_self_reg.html>
Second, The Sydney Morning Herald clause that approximates a quest for the truth, but still avoids
direct use of the word, is as follows:
116
explicitly refer to truth or profess a commitment to it.294
Where reference is made in the
professional practice codes to the truth imperative, it is not clear what ―the truth‖ means
or is intended to mean in those codes.295
The instances of reference and non-reference to
―truth‖ in the practice codes will be discussed next with a focus on the codes of
Australia‘s two main print journalism industry self-regulatory entities – the Australian
Press Council (APC), and the Media, Entertainment and Arts Alliance (MEAA).296
5.3.1.1 The Australian Press Council Code
The APC oversees compliance with its Statement of Principles (―the code‖), by
newspaper and magazine publishers. The code comprises a preamble and nine ―general
principles‖.297
The APC was formed to preserve the freedom of the press in Australia,
ensure the maintenance of the highest journalistic standards, and serve as a forum for
HONESTY: Herald staff will report and interpret honestly, striving for accuracy, fairness and
disclosure of all essential facts. They will not suppress or distort relevant facts. They will do
their utmost to offer the right of reply, and they will separate comment from news. Retrieved
19 January 2006, from <http://www.smh.com.au/ethicscode/>
294 The following codes of practice or ethics codes make a specific reference to ―truth‖: (a) MEAA/AJA
Code of Ethics (discussed below under heading 5.3.1.2); (b) Society of Professional Journalists,
United States, SPJ Code of Ethics. Retrieved 3 October 2005, from
<http://www.spj.org/ethics_code.asp>; and (c) the International Federation of Journalists (n.d.),
Declaration of Principles on the Conduct of Journalists. Retrieved 30 March 2007, from
<http:www.uta.fi/ethicnet/ifj.html> The SPJ code provides:
…public enlightenment is the forerunner of justice and the foundation of democracy. The duty
of the journalist is to further those ends by seeking truth and providing a fair and
comprehensive account of events and issues (italics added).
The IFJ code provides in Clause 1: ―Respect for truth and for the right of the public to truth is the
first duty of the journalist‖ (italics added).
295 See, for example, the SPJ Code of Ethics referred to (above fn 294). It provides that journalists have
a duty to seek the truth. In a section entitled ―Seek Truth and Report It‖, however, there is no further
illumination of truth in that code. The section, however, contains a brief statement that exhorts
journalists to be ―honest, fair and courageous in gathering, reporting and interpreting information.‖
A subsequent section, which appears to explain this provision, sets out a list of do‘s and don‘ts
including that are not immediately evident as being aids to the truth-telling injunction. See, for
example, the call to journalists to (a) Examine their own cultural values and avoid imposing those
values on others; (b) Avoid stereotyping by race, gender, age, religion, ethnicity, geography, sexual
orientation, disability, physical appearance or social status.
296 The two bodies are differently constituted and serve different functions but they both serve self-
regulatory functions in journalism: see Senate Select Committee (April 2000), In the Public Interest:
Monitoring Australia’s Media, Report by the Senate Select Committee on Information Technologies,
Senate Printing Unit, Parliament House, Canberra, Para 2.1. The APC is a voluntary, non-profit
organization, which was founded in 1976 following an agreement between the AJA and major
publishers of the day. The AJA severed its formal links with the APC in 1987 and merged with other
media associations to form the MEAA in 1992. The MEAA is a registered trade union, which
includes a number of other unions in the media, entertainment and arts industries (see The Laws of
Australia (1 July 2001), ―The Australian Press Council‖ Vol 6, Item 6.5 Lawbook Co, Pyrmont,
NSW, at 5 and 9; and Halsbury’s Laws of Australia, Service 112, Butterworths, Chatswood, NSW,
Para 275-220, at 509,102). In July 2005 the MEAA, re-affiliated with the APC as a constituent body
(see Australian Press Council News (May 2005), ―MEAA‖, Vol 17 No 2, at 3; and Pearson M
(2005), ―Press body and union reunite‖, The Australian, 25 August, at 17.
297 Retrieved 7 February 2008, from <http://www.presscouncil.org.au/pcsite/complaints/sop.html>
117
complaints about material published by the press.298
The APC adjudicates complaints
on the basis of the code.299
The following observations may be made about the code.
(a) No reference to ―truth‖: There is no express reference to ―truth‖ in the entire code.
The truth imperative is, at best, only implied. Principle 1 imposes the following
obligation: ―Newspapers and magazines ("publications") should not publish what they
know or could reasonably be expected to know is false, or fail to take reasonable steps
to check the accuracy of what they report.‖300
No other clause in the code comes as
close to addressing the truth imperative. The initial part of Principle 1 carries a
―negative‖ injunction – it stipulates a prohibition on the publication of falsity. This,
however, does not in itself ensure the attainment of truth, if indeed the aim is to commit
to attaining the truth. The latter part of this clause calls upon the journalist to check the
accuracy – not truth – of what they report. ―Accuracy‖ is not synonymous with
―truth‖.301
The current Principle 1, which was formerly Principle 2, was ―rewritten to
place more emphasis on the steps publications should take to establish the accuracy of
matters they publish‖.302
(b) Former ―truth‖ reference omitted: Most noteworthy for the purposes at hand, is the
fact that before the amendments that led to the present version of the code, it did contain
a specific obligation concerning truth. Principle 2 in the ―old Statement of Principles‖
read: ―A newspaper has an obligation to take all reasonable steps to ensure the truth of
its statements.‖303
In October 1996 the APC revised that code. The new Principle 2
reads: ―A publication should make amends for publishing information that is found to
be harmfully inaccurate by printing, promptly and with appropriate prominence, such
298 The Laws of Australia (1 July 2001), above fn 296, at 5. The APC has been referred to by its critics
as a ―toothless tiger‖: see Walker S (2000), Media Law Commentary and Case Materials, LBC
Information Services, Pyrmont, NSW, at 290; and as a ―publisher‘s poodle‖: see Pearson M (2007),
The Journalist’s Guide to Media Law, Allen & Unwin, Crows Nest, NSW, at 412. These epithets
reflect the dominance of publishers‘ representatives in the council‘s make-up. Retrieved 21 March
2007, from <http://www.presscouncil.org.au/pcsite/about/members.html>
299 The Laws of Australia (1 July 2001), above fn 296, at 5.
300 Retrieved 15 March 2007, from <http://www.presscouncil.org.au/pcsite/complaints/sop.html>
301 This is explained under heading 5.3.2.1 below.
302 See Australian Press Council (1997), Annual Report No 21, at 43.
303 Australian Press Council News (November 1996), ―The old statement of principles‖, Vol 8 No 4
(Italics added). For a list of 20 ―factors‖ that have been noted by the APC as significant in
determining whether a publication has taken all reasonable steps ―to ensure the truth of statements‖:
see The Laws of Australia (1 July 2001), above fn 296, at 21-23. It may be noted that the terms
―truth‖ or ―true‖ are not in the APC Code, and these terms are not to be found in the 20 factors listed
there although there are references to ―facts‖, ―comments‖, ―assertions‖, ―allegations‖,
118
retraction, correction, explanation or apology as will neutralise the damage so far as
possible.‖304
The omission of reference to ―truth‖ in the amended code is significant on
at least two counts. There appears to have been a conscious abandonment of the
reference to ―truth‖. Furthermore, this omission contradicts the approach in many
established codes, including that of the other peak Australian journalism entity, the
Media, Entertainment and Arts Alliance, who have clearly identified the pursuit of truth
as a core journalistic value.305
(c) A dilution of the code?: The other amendments to the code are not immediately
relevant to this discussion, although one brief point may be made at the risk of reading
too much into it. The preamble to the old version stated that the APC ―will be guided‖
by the provisions listed there. The current version, however, states that the APC ―will
have regard‖ for the provisions. It may be asked whether the latter phrasing tends to
dilute the force of the code provisions.
5.3.1.2 The Media, Entertainment and Arts Alliance Code
The MEAA oversees compliance with the MEAA Code of Ethics. That code contains
the following proclamation, which forms the opening statement in the current306
preamble: ―Respect for truth and the public‘s right to information are fundamental
principles of journalism.‖307
Some things may be said about this ―provision‖.
―information‖, ―material‖, and ―story‖. On this basis it may be said that the authors of the Laws of
Australia entry introduced the term ―truth‖ into that entry.
304 Retrieved 21 March 2007, from <http://www.presscouncil.org.au/pcsite/complaints/sop.html>
305 On truth being a core journalistic value see, for instance, heading 5.3.1.1(b) above.
306 See Media, Entertainment and Arts Alliance Registered Rules, Version of 24 August 2005, Rule 65.
In an earlier version the word used was ―overriding‖ instead of ―fundamental‖: see Halsbury’s Laws
of Australia, above in fn 296, Para 275-220. The preamble in an earlier recommendation for a Code
revision gives truth a more prominent role:
Journalists describe society to itself. They seek truth. They convey information, ideas and
opinions, a privileged role. They search, disclose, record, question, entertain, suggest and
remember. They inform citizens and animate democracy. They give a practical form to
freedom of expression. Many journalists work in private enterprise, but all have these public
responsibilities. They scrutinise power, but also exercise it, and should be accountable.
Accountability engenders trust. Without trust, journalists do not fulfil their public
responsibilities. MEAA members engaged in journalism commit themselves to – honesty,
fairness, independence [and] respect for the rights of others: see Ethics Review Committee
Report (1997), above fn 276, at 14 (italics added).
307 MEAA, Registered Rules, above fn 306, Rule 65. The rest of the current Preamble, 24 August 2005
version, reads:
Journalists describe society to itself. They convey information, ideas and opinions. They
search, disclose, record, question, entertain, comment and remember. They inform citizens and
animate democracy. They give a practical form to freedom of expression. They scrutinise
power, but also exercise it, and should be responsible and accountable. Journalists commit
119
(a) ―Truth‖ not among numbered provisions: Although the MEAA code identifies
respect for truth as a fundamental principle of journalism308
the ―truth‖ commitment is
not expressly reflected in the 12 clauses that are commonly referred to as MEAA code
provisions. It is in the nature of a value statement rather than a specific obligation
imposed on journalists. According to the MEAA, the special prominence that truth-
telling deserves is ―conveyed in the current MEAA code‘s emphatic opening ‗respect
for truth…‘.‖309
On the other hand, legally speaking, although a preamble is not
insignificant,310
it might be argued that a commitment as admittedly lofty as one to truth
should have been reflected in the numbered provisions, which are phrased clearly as
injunctions or rules. Furthermore, the truth imperative could have been more forcefully
stated, for example, by imposing a specific obligation to seek the truth among the 12
code provisions.311
(b) An apparent tension: The MEAA code appears to place respect for truth and the
public‘s right to information on the same plane, without offering guidance as to which
would prevail in the event of a conflict between the two.312
Other journalism practice
codes, however, reveal a similar ambiguity.313
On a rare occasion, however, it is
themselves to: Honesty, Fairness, Independence and Respect for the rights of others.
Journalists will educate themselves about ethics and apply the following standards.
308 See text accompanying fn 307 above.
309 Ethics Review Committee Report (1997), above fn 276, at 17.
310 In the context of ambiguity in a statutory provision, a court can obtain assistance from the preamble
in ascertaining the meaning of the ambiguous provision: see Wacando v Commonwealth (1981) 148
CLR 1. See also Cook C, Creyke R, Geddes R and Hamer D (2005), Laying Down the Law, 6th Edn,
LexisNexis Butterworths, Chatswood, NSW, at 245 where the authors note that Section 15AA, Acts
Interpretation Act 1901 (Cth) and its counterparts require the courts to prefer a construction of a
provision that would promote the underlying purpose or object of the Act. See further Section 31,
Interpretation Act 1984 (WA) which renders preambles in WA Acts even more important:
The preamble to a written law forms part of the written law and shall be construed as a part
thereof intended to assist in explaining its purport and object.
311 See, for example, the approach taken by the Society of Professional Journalists (SPJ). The SPJ Code
of Ethics. has located the truth ideal high up in its code. The first provision after the Preamble reads:
―Seek Truth and Report It‖. Retrieved 10 July 2008, from <http://www.spj.org/ethicscode.asp>
312 For example, the ―information‖ may be that certain monies have been improperly dispensed from a
particular business person‘s bank account to a government official, raising suspicions about the
payment of a bribe, but the ―truth‖ may be that no nefarious activity had occurred.
313 For instance, the Indianapolis-based Society of Professional Journalists code of ethics states in a
bold heading at the outset ―Seek truth and report it‖ but the clause that heading supports makes no
reference to the truth: ―Journalists should be honest, fair and courageous in gathering, reporting and
interpreting information‖. Retrieved 29 March 2007, from <http://www.spj.org/ethics_code.asp>
See also Ethical Journalism Guidebook, a publication of The New York Times, which provides as
follows in Chapter 2, Clause 15: ―In print and online, we tell our readers the complete, unvarnished
truth as best as we can learn it‖. Retrieved 19 January 2006, from <http://www.nytco.com/company-
properties-times-coe.html>
120
possible to find an emphatic declaration of allegiance to the truth in the journalism
ethics code.314
(c) Not a clear-cut commitment: The only remaining allusion to truth in the MEAA
code is the one found in Clause 9: ―Present pictures and sound which are true and
accurate. Any manipulation likely to mislead should be disclosed.‖ It may be briefly
noted that the terms ―true‖ and ―accurate‖ are not treated synonymously in this clause,
unlike instances discussed earlier. While there is an implicit recognition of the
importance of truth (albeit apparently much lower down in the MEAA code‘s scale of
priority), this requirement is confined to material captured in ―pictures and sound‖ and
not in other forms, for example, through the printed word. It may be said that the
profession‘s commitment to truth – ―the word that summarizes many journalistic
ideals‖315
– is not as clear-cut as might have been, although in this regard, the MEAA
code is superior to the APC‘s.316
The MEAA, in a code review about a decade ago,
noted:
Seeking truth is at journalism‘s core, as truth is one of the core goods of society. As one
submitter observed: ―This is not to say that it is always easy to find the truth. But surely,
there must be a predisposition amongst journalists to seek out the truth and a corresponding
aversion to the publication of falsehood by either act or omission.317
5.3.1.3 Truth imperative lacks prominence
More can be done to counter the view that the press‘s avowed pursuit of truth tends
towards rhetoric: ―The press‘s obligation to print the truth is a standard part of its
rhetoric.‖318
Others argue that ―there is little doubt that journalists believe themselves to
be engaged in pursuing the truth – not just free speech or commerce.‖319
The desire to
314 See International Federation of Journalists code, Clause 1 (see above fn 294).
315 Gilmore G and Root R (1971), Modern Newspaper Editing, Glendassary Press, Berkeley, California,
at 242.
316 The AJA has made mention of ―truth‖ from as early as 1944 – see AJA Code of Ethics 1944-1984,
in Ethics Review Committee Report (1997), above fn 276, at 121, where Rule 2 provided that each
AJA member was bound by the Code: ―Not to suppress essential facts nor distort the truth by
omission or wrong or improper emphasis.‖
317 Ethics Review Committee Report (1997), above fn 276, at 16.
318 Christians et al (2001), above fn 32, at 59. Note also, for instance, that it was observed in 1981 that
codes of ethics are ―too vague to help resolve professional dilemmas‖: see Henningham (1992),
above fn 276, at 152, citing Pollock JC (1981), The Politics of Crisis Reporting, Praeger, New York.
Despite this longstanding criticism the state of the two codes discussed above leave much to be
desired.
319 Kovach and Rosenstiel (2001), above fn 33, at 42. The authors refer to the following example of
journalists‘ responses to questions about their perception of truth, citing CCJ and the Pew Research
Centre for the People and the Press, Striking the Balance: Audience Interests, Business Pressures
and Journalists’ Values, March, 1999, at 53.
121
search out and present the truth does, indeed, seem to be one of the moral foundations
of libertarian journalism.320
As noted above: ―Truth is the word that summarizes many
journalistic ideals.‖321
Despite this claim, journalists tend to do little to define truth or
critique its role in journalism. The term is often used but not explained. For example,
Gilmore and Root, despite their view that journalists believe they are engaged in
pursuing the truth322
and contrary to Merrill‘s claim that they provide a ―good
discussion of journalistic truth‖,323
provide little guidance on the subject. On the
contrary, they are dismissive of the need to adequately define the term: ―The working
newspaperman knows well enough what truth means in his situation and doesn‘t worry
too much about Truth.‖324
The importance of truth in journalism education is not clear
either. It is said: ―Truth must certainly be the key word in the journalist‘s lexicon,
however it may be conceived.‖325
Yet, as Burns notes: ―Journalism educators tend to be
more concerned with the motivation of journalists than the search for ‗truth‘.‖326
Kovach et al answer the question ―what does a journalist‘s obligation to the truth
mean?‖ as follows:
The usual efforts to answer this question, at seminars or in philosophical tracts, end up in a
muddle. One reason is that the conversation is usually not grounded in the real world.
Philosophical discussions of whether ―truth‖ really exists founder over semantics. Another
reason is that journalists themselves have never been very clear about what they mean by
truthfulness. Journalism by nature is reactive and practical rather than philosophical and
introspective. The serious literature by journalists thinking through such issues is not rich,
and what little there is, most journalists have not read.327
…even today journalists still believe in the importance of telling the truth. In our survey of
journalists about core values, eight out of ten journalists working in national outlets, and more
than seven out of ten working in local outlets, said they felt ―there is such a thing as a true and
accurate account of an event.‖ The same was true for new media or Internet journalists, where
seven out of ten believe arriving at such an account was possible.
320 Merrill JC (1974), The Imperative of Freedom: A Philosophy of Journalistic Autonomy, Hastings
House, New York, at 166. He adds:
One sign of virtue in journalism may well be a deep loyalty to truth. At least the pursuit of
truth by the journalist surely takes wisdom, courage, temperance and justice.
Note also Tickle (2001), above fn 261, at 100, suggests that if truth is not attainable, journalists must
strive at least to give society a credible description of itself.
Although the truth is slippery and journalists seem to have inadequate tools to deliver it, by
concentrating on the essential skills and exhaustive practice, they will succeed eventually in
their goal of presenting a credible description of society to itself. The journalistic record serves
as a store of instant, if imperfect, history that constitutes a crucial element in public and
national life.
321 Gilmore and Root (1971), above fn 315, at 242 (italics in original).
322 See text accompanying fn 315 above.
323 Merrill (1974), above fn 320, at 166 fn 6, was referring to Gilmore and Root (1971), above fn 315.
324 Gilmore and Root (1971), above fn 315, at 242.
325 Merrill JC and Odell SJ (1983), Philosophy and Journalism, Longman Inc, New York, at 172.
326 Burns (2002), above fn 256, at 23.
327 Kovach and Rosenstiel (2001), above fn 33, at 40-41. The authors state further:
122
In their criticism of journalists truth-seeking efforts (or lack thereof), Kovach et al
suggest that conventional explanations from journalists as to how they get at the truth
make journalists seem passive and mere recorders of events.
It is as if they think truth is something that rises up by itself like baking bread. Rather than
defend our techniques and methods for finding truth, journalists have tended to deny they
exist. Whether it is secrecy or inability, the failure by journalists to articulate what they do
leaves citizens all the more suspicious that the press is either deluding itself or hiding
something.328
In journalism, a discussion of ―truth‖ tends to veer into the realm of a band of
other goals that journalists deem more attainable. Merrill illustrates this point well with
the following observation: ―Most journalists think of truth as they do of objectivity – as
temporary, splintered and incomplete. Accuracy, fairness, balance, comprehensiveness
are generally related to objectivity by the journalist – and, therefore, have to do with
truth.‖329
The virtual equation of objectivity with truth in this quote reflects part of the
confusion that afflicts the journalism community‘s perception of truth and this takes us
to the next discussion.
5.3.2 Factors to consider in journalistic truth
A proper appreciation of the truth imperative in journalism requires an understanding of
the profession‘s mode of operation, the exigencies of journalistic production and its
philosophical underpinnings. The following sections attempt to shed light on how these
factors impact upon the journalistic quest for truth. Speaking in a related context Kieran
observes that we must have a grasp of these kinds of constraints to see if the moral and
social demands that are so often made of the media are, in fact, possible and
justifiable.330
Theories of journalism are left to the academy, and many newspeople have historically
devalued journalism education, arguing that the only place to learn is by osmosis on the job. As
even highly respected TV journalist Ted Koppel once said, ―Journalism schools are an absolute
and total waste of time‖ (at 41, reference omitted).
328 Kovach and Rosenstiel (2001), above fn 33, at 41.
329 Merrill (1974), above fn 320, at 166-167.
330 See Kieran M (Spring 1997), ―News reporting and the Ideological Presumption‖, Vol 47(2) Journal
of Communication 79, at 81. Kieran notes that the nature of truth, objectivity, interpretation and
evaluation in reporting, for example all entail theoretical commitments and practical obligations and
duties. He notes further that even the narrative form of the news media must be investigated to arrive
123
5.3.2.1 Objectivity, accuracy, fairness and balance
The terms ―objectivity‖, ―accuracy‖, ―fairness‖ and ―balance‖ commonly arise in
journalistic discourse, and these arise to a greater extent than ―truth‖.331
Each is seen as
possessing qualities consistent with the journalistic quest for truth: ―The ideals of
accuracy, objectivity, and fairness are all contained in the larger ideal of truth.‖332
These
terms are considered here.
(a) Objectivity: The term is touted as a positive journalistic ideal333
and more
practicable to attain than ―truth‖ but the term is contentious.334
Objectivity ―has been
used to express a whole range of different metaphysical and epistemological ideas.‖335
There are ―so many definitions of it‖,336
it is ―continuously contested in practice‖337
and
―our contemporary understanding of this idea is mostly a muddle.‖338
The term
―objectivity‖ has a dichotomous relationship with ―bias‖.339
Most journalists claim to
at an understanding of the pragmatic and genre constraints on journalists and the news media
(references omitted).
331 For an illustration of this point see a popular contemporary text, Conley D (2002), The Daily
Miracle: An Introduction to Journalism, 2nd Edn, Oxford University Press, South Melbourne,
Victoria, does not discuss ―truth‖ in the same detail that it discusses ―accuracy‖, ―fairness‖,
―objectivity‖ and ―bias‖ (see Index). In the same text, the author‘s ―[f]undamentals on a journalist‘s
error-fighting checklist‖ makes no reference to truth although it proffers advice on accuracy (at 139-
140). The third edition, however, contains several index reference to ―truth‖ but does not adequately
discuss it: Conley and Lamble (2006), above fn 254.
332 Gilmore and Root (1971), above fn 315, at 243.
333 See also the view of O‘Donnell (2003), above fn 138, at 284, that much of the media‘s power is
derived from its neutral or objective status:
Law and media are integrally linked in classic liberal democratic theory, with the media being
conceived as a ―fourth estate‖ to the three arms of constitutional government: the parliament,
the executive and the judiciary. In this theory both law and media gain much of their power
through their apparently neutral or objective status. Objectivity in both cases is traditionally
seen as the guarantee of fairness and fairness is seen as a mediator of justice. However recent
theory in both media and jurisprudential studies would see objectivity as a complex and –
ironically – a far more ambiguous phenomenon (references omitted).
334 See also the discussion of the term in under heading 5.3.2.1 above.
335 Kolbel M (2002), Truth without objectivity, Routledge, London, at 21.
336 Merrill (1974), above fn 320, at 156. It is also described as ―a myth that figures prominently in
journalistic role definitions‖: see Conley and Lamble (2006), above fn 254, at 403.
337 Eldridge J (1993), Getting the Message: News, truth and power, Routledge, London, at 6.
338 Kovach and Rosenstiel (2001), above fn 33, at 41. For a discussion of objectivity in law, see Posner
(1990), above fn 207, at 7, cited in O‘Donnell (2003), above fn 138, at 284 fn 10. Posner has
identified three types of objectivity in law: (a) ontological (objectivity as producing a direct
correspondence to an external reality); (b)scientific or experimental (it relies on the evidence of
independently replicable results); and (c) conversational objectivity (here a court is persuaded that
something is so).
339 ―Bias‖ is discussed in the next section, which discusses ―journalistic orientations‖.
124
have a high professional regard for it and believe they are striving for it340
although it
has been argued that objectivity is primarily a ―strategic ritual‖ for journalists341
and the
―great blockbuster myth of modern journalism‖.342
There are conflicting approaches to journalistic objectivity. One approach views
objectivity in the context of the journalistic method.343
The other views it in the context
of ―reportorial discernment and sensitivity.‖344
Another way of viewing this dichotomy
is by comparing the concepts of ―fact‖ and ―factuality‖. On the one hand, objective
journalism is viewed as being factual, accurate and composed of verifiable
information.345
The ―first rule of journalism‖ is to ―get the facts straight.‖346
The fact-
based approach insists on reportorial detachment and neutralism and it glorifies the
separation of fact and reportorial opinion.347
On the other hand, it is suggested that
objectivity ―requires more than simply seeing an event or object dispassionately and
neutrally; it requires the observer to become related in some way to that which is being
reported.‖348
Proponents of this view argue that it is fallacious to suggest that a lack of
340 Merrill (1974), above fn 320, at 156, states ―most journalists claim to have a high regard for
―objectivity‖ in journalism and believe that they are trying to reach it, albeit by different roads.‖
341 Tuchman G (1972), ―Objectivity as a Strategic Ritual: An Examination of Newsmen‘s Notions of
Objectivity‖, 77 American Journal of Sociology 660. Kovach and Rosenstiel (2001), above fn 33, at
72 note (italics added):
The term began to appear as part of journalism early in the 1920s, out of a growing recognition
that journalists were full of bias, often unconsciously. Objectivity called for journalists to
develop a consistent method of testing information – a transparent approach to evidence –
precisely so that personal and cultural biases would not undermine the accuracy of their work.
342 Davies N (2008), Flat Earth News, Chatto & Windus, London, at 111. The author adds:
All stories have to view reality from some particular point of view – just like somebody
walking into a room has to view it from a particular point. The story can‘t be everywhere at
once (ibid).
343 Kovach and Rosenstiel (2001), above fn 33, at 74. They note further: ―In the original concept…the
method is objective, not the journalist.‖
344 Merrill (1974), above fn 320, at 156.
345 Merrill (1974), above fn 320, at 156.
346 See Morgan F (1998), ―What is Journalism?‖ (Chapter), in Journalism: Theory and Practice, Breen
M (ed), Macleay Press, Paddington, NSW, at 58.
347 Merrill (1974), above fn 320, at 156. Gilmore and Root (1971), above fn 315, at 242 reinforce this
point: ―The reporter should keep himself out of the story, and the editors should see that he does.‖
For a more recent illustration of controversy in this area see Herman J (May 2007), ―Facts and
opinions – A Press Council Case Note‖, Australian Press Council News, Vol 19 No 2, at 8. The
controversy arose from Press Council Adjudication No 1344 concerning questions about the blurring
of fact and opinion in news reports.
348 Merrill (1974), above fn 320, at 157, quoting Fromm E (1966), Man For Himself: An Inquiry Into
the Psychology of Ethics, Holt, Rinehart & Winston, New York, at 111.
…objectivity is not, as it is often implied in a false idea of ―scientific‖ objectivity, synonymous
with detachment…How can one penetrate the veiling surface of thing to their causes and
relationships if one does not have an interest that is vital and sufficiently impelling for so
laborious a task?
According to Fromm, all productive thinking, observing and communicating is stimulated by the
interest of the observer.
125
journalistic interest is a condition for recognising the truth. On the contrary they argue
that ―journalism that reaches furthest toward objectivity, would also be that which
involves the interest of the reporter. It is impossible for a journalist to detach himself
from his story if he is to give an honest and full account.‖349
On this approach,
objectivity is not monolithic. It is capable of varying, even conflicting, shades. This
would render debatable the common assertion that: ―Objective sources are best. They
have nothing to win or lose from a situation.‖350
The illusory nature of objectivity lies at the base of the search for substitutes.
Kovach et al note that ―[o]ver time, journalists began to reject the term objectivity as an
illusion‖351
while Fuller goes even further: ―No one has ever achieved objective
journalism, and no one ever could. The bias of the observer always enters the picture, if
not colouring the details at least guiding the choice of them.‖352
(b) Accuracy: Another term often used in close proximity to ―objectivity‖ and a vital
aspect of ―truth‖ is ―accuracy‖.
One important facet of truth therefore is accuracy. Newsrooms rightly make a fetish of
accuracy about names and addresses. But reporters must be at least as careful about
accurate quotation, or about the accuracy of the impression which results from the way
facts are put together. Close to accuracy is objectivity.353
Accuracy lies at the upper end in the objectivity, fairness and balance scale
discussed above.354
Accuracy, however, is not synonymous with truth although it is not
uncommon to find such a use of the term.355
In journalism, accuracy alone, does not
acquit journalists of their truth-telling obligation. As Conley and Lamble state: ―A story
can be perfectly accurate while also being perfectly unfair.‖356
Truth and accuracy do
349 Merrill (1974), above fn 320, at 157.
350 Conley and Lamble (2006), above fn 254, at 158.
351 Kovach and Rosenstiel (2001), above fn 33, at 74 (italics in original). A British study has also found
that the objectivity goal is not as prominent as it once was: see Conley and Lamble (2006), above fn
254, at 403.
352 Fuller J (1996), News Values: Ideas for an Information Age, University of Chicago Press, Chicago,
at 14-15. Note, however, Fuller‘s qualification: ―I don‘t use bias here as a term of opprobrium. One
might have an optimistic bias or a bias toward virtue.‖
353 Gilmore and Root (1971), above fn 315, at 242. A critique of the injunction to reporters to be careful
about ―the accuracy of the impression‖ must be left to another time.
354 Joseph Pulitzer, after whom journalism‘s Pulitzer Prize is named, is credited with having laid down
―three rules – accuracy, accuracy, accuracy‖: see Conley and Lamble (2006), above fn 254, at 157.
355 See, for instance, the reference by Friedlander EJ and Lee J (2004), Feature Writing for Newspapers
and Magazines, 5th Edn, Pearson Education, New York, at 319, to ―truth and accuracy‖ as ―one
ethical consideration that has no flexibility‖ (italics added). Clearly, they are separate considerations.
356 (2006), above fn 254, at 404:
126
not mean the same thing, as it is sometimes suggested.357
As is the case with the
approach taken by the courts truth and fairness (or justice) are distinguishable from one
another.358
Furthermore, whatever virtue might be ascribed to accuracy, it is also clear
that journalists are reliant on cooperation from those in possession of information, in
order to attain accuracy.359
(c) Fairness and balance: Given the difficulties of attaining accuracy, other
―substitutes‖360
have been suggested over the years although upon closer examination
these substitutes too are imperfect.
Probably the two most common [substitutes] are fairness and balance. Yet both, under
scrutiny, become inadequate. Fairness is too abstract and, in the end, more subjective than
truth. Fair to whom? How do you test fairness? Truthfulness, for all its difficulties, at least
can be tested. Balance, also, is too subjective. Balancing a story by being fair to both sides
may not be fair to the truth, if both sides do not in fact have equal weight…And in those
many cases where there are more than two sides, how does one determine which side to
honour?361
Unfairness can entail neglecting to mention an important point or failing to interview a vital
source, especially someone who has been criticised. A story can be unfair if it is not balanced
from top to bottom, or if a person criticised does not get a right of reply until the end of the
story.
357 See, for example, Gillooly (1998), above fn 17, at 106 where the author, after noting that a
defamation ―defendant will not lightly assume the burden of proving the truth of a comment‖, goes
on to say that the ―breadth or nature of the comment made may render the proof of its accuracy
practically impossible (italics added).
358 See, for example, discussion under heading 4.4 above, especially text accompanying fn 212.
359 See, for instance, Australian Press Council, Adjudication No 1187 (January 2003), Para 1:
The obligation of newspapers to report matters accurately and fairly can only be given effect if
there is cooperation between journalists and the public figures and organizations about whom
they report.
It may also be said, however, that the Press itself places a caveat on it the pursuit of accuracy. This
caveat appears to dilute the journalistic obligation to attain accuracy, by spreading the responsibility
for the attainment of accuracy to others.
360 Kovach and Rosenstiel (2001), above fn 33, at 46.
361 Kovach and Rosenstiel (2001), above fn 33, at 46. See also at 77, where the authors state, after
noting that fairness and balance are really techniques to guide journalists in the development and
verification of their accounts and should never be pursued for their own sake or invoked as
journalism‘s goal:
Balance, for instance, can lead to distortion. If an overwhelming percentage of scientists, as an
example, believe that global warming is a scientific fact, or that some medical treatment is
clearly the safest, it is a disservice to citizens and truthfulness to create the impression that the
scientific debate is equally split…As journalists know, often there are more than two sides to a
story. And sometimes balancing them equally is not a true reflection of reality. Fairness, in
turn, can also be misunderstood if it is seen to be a goal unto itself. Fairness should mean the
journalist is being fair to the facts, and to a citizen‘s understanding of them. It should not mean,
―Am I being fair to my sources, so that none of them will be unhappy?‖
For a discussion on how balance is measured, see Kirkman D (2008), ―Getting the Balance Right‖,
Vol 20 No 1 Australian Press Council News 1, at 1.
127
Other commentators have gone further to suggest that accuracy and balance are
epistemologically incompatible.362
Hackett, for instance, notes that ―balance‖ and
―accuracy‖ are incompatible at an epistemological level because one (balance) suggests
that knowledge can be attained by balancing competing, incompatible world views;
while the other (accuracy/non-distortion) implies that truth is accessible through
singular straight facts.363
From the above discussion it is clear that the concepts of truth,
objectivity, accuracy, fairness and balance, all have their difficulties and journalism as a
profession has failed to speak with clarity on these concepts. A satisfactory principle of
practice continues to be elusive.
5.3.2.2 Journalistic orientations
This topic was not addressed in the discussion on truth and the courts above. This does
not mean that such a discussion cannot be had in that context.364
In the absence of
compelling evidence that judicial orientations are an issue in respect of defamation
adjudications, and the view that judicial orientations are not a major concern in relation
to the courts generally,365
such a discussion may be put to one side for present purposes.
There is, however, strong evidence of the role of ―orientations‖ in relation to
362 Hackett R (1984), ―Decline of Paradigm? Bias and Objectivity in News Media Studies‖, Vol 1 No 3,
Critical Studies in Mass Communication 229, at 230, notes a tension between balance and accuracy:
In journalistic practice, the goals of balance and accuracy (non-distortion) may not always be
compatible.
363 Hackett (1984), above fn 362, at 233:
A relativist, Mannheimian epistemology underlies the notion that bias is avoided by balancing
between competing, incompatible worldviews, each with its own (limited and partial) validity.
By contrast, the goal of avoiding distortion implies a positivistic, nonrelativist affirmation of
the ultimate knowability of ―the straight facts‖ whose visibility is temporarily obscured by the
biased journalist.
364 See, for instance the comments of High Court Justice Michael Kirby: ―Judges vary in their
inclination to develop or change the law. Some are by nature conservative, some activist, and some
selectively evidence both tendencies at different times‖: Kirby (July 1997), above fn 177, at 17. See
also Williams D (July 1998), ―Judicial Independence and the High Court‖, Vol 27(2) University of
Western Australia Law Review 140. A further and rare example of an admission of judicial bias is
noted in Toohey v Peach [2003] NTCA 17 (Unreported), Para 9, where the Court noted the
magistrate‘s concession in the hearing at first instance, that he was ―biased at least in relation to the
function that I must discharge here today‖. For a more recent discussion on this point see Pierce JL
(2006) Inside the Mason Court Revolution: The High Court of Australia Transformed, Carolina
Academic Press, Durham, NC; and Merritt C (2007), ―Nation‘s activist judiciary revealed‖, The
Weekend Australian 14-15 July, at 1.
365 See, for instance, the observation by the Chief Justice of the High Court, Murray Gleeson (see
Speech, 2007, National Judicial College of Australia, above fn 136), at 10-11, that there is a useful
practical indicator of the judiciary‘s general reputation for impartiality:
The readiness with which politicians, the media, and interest groups demand a judicial enquiry
as the procedure for investigating controversial and sensitive issues surely reflects the fact that
the judicial process enjoys a certain reputation for integrity.
128
journalism.366
Journalists, not unlike others have biases, orientations and values that
cannot be ignored in considering the way they convey their information. Baker
expresses the proposition with brutal frankness:
Editors relentlessly insist that reporters walk into each new assignment with no
preconceptions. What‘s ironic – and what most editors never mention – is that the best
reporters purposely begin shaping biases as soon as they begin gathering facts on a
particular assignment. This is part of their response to the staggering complexity of the
world they have to cover. To succeed, they have developed a sophisticated information-
processing system, one that takes fullest advantage of the human brain‘s natural ability to
organise. [A reporter‘s] ability to string words together and organise facts on paper will be
crippled if he does not psych himself into the correct attitude – the proper stance – for the
gathering of information.367
Merrill who considers this issue in some detail states that ―a wide variety of
interests, ideologies, educational levels and cultural backgrounds, special talents, and so
on‖ affects the work of journalists.368
Journalistic orientations, if they are not inherent,
must be introduced for professional efficacy.369
Thus, having an orientation is not
necessarily purely an unavoidable incident of the human nature, but in the news
discourse, an occupational necessity, for it is the task of the journalist to make events
―meaningful in news discourse.‖370
Journalistic ―orientations‖ may be divided into: (i)
binary classifications;371
and (ii) journalistic allegiances or loyalties.372
The existence of
366 An illustration of the point may be seen in Australian Press Council data which shows that over a 17-
year period from 1988 almost one third of the complaints to the Council fell under the following
headings – bias, distortion, imbalance and unfair treatment, representing a total of 1879 complaints
that included various other alleged transgressions. The data does not show the breakdown of
complaints upheld or dismissed according to the nature of the complaint. Out of a total of 920
adjudications, however, 369 (40 per cent) were upheld in whole or part during this period: see
Australian Press Council (n.d.), ―Complaints Statistics 2005-2006‖. Retrieved 15 June 2007, from
<http://www.presscouncil.org.au>
367 Baker (2002), above fn 279, at 7. Newman notes that for a good understanding of news and of
journalism ―one must be ever mindful of the fact that participants in the news process have values‖
that go to make up a particular world view: Newman J (1989), The Journalist in Plato’s Cave,
Associated University Presses, Cranbury, New Jersey, at 54.
368 Merrill (1974), above fn 320, at 143.
369 Hartley J (1989), Understanding News, Routledge, London, at 87 (italics added):
In order to make anything meaningful, the initiator of a message must not only have an
orientation towards the event itself, but also an orientation towards the receiver of the message.
370 Hartley (1989), above fn 369, at 87.
371 According to the binary classifications, which are not comprehensive or mutually exclusive,
journalists are: (a) involved (the reporter should report the truth as they see it) or aloof (the journalist
takes a disinterested approach); (b) Dionysian (symbolising emotion and intuition) or Apollonian
(symbolising reason, order, wisdom and pragmatism); poetic (the journalist goes below the surface
to present a fuller picture using a less dogmatic style) or prosaic (the journalist stresses literalness
and accuracy and believe facts to be objective); personalist (the journalist displays sensitivity to
people connected with the story) or factualist (the journalist is less concerned about the
consequences to people involved and presents facts dispassionately); and existentialist (stresses
intuition, emotion and subjectivism that facilitate a more complete and realistic picture) or
rationalist (the approach is more scientific): see Merrill (1974), above fn 320, at 145-149.
372 According to this mode of classification journalistic allegiances can be identified as being: (a) to
people (the journalist tends to be more personal, polemical, opinionated, subjective and humanistic);
129
so many classifications creates problems of selection, overlap and distorted and
simplistic thinking about the matter classified,373
but they provide a starting point for
understanding journalistic orientations. Two points may be made about such
classifications. One, that they acknowledge that journalistic truth-telling occurs within
particular frameworks that influence the content and the way in which ―information‖ or
―the truth‖ is presented. The other, simply stated, is that there are primarily two
journalistic orientations – the subjective and the objective.374
This way of looking at it is
starkly similar to the law‘s subjective and objective tests in determining criminal
responsibility, and even there neither test, on its own, is considered entirely satisfactory
in determining truth.375
5.3.2.3 Characteristics of news
Journalism‘s primary goal is news.376
Does this also mean that ―news‖ means the telling
of all that is true? There is no ―comprehensive and universally accepted definition‖ of
news377
and ―even professional journalists, editors, and news producers have difficulty
defining news.‖378
The New York Times’ renowned 110-year-old slogan is ―All the news
that‘s fit to print‖.379
As Merrill notes, this is a proclamation that certain matters, even if
truthful or contributing to the truth, which are not considered ―fit‖ will not be printed.380
He puts it bluntly: ―Therefore, The Times is explicitly saying what all journalists
(b) to institutions (their main allegiance is to their organisation or other group or institution); (c) to
ideologies (they are loyal to a cause, a social idea, philosophical or political concept, a program, or a
movement); and (d) to events or facts (they are event-oriented and not judgmental or polemical and
their allegiance is to the event or the facts of the event): see Merrill (1974), above fn 320, at 151-
152.
373 Merrill (1974), above fn 320, at 144 and 151.
374 Merrill (1974), above fn 320, at 152.
375 For a discussion of the operation of the two tests see New South Wales Law Reform Commission
(1997), Partial Defences to Murder: Provocation and Infanticide, Report No 83, especially Paras
2.10 and 2.63. The subjective test focuses on the ―character and predisposition of the defendant‖
while the objective test consider the issue from the standpoint of the ordinary reasonable person. See
Ridgeway v R (1995) 129 ALR 41, McHugh J, at 94, for an example of criticism of both tests.
376 de Beer and Merrill (2004), above fn 15, at 163. The authors state that ―at the end of the day, global
journalism is all about news‖ (italics added). Conley and Lamble (2006), above fn 254, at xii states:
―Reporting involves two skills: gathering news and writing it.‖
377 See de Beer and Merrill (2004), above fn 15, at 163:
The definition of news in many studies falls short of a comprehensive and universally accepted
definition. In fact, there is doubt whether there can be a definition of what constitutes news
which will be acceptable to all.
378 Conley and Lamble (2006), above fn 254, at 77.
379 The slogan of the Rolling Stone magazine in the United States is ―All the news that fits‖. However,
there is a potentially telling difference between these slogans or self-representations. The NYT
appears to envisage legal, moral and ethical limitations while RS, in a satirical tone, appears to
envisage only space limitations.
380 Merrill (1974), above fn 320, at 167.
130
believe and practise: truth is what journalists consider fit to call truth, just as news is
what they decide is news – nothing more and nothing less.‖381
News is an ―intangible
concept‖ with various schools of thought as to what it means.382
These views include
the following – that news is manufactured, or discovered, or, decided upon, or
selected383
– and views of news that tend to be more cynical.384
There is not much
emphasis in journalism training on news theory.385
It is said that news reporting and
truth seeking ultimately have different purposes – the function of news is to signalise an
event; the function of truth is to bring to light the hidden facts, to set them into relation
with each other, and make a picture of reality on which people can act.386
On another
view, news is simply a reflection of reality, untainted by bias, inaccuracy or
oversight.387
Journalism‘s identification of the characteristics of news creates fertile ground for
the subjugation of truth. These characteristics include the story‘s impact or relevance;
the proximity of the audience to the event; the prominence of the people involved;
currency – when selectors decide that particular topics interest the audience at a given
381 Merrill (1974), above fn 320, at 167 (italics added).
382 de Beer and Merrill (2004), above fn 15, at 163.
383 de Beer and Merrill (2004), above fn 15, at 163. See also at 167:
…news as a concept is not synonymous with an event. Instead, news can be seen as an attempt
by individual journalists and their media organizations to capture the essential framework of
particular events and trends by retelling them in the form of news reports. Such exercises are
usually carried out by journalists working within the context of specific news policies defined
by particular cultural, political, economical, ethical, and journalistic frames of reference. The
latter are constructed by means of various factors that may include the nature of the
publication, the policies of the institution, the policy of what is considered newsworthy or of
special news value, the editorial organization of the publication, the quality of competition
with other forms of media, the demographic profile of the readers, and the accompanying
wants and needs of the publication‘s audience. All these elements should then again be
considered against the background of societal forces, such as the political, economic, cultural,
technical, geographic, and general media setup of a particular country… (italics in original).
384 See, for instance, the view that ―When a dog bites a man, that is not news because it happens so
often. But if a man bites a dog, it‘s news‖. For this and similar references see Conley and Lamble
(2006), above fn 254, at 79. See also Chief Justice Murray Gleeson‘s comment: ―Bad behaviour
attracts attention. Commitment to the service of the public does not. Consumers of information have
an appetite for bad news; naturally, commercial providers of information bear that in mind. If a
bridge collapses that is news. Why would anyone publish a story about a bridge that remains
standing?‖: see Speech, 2007, National Judicial College of Australia, above fn 136, at 13-14.
385 de Beer and Merrill (2004), above fn 15, at 165 note (italics added, references omitted):
Part of the problem of finding a generally accepted version of what news is has been the trend
in journalism circles for the past few decades to regard the practice of journalistic skills as
more important and relevant than the development of sound conceptual and theoretical
foundations of what actually constitutes news. Consequently, since there are no hard and fast
rules of exactly what defines news, journalists tend to familiarise themselves with the concept
of news and related aspects such as newsworthiness and news values through a process of
―osmosis‖ or newsroom socialisation.
386 See Conley and Lamble (2006), above fn 254, at 79.
387 Borquez J (1993), ―Newsmaking and Policymaking: Steps toward a Dialogue‖, in Media and Public
Policy, Praeger, Westport, Connecticut, at 35.
131
time; whether the story is odd or unusual; relativity – the assigning of an ―arbitrary
priority to‖ competing stories; timeliness – recent events supersede older events; and the
conflict element – ―murder, mayhem and madness‖ have priority.388
Space limitations
do not permit a full consideration of how these characteristics impact upon the truth
imperative. An illustration would suffice. Take the timeliness criterion.389
Timeliness
demands of the journalist the prompt production of a news story under pain of the
knowledge that ―news value diminishes with time‖.390
While timeliness has its virtues,
its most obvious weakness is: ―The rush to be first with the news can lead to
inaccuracy.‖391
The pressures of timeliness and apprehension of legal risk also
contribute to the well-worn newsroom edict ―if in doubt, leave it out‖.392
5.3.2.4 Commercial imperatives and exigencies of news production
Commercial imperatives and the exigencies of news production are another source of
pressure on journalists‘ ability to convey the truth. While it may be ―unrealistic to
expect a journalist never to make an error‖393
it is unrealistic to assume that commercial
imperatives and the ―practical exigencies of journalism‖394
or the very nature of
388 See White S (2000), Reporting in Australia, 2nd Edn, MacMillan, South Yarra, at 17. And generally
at 10-22. See also Conley and Lamble (2006), above fn 254, at 82-97; and de Beer and Merrill
(2004), above fn 15, at 169-171.
389 It is described as ―[t]he one quality of the report which is necessary to make it ‗news‘‖: see Newman
(1989), above fn 367, at 48.
390 Mencher M (2000), News Reporting and Writing, 8th Edn, McGraw-Hill, Boston, at 72.
391 White (2000), above fn 388, at 16.
392 See Conley and Lamble (2006), above fn 254, at 159. They call it the ―best advice‖. See also
Barendt E, Lustgarten L, Norrie, K and Stephenson H (1997), Libel and the Media: The Chilling
Effect, Oxford University Press, Oxford, at 191, where the authors state that this attitude is
exemplified by most magazine editors and publishers, who take such an approach when they doubt
their ability to present a legally sustainable defamation defence. This approach also afflicts other
kinds of publishing activity. See Taylor & Francis Books: Instructions for authors (2001), Taylor &
Francis, London, at 46, where the text provides, in part, the following advice under the heading
―How the risk of libel/defamation can be reduced‖:
Sometimes the risk of defamation can be reduced – if not entirely removed – by making a
relatively minor change…More often, however, it is safer simply to leave out any statements
where there is any suspicion of libel or defamation. If in doubt, leave it out (italics in original).
393 Conley and Lamble (2006), above fn 254, at 159.
394 In Campbell v MGN Limited [2004] 2 All ER 995, Lord Hoffmann, at 1012-1013, eloquently noted:
In my opinion, it would be inconsistent with the approach which has been taken by the courts
in a number of recent landmark cases for a newspaper to be held strictly liable for exceeding
what a judge considers to have been necessary. The practical exigencies of journalism demand
that some latitude must be given. Editorial decisions have to be made quickly and with less
information than is available to a court which afterwards reviews the matter at leisure.
More recently a prominent Australian newspaper group CEO, John Hartigan of News Limited,
noted:
Journalists are required to exercise very careful judgment about complex issues at high
speed. We are going to make mistakes. We are expected to find certainty where there is
none. To have hindsight before, not after, we are making the tough calls. When journalists
132
periodicity395
do not encumber truth-seeking. A range of factors have been identified as
bearing on journalistic production and they include: time pressures, market forces, law,
work culture and practices, human frailty, and the journalist‘s experiences;396
shrinking
budgets and longer shifts;397
routines, professionalisation and organisational and
commercial imperatives in news formation and production;398
reader expectations,
editorial conventions, and self-serving sources;399
and decreasing space allocations.400
Liability for defamation, as Barendt et al note, is inescapably part of the business that
the media are engaged in if they are doing their job properly.401
It has also been noted
don‘t get it right it‘s usually not because we are malicious. It‘s because we are fallible: see
Hartigan J (2007), Andrew Olle Lecture, 19 October. Retrieved 25 October, from
<http://www.news.com.au/?from=ni_story>
See also Day M (2006), ―Freedom of speech undefined‖, The Australian, 12 April, at 12:
Journalists write for ordinary people, not judges and lawyers playing semantic games, and do
so under pressure and in conditions that those in their lofty legal eyries would never
understand.
395 See discussion in Newman (1989), above fn 367, at 42–44. The author notes that the publisher of a
public journal has deadlines to meet and is not normally under the same pressure as a book publisher
(at 42-43).
396 Tickle (2001), above fn 261, at 89.
397 Tickle (2001), above fn 261, at 98. Bowman L and McIlwaine S (2001) ―The importance of enquiry‖
(Chapter), in Tapsall S and Varley C (eds), Journalism Theory in Practice, Oxford University Press,
Melbourne, at 104:
Journalism‘s methods diverge from those of the social scientists in that journalists must work
in obedience to extremely stringent time and space constraints that make news commercially
possible but which are foreign to the natural progression of social inquiry…It is rarely possible
for a journalist to tell the whole story in any one report. Journalists can tell the story up to and
including deadline, using the information they have been able to discover. But, even while
reporters are writing, the story and the situation may change. There is always more information
– and there is always more than what appears to be available (italics in original).
Former Commonwealth Attorney-General, Daryl Williams, writing in the context of media coverage
of the courts notes in Williams D (1999), ―The Courts and the Media: What Reforms are Needed and
Why‖, No 1 UTS Law Review 13, at 15 that the media must entertain and produce profits for its
owners and its responsibility to understand legal processes goes only to the extent necessary to fulfil
these obligations. He notes further that the media works within extremely tight time frames and
many reporters are not legally trained and that it is not hard to see how accuracy and completeness
may be casualties.
398 O‘Donnell (2003), above fn 138, at 285.
399 Christians et al (2001), above fn 32, at 59.
400 Schultz J (December 2005/January 2006), ―Beyond the searchlight‖, The Walkley Magazine, Issue
36, at 19:
The pressures on those working in newsrooms, of ever shorter deadlines and more stories, are
real and unrelenting. The demand is for more and shorter chunks. Just as the 30-second grab on
TV news has contracted to five seconds, so the considered feature in a major newspaper has
shrunk from 3000 to 1200 words…While it is true that a lot can be said with few words, a lot
must also be left out.
401 Barendt et al (1997), above fn 392, at 77. The authors note further:
An unsympathetic critic of the national press might argue that it would not have such a libel
problem if it showed greater regard for factual accuracy and confined what it wrote to what it
could prove to be true. This line of criticism misses the essential nature of journalism, which
involves the daily or weekly publication by a title of the same number of words as are to be
found in an average full-length novel, produced against tight and inflexible deadlines. Further,
in order to have a defence against every possible defamation it is not enough for the newspaper
133
that various forces are converging to create ―a new journalism of asserting, which is
overwhelming the old journalism of verification‖.402
Journalists are expected to ―subdue
into harmony‖ a cacophony of news resources and ―organise into a coherent picture a
riot of impressions, a chaos, a bedlam of attitudes and opinions‖.403
This condition is
captured well in the ―first draft of history‖404
metaphor: ―If, as the adage has it,
journalism is the first draft of history, then we can appreciate that, as with history,
selection and interpretation will take place and that we are dealing not with a world of
unassailable facts but with provisional accounts.‖405
Broadly speaking, therefore, news is a provisional kind of truth – the best that can
be said quickly.406
As Tiffen has noted: ―Covering the news is an infinite, impossible
to have reached a responsible judgment that an assertion is true. It would require certainty that
in every case there were witnesses willing and able to appear in court on the paper‘s behalf, or
that conclusive and legally admissible documentary evidence be in the editor‘s hands. If such
certainty were required for everything controversial, there would be no newspapers worth
reading.
402 See Kovach and Rosenstiel (2001), above fn 33, at 46:
…various forces [converge] to weaken journalists‘ pursuit of truthfulness, despite the
continuing allegiance most journalists profess to it…in the new media culture of 24-hour news,
the news has become more piecemeal; sources are gaining power over the journalists who
cover them; varying standards of journalism are breaking down the gatekeeper function of the
press; inexpensive, polarising argument is overwhelming reporting; and the press is
increasingly fixated on finding the ―big story‖ that will temporarily reassemble the now-
fragmented mass audience. Together, these new characteristics of…the Mixed Media Culture
are displacing the classic function of trying to sort out a true and reliable account of the day‘s
events, creating a new journalism of asserting, which is overwhelming the old journalism of
verification.
The authors note further, at 71:
In the end, the discipline of verification is what separates journalism from entertainment,
propaganda, fiction, or art…Journalism alone is focused first on getting what happened down
right.
403 See Eldridge (1993), above fn 337, at 4.
404 The expression ―the first rough draft of history‖ is attributed to Washington Post editor Benjamin
Bradlee: see Conley and Lamble (2006), above fn 254, at 79.
405 Eldridge (1993), above fn 337, at 6. The author also notes, at 20:
…the media occupy space which is constantly being contested, which is subject to
organisational and technical restructuring, to economic, cultural and political constraints, to
commercial pressures and to changing professional practices.
406 Fuller (1996), above fn 352, at 5. He poses the question what is ―the proper standard of truth for the
news?‖ and ventures to answer the question in the following manner:
To answer that, one must first come to some clear understanding of what news is. Even at its
most presumptuous, the news does not claim to be timeless or universal. It represents at most a
provisional kind of truth, the best that can be said quickly. Its ascription is modest, so modest
that some of the most restless and interesting journalists have had trouble making any claim of
truth at all.
For a more recent view that echoes this sentiment see media baron Rupert Murdoch‘s
comments in Murdoch R (2005), ―Rupert Murdoch‘s Speech to the American Society
of Newspaper Editors‖, Press Release, News Corporation. Retrieved 4 May 2005,
from <http://www.newscorp.com/news_247.html>
What is happening is, in short, a revolution in the way young people are accessing news. They
don‘t want to rely on the morning paper for their up-to-date information. They don‘t want to
134
task. News is therefore an exercise in imperfection, the product of a series of
compromises. It is not surprising that errors and misjudgments occur.‖407
Or as a
prominent Australian investigative journalist has put it:
The practice of journalism is far from precise. It is not like watchmaking, building nuclear
reactors or finding a cure for cancer. I put it a bit closer to bookmaking. Journalists are
caught up in an eternal rush, calculating the odds of what will become objective truth,
based on limited primary information and intelligence. We stay in front by being right more
often than not, rather than always right. No one is always right. And remember, the
essential objective is profit rather than saving the world.408
5.3.2.5 Narrative models
The narrative models that journalists employ to tell their stories can bear heavily on the
way stories are told and in turn affect the way meanings or imputations are conveyed
and ultimately influence the existence or otherwise of defamation liability. These
models are too many to rehearse here.409
For an insight into how the chosen narrative
model influences the way the story is told let us consider two examples.
(a) The function of myth in news reporting: Defining ―myth‖, as with defining ―truth‖,
is acknowledged as a task that evokes ―fear and trembling‖.410
A myth has been
described variously as ―a narrative trick‖; ―a story form that harnesses sufficient
narrative power to assist the audience in breaking through the mundane into the
possible‖; and ―archetypal stories which play a crucial social role‖.411
Myths signify
values associated with concepts.412
News is a myth-maker.413
News stories, like myths,
do not ―tell it like it is‖ but rather, ―tell it like it means‖.414
One of the primary functions
of the news in any medium is continuously to signify myths through the everyday detail
of ―newsworthy‖ events.415
O‘Donnell states:
rely on a god-like figure from above to tell them what‘s important. And to carry the religion
analogy a bit further, they certainly don’t want news presented as gospel (italics added).
407 Tiffen R (1989), News and Power, Allen & Unwin, North Sydney, NSW, at 28.
408 Masters M (2002), Not for Publication, ABC Books, Sydney, NSW, Preface, at vii.
409 See, for example, Conley and Lamble (2006), above fn 254, at 136-7 where the authors mention the
―traditional‖, ―narrative‖, ―point of view‖ and ―radical clarity‖ models.
410 O‘Donnell (2003), above fn 138, at 287 citing Mircea Eliade, The Quest: History and Meaning in
Religion (1969), at 72. On the one hand the term has been viewed ―dismissively‖ and its existence
disputed, and on the other, it is said to have proven ―resilient as a theoretical framework across fields
as diverse as theology, linguistics, anthropology, law and media studies‖.
411 O‘Donnell (2003), above fn 138, at 288-289.
412 Hartley (1989), above fn 369, at 28.
413 Hartley (1989), above fn 369, at 30.
414 O‘Donnell (2003), above fn 138, at 287.
415 Hartley (1989), above fn 369, at 29.
135
The idea that journalism is a literary, imaginative production rather than merely an
objective account is inherent in the common designation of media reports as news ―stories‖.
A variety of theoretical models have been developed with post news as cultural storytelling.
Myth, narrative strategies, core plots, fairytale, frames and ritual have all been used as
paradigms to discuss both the structures and cultural effects of news.416
(b) The ―inverted pyramid‖: This term describes the way facts are organised in news
production.417
The ―inverted pyramid‖ model, the ―traditional form of news writing‖
begins with the climax or the end of the story and requires crowding as much
information as possible into the first paragraph.418
Given a schedule of facts to arrange in the form of a newspaper article, he selects the most
important fact or climax of the story he has to tell and puts it at the beginning. The second
and most important fact comes second, the third and most important fact third and so on.419
This form of organization could very easily run into the kind of difficulties
identified by Fromm,420
but it is vigorously defended in news rooms.421
Further, in the
process of constructing that pyramid, the narrator engages in weaving the information
accessed, ―knitting together‖ an apparently transparent neutral discourse of the
contending melee of accessed voices. What the story means, then, depends on the
successful integration of a known and trusted institutional discourse and an ―authentic‖
representation of the ―factual‖ world of phenomena ―out there‖.422
5.4 Some responses to criticisms
Defenders of the journalistic institution advert to the primacy of truth in journalism.
Kovach et al, for instance, state that the ―first principle of journalism – its disinterested
pursuit of truth – is ultimately what sets it apart from all other forms of
communications.‖423
They call it ―journalistic truth‖ or a ―functional form of truth.‖424
416 O‘Donnell (2003), above fn 138, at 286. He notes further, at 289 that scholarship on myth and other
narrative structures in the media has identified particular themes of storylines in news stories, as well
as pointed to the general mythic structures or orientation of certain news forms and products.
417 For a more detailed discussion see, for instance, MacDougall (1968), above fn 289, Chapter 3.
418 MacDougall (1968), above fn 289, at 50. See also the observation that news discourse may exhibit a
thematic realisation structure that is basically (1) top down; (2) relevance controlled; and (3) cyclical
(in instalments): Van Dijk TA (1988), News as Discourse, Lawrence Erlbaum Associates, Inc, New
Jersey, at 48.
419 MacDougall (1968), above fn 289, at 50.
420 See fn 428 below.
421 Some justifications offered for the inverted pyramid form of organization are – it facilitates reading;
it satisfies curiosity; it facilitates page makeup; and it facilitates headline writing: see MacDougall
(1968), above fn 289, at 51.
422 Hartley (1989), above fn 369, at 114-115.
423 Kovach and Rosenstiel (2001), above fn 33, at 42.
424 Kovach and Rosenstiel (2001), above fn 33, at 42:
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This is what journalism is after – a practical or functional form of truth. It is not truth in
the absolute or philosophical sense. It is not the truth of a chemical equation. But
journalism can – and must – pursue truth in a sense by which we can operate day to day.425
The ―journalistic truth‖ that journalists pursue, however, demands more than mere
accuracy if all that accuracy generates is a range of facts whose final outcome is a
distortion – ―mere accuracy can be a kind of distortion all its own.‖426
Fromm reinforces
this point in his observation that ―it is well known that there is no more effective way of
distortion than to offer nothing but a series of ‗facts‘.‖427
Facts by themselves can be
meaningless and untrue.428
The journalist‘s responsibility, therefore, clearly extends
beyond the conveyance of hard fact. Journalistic responsibility must in every instance
entail attention to the way facts are interpreted. Although mere accuracy is not an end in
itself, it is a prerequisite to truth and ―it is the foundation upon which everything else
…this ―journalistic truth‖ – is also more than mere accuracy. It is a sorting-out process that
develops between the initial story and the interaction among the public, newsmakers, and
journalists over time…To understand this idea of a sorting-out process, it is important to
remember that journalism exists in a social context. Citizens and societies depend, out of
necessity, on accurate and reliable accounting of events to function. They develop procedures
and processes to arrive at this – what might be called functional truth (italics added).
425 Kovach and Rosenstiel (2001), above fn 33, at 42 (italics added).
426 Kovach and Rosenstiel (2001), above fn 33, at 43. The authors refer to the findings of the Hutchins
Commission in 1947, which, in outlining the obligations of journalism, warned about the dangers of
publishing accounts that are ―factually correct but substantially untrue‖: see Commission on
Freedom of the Press (1947), A Free and Responsible Press (Report), University of Chicago Press,
Chicago, at 22. On the same page the Commission stated further: ―It is no longer enough to report
the fact truthfully. It is now necessary to report the truth about the fact‖ (italics in original).
See also Merrill (1974), above fn 320, at 154, citing the work of Dr William Stephenson:
…who has been insisting for years that the separation of ―news‖ and reportorial ―views‖ is
unnatural and that what is needed is a synthesis which will make possible a fuller and deeper
journalistic account. He has insisted that fact is not enough; what is needed is what he calls
―factuality‖ – something that goes beyond the surface and verifiable splinters of information
and statements by this source or that; something that brings the intelligence and insights and
sensitivities of the reporter to bear on the story; something that fills in the gaps; something that
puts flesh on the dry bones of fact and makes the story live in greater and more realistic
dimensions.
427 See Fromm E (1968), The Revolution of Hope: Toward a Humanized Technology, Harper & Row,
New York, at 53:
To put it briefly, ―facts‖ are interpretations of events, and the interpretation presupposes certain
concerns which constitute the event‘s relevance. The crucial question is to be aware of what
my concern is and hence of what the facts have to be in order to be relevant.
428 Fromm (1968), above fn 427, at 52:
What are facts? In themselves, even if correct and not distorted by personal or political bias,
facts cannot only be meaningless, they can be untrue by their very selection, taking attention
away from what is relevant, or scattering and fragmenting one‘s thinking so much that one is
less capable of making meaningful decisions the more ―information‖ one has received. The
selection of facts implies evaluation and choice.
Gilmore and Root (1971), above fn 315, at 242 sound a similar caution about the use of facts, noting
that reporters must be at least as careful ―about the accuracy of the impression which results from the
way facts are put together.‖
137
builds: context, interpretation, debate, and all of public communication. If the
foundation is faulty, everything else is flawed.‖429
5.5 Summary
There is an internal tension concerning truth in the media context and this is reflected in
the following observation:
The tensions between news media producers, journalism educators and cultural studies
theorists concerning the notion of ―truth-telling‖ have been considerable. New media
producers reject claims that they cannot represent the truth in their news stories, while
cultural theorists say that it is futile to try to represent the truth because it is a situational
and subjective construction of reality.430
Tickle states that examining truth in journalism is an exercise in what social
scientists call boundary-work rhetoric.431
That is, it is an attempt to draw a boundary
between journalists‘ discourses and their routine practices, and those of other
professional communicators.432
It is also axiomatic that any interpretation of reality is
mediated by language‖433
and by other semiotic systems, for instance, by the electronic
media.434
On this approach ―truth in journalism‖ can be separated from truth not only in
other professional communications but also in other discourses, for example, law,
philosophy, religion and so on. Applying the boundary principle to a given event, it is
possible to see how potentially varying journalistic perspectives can emerge applying
the different truth philosophies.435
As Kovach et al note, it is more helpful and more
429 Kovach and Rosenstiel (2001), above fn 33, at 43.
430 Tickle (2001), above fn 261, at 91.
431 Tickle (2001), above fn 261, at 89. The term ―boundary-work rhetoric‖ is the ―rhetorical strategy of
one group wishing to distinguish itself from another‖: see Winch SP (1997), Mapping the Cultural
Space of Journalism, Praeger, Connecticut CT, USA, at 3. As Winch explains:
For example, medical doctors draw a boundary – within their discourse and routine practices –
between what they do and what faith healers do. Likewise, journalists who consider themselves
mainstream draw boundaries between what they do and what other mass communicators
do…When the public does not notice the difference between a faith healer and a doctor, either
the doctor, the faith healer, or both will engage in boundary-work rhetoric because they want
the public to be aware of the differences between news work and entertainment work.
432 Tickle (2001), above fn 261, at 89.
433 Tickle (2001), above fn 261, at 89. Tickle provides a useful summary of principal works in the
analysis of language (at 93). See also Hartley (1989), above fn 369, at 20-37.
434 The term ―semiotic‖ refers to the study of sign and symbol systems and the study of patterned
human behaviour in communication in all its modes: see Bullock et al (1988), above fn 53, at 769.
435 Tickle (2001), above fn 261, offers a useful illustration using the Holocaust, at 91-94: Realists would
have no difficulty accepting the veracity of the Holocaust from eyewitness accounts. The continental
rationalists would agree with the realists that after material evidence of the occurrent of the
Holocaust had been tested and found to be congruent with eye-witness accounts, then it could be
accepted as true. The British empiricists’ position on the Holocaust would be to only accept the
absolute veracity of the Holocaust if they had been present to witness it and if the events could be
replicated. The post-modern view of reportage of the Holocaust would be that it could only ever be
an incomplete, subjective account limited by the ability of the journalist to represent reality. Post-
138
realistic ―to understand journalistic truth as a process – or continuing journey toward
understanding – which begins with the first-day stories and builds over time‖;436
where
stories go through phases;437
and where being accurate is most difficult in the first
hour.438
6. Truth theory, the courts and journalism
The discussion thus far has examined the meanings variously ascribed to ―truth‖ in
philosophy, and how the two institutions at the heart of this thesis – the courts and
journalism – approach their mission in respect of truth. The next question then is – what
correlations may be suggested between truth in philosophy and the work of the courts
and of journalism? The question is asked in the hope that it will shed light on whether
modern journalists charged with representing the Holocaust would have great difficulty saying
anything of lasting significance and would run the risk of offending a large section of the community
because they see all accounts are equally valid and would not, for example, privilege a Jewish
survivor‘s account over an SS officer‘s.
436 Kovach and Rosenstiel (2001), above fn 33, at 43. See further, 44-45, where the authors trace the
way news stories develop and the place of truth in that scheme:
The first news stories signal a new event or trend…Once they have verified the facts, reporters
try to convey a fair and reliable account of their meaning, valid for now, subject to further
investigation [here reporters are] striving to provide ―the best obtainable version of the
truth‖…[at this level] the individual reporter may not be able to move much beyond a surface
level of accuracy… But the first story builds to a second, in which the sources of news have
responded to mistakes and missing elements in the first, and the second to a third, and so on.
Context is added in each successive layer. In more important and complex stories, the re are
subsequent contributions on the editorial pages, the talk shows, in the op-ed accounts, and the
letters to the editor or the callers to radio shows – the full range of pubic and private
conversation. This practical truth is a protean thing which, like learning, grows as a stalagmite
in a cave, drop by drop over time. The truth…in other words, is a complicated and sometimes
contradictory phenomenon, but seen as a process over time, journalism can get at it. It attempts
to get at the truth in a confused world by stripping information first of any attached
misinformation. Disinformation, or self-promoting information and then letting the community
react, and the sorting-out process ensue. The search for truth becomes a conversation.
437 Bowman and McIlwaine (2001), above fn 397, at 103–106, identify three phases of story
development. With these stages, each stage requires a different approach to research; it helps in
assessing the type of enquiry needed; and a range of stories may be constructed around any given
topic:
Level 1: Reactive Reporting: Where the focus is on observed facts lined to the event – what
happened; when: where?; Sources: authoritative people and documents; information is from
the source and may be controlled by source but is sufficient for the time being.
Level 2: Analytic Reporting: This occurs after the reactive phase (eg. the fire is out); it goes
beyond superficial sense of the event; the focus is on the how and why; the aim is to provide an
explanation – in the case of a fire eg: how did it happen, who is to blame/be praised; and why
is there blame/praise?
Level 3: Reflective Reporting: This looks at more deep-seated trends & approaches that may
have set the stage for the particular event; it goes beyond the institution/s concerned; in the
case of the fire: did broader social conditions play a part.
438 Kovach and Rosenstiel (2001), above fn 33, at 45-46:
In the first hours of an event, when being accurate is most difficult, it is perhaps most
important. It is during this time that public attitudes are formed, sometimes stubbornly, by the
context within which the information is presented.
139
either the courts, or journalism, or both, have legitimate claims to being truth-seeking
institutions. The answer is relevant to our attempt to better appreciate the truth defence
in defamation law.
6.1 Truth theory and the courts
The justice system‘s approach to the truth, when viewed against the backdrop of the
philosophical truth discussion above is not altogether divorced from the coherence and
correspondence approaches. A co-relation can be established with both these
epistemological positions.439
The construction of reality in the courtroom is ―at base, a
coherence as opposed to a correspondence theory of truth‖440
and its ―aim is the
construction of a coherent picture, rather like the construction of a jigsaw puzzle where
all the pieces come together.‖441
As Bankowski notes, we can ―be agnostic about the
general epistemological positions, regarding ‗correspondence‘ or ‗coherence‘, and note
that the main point of the trial is constructing a coherent picture or reality. But it is a bit
more than that. It is also a way of testing rival coherent pictures.‖442
As noted earlier,
the coherence approach would find guilt or otherwise ―at the end of a specifically legal
procedure‖ and should not be confused with the lay view that ―he did it‖.443
The ―basic
core‖ of the coherence theory of truth is the conception that beliefs or judgments are
―true or false according to whether or not they fit in – cohere, with the body of other
beliefs (or whatever) that are true.‖444
The coherence theory measures truths by their
―fit‖ within a given system.445
In contrast the correspondence theory espouses the view that if the person is guilty
―he did it‖ – as if there was ―some kind of independent reality by which we can measure
the truth or falsity of the matter.‖446
The correspondence approach, simply stated, is that
when something happens ―it really is so and the statement concerning it is true.‖447
In a
trial then, ―guilt‖ according to the correspondence theory means ―he really did it.‖ Or,
439 See Bankowski (1988), above fn 62, at 16.
440 Bankowski (1988), above fn 62, at 9 (italics added).
441 Bankowski (1988), above fn 62, at 15.
442 Bankowski (1988), above fn 62, at 16. For an illustration of this proposition see Bankowski, at 15-
16, and the case of R v Voisin [1918] 1 KB 531.
443 See above fn 244.
444 Johnson (1992), above fn 4, at 15. See also text accompanying above fn 92.
445 Bankowski (1988), above fn 62, at 9 and 16.
446 Bankowski (1988), above fn 62, at 9.
447 See discussion under heading 2.1.1 above, see especially text accompanying fn 62.
140
to put it in another way ―a statement is true if, and only if, it corresponds to reality, and
false if it does not do so.‖448
The paradox that follows from this discussion is that there are at least two kinds of
truth. The coherence/correspondence dichotomy creates the paradox that legal inquiry
is amenable to at least two, potentially, different (or conflicting) truths. Matravers
referred to them as substantive truth (or ―actual truth‖ that permits the conclusion that
―he really did it‖) and formal legal truth (which is created by the fact-finder which
could mean, for example, that ―he really did it‖ or that ―he really did it but is not guilty‖
because the interests of justice would dictate this).449
While it is to be hoped that a
properly designed legal system will result in the formal legal truth coinciding with the
substantive truth, there are many instances in which a properly designed legal system
will contain features that result in the formal legal truth and the substantive truth
diverging.450
An important conclusion from this summary is that the legal inquiry
process is not conducive to establishing substantive truth or truth on the correspondence
test – that is, it is not conducive to establishing whether ―he really did it.‖ This,
however, is not altogether as diabolical as it may appear.451
6.2 Truth theory and journalism
Viewing truth in journalism from the standpoint of philosophy, both correspondence
and coherence principles govern journalistic writing. While journalism‘s lofty ideal is
the communication of truth,452
and although ―absolute correspondence is an illusion‖,453
journalistic truth is more amenable to the correspondence theory than legal truth. This is
448 Bankowski (1988), above fn 62, at 8-9.
449 Matravers (2004), above fn 212, at 73.
450 Matravers (2004), above fn 212, at 73. See heading 4.3 above for a discussion of some of these
features. The overturning of the following wrongful conviction cases provide a graphic illustration of
the point: Button v R (2002) 25 WAR 382; Beamish v R [2005] WASCA 62; Mallard v R [2005]
HCA 68; Narkle v The State of WA [2006] WASCA 113. Similar examples may be found in
―Innocence Project‖ cases. ―Innocence Project‖ refers to the groups, often affiliated with tertiary
institutions, who are dedicated to exonerating wrongfully convicted people. These groups can be
found worldwide, for example, in the United States: see <http://www.innocenceproject.org/about/>;
the United Kingdom: see <http://www.innocencenetwork.org.uk/>; and Australia: see
<http://www.griffith.edu.au/school/law/innocence/home.html>
A related point arises from Section 42 UDA which provides that if the question whether a person
committed an offence is in question in defamation proceedings ―proof that the person was convicted
of the offence by an Australian court is conclusive evidence that the person committed the offence‖
(italics added). As the examples cited in this footnote show, this proposition is doubtful.
451 See heading 4.4 above.
452 See heading 5.1 above.
453 Jung H (2004), ―Nothing but the Truth? Some Facts, Impressions and Confessions about Truth in
Criminal Procedure‖ (Chapter), in Duff A, Farmer L, Marshall S and Tadros V (2004), The Trial on
Trial, Hart Publishing, Oxford, at 148.
141
because, unlike legal truth which comes to rest at a fixed point in the trial process,
journalistic truth is open to review indefinitely and competing notions of the truth
coexist until the ―ultimate truth‖ emerges.454
Modern journalism borrows its notion of
truth from the Enlightenment which cast truth in terms now referred to as a
―correspondence theory‖ of truth, which asserts that truth should correspond to some
external set of facts or observations.455
Correspondence principles, however, face strong
competition from coherence principles. It is argued that the latter must be the ultimate
test of journalistic truth.456
Fuller notes that journalists ―need to write and edit for
coherence‖.457
In short, people want knowledge, not just facts or data. Regardless of what the radical
skeptics argue, people still passionately believe in meaning. They want the whole picture,
not just a part of it. They are wary of polemics, which are everywhere.458
6.3 Truth theory and defamation law
Applying truth theory specifically to defamation law the starting principle in the truth
defence bears repeating. The aim of the defence is to protect the speaker against a
successful claim for defamation if the defamatory statement complained of is true.459
What theory of truth then applies in defamation law‘s truth defence? A proper answer to
this question must be contingent on the precise question in relation to the particular
plaintiff. That is, it is not possible to answer the question in a vacuum or as if the only
thing that mattered was whether the person was defamed. The nature of the truth
defence is far more complex than that and it will be considered in detail in the next
chapter. For present purposes, however, the answer to the question – what test of truth
applies in defamation law‘s truth defence – may be briefly stated. Both the coherence
and correspondence theories may apply in a given situation. And these theories will
apply in a multiplicity of ways in a given defamation action, for instance, at the level of
determination if the plaintiff has a valid complaint and at the level of establishing
whether the defendant has made out a valid defence.
454 See discussion in Patterson and Wilkins (2002), above fn 255, at 19.
455 Patterson and Wilkins (2002), above fn 255, at 19.
456 See Kovach and Rosenstiel (2001), above fn 33, at 43 citing Fuller (1996), above fn 352, at 194:
…there are two tests of truth according to philosophers: One is correspondence. The other is
coherence. For journalism, these roughly translate into getting the facts straight and making
sense of the facts. Coherence must be the ultimate test of journalistic truth…
457 Fuller (1996), above fn 352, at 194.
458 Fuller (1996), above fn 352, at 194.
459 See Chapter 1 of this thesis, Introduction, especially the principle from Rofe v Smith’s Newspapers
Ltd (1924) 25 SR (NSW) 4, at 21.
142
Ideally, the test of truth should be guided by correspondence/substantive truth
principles. In practice, the truth-certifying processes of the courts and of journalism tend
to render this ideal difficult to attain. As seen above, the question ―did he really do it‖
(or ―is this really so‖) so as to justify the defamatory publication is open to diverging
legal outcomes that illustrate the chasm between coherence (formal legal truth) and
correspondence (substantive truth). Thus, in a case where the plaintiff succeeded in a
defamation action against the media that referred to him as a paedophile, it may have
been true that the plaintiff could justifiably be described as a paedophile if evidence of
such paedophilia was ruled permissible, and found credible, by the court.460
Or it may
also, in reality, be true that a member of parliament participated in sexual orgies as
reported by the defendant media organisation but the legal truth certifying process may
find the allegation untrue.461
7. Conclusion
The above discussion has shown that there are significant tensions concerning the
meaning of truth across the three sectors – philosophy, law and journalism. The tensions
afflict each of the sectors internally too. The term ―truth‖ is trapped in multifarious
meanings arising in different contexts, disciplinary realms, discourses and interpretive
communities. It is suggested that ―the only way in which we can understand ‗truth‘ and
‗untruth‘ is to see them as rhetoric, as concepts used primarily for persuasion. They are
political words, weapons for use in competition for power.‖462
Although it is not
possible to attain a universally applicable meaning the term remains significant.463
The
460 In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 541 (27 June 2001), in
which the plaintiff succeeded, the court refused to permit such evidence. See also Merritt C (2006),
―Evidence denied to Marsden hearing‖, The Australian, 6 June, at 3, and discussion on this in
Chapter 1 fn 44 Item (c).
461 See the action brought by former Scottish Socialist Party leader Thomas Sheridan against the News
of the World and the award of the maximum damages of £200,000: Thomas Sheridan v News Group
Newspapers Ltd, Court of Session, Edinburgh, 14 July 2006; and Day J (2006), ―Sheridan wins
£200,000 NoW damages‖, Guardian Unlimited. Retrieved 7 August 2006, from
<http://media.guardian.co.uk/presspublishing/story/0,,1837578,00.html>
In a more recent turn of events, police were reportedly investigating whether the wife of the MP,
who provided alibis, committed perjury: see Crown Office and Procurator Fiscal Service (2007),
―Tommy Sheridan v News of the World‖ (2007), (Media Statement), 26 June. Retrieved 26 June
2007, from <http://www.crownoffice.gov.uk/News/Releases/2006/10/03113905> See also Osley R
(2007), ―Police investigate Gail Sheridan for libel trial perjury‖, The Independent, 26 June.
Retrieved 26 June 2007, from http://news.independent.co.uk/uk/legal/article2586664.ece
462 Bailey FG (1991), The prevalence of deceit, Cornell University Press, Ithaca, at 128.
463 Malpas (May 1996), above fn 44, at 159, notes:
…it cannot be denied that the concept of truth is rhetorically and politically a very powerful
notion. Indeed, it is powerful in a way that mere opinion is not. Thus to present a view as true
is to present the view that in a way that makes a much stronger demand for acquiescence than
if one were to present it as opinion and nothing more. True demands our assent, while opinion,
143
present goal is confined to explicating the existence of differing meanings of the term,
so as to provide a modest platform upon which to mount a resolution of the immediate
question pertaining to truth in defamation law‘s truth defence. For the purposes at hand
it suffices that the foregoing discussion established the following two key points.
First, the term ―truth‖ defies a universal meaning that can be applied across the
discourses, disciplines and bodies of knowledge. This is because ―truth is particular to,
and constructed within, specific modes of life and the ‗truth‘ of one mode cannot be
judged against the ‗truth‘ of another.‖464
―Truth‖ has several definitions, according to
different discourses. Getting at the truth is a procedure ―where all the different moral,
pragmatic and logical strands are inextricably intertwined and the justification is of the
procedure as a whole.‖465
There can therefore be no guarantees as to the truth.466
Second, neither the courts, nor journalism can claim a monopoly to being arbiters
of the ―truth‖. The truth that defamation law insists upon for a satisfaction of the truth
defence, is truth only for the purposes of the courts‘ truth-certifying process. It is not
necessarily truth that answers the question whether ―he really did it‖. As Matravers
notes: ―The idea here is simple enough: one and the same action is always amenable to
more than one correct description.‖467
The ―truth‖ that the courts require for the
although it may hope for such agreement, can make no such demand. That truth can make such
a claim on us is itself indicative, however, of the notion of universality that attaches to it: truth
makes the same demands on everyone and demands assent from us all.
464 Bankowski (1988), above fn 62, at 8. See further, Malpas (May 1996), above fn 44, at 172:
…speaking the truth is not a matter of enunciating some finite set of true propositions that
uniquely capture the truth, the whole truth and nothing but the truth about the world. The truth
about the world is that there is no finite set of truths to be spoken. There is a multiplicity of
ways of speaking truly about the world, and that this is so does, indeed, follow from the fact
that the world and our speaking about it can be distinguished – it is a consequence of the very
objectivity of the world. Any particular object or event will always admit of a variety of true
descriptions of it.
465 Bankowski (1988), above fn 62, at 18.
466 Malpas (May 1996), above fn 44, at 173, notes:
And truth is also a labour, since not only is there always a multiplicity of possible ways of
speaking the truth, but there is no a priori guarantee that our speaking is, on any particular
occasion, true. That can only be ascertained in conjunction with others and through our careful
consideration of the particularities of argument, evidence and the object in question – and even
then truth remains ever so fragile a notion.
467 Matravers (2004), above fn 212, at 75. It is not difficult to see how this presents possibilities for
giving greater weight to the media defendant‘s defence in a truth defence context. We may be
assisted in appreciating this possibility by considering the illustration Matravers offers citing
Davidson D (2001), ―Actions, Reasons, and Causes‖, reprinted in his Essays on Actions and Events,
2nd Edn, Clarendon Press, Oxford, at 4:
My action of flipping the light switch can be redescribed as the act of turning on the light and
also as the act of alerting the prowler who is lurking in the bushes outside. Generalising this
point we can say that the same event can be referred to under quite disparate descriptions: the
event of alerting the prowler is the same event as my flipping the light switch which is the
same event as my moving my body (or part of my body) in a certain way. Moreover, each of
these descriptions is true.
144
establishment of the truth defence in defamation is, prima facie, open to challenge
because the court‘s truth-certifying process, as seen above from a broader perspective,
is vulnerable to deficiency on several fronts.
This thesis will argue in a later chapter that the benchmark for the truth defence in
defamation law should be lowered to enable the media to more freely report on matters
of public interest and importance. This can be achieved by using what Magnusson refers
to as “doctrinal calculus”.468
According to such a calculus ―there is certainly scope for
courts to give more explicit recognition to freedom of speech within the doctrinal
calculus of defamation‖.469
The courts have long held that the media enjoys no rights
over and above that of the citizen in respect of free speech.470
It is almost a decade since
McHugh J, in noting the common view that media proprietors and reporters have no
greater rights or privileges in respect of news gathering than other citizens, importantly
also observed that we live in an era where almost everybody depends on the media for
information concerning matters which affect the public interest.471
His Honour then
made the following observation: ―The time may have arrived where it is necessary to
recognise that the media does have special rights to gather and disseminate news and
information over and above that held by the ordinary citizen.‖472
This observation
provides encouragement for the lowering of the truth defence benchmark for media
defendants. Such a reappraisal can also be justified on the basis of legislative and
executive tightening of information flow discussed in the previous chapter.473
In
proposing the lowered benchmark, what is proposed is a truth-certifying procedure that
better recognises the media‘s unique circumstances and the public interest in ensuring
468 Magnusson RS (2001), ―Freedom of speech in Australian defamation law: Ridicule, satire and other
challenges‖, 9 Torts Law Journal 269, at 297, at 297.
469 Magnusson (2001), above fn 468, at 297.
470 See, for example, Arnold v The King-Emperor (1914) (Privy Council) 30 TLR 462, at 468:
The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever
lengths the subject in general may go, so also may the journalist, but, apart from statute law,
his privilege is no other and no higher. The responsibilities which attach to his power in the
dissemination of printed matter may, and in the case of a conscientious journalist do, make him
more careful; but the range of his assertions, his criticisms, or his comments is as wide as, and
no wider than, that of any other subject. No privilege attaches to his position.
In John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346, Mason CJ, Wilson, Deane, Toohey
and Gaudron JJ, at 354 made a similar point in refusing to confer special protection for journalists‘
confidential sources, although it noted that ―the free flow of information would be reinforced, to
some extent at least, if the courts were to confer absolute protection on that confidentiality‖.
471 A-G (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342, McHugh J, at 356-357.
472 A-G (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342, McHugh J, at 356-357. To be sure, McHugh J
noted also:
Conversely, it may be necessary to recognise that the media and reporters have special
obligations imposed upon them in gathering and reporting news and information.
473 See Chapter 2 heading 4.
145
that their ability to participate effectively in the democratic process is not unduly
constrained by defamation law‘s truth benchmarks. The empowering of the media in
this way would be consistent with what a former High Court judge, Lionel Murphy,
speaking extracurially, called ―great principles of justice‖:474
The ideals of law are most admirable. The problem is to get the courts to implement in
practice what the law proclaims in theory. The High Court‘s success will be judged by the
extent to which it does implement the great ideals of justice and human rights.475
474 Hocking J (1997), Lionel Murphy – A Political Biography, Cambridge University Press, Cambridge,
at 250.
475 Hocking (1997), above fn 474, at 250, citing Murphy J‘s speech to the National Press Club,
Canberra, 1980. His Honour was speaking in the context of democratic rights, human rights and the
rule of law and the ―people who suffer in our society – Aborigines, migrants, women and those who
are physically and economically disadvantaged.‖
147
CHAPTER 4
Introduction to problems and solutions
If you give me six lines written by the most honest man,
I will find something in them to hang him.1
For this, the wisest of all moral men
Said he knew nought, but that he nought did know;
And the great mocking master mocked not then,
When he said, Truth was buried deep below.2
1. Introduction
Part III of this thesis has a two-fold purpose: (a) to expose the inadequacies in
defamation law‘s truth defence; and (b) to propose reforms to address those
inadequacies. Whereas the earlier chapters considered broad conceptual issues, the
chapters in this Part focus on issues relevant to the way the truth defence currently
operates to the defendant‘s disadvantage. Importantly, this Part proposes solutions to
the problems that it identifies. As will be seen, there is a chasm between an oft-cited
rationale for the truth defence and its attainability in reality. The chapters in Part III
reveal difficulties in the mechanics of the truth defence. These difficulties undermine
the truth defence to the particular detriment of the media, thus impairing their legitimate
role in a democracy.
To undertake the present exercise it is worth reiterating the ―rationale underlying
the defence of truth‖.3 It was referred to in Chapter One where Street ACJ expressed it
as follows:
In England it is a complete answer to a civil action that the defamatory matter complained
of was true. The reason upon which this rule of law rests, as I understand, is that, as the
object of civil proceedings is to clear the character of the plaintiff, no wrong is done to him
by telling the truth about him. The presumption is that, by telling the truth about a man, his
reputation is not lowered beyond its proper level, but is merely brought down to it.4
That observation was of course obiter dicta, as it related to the position in
England, and not the position in New South Wales, the jurisdiction in which the action
1 Cardinal Richelieu, Prime Minister of France 1585–1642. Retrieved 9 November 2007, from
<http://www.lucidcafe.com/library/95sep/richelieu.html>
2 Sir John Davies, ―Nosce Teipsum‖ (1599) st. 20, in Seymour-Smith M (1972), Longer Elizabethan
Poems, Heinemann, London, at 160.
3 Gillooly M (2004), The Third Man: Reform of the Australasian Defamation Defences, Federation
Press, Leichhardt, NSW, at 40.
4 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4, at 21. See discussion in Chapter 5 under
heading 2.1 for similar views.
148
was brought. However, it remains valuable as a concise statement of the truth defence‘s
rationale. At that time English law, as it does now, provided that truth was a complete
defence. NSW law then required (but no longer does) that the matter be ―published in
circumstances which made it for the benefit of the public that they should have been
published.‖5 At the present day, following the introduction of the Uniform Defamation
Acts (UDA), a feature seen as a brake on the truth defence in some jurisdictions – the
public interest/public benefit requirement – has been eliminated. At common law, it is a
defence to an action for defamation for the defendant to prove that the matter published
was true.6 The UDA adopts the common law position by providing as follows:
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.7
The power of the truth defence is not to be underestimated. It is ―a complete
defence‖,8 ―a complete answer‖,
9 and it offers ―absolute immunity‖
10 to a civil
defamation action. So powerful is this defence that ―it is not actionable as defamation
maliciously to publish the truth‖.11
Robertson and Nicol note that ―truth is a complete
defence to any defamatory statement of fact, whatever the motives for its publication
and however much its revelation is unjustified or contrary to the public interest.‖12
5 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4, Street ACJ, at 21. As noted in Chapter 1,
prior to the introduction of the Uniform Defamation Acts, truth was a complete defence in some
Australian jurisdictions whereas in other jurisdictions the defendant had to meet a further ―public
interest‖ or ―public benefit‖ requirement: see Gillooly M (1998), The Law of Defamation in
Australia and New Zealand, Federation Press, Sydney, at 104.
6 Gillooly (1998), above fn 5, at 104.
7 Section 25 UDA.
8 Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 205; and Reynolds v
Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 614.
9 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4, Street ACJ, at 21. It was not always a
―complete answer‖: see above fn 5.
10 Spencer Bower (1990), A Code of the Law of Actionable Defamation with a Continuous
Commentary and Appendices, 2nd Edn, Legal Books, Redfern, NSW, at 78. This work is a reprint of
the 1923 edition. The Foreword to this text states that Bower‘s work ―has continued to be regarded
as one of the principal sources on the law of defamation. Gatley, of course, draws heavily upon it.‖
See also Weir T (1992), A Casebook on Tort, 7th Edn, Sweet & Maxwell, London, at 508:
The first defence is ―justification‖ or truth. The law has an extraordinary regard for truth, and
just as it makes a person liable for a white lie, it makes a person immune in respect of a black
truth. Truth is a total defence, in the sense that it rebuts the presumption that what the
defendant said was false.
11 Milmo P and Rogers WVH (2004), Gatley on Libel and Slander, 10th Edn, Sweet & Maxwell,
London, at 267; and Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls,
at 614. See also Tobin TK and Sexton MG (1990), Australian Defamation Law and Practice,
Butterworths, Sydney, Para 11,001 (LexisNexis Online).
12 Robertson G and Nicol A (2002), Media Law 4th Edn, Penguin, London, at 112 (2002), at 112. A
similar approach prevails in the United States: see Pember DR (2003/2004), Mass Media Law,
McGraw-Hill, New York, at 201:
149
As noted in Chapter One, however, the ―apparently straightforward‖ principle
underlying the truth defence has given rise to ―some extremely difficult and still
unsettled issues of law‖.13
These ―unsettled issues‖ persist under the UDA introduced in
2005.14
That this is so is even more surprising given the reform objective that
underpinned the UDA. The Standing Committee of Attorneys-General proclaimed at
the time: ―The defence of truth has been the touchstone of reform focus.‖15
As it turned
out, aside from introducing a uniform truth defence, the content of the defence received
abysmal reform attention. In the former truth simpliciter jurisdictions, it did little more
than codify the contextual truth defence. The path to a successful truth defence remains
littered with impediments that render this defence almost inaccessible to the media.
2. Preliminary matters
Before examining the mechanics of the truth defence and its variations, it would be
useful to make some preliminary observations. First, while truth is also relevant to other
defamation defences, for example, the defence of honest opinion,16
this Part focuses on
matters concerning the truth defence per se. Second, some degree of interface and
overlap is inevitable between the chapters in Part III. For example, the discussion of the
―reversal of the presumption of falsity‖ in Chapter Five is not complete without
reference to the discussion of the concepts of ―public figure‖ and ―matter of public
interest‖ in Chapter Six.17
The balance of convenience, however, favours an attempt at
the separate treatment of these issues.
Third, while the following chapters in this Part explore the various difficulties
with the truth defence, the sections on solutions avoid a strict count-for-count response
to the problems identified. Such an approach would run the risk of entrapment in
piecemeal solutions that fail to address systemic problems. Indeed, some of the
problems actually evaporate in the course of presenting the reform package. For
example, one problem identified is the paradoxical procedural rule ―that dispenses with
the truth element in a defamation action, effectively disregarding truth at a critical point
Traditionally, truth has been regarded as an important libel defence that completely protects
defendants in lawsuits for defamation.
13 Tobin and Sexton (1990), above fn 11, Para 11,001.
14 Tobin and Sexton (1990), above fn 11, Para 11,001.
15 Standing Committee of Attorneys-General (SCAG), ―Proposal for uniform defamation laws‖ (July
2004), SCAG Working Group of State and Territory Officers, Item 4.9.4, at 23, in the discussion
preceding Recommendation 14.
16 See section 31(5)(a) UDA.
17 As to ―matter of public interest‖, as will be seen in Chapter Six, an alternative term – ―matter of
public concern‖ – is 2.1–3.2 proposed.
150
in proceedings.‖18
This problem, however, is swept away by the solution proposed to
another problem – that concerning the ―presumption of falsity‖.19
3. The UDA and truth
Prior to the introduction of the Uniform Defamation Acts (UDA) Australian defamation
reform proceeded on an ad hoc basis.20
The lack of cohesion and consistency in
Australian defamation law was the object of considerable and well-documented angst
especially among media defendants.21
It was not until the introduction of the UDA that
a national approach to defamation law reform was pursued. An important driver of this
reform was the quest for uniformity in the law, a goal that had long eluded the
Australian jurisdictions – on pain of Commonwealth intervention.22
This goal is duly
reflected in the first23
of four stated objectives in Section 3, UDA.24
As noted earlier,
18 See Chapter 5 heading 1 (Introduction).
19 Chapter 5 heading 3.1 and its various subheadings.
20 See, for instance, Australian Law Reform Commission (1979), Unfair Publication: Defamation and
Privacy, Report No 11; Western Australia Law Reform Commission (1972), Defamation: Privileged
Reports, Project No 8(I); Western Australia Law Reform Commission (1979), Report on
Defamation, Project No 8; Western Australian Defamation Law Committee (September 2003),
Report on Reform to the Law of Defamation in Western Australia; New South Wales Law Reform
Commission (1971), Defamation, Report No 11; New South Wales Law Reform Commission
(October 1995), Defamation, Report No 75; Australian Capital Territory Community Law Reform
Committee (1995) Defamation, Report No 10.
21 Apart from disparate approaches to the truth defence, some jurisdictions gained notoriety as the
plaintiff‘s haven, hence encouraging ―plaintiffs to ‗forum shop‘ for the most favourable jurisdiction‖
to bring the action: see Butler D and Rodrick S (1999), Australian Media Law, LBC Information
Services, Pyrmont, NSW, at 41. Butler and Rodrick sum up the pre-UDA dilemma in the following
extract (ibid, at 25):
The result [of the lack of uniform law] is a confusing morass of uncertainty, particularly for
members of the media who publish nationally, since it has been held that defamatory matter is
published in each place in which it is read, seen or heard. The inconsistencies in defamation
law in Australia‘s eight jurisdictions are most obvious in the defences, although there may also
be differences in relation to the cause of action, such as the extension of defamation under the
Queensland and Tasmanian Codes to include injuring a person in his or her profession or trade.
The difficulties created by these inconsistencies are accentuated by the rule that, while the
plaintiff is entitled to recover in respect of damage to reputation for the entire publication,
including publications in different jurisdictions subject to different laws, only one action may
be brought. Moreover, a consequence may be that exactly the same matter published
simultaneously in more than one jurisdiction may at the same time be the basis for recovery of
damages in one or more but not in another or others (authorities omitted).
22 See Chapter 1 heading 6 (Conclusion).
23 Section 3(a) UDA provides that one object of the Act is ―to enact provisions to promote uniform
laws of defamation in Australia.‖
24 For convenience the remaining objectives outlined in section 3 UDA are reproduced here:
(b) to ensure that the law of defamation does not place unreasonable limits on freedom of
expression and, in particular, on the publication and discussion of matters of public
interest and importance;
(c) to provide effective and fair remedies for persons whose reputations are harmed by the
publication of defamatory matter; and
(d) to promote speedy and non-litigious methods of resolving disputes about the publication
of defamatory matter.
151
only two UDA provisions directly concerned the truth defence. One of these provisions,
concerned the adoption of the truth alone (that is, the defence of truth without the
additional requirement of public interest/public benefit) defence in all jurisdictions, but
this did not alter the prevailing position for four of the jurisdictions.25
The other
introduced into the UDA the defence of contextual truth, which had previously only
been available in New South Wales, into all jurisdictions.26
As a result of the narrow scope of UDA reform of the truth defence, the
difficulties in the truth defence remain. This is not to suggest that the UDA has no
redeeming features. Indeed, even the media warmly welcomed the UDA. In particular,
the extension of the truth alone defence to all jurisdictions was greeted as one of the
―significant pluses‖27
and as a harbinger of ―significant benefits for editors and
publishers as well as plaintiffs‖.28
The truth alone defence was even welcomed by the
nation‘s peak newspaper publisher group, the Australian Press Council,29
which
previously was prepared to advocate the more demanding truth plus defence.30
The
truth defence in its present form, however, remains of very limited utility to the media
because ―the practical reality is that the truth can be difficult, even impossible, to prove
in court‖ and the defence under the UDA ―still puts an unfair burden on the media to
prove the truth of the offending material‖.31
25 Section 25 UDA. Truth was previously a complete defence in four of the jurisdictions (Western
Australia, Northern Territory, South Australia and Victoria) and this reform only meant a real
change for jurisdictions in which truth was not previously a complete defence.
26 Section 26 UDA.
27 Day M (2005), ―Hopeful signs on the road to defamation reform‖, The Australian, 17 March, at 22.
28 Ryan I (February 2006), ―New Defamation Laws: A Guide‖, Australian Press Council News, Vol 18
No 1, at 1. The chairman and chief executive of News Limited John Hartigan said that ―[w]hile not
perfect, the defamations laws have improved vastly‖: see Hartigan J (2007), ―Loosen curbs on our
liberty‖, The Weekend Australian 8–9 September, at 27.
29 The Council, in a freedom of speech report, said the recommendation for a truth alone
defence was a ―positive‖ development: see Australian Press Council (2005), ―Rep ort on
Free Speech issues 2004-2005‖. Retrieved 13 February 2008, from
<http://www.presscouncil.org.au/pcsite/fop/fop_ar/ar05.html#defam>
30 In making submissions on earlier reform plans the Press Council expressed clear support
for a ―truth plus public interest‖ defence: see Australian Press Council (2001), ―Submission
of the Australian Press Council to the NSW Attorney-General on Possible Reforms to the
NSW Defamation Laws‖, 10 October. Retrieved 16 November 2007, from
<http://www.presscouncil.org.au/pcsite/fop/fop_subs/def2001.html#defences>
The Council in Proposal No 8(1) said:
It should continue to be a primary defence that the matter is true and relates to a matter of
public interest (italics added).
31 Pearson M (July 2007), ―A review of Australia‘s defamation reforms after a year of operation‖, Vol
29(1) Australian Journalism Review 41, at 44, notes that the defence was ―rarely used‖ by the media.
See also Editorial (2006), ―Free speech still hobbled under uniform defamation law‖, The West
Australian, 23 January, at 16. The point is discussed in detail in Chapter 9.
152
For present purposes it is no answer to say that less demanding defences are
available to media defendants or that there is a greater emphasis on dispute resolution
without litigation, and therefore defamation law does in fact strike an appropriate
balance between freedom of speech and the protection of reputation.32
This thesis is
concerned solely with the ―balance‖ as it applies to the truth defence. The reasons for
this focus on the truth defence were explained earlier.33
The proposition here, at base, is
that the balance in so far as the truth defence is concerned, is tilted too far against the
defendant and against freedom of speech.
4. Defining “balance”
The expression ―appropriate balance‖34
in the protection-of-reputation/freedom-of-
speech dichotomy merits closer examination. The term ―balance‖ in the context of
defamation has been referred to in a variety of ways by the authorities. Closer
inspection, however, reveals nuances in these varying expressions.
In Lange v Australian Broadcasting Corporation35
the Full Bench of the High
Court expressed the notion somewhat neutrally when it identified the purpose of the law
of defamation as being to strike ―a balance‖ between the right to reputation and freedom
of speech.36
Other formulations, however, have expressed the idea in a manner that
appears to contain qualifications. For instance, it has been referred to even by the same
members of the court in the same case in different ways. It has been described as a
32 For an illustration of this point see the observation in Theophanous v Herald and Weekly Times Ltd
(1994) 182 CLR 104, Mason CJ, Toohey and Gaudron JJ, at 131-132 where their Honours, after
citing authorities that spoke eloquently of the ―chilling effect‖ of defamation law, said:
[The] common law of defamation has endeavoured to achieve an acceptable balance between
the public interest in giving effect to freedom of speech and the competing public interest in
protecting the reputation of individuals who are defamed. The defences of truth, privilege and
fair comment have been developed with a view to resolving the tension which exists between
recognition of freedom of speech and the necessity of protecting the individual from injury to
reputation. Thus, it may be said that, because the common law of defamation has been
moulded by the judges with that end in view, the law has arrived at an appropriate balance of
the competing interests so that freedom of communication is not infringed (italics added).
33 See Chapter 1 heading 3.
34 In the United States the term ―proper accommodation‖ has been used but it is of no great import for
present purposes: see Gertz v Robert Welch Inc, 418 US 323 (1974), at 325 and 356.
35 (1997) 189 CLR 520.
36 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, at 568.
153
―universally acceptable‖ balance;37 or an ―acceptable balance‖;38
or an ―appropriate
balance‖;39
or a ―desirable balance‖;40
or ―contemporary balance‖.41
These formulations do not necessarily all convey the same meaning. For instance,
in speaking of an ―appropriate balance‖ the balance struck may be appropriate for one
jurisdiction but not for another. One example is the different balance struck in the
United States (where freedom of speech has strong constitutional protection) and in
Australia (where such protection is limited). In this instance, the balance cannot be said
to be universally acceptable. Or, a balance may be acceptable but not necessarily
desirable. The Australian jurisdictions that previously offered the truth alone defence
considered that defence desirable but do not necessarily find it desirable now although
they have found it acceptable. Furthermore, to use the seesaw analogy, it is arguable
that a balance can be attained even if one side is not quite touching the ground but is
very close to it. In such a case a balance may be said to exist even though it may be
―tilted too far against free communication‖.42
A ―balance‖, or perhaps even an
―appropriate balance‖, could still arguably be attained on this approach. Furthermore,
the quest for a balance is not necessarily concerned with attaining perfect equilibrium in
the balance. The expression ―contemporary‖ balance further assumes that such concerns
are capable of moving with the times so that the common measures of an ―appropriate‖,
―acceptable‖ or ―desirable‖ balance may require adjustment to the calculus in response
to ―contemporary‖ realities. The striking of an appropriate balance, however, has
proven elusive:
This balance [between the protection of reputation and freedom of speech] is to be struck
by weighing the conflicting rights or conflicting needs. In this sense the test may be
whether the public‘s need for the publication of the information is greater in the
circumstances than the individual‘s need for the protection of a good reputation from the
publication of false defamatory accusations, or vice versa. Although attempts have been
made at the highest judicial level and through statute to set out criteria that provide a guide
as to when one need would be greater than the other, the application of the guidelines in
practice generally remains unclear and inflexible.43
37 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 128.
38 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 131
39 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 132; Gillooly (1998), above fn 5, at 15 (and authorities cited there).
40 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Dawson J, at 191.
41 Australian Capital Territory Community Law Reform Committee, Report No 10, above fn 20, at 5.
42 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 133.
43 George P (2006), Defamation Law in Australia, LexisNexis Butterworths, Chatswood, NSW, at 95-
96.
154
The argument put in this thesis is simply that the balance struck by the truth
defence at the present time is heavily stacked against the defendant. An appropriate
contemporary balance demands that the scales should be adjusted to give the media
defendant greater access to the truth defence taking into consideration the factors that
contribute to the onerous operation of the truth defence identified in the following
chapters, and freedom of speech concerns identified elsewhere in this thesis.44
5. The defamation law quagmire
One approaches the task of proposing defamation law reform with considerable
trepidation given the complexity and uncertainty that afflict many aspects of defamation
law. To be sure, for the optimists there is barely a challenge, as evident in the following
observations made, ironically, pre-UDA when arguably the state of affairs was
decidedly more dire. The High Court noted that the law of defamation ―resolves the
competing interests of the parties through well-developed principles about privilege and
the like.‖45
Other leading commentators have been more effusive:
Whilst defamation law has developed a reputation for complexity and technicality,
nevertheless, as is the case with many other areas of the law, most of the detailed rules fall
into place upon an understanding of certain fundamental principles. Some of the leading
judgments in this area are masterpieces of clear exposition of essentially simple ideas
which sometimes create needless complexity.46
On the other hand, the texts are also replete with contrary views, as the following
random sample of criticisms illustrates. Defamation law has been referred to in terms
ranging from the uncomplimentary to the trenchant in, for instance, England, the United
States and Australia.
In England, Lord Diplock once observed that defamation law ―has passed beyond
redemption by the courts‖.47
Weir noted that ―defamation is odd at the very core‖48
and
said ―the courts could arguably have done more to prevent the law becoming as absurd,
complex and unfair as it is, without resigning themselves‖ to Lord Diplock‘s position.49
Weir also noted that ―Redemption by Committee seems equally impossible.‖50
And
while ―once upon a time, the now disparate parts of defamation did fit together
44 For example, see Chapter 2 heading 4 and its subheadings and Chapter 10 heading 5.
45 Sullivan v Moody (2001) 207 CLR 562, Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ, at
581 (italics added).
46 Tobin TK and Sexton MG (1999, Service 0), Butterworths, Sydney, Foreword, at (iii).
47 Slim v Daily Telegraph [1968] 2 QB 157, at 179.
48 Weir T (2000), A Casebook on Tort, 9th Edn, Sweet & Maxwell, London, at 517.
49 Weir (2000), above fn 48, at 520.
50 Weir T (1996), A Casebook on Tort, 8th Edn, Sweet & Maxwell, London, at 530.
155
coherently‖51
Mitchell comments in his study of the emergence of the modern English
law of defamation:
Only a superficial acquaintance with the modern law [of defamation] is needed to realise
that there is a lot of explaining to do. For unlike negligence with its reasonable man test,
defamation seems to lack any coherent unifying principles, and to consist of a series of
arbitrary, unrelated technical rules…the appearance of chaos is a result of divergent legal
development: individual rules developed independently of the general principles that
traditionally supported them, and could not then be reintegrated into a coherent structure. It
is this historical drift that has made the modern law of defamation what it is today.52
In the United States, the American jurist Post noted: ―The common law of
defamation has long been viewed as an intellectual wasteland‖.53
He cites the
observations of other authorities that defamation law is ―perplexed with minute and
barren distinctions‖54
and that ―there is a great deal of the law of defamation which
makes no sense‖ in that it contains ―anomalies and absurdities for which no legal writer
ever has had a kind word.‖55
Another American scholar wrote that the law of
defamation ―is dripping with contradictions and confusion and is vivid testimony to the
sometimes perverse ingenuity of the legal mind‖56
, while still another has suggested that
if we ―can do no better, honesty and efficiency demand that we abolish the law of
libel.‖57
Another scholar observed that defamation law is ―as a whole, absurd in theory,
and very often mischievous in its practical operation.‖58
In Australia, Kirby J, speaking pre-UDA, observed that defamation law and
practice was one of the most criticised areas of the law:
The commonest criticism is that both law and practice are unnecessarily complicated. Such
complexity has consequences which are often unfortunate for plaintiff and defendant alike.
But also for the public which has its own interest, particularly where, as here, the matter
complained of involves issues of more than private concern.59
51 Mitchell P (2005), The Making of the Modern Law of Defamation, Hart Publishing, Oxford,
Introduction.
52 Mitchell (2005), above fn 51, Introduction (reference omitted).
53 Post RC (May 1986), ―The social foundations of defamation law: reputation and the Constitution‖,
Vol 74 California Law Review 691, at 691.
54 See Post (May 1986), above fn 53, at 691 (reference omitted).
55 Post (May 1986), above fn 53, at 691 (reference omitted).
56 Smolla RA (June 1987), ―Dun & Bradstreet, Hepps, and Liberty Lobby: A New Analytic Primer on
the Future Course of Defamation‖, Vol 75 No 5 Geo LJ 1519, at 1519.
57 Anderson DA (1992), ―Is Libel Law Worth Reforming?‖ (Chapter), in Soloski J and Bezanson RP
(eds) Reforming Libel Law, Guildford Press, New York, at 2.
58 Van Veeder V (December 1903), ―The History and Theory of the Law of Defamation‖ Vol 3 No 8
Columbia Law Review 546, at 546.
59 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Kirby J, at 561-2 (references omitted).
156
Gillooly described the defamation defences as an ―unprincipled mishmash‖60
while a judge presiding over a defamation trial made this candid concession:
As to publication in New South Wales, I am far from confident that I have succeeded in
finding my way through the labyrinthine complexities of the defamation law of that State. It
is an unpleasant feeling to know that one is lost; I am not sure that it is not equally
unpleasant to be unsure whether one is lost or not.61
The Western Australia committee considering defamation law reform in 2003
noted that the law of defamation had developed over the centuries on an incremental
basis to the point where it is now overly complex and technical.62
The Committee
added:
Its application to particular circumstances is far from certain. This lack of certainty is itself
an inhibition upon freedom of communication because people are often unprepared to take
the risk that it will ultimately be found that they have infringed the law and are liable to pay
substantial damages and legal costs.63
This parlous and seemingly intractable state of affairs – one that the UDA made
meagre progress in addressing – must not be permitted to discourage the search for
solutions. The protection of reputation is far too critical an ideal to forsake64
given that
it reflects a ―basic concept of the essential dignity and worth of every human being – a
concept at the root of any decent system of ordered liberty.‖65
The burden, however, to
borrow Lord Steyn‘s words, is on those wanting a review ―to demonstrate that the
60 Gillooly (2004), above fn 3, at 3.
61 Renouf v Federal Capital Press (1977) ACTR 35, Blackburn J, at 58. This, however, was in
reference to the pre-UDA position.
62 Western Australia Defamation Law Committee (September 2003), above fn 20, at 3.
63 Western Australia Defamation Law Committee (September 2003), above fn 20, at 3.
64 See, on this point, the observation concerning a decision in the United States that almost abolished
defamation law, in Overbeck W (2007), Major Principles of Media Law, Thomson Wadsworth,
Belmont, CA, at 141:
[I]n 1971, the Supreme Court handed down a decision that was heralded by some as the
ultimate victory for the mass media over the threat of libel: Rosenbloom v Metromedia (403
US 29). Although there was no majority opinion, the three-justice plurality opinion seemed to
foreclose libel judgments against the media whenever the plaintiff was involved in an issue of
public interest, no matter how private a citizen he or she might be.
65 Rosenblatt v Baer, 383 US 75 (1966), Stewart J, at 92, cited in Gertz v Robert Welch Inc, 418 US
323 (1974), at 341. See also Manning v Hill (A-G for Ontario & Ors, interveners) (1995) 126 DLR
(4th) 129, Cory J, at 161 (references omitted):
No system of civil law can fail to take some account of the right to have one‘s reputation
untarnished by defamation. Some form of legal or social constraints on defamatory
publications are to be found in all stages of civilisation, however imperfect, remote, and
proximate to barbarism.
See also Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 622:
Reputation is an integral and important part of the dignity of the individual. It also forms the
basis of many decisions in a democratic society which are fundamental to its well-
being…Protection of reputation is conducive to the public good.
157
[development advocated] would in practice be fair and workable, and could sensibly be
accommodated in our legal system.‖66
This thesis then takes up the cudgels.
6. Overview of reform approach
An ideal reform exercise would begin on a clean slate. The scope of this thesis does not
permit such an indulgence even if such a clean slate were plausible or possible.
Defamation law the world over has evolved through a process of gradual statutory
modification. And that is what this thesis sets out to achieve. It considers reforms that
lie within the terms of reference of this thesis – a reform of the truth defence and related
matters. It does so by relying on defamation law‘s ―doctrinal calculus‖.67
Already this
calculus is used to weigh defamation law in particular ways, for example, through the
elements of the cause of action and the burdens, concessions and limitations placed
upon the parties. While this thesis is aimed at proposing reforms to the truth defence it
is inevitable that such an exercise will have ramifications for other parts of defamation
law.68
It would be impossible to quarantine the truth defence so as to avoid completely
the consideration of matters that potentially permeate other aspects of the defamation
regime. For instance, the difficulty associated with establishing the meaning of
defamatory words discussed in Chapter 7, while it is relevant to the truth defence, is
clearly also relevant to the other defamation defences. A similar point can be made
about the discussion of the rules concerning the admissibility of evidence.
7. Conclusion
As noted earlier, the common law of defamation has often attracted unflattering
descriptions and epithets.69
The truth defence is at the epicentre of this quagmire. Street
ACJ‘s dictum in Rofe v Smith’s Newspapers Ltd enthroned a lofty ideal – to eschew
protection for undeserved reputation. The Rofe principle, however, has proven to be a
66 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 631, said in response
to the matter at hand, after acknowledging the need to readjust the balance between freedom of
speech and defamation:
But the burden is on counsel for the newspaper to demonstrate that the development he
advocated would in practice be fair and workable, and could sensibly be accommodated in our
legal system.
67 For an earlier reference to the ―doctrinal calculus‖ see Chapter 3 heading 7 (Conclusion). The term
essentially refers to the notion of realigning the boundaries between freedom of speech and the
protection of reputation by relying on principles recognised in defamation law.
68 As noted by the High Court, in the context of common law qualified privilege ―the need to prove
truth can often arise in practice‖: Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR
104, Mason CJ, Toohey and Gaudron JJ, at 133.
69 See heading 5 above.
158
Gordian Knot amidst a vast arsenal of strictures driven by defamation law‘s balancing
principle: the striking of an ―appropriate‖ balance between two largely incompatible
interests – protection of reputation and freedom of speech.70
The ―balancing‖ principle
is, however, inconsistent with the Rofe principle.71
The former envisages compromises
whereas the latter does not. A way out of the present gridlock is to entrench the freedom
of speech imperative more solidly into the ―balancing act‖ while putting in place
measures to protect against the gratuitous destruction of reputations. The UDA was
formulated against a reform backdrop going back at least 25 years.72
As noted in
Chapter One, it was hastily assembled in the face of ―considerable pressure‖73
and
represented something of a compromise. Unfortunately, significant difficulties with the
truth defence were ignored, thereby foregoing an excellent opportunity to instil greater
certainty and utility into this part of the law. The pre-UDA concern that a national
defamation law ―will not be much of an improvement unless it reduces the impediments
that prevent the media fairly reporting news they know to be true‖ was largely
unaddressed in the uniform legislation.74
The ultimate objective of Part III is to recommend specific measures aimed at re-
positioning the fulcrum on the ―protection of reputation/freedom of speech‖ scales so as
to attain a balance more appropriately tuned to the public interest in freedom of speech,
70 See Chapter 1 discussion under heading 1 (Introduction); and heading 4 above.
71 See Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743, Lord Diplock, at 745-746:
[O]ver the years the law has maintained a balance between, on the one hand, the right of the
individual…to his unsullied reputation if he deserves it, and on the other hand, but equally
important, the right of the public…to express their views honestly and fearlessly on matters of
public interest, even though that involves strong criticism of the conduct of public people
(italics added).
72 See Hon Jim McGinty, Defamation Bill 2005 (WA), Introduction and First Reading, State
Legislative Assembly, Hansard, 17 August 2005, at 4129:
This bill is a historic milestone in not only the development and achievement of uniform state
and territory legislation but also, importantly, in the reform and modernisation of defamation
laws throughout Australia. The bill, together with other state and territory defamation bills, will
give all Australians a uniform law of defamation that achieves an appropriate balance between
free speech and protecting the reputation and character of individuals who are defamed…This
is a historic achievement. Reform of defamation law in Australia, and problems associated
with its lack of uniformity, have been under consideration for at least 25 years.
See also similar comments from Hon Sue Ellery, Defamation Bill 2005 (WA), Receipt and First
Reading, State Legislative Council, Hansard, 20 September 2005, at 5543-5544:
73 See heading 6 (Conclusion).
74 The Australian (2007), ―Free speech matters most‖, (Editorial) 18 March, at 12. See further Rolph D
(2005), ―The Third Man: Reform of the Australasian Defamation Defences by Michael Gillooly‖
(Book Review) Vol 27 Sydney Law Review 761, at 764 – although the view expressed here pre-dates
the UDA it remains valid in substance:
The current proposals for a national, uniform system of defamation law have the benefit of
reducing eight systems of law to one. However, beyond achieving the desirable goal of
uniformity, they do not aim for rigorous, comprehensive or significant reform of substantive
doctrines.
159
and to do so without compromising the public interest in the protection of reputation
against wrongful damage, and the public interest in truth and accuracy in the media.
This task is approached by reviewing the problems and by selecting aspects of those
problems for reform attention. The exercise will be conducted within the ―doctrinal
calculus of defamation‖, that is, the solutions proposed will fall within the framework of
rules known to defamation law.75
While the thrust of the reforms will be to lighten the
burdens of the truth defence on media defendants, the proposals will be tempered by the
recognition of the importance of vindication and the need for checks and balances to
prevent the gratuitous destruction of reputations. The reforms proposed would, if
adopted, also make Australian defamation law more consistent with progressive
approaches in other jurisdictions, and set a new benchmark for the Australian freedom
of speech ethos.
75 See Chapter 3 heading 7 (Conclusion).
160
CHAPTER 5
Reversing the presumption of falsity
At every word a reputation dies.1
The law is the true embodiment
Of everything that’s excellent.
It has no kind of fault or flaw.
And I, my Lords, embody the Law.2
1. Introduction
This chapter takes issue with defamation law‘s lack of regard for what is arguably the
most important question to put to a complainant wishing to sue – are the allegations true
or false? This chapter challenges the established rule that dispenses with falsity as an
element of the cause of action in defamation thereby disregarding truth at a critical point
in proceedings – at the start of the action. The prevailing blanket rule is that there is no
place in the cause of action for a truth inquiry. This omission is particularly striking
against the backdrop of a recurrent theme of this thesis – no wrong is done to a person
by telling the truth about him or her3 and that ―[t]he central issue in defamation actions
is a search for the truth.‖4 It will be argued below that the truth element should be given
a more prominent locus at the outset of the action, and that the proper way to go about
this exercise is to reform the law so that the complainant should bear the burden of
proving falsity, in addition to the traditional three elements.5 This proposal, however,
comes with qualifications set against the free speech-centric focus of this thesis. The
burden reversal would apply only where: (a) the complainant is a ―public figure‖;6 (b)
the matter complained about is a ―matter of public concern‖;7 and (c) the action is
against a media defendant. A further qualification concerns situations where the matter
concerned is inherently incapable of being proven true or false.8
1 Alexander Pope, The Rape of the Lock (1714) canto 3, 1.7.
2 Sir William Schwenck Gilbert, Iolanthe (1882), Act 1.
3 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4, at 21; Chapter 1 heading 1 (Introduction).
4 Gibbons T (1996), ―Defamation Reconsidered‖ Vol 16 No 4 Oxford Journal of Legal Studies 587, at
589.
5 That is, show that: (a) publication occurred; (b) the plaintiff was identified; and (c) the matter was
defamatory (see Chapter 1 heading 2).
6 See Chapter 6.
7 See Chapter 6.
8 On this point see heading 3.6 below and heading 4.2 Recommendation (b) below.
161
Where the matter complained about is not a ―matter of public concern‖ or the
plaintiff is not a ―public figure‖ or the action is not against a media defendant, then the
cause of action burden of the plaintiff should be limited to the traditional three
elements. In such situations, the chill on speech induced by not requiring the plaintiff to
bear the burden of proving falsity is, subject to other qualifications elsewhere in this
thesis,9 a tolerable fetter on freedom of speech, although Milo was prepared to go
further and describe it as ―a desirable chill that does not disproportionately infringe
freedom of expression‖.10
In such cases, the truth defences should continue to be
available to defendants.11
While the focus of this chapter is the reversal of burden of proof at the cause of
action stage, it also proposes a related reform aimed at exonerating media defendants
who can show that they are not ―at fault‖.12
2. The truth-not-relevant rule
The first thing to note is that fundamentally, and despite some qualifications,
defamation is a tort of strict liability.13
Thus, it has been said that the plaintiff:
…can get damages (swingeing damages!) for a statement made to others without showing
that the statement was untrue, without showing that the statement did him the slightest
harm, and without showing that the defendant was in any way wrong to make it (much less
that the defendant owed him any duty of any kind).14
9 See, for example, Chapter 9 discussion under heading 3 on ―burden and standard of proof.‖
10 Milo D (2008), Defamation and Freedom of Speech, Oxford University Press, Oxford, at 184. Such
an approach is also consistent with the approach taken in the United States: see text accompanying
fn 108 below.
11 The New South Wales Law Reform Commission proposed such a burden reversal in 1995, subject to
―two exceptions‖ – where the plaintiff can establish that the matter complained about ―does not
relate to a matter of public interest‖, and where the imputation is ―not capable of being proved true
or false‖: see New South Wales Law Reform Commission (October 1995), Defamation, Report No
75, Para 4.15. For a more recent call for a burden reversal in England, see Milo (2008), above fn 10,
at 156:
It is argued that there is a sound foundation for the proposition that the claimant in a
defamation action involving public speech should bear the burden of proving the falsity of the
statements complained of. On the other hand, the same argument does not compel a change in
the law in regard to private speech; in that context, it is reasonable for the law to require the
defendant to prove truth.
12 See heading 5 below.
13 Milmo P and Rogers WVH (2004), Gatley on Libel and Slander, 10th Edn, Sweet & Maxwell,
London, at 8. As noted in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, Gleeson CJ,
McHugh, Gummow and Hayne JJ, at 600:
The tort of defamation, at least as understood in Australia, focuses upon publications causing
damage to reputation. It is a tort of strict liability, in the sense that a defendant may be liable
even though no injury to reputation was intended and the defendant acted with reasonable care
(authority omitted).
14 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 631, citing Weir T
(1996), A Casebook on Tort, 8th Edn, at 525. What Lord Steyn omitted from that quotation is Weir‘s
rhetorical question that immediately followed: ―Are we still in the law of tort?‖
162
For present purposes, our concern is with the observation that the plaintiff can
obtain damages without bearing the burden of proving that the statement was untrue.15
This we may describe as the truth-not-relevant rule.16
One formulation of this rule is
that of Hunt J in Aldridge v John Fairfax & Sons Ltd,17
that ―there is, simply, no
relationship at all between the defamatory nature of an allegation and its truth or
falsity‖.18
As explained by the New South Wales Law Reform Commission, the
irrelevance of ―a necessary connection between reputation and truth is reflected in the
existing law in that the falsity of the imputation is not an essential ingredient of the
cause of action in defamation.‖19
This proposition is considered trite. Bower called the
proposition ―needless‖.20
It is based on the following view:
The starting point of the law is that the claimant is presumed to have and to enjoy an
unblemished reputation and it is up to the defendant to rebut that, either by proving the
truth of the defamation or by establishing, in mitigation of damages, that the claimant has a
general bad reputation.21
The irrelevance of truth in the sense just discussed is confined to a particular stage
of the proceedings – the start.22
To avoid any misunderstanding we must note that the
See also Hulton v Jones [1910] AC 20; Cassidy v Daily Mirror Newspapers [1929] 2 KB 331; Slim v
Daily Telegraph [1968] 2 QB 157, at 172.
15 See, for instance, the proposition in the quotation accompanying above fn 14.
16 For the purposes of the present discussion falsity and untruth as treated as equivalent.
17 (1984) 2 NSWLR 544.
18 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551 (italics added). Walker has made
a similar observation, noting that ―the truth or falsity of published material is irrelevant at the stage
when the court is deciding whether the material conveys a defamatory meaning‖: Walker S (May
1997), ―Defamation law reform: the New South Wales Defamation Bill 1996 and the Australian
Capital Territory‘s Report‖, Vol 5 No 1 Torts Law Journal 88, at 89.
19 NSWLRC Report No 75, above fn 11, Para 2.4. See also Walker‘s view that ―there is no necessary
connection between the concept of reputation, on which defamation law is based, and the concept of
truth‖: Walker (May 1997), above fn 18, at 90. Walker also states that ―there is much about the law
of defamation that is based on policies which have nothing to do with the truth or falsity of the
published material‖ (at 91).
20 Spencer Bower (1990), A Code of the Law of Actionable Defamation with a Continuous
Commentary and Appendices, 2nd Edn, Legal Books, Redfern, NSW, at 237.
21 Gatley (2004), above fn 13, at 7.
22 See Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 205. His Honour,
speaking in the context of the New South Wales truth plus public benefit defence, which pre-dated
the UDA (under the UDA truth is a complete defence as noted above), explained the distinction as
follows:
…I am unable to accept the proposition that without a plea of justification (that is of truth and
public benefit) the truth or falsity of a defamatory statement is an irrelevant consideration in a
defamation case. The truth or falsity of the words is irrelevant to the question whether they are
actionable but not, I think, to the amount of damages if they be defamatory (italics added).
His Honour added (at 205):
A jury is always likely to think that heavier damages should be given for the gratuitous
publication of statements that are false than would be appropriate if the same statements were
true. A plaintiff is always permitted to go into the witness box to say that what was said of him
163
truth of the imputation becomes relevant to liability primarily by way of justification23
–
the defendant who can prove that the imputation is a matter of substantial truth has a
defence to the plaintiff‘s claim24
– but there is a catch. At common law the truth is
irrelevant in the absence of a defence of truth or justification.25
That is, a defendant who
did not plead the truth defence is not permitted to tender evidence of the truth of the
matter complained of. As Windeyer J noted: ―At common law, since truth is a complete
defence, evidence of the truth of the defamatory matter cannot be given unless truth be
pleaded in justification.‖26
The New South Wales Law Reform Commission, citing Aldridge v John Fairfax
& Sons Ltd27
as authority, explained the absence of a connection between reputation and
truth as follows: ―The opinions which collectively go to constitute a person‘s reputation
may, or may not, reflect the plaintiff‘s real character. There is, thus, no necessary
connection between reputation and truth.‖28
The Standing Committee of Attorneys-
General (SCAG) working group reiterated this view more recently when it said ―the
reality is that truth is not in issue in the vast preponderance of matters that are litigated.
In practice, the issue is hardly ever relevant.”29
This view, taken in Aldridge v John
Fairfax & Sons Ltd reflects the position at law and there is ample authority for it.30
In
was a lie. If he does so, surely the defendant should be permitted to call evidence to answer
him? If he does not, must the defendant remain silent on the matter unless he has pleaded truth
and public benefit? (italics added).
In obiter remarks, His Honour said (at 205) that he did not agree with ―strong dicta‖ from Jordan CJ
and Halse Rogers J in Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 that
disapproved of the view that a defendant could call evidence of the truth of his statements with a
view to mitigating damages although he had not pleaded justification. It may also be noted that the
term ―actionable‖ here appears to take the sense of whether the plaintiff has a cause of action and not
in the sense discussed in Gatley (2004), above fn 13, at 8, where it is stated that a defamatory
publication is not ―actionable‖ if it is true. The term as used here does not mean that action cannot
commence, but that the plaintiff will not obtain judgment because the defendant is able to defeat the
complaint: see Brennan DJ (1994), ―The defence of truth and defamation law reform‖, Vol 20 No 1,
Monash University Law Review 151, at 151.
23 Although falsity may of course aggravate damages: see text accompanying fn 33 below.
24 NSWLRC Report No 75, above fn 11, Para 2.4; and see, for example, section 25 UDA.
25 George P (2006), Defamation Law in Australia, LexisNexis Butterworths, Chatswood, NSW, at 246.
26 Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 204 (italics added). See
further Bower (1990), above fn 20, at 78:
In any action of defamation, the defendant may set up, as an affirmative defence thereto, that
any defamatory matter published by him is true. Such a defence must be pleaded, and, when so
pleaded, is called a plea of justification, and the defendant is said to ‗justify‘ the defamatory
matter in respect of which the plea is pleaded.
27 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544.
28 NSWLRC Report No 75, above fn 11, Para 2.4.
29 Standing Committee of Attorneys-General (SCAG), ―Proposal for uniform defamation laws‖ (July
2004), SCAG Working Group of State and Territory Officers, Item 4.9.4, at 23, in the discussion
preceding Recommendation 14 (italics added). See full quotation in text accompanying fn 47 below.
30 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551. The authorities Hunt J cited are:
Spencer Bower (1923), Law of Actionable Defamation, 2nd Edn, at 236 and 237; Clines v Australian
164
that case the defendant argued that the objective falsity of the matter complained of was
relevant as increasing the gravity of the imputations of which the plaintiff complains,
and conversely that its objective truth goes to reduce their gravity.31
In response Hunt J
said in that case: ―That proposition is not logical; nor is it the law.‖32
His Honour
explained this peculiarity in the law as follows:
To say that X is a glutton is just as injurious to his reputation (and thus defamatory of him)
when that statement is true as when it is false, although obviously the falsity of the
statement may increase the hurt to his feelings. Conversely, to say that Y is universally
regarded as the best advocate at the Sydney Bar is no more injurious to his reputation when
that statement is false than when it is true. That there is, simply, no relationship at all
between the defamatory nature of an allegation and its truth or falsity is well illustrated.33
Notwithstanding the confinement of the above approach to a particular stage of
proceedings, it presents a difficulty – one that confounds even the legal fraternity as will
be seen in the next section.
2.1 Issues arising
While Hunt J‘s explanation above in Aldridge v John Fairfax & Sons Ltd34
reflects the
position at law, that position is open to criticism. The irrelevance of truth in the context
cited above, it must be reiterated, occurs only in the cause of action stage where there is
no inquiry into the truth or otherwise of the allegation. To use Windeyer‘s J‘s
formulation, the truth or falsity of the words is irrelevant to the question whether they
are actionable but relevant to the amount of damages if they are defamatory.35
That is,
truth is irrelevant in one context but relevant in another, in one and the same action.
Several criticisms may be made of the truth-not-relevant principle. The first
springs from the Rofe v Smith’s Newspapers Ltd principle referred to above – that ―no
Consolidated Press (1965) 66 SR (NSW) 321, at 327 and 333; 83 WN (Pt 2) 299, at 304 and 310;
Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 205; and Ross McConnel
Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd (1980) 2 NSWLR 845. In the last-mentioned case
Hunt J, at 847, said:
The fact that the matter complained of may be untrue is, however, wholly irrelevant to the
question of defamation.
31 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551.
32 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551.
33 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551 (italics added). In 1704 in the
context of seditious libel, Holt LCJ explained famously that ―a true libel is especially dangerous, for
unlike a false libel, the dangers of truthful criticism cannot be defused by disproof…The greater the
truth the greater the libel‖: R v Tutchin (1704) 14 Howell‘s State Trials 1095, at 1128. The concern
in that case was with ensuring the stability of government by proscribing the fomenting of ill will
against the government. As Holt LCJ held, it was ―very necessary for all governments that the
people should have a good opinion of it.‖
34 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544.
35 Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 205.
165
wrong is done to him by telling the truth about him.‖36
This alone should make any
injury to reputation (or the commission of a wrong) irrelevant, in the eyes of defamation
law, if the imputation is true. That is, any injury arising from the publication of the
defamatory imputation would be justified if the allegation were true. This is because the
publication merely lowers the reputation concerned to its proper level, or as George
expressed it, a ―truthful statement defines reputation rather than damages it.‖37
The
English Court of Appeal explained this point in Chase v News Group Newspapers Ltd:38
English law does not permit a claimant to recover damages in respect of an injury to a
character which he/she does not possess, or ought not to possess. For this reason a
successful plea of justification is an absolute defence to a claim in libel because it shows, as
a matter of objective fact, that a claimant is not entitled to the unblemished reputation
which he/she claims to have been damaged by the publication of which complaint is
made.39
On this basis, defamation law should not offer the aspiring plaintiff any succour in
commencing an action where adverse imputations have been justifiably published.
Defamation law, after all, is not aimed at providing a blanket protection for reputation.40
The protection provided is a qualified one although the authorities do not always make
this clear. The New South Wales Law Reform Commission, in a discussion entitled
―Objectives and context of defamation law‖ states all too briefly: ―The law of
defamation exists to protect reputation.‖41
Gillooly‘s formulation is more to the point:
―Defamation may be broadly defined as the unlawful publication by one person of
matter that is defamatory of another.‖42
It is aimed at providing protection only against
36 See heading 1 above (Introduction).
37 George (2006), above fn 25, at 240.
38 (2003) 11 EMLR 218.
39 Chase v News Group Newspapers Limited (2003) 11 EMLR 218, Brooke LJ, at 227 (Rix and Keene
LJJ agreeing). See further the view expressed in a disquisition appended to the report of Wyatt v
Gore (1816) and cited in Bower (1990), above fn 20, at 338:
…the reputation cannot be said to be injured where it was before destroyed. The plaintiff has
previously extinguished his own character…The law considers him as bringing an action of
damage to a thing which does not exist.
See also the view that ―no one has a right to a reputation which is unmerited. Accordingly one can
only suffer an injury to reputation if what is said is false‖: Lonrho v Fayed (No 5) (1993) 1 WLR
1489, CA, Stuart-Smith LJ, at 1502. Gatley (2004), above fn 13, at 268 notes that English law is
―committed to the proposition that a claimant is not entitled to recover damages for injury to a
reputation which he ought not to possess‖, citing Chase v News Group Newspapers Limited (2003)
11 EMLR 218, at 227.
40 A distinction is made between defamatory publications and publications that constitute an actionable
defamation: Brennan (1994), above fn 22, at 151.
41 NSWLRC Report No 75, above fn 11, Para 2.1. For a more detailed discussion of the various
definitions of the aim of defamation law see Chapter 1 heading 4.
42 Gillooly M (1998), The Law of Defamation in Australia and New Zealand, Federation Press,
Sydney, at 2 (italics added). For a similar qualification, see Bower (1990), above fn 20, at 1, where
the author states: ―Defamation is the publication of defamatory matter, as hereafter defined (italics
added).‖
166
unlawful publication. Publication is not unlawful, for instance, if it can be met by a
defence (e.g. truth, honest opinion, qualified privilege) or if the complainant does not
have legal capacity (e.g. a deceased or under-aged person).
A further criticism of the truth-not-relevant approach may be made. While it may
be the position at law that there is no relationship at all between the defamatory nature
of an allegation and its truth or falsity, Hunt J‘s view that it is ―not logical‖43
that the
objective truth should reduce the gravity of the adverse imputation is not beyond
question. One may argue that it is perfectly logical that if the defendant has spoken the
truth about a person, the objective truth of the imputations should go towards reducing
their gravity and eliminate the basis for an action.44
Third, the term ―truth‖ in the ‗truth is no libel‘ sense, is a loose one, such that the
term does not resemble truth in the everyday sense of representing reality. It has been
suggested that the principle that truth in that context is meant to viewed in a loose and
unscientific sense.45
Such an approach potentially creates confusion as to what would
constitute the truth for the purpose of the ‗truth is no libel‘ defence.
Finally, the claimed irrelevance of the truth in the context seen above is rejected
by practitioners in the field. In the lead up to the UDA the Standing Committee of
Attorneys-General reiterated, in their proposals, that in the vast majority of cases truth
is not in issue and that it is hardly ever relevant.46
The response that this view elicited
from a prominent Australian Bar Association reinforces the present argument that this
aspect of the law is a muddle. In a submission in response to the SCAG working group
proposals referred to above, the NSW Bar stated:
In discussing recommendation 14 [the SCAG discussion on ―truth‖ in its July 2004
proposals] it is asserted that in practice the issue of truth is hardly ever relevant. That is not
the experience of the Association’s members who practise extensively in the field. Truth is
on very many occasions highly relevant not just in matters which proceed to hearing but in
It was stated in More v Weaver [1928] 2 KB 520, Scrutton J, at 521, that there are cases where
statements are defamatory although the law does not allow any action to be brought in reference to
them. See also Brennan (1994), above fn 22, at 151.
43 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551.
44 A further criticism may be made. Hunt J noted that ―to say that Y is universally regarded as the best
advocate at the Sydney Bar is no more injurious to his reputation when that statement is false than
when it is true‖: Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551. Hunt J‘s
analogy is odd considering that defamation law hardly ever encounters plaintiffs who complain
about favourable imputations concerning them. Defamation law is concerned only with damage to
reputation and this necessarily arises from negative imputations against the plaintiff.
45 Bower (1990), above fn 20, at 78 states:
It is not true, except in a loose and unscientific sense, that ‗the truth is no libel,‘ for this would,
in strictness, involve the proposition that falsity is part of the connotation of defamation, and
part, therefore, of the plaintiff‘s burden of proof, which it certainly is not.
The ―presumption of falsity‖ is discussed under heading 3.1 below.
46 See the quotation accompanying fn 47 below.
167
assessing whether to proceed at all…It is completely unclear as to what is being proposed,
other than in order to establish a defence of truth the defendant must, self-evidently, prove
the substance of the charge.47
2.2 Summary
The hallowed place of truth in freedom of speech and in human endeavour was
demonstrated in Chapters Two and Three of this thesis and it is reflected in defamation
law, inter alia, by the principle in Rofe v Smith’s Newspapers Ltd.48
The practical
operation of the truth defence, however, exposes a disjuncture between the Rofe v
Smith’s Newspapers Ltd principle and the practical reality of its application. Defamation
law sits squarely in the realm of the law of torts49
which is ―now firmly civil and
provides the plaintiff with remedies against unlawful, that is, ‗tortious‘, conduct‖.50
If,
as the practitioners argue, truth is relevant in deciding whether to proceed at all, the
irrelevance of truth to the cause of action, and the relegation of concern for the truth to a
later stage of proceedings, renders the procedure in respect of this defence highly
unsatisfactory. It may be noted briefly that the approach to the cause of action (where
there is no relationship at all between the defamatory nature of an allegation and its
truth or falsity) is, however, not a universal one. In the United States, for instance,
recent rulings require most libel plaintiffs to carry the burden of proving a defamatory
allegation to be false when the story focuses on a matter of public concern.51
There will always be instances when the fact-finding process will be unable to resolve
conclusively whether speech is true or false. It is in those instances that the burden of proof
is dispositive…To ensure that true speech on matters of public concern is not deterred, we
hold that the common-law presumption that defamatory speech is false cannot stand when a
plaintiff seeks damages against a media defendant for speech of public concern.52
3. Burden imbalance inimical to public adjudication of truth
A hallmark of enlightened defamation law is the emphasis it places on truth, especially
in cases involving public figures and matters of public concern. As Chesterman noted:
―There are strong arguments to support the proposition that an important yardstick by
47 New South Wales Bar Association‘s Submissions to the Standing Committee of Attorneys-General
Working Group of State and Territory Officers, July 2004 Proposal for Uniform Defamation Laws.
48 See also M’Pherson v Daniels [1829] 10 B & C 263, Littledale J, at 272, where his Honour noted
that truth is an answer to the action ―because the plaintiff is not entitled to recover damages in
respect of an injury to a character which he either does not, or ought not to possess.‖
49 The Uniform Defamation Acts make this clear. See, for instance, section 6(1): ―This Act relates to
the tort of defamation at general law.‖
50 Chisolm R and Nettheim G (1992), Understanding Law, 4th Edn, Sydney, Butterworths, at 30.
51 Pember DR (2003/2004), Mass Media Law, McGraw-Hill, New York, at 201. See discussion under
heading 3.3 below.
52 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), O‘Connor J (delivering
the court‘s judgment), at 776-777 (italics added).
168
which to assess any defamation law is the extent to which it promotes the public
adjudication of truth or falsity in cases of public interest.‖53
The ―public interest‖
qualification in that proposition is important in the context at hand. The present
operation of Australian defamation law fails this test identified by Chesterman.
Defamation law ―is often described as a ‗plaintiff‘s tort‘. That is to say, it is a branch of
the law that is weighted against defendants.‖54
As seen earlier, the bar that a plaintiff
must cross in establishing the cause of action is ―set rather low‖ and the burdens on the
plaintiff are ―not particularly demanding‖.55
Hunt J referred to it as ―the low threshold
which a plaintiff must overcome in order to establish that he has been defamed‖.56
There are strong views that this approach is wrong, as will be seen in the following
discussion.
The requirement on the plaintiff to do no more than establish the three elements of
the cause of action – publication, identification and existence of defamatory matter57
–
arguably constitutes the single biggest imbalance factor in Australian defamation law.
The burden in question here can also be characterised as the ―presumption of falsity‖
burden – that is, a defamatory imputation is presumed to be false and the burden of
showing that it is substantially true is upon the defendant. The following sections
consider this issue in more detail.
53 Chesterman M (2000), Freedom of Speech in Australian Law: A Delicate Plant, Ashgate Dartmouth,
Hants, England, at 168 (italics added). The author adds:
In cases involving public officials or public figures to which the Sullivan rule relates, the
interests of at least three parties or interest groups will generally be better served by such an
adjudication. These are (i) the plaintiffs themselves, (ii) the governmental, commercial or other
public entity from which their status as public official or public figure derives, and (iii) the
public at large (ibid, references omitted).
54 Burrows J and Cheer U (2005), Media Law in New Zealand, 5th Edn, Oxford University Press,
Melbourne, at 29.
55 Gillooly (1998), above fn 42, at 15; Chapter 1 heading 1.2.
56 Hawke v Tamworth Newspaper Co [1983] 1 NSWLR 699, Hunt J, at 723.
57 See heading 1 (Introduction) above.
169
3.1 A presumption of falsity?
The notion of the ―presumption of falsity‖58
requires clarification, especially in light of
the view that ―the very conception of defamation involves the idea of falsity‖.59
To
facilitate a proper explication of the concern under this heading it is useful to reiterate
some fundamental principles of Australian defamation law. First, showing that the
matter published was false is not part of the cause of action.60
A second relevant
principle is: ―At common law, since truth is a complete defence, evidence of the truth of
the defamatory matter cannot be given unless truth be pleaded in justification.‖61
These
principles appear to have given rise to the view that ―at common law, a plea of the
general issue without a plea in justification admits that the matter complained of was
false.‖62
The foregoing statements may be alternatively expressed as follows. If the
defendant did not plead the truth defence, he or she is not permitted to provide evidence
of the truth of the defamatory matter. And, further, if the defendant has not pleaded the
truth defence, it is taken as an admission that the matter complained of was false, and
that therefore, there is a presumption of falsity against the defendant. As George notes:
However, this presumption has been criticised on the basis that the failure to justify cannot
logically amount to a failure to deny the truth of the defamatory matter if falsity is not an
element in determining whether the matter is defamatory. A plea of justification in a
defamation action is not a traverse but a plea of confession and avoidance. Falsity is not an
element which the plaintiff has to prove on liability.63
A number of difficulties arise in this area and it may be seen in the conflicting
views as to whether there is, in the first place, a presumption of falsity against the
defendant who does not plead the truth defence. Widely conflicting views have been
expressed.
58 For a historical account of the presumption of falsity see Hirth JA (2004), ―Laying to Rest the
Ecclesiastical Presumption of Falsity: Why the Missouri Approved Instructions Should Include
Falsity as an Element of Defamation‖, 69 Missouri Law Review 529.
59 See TA Street, Foundations of Legal Liability, (1906), Vol 1, at 275 cited in Howden v “Truth” and
“Sportsman” Ltd (1937) 58 CLR 416, Evatt J, at 431. See further NSWLRC Report No 75, above fn
11, Para 2.6:
…a finding of falsity is implicit in a defamation verdict. Once the plaintiff has proved the
imputation to be defamatory, it is presumed to be false.
60 Bower (1990), above fn 20, at 237; Allen v Flood [1898] AC 1, Cave J, at 37. Also see heading 1
(Introduction) above.
61 Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 204.
62 Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 204 (italics added).
63 George (2006), above fn 25, at 246 (authorities omitted).
170
3.1.1 View that there is a presumption
Armstrong et al noted as follows in respect of the truth defence in the pre-UDA context:
―A person who claims to have been defamed in the media has a distinct advantage. The
law presumes that the media report is false.‖64
The plaintiff need not prove that the
matter complained of was false65
because ―the falsity of the imputation is not an
essential ingredient of the cause of action in defamation.‖66
This has led to suggestions
that the nature of the action is such that there was a presumption of falsity (at least in
the former truth alone jurisdictions67
) against the defendant.68
Bower has stated: ―…if
he [the defendant] does not prove the truth of the defamatory matter, the law assumes it
to be false‖ and further that ―it is for the defendant to allege and prove the truth‖.69
Bower went so far as to describe this presumption as one of ―three needless
propositions‖.70
The Australian Law Reform Commission has noted that ―[t]he law
64 Armstrong M, Lindsay D and Watterson R (1995), Media Law in Australia, 3rd Edn, Oxford
University Press, South Melbourne, at 31 (italics added). See, however, a qualification in Armstrong
et al (1995), Chapter 3 endnote 1, in reference to the pre-UDA situation where truth was not a
complete defence in some jurisdictions:
This statement remains correct at common law, but in NSW, Queensland, Tasmania and the
Australian Capital Territory where legislation provides justification only if true material is also
published in the ―public interest‖ or for the ―public benefit‖ it is better to avoid the notion of
presumption of falsity and say that the defendant carries the burden of proving truth: Singleton
v Ffrench (1986) 5 NSWLR 425.
Note, however, that under the UDA truth is now a complete defence.
65 At common law, the falsity of the published defamatory matter was presumed: see Gillooly (1998),
above fn 42, at 23. See further NSWLRC Report No 75, above fn 11, Para 4.7 where the report notes
that the absence of a requirement on the plaintiff to prove the falsity of the publication was explained
at common law ―by saying that once the plaintiff had proved the imputation to be defamatory, it was
presumed to be false‖ (italics added, citing Gatley 8th Edn (1981), Para 351). See also Gatley
(2004), above fn 13, at 269.
66 NSWLRC Report No 75, above fn 11, Para 2.4. Bower (1990), above fn 20, at 236 states:
―Similarly, as regards falsity, it was never necessary for the plaintiff to prove this, or to allege it.‖
67 It has been said that in New South Wales, in the pre-UDA context, there was no presumption of
falsity, at least outside the context of political discussion: NSWLRC Report No 75, above fn 11,
Para 2.6.
68 Pearson M (2007), The Journalist’s Guide to Media Law, 3rd Edn, Allen & Unwin, Crows Nest,
NSW, at 207.
69 Bower (1990), above fn 20, at 237. See also fn 26 above; and Mitchell P (2005), The Making of the
Modern Law of Defamation, Hart Publishing, Oxford, at 94:
In defamation the words used are presumed to be false, unless the defendant shows them to be
true by successfully pleading justification.
70 Bower (1990), above fn 20, at 237. Bower states that in Roberts v Camden (1807) 9 East 93, Lord
Ellenborough CJ, at 94, went through the ―laborious process of enunciating three needless
propositions‖. The remaining two propositions were: (a) if the defendant does not prove the truth of
the defamatory matter, the law assumes it to be false; and (c) thereupon malice is to be ―necessarily
inferred from making a false charge‖ (italics in original). See also Roberts v Camden, at 95:
At common law, in the absence of a defence of truth, the falsity of the defamatory statements is
presumed and may be taken into account as increasing the hurt to the plaintiff on the issue of
damages.
See further George (2006), above fn 25, at 246.
171
presumes the falsity of defamatory words, and the defendant has the burden of proving
the truth of the imputation.‖71
In Herald & Weekly Times Ltd & Anor v Popovic72
Gillard AJA said: ―The defendants pleaded and relied upon the defence of justification.
The law presumes that the defamatory words complained of are false and the plaintiff
does not have to prove that the defamatory words were untrue.‖73
In Allworth v John
Fairfax74
Higgins J said: ―Where truth alone is a defence, whilst there is no presumption
of falsity, a failure to plead justification will be taken as an admission of falsity.‖75
While Higgins J appears to draw a distinction between a ―presumption‖ and an
―admission‖, from a defendant‘s perspective there is no real difference.
3.1.2 View that there is no presumption
Speaking in the context of the pre-UDA defence in New South Wales, Windeyer J
stated: ―Whatever the position at common law, there is not…any reason for saying that
in the absence of a plea of truth and public benefit the libel is presumed to be untrue.
There appears to be no logical presumption either way.‖76
The New South Wales Law
Reform Commission too has noted the confusion the alleged presumption evokes:
Where the truth of a defamatory imputation is in issue, the onus of proof is on the
defendant. This situation has produced an assertion, if not a doctrine, that there is a
presumption of falsity of a defamatory imputation. See, for example, Gatley, paragraph
351. Such a presumption is not useful and may be mischievous. It may be mischievous in
that it gives a foothold in a fiction for the magnification of damages. It may be mischievous
in other ways because no one can foretell what will be the consequences of treating as a
fact something which may or not be a fact.77
Whether one takes the view that there is a presumption or that there is no
presumption, the better view is that the ―presumption of falsity‖ is just a loose way of
describing the current position, that is, the onus of truth is on the defendant. It does not
provide grounds for thinking that falsity is a sort of hidden ingredient in the cause of
action. It is appropriate next to consider the arguments for and against burden reversal.
71 Australian Law Reform Commission (1979), Unfair Publication: Defamation and Privacy, Report
No 11, Para 120.
72 (2003) 9 VR 1.
73 Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, at 57.
74 (1993) 113 FLR 254.
75 (1993) 113 FLR 254, at 266 (reference omitted).
76 Australian Consolidated Press v Uren (1966) 117 CLR 185, at 205. In Allworth v John Fairfax
Group Pty Ltd (1993) 113 FLR 254, at 263, Higgins J speaking in a pre-UDA context noted that
section 47 of the Defamation Act 1974 (NSW) provides that, so far as it is relevant to quantum, truth
or falsity is not presumed.
77 NSWLRC Report No 11, above fn 10, Appendix D – Notes on Proposed Bill and Rules, Para 35.
That proposed reform was titled: ―Section 8: No presumption of falsity.‖ The Gatley reference there
was to the 8th Edn.
172
3.2 Burden reversal arguments
3.2.1 Arguments against burden reversal
In favour of the approach that does not impose a burden of proof of falsity on the
plaintiff, it may be argued that because it is the defendant who has made a charge
against the claimant, the claimant may say that he or she is entitled to be regarded as
―innocent‖ until proven ―guilty" and that a claimant who faced general charges of
wrongdoing, such as an accusation of involvement with organised crime, might
otherwise be placed in an extremely difficult position.78
A second argument is that it is
―too onerous‖ to put the burden of falsity on the plaintiff because the plaintiff should
not be asked to prove a negative.79
A third argument is that the plaintiff may be asked to
disprove a vague defamatory statement whose meaning is difficult to determine.80
A
fourth argument is that the presumption induces a spirit of caution among publishers,81
that is, it produces a desirable chilling effect. These arguments are rejected as they are
far outweighed by the arguments set out in the next section.
3.2.2 Arguments for burden reversal
Six main arguments may be made in favour of placing the burden of proof of falsity on
the plaintiff.82
First, it may be said that the present approach deems the defendant guilty until
proven innocent and it goes against the grain of hallowed legal principle.83
Second, the present approach can be viewed as contradictory to an important tort
principle, that is, ―the placing on the defendant of the burden of proof on what is (or
78 Gatley (2004), above fn 13, at 269 (references omitted). For other arguments opposing the view that
the plaintiff should bear the onus of proving falsity in defamation cases see, for example, England
and Wales, Supreme Court Procedure Committee (July 1991), Report on Practice and Procedure in
Defamation (the ―Neill Report‖), at 72-73.
79 NSWLRC Report No 75, above fn 11, Para 4.19; Gatley (2004), above fn 13, at 269.
80 NSWLRC Report No 75, above fn 11, Para 4.19 (references omitted).
81 Report of the Committee on Defamation (1975), UK, Cmnd 5909, Para 141 (the Faulks Committee).
The Neill Committee made a similar observation: Supreme Court Procedure Committee (1991),
Working Group on Practice and Procedures in Defamation, Para XIX4.
82 See also the discussion below under heading 3.5. Gatley has noted that there are arguments on both
sides ―from a theoretical point of view‖ concerning the presumption of falsity of the defamatory
imputation: see Gatley (2004), above fn 13, at 269.
83 See, for instance, Article 11 Universal Declaration of Human Rights 1948:
Everyone charged with a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which they have had all the guarantees necessary for
their defence.
173
should be) the central issue in proceedings having as their purpose the vindication of
reputation is out of line with the general approach in tort law‖.84
Defamation law‘s
approach in relation to the present burden evokes the following question: ―In every
other civil action claimants must prove their case in order to win damages: why should
libel be any different?‖85
The present rule is arguably anomalous in the context of a
system of civil liability, which generally requires a plaintiff to prove that the defendant
was at fault.86
There are also ―many instances‖ in which plaintiffs are asked to prove
negatives.87
There are even instances in which plaintiffs are asked to prove falsity, as in
the tort of injurious falsehood88
and in the law of misrepresentation where the plaintiff
bears the burden of proving the falsity of the representation.89
The burden of proof in
civil cases generally also stipulates that the ―persuasive burden‖ lies upon the party who
substantially asserts the affirmative of the issue.90
It is an ancient rule founded on considerations of good sense and should not be departed
from without strong reasons. This rule is adopted principally because it is just that he who
invokes the aid of the law should be the first to prove his case; and partly because, in the
nature of things, a negative is more difficult to establish than an affirmative.91
Gatley, however, states without elaboration that in the defamation context ―arguments that the
defendant is presumed guilty until proven innocent are arguably misplaced‖: Gatley (2004), above fn
13, at 269 fn 25.
84 Gatley (2004), above fn 13, at 269 (italics added).
85 Robertson G and Nicol A (2002), Media Law 4th Edn, Penguin, London, at 109.
86 Barendt E, Lustgarten L, Norrie, K and Stephenson H (1997), Libel and the Media: The Chilling
Effect, Oxford University Press, Oxford, at 195.
87 Auburn J, Bagshaw R, Day D, Grevling K, Hochberg D, Hollander C, Mirfield P, Oakley AJ,
Pattenden R and Whale S (eds) (2005), Phipson on Evidence, 16th Edn, Sweet & Maxwell, London,
at 131-133, discusses ―statutory reverse burdens‖, and the impact of the Human Rights Act 1998
(UK) on reverse burdens and presumptions (at 142-150).
88 NSWLRC Report No 75, above fn 11, Para 4.19 (references omitted).
89 NSWLRC Report No 75, above fn 11, Para 4.19 fn 33. Barendt E (1993), ―Libel and Freedom of
Speech in English Law‖, Public Law 449, at 457 makes a similar observation.
See further Spencer Bower and Turner, The Law of Actionable Misrepresentation (1974), 3rd Edn,
Butterworths, London, Para 68, where the authors state that ―the burden of alleging and proving
falsity in fact, which alone turns a representation into a misrepresentation, rests on the party who sets
it up‖.
90 Phipson on Evidence, above fn 87, at 127. The authors‘ description of the ―persuasive burden‖
includes references to it as ―the legal burden‖, ―the probative burden‖, and ―the ultimate burden‖ (at
125). On the same page the authors state:
What is referred to in this work as the persuasive burden is the obligation imposed on a party
by a rule of law to prove (or disprove) a fact in issue to the requisite standard of proof. A party
who fails to discharge a persuasive burden placed on him to the requisite standard of proof will
lose on the issue in question. The persuasive burden is often referred to as the burden of proof,
but it is important to keep it distinct from the evidential burden. The evidential burden is
sometimes referred to as ―the duty of passing the judge‖, or ―the burden of adducing
evidence‖. It obliges the party on whom the burden rests to adduce sufficient evidence for the
issue to go before the tribunal of fact.
91 Phipson on Evidence, above fn 87, at 127 (italics added, references omitted).
174
The heaviness of the burden is more pronounced given that liability for
unintentional defamation is a firm common law principle.92
Third, the present approach is inimical to freedom of speech: ―From the more
general perspective of freedom of speech there is no doubt that the present rule inhibits
the ability of the media to expose what they believe to be matters of public concern‖.93
Fourth, quite apart from the incompatibility of the presumption of falsity with
freedom of speech:
…one can doubt whether it is reasonable to expect the defendant to show the truth of
matters, in the nature of things generally outside his personal knowledge, rather than
require the plaintiff to show the allegations are false. After all, the plaintiff will always
know the truth about his or her conduct.94
Fifth, burden reversal supports a key aim of this thesis – to restore defamation
law‘s vindicatory aim.95
An important consequence of reversing the burden by placing
upon the plaintiff the onus of proving falsity will be to make falsity ―a central aspect of
the claimant‘s claim‖.96
Taking into account that vindication is a defamation plaintiff‘s
primary quest97
and that truth plays a critical role in the human dignity argument for
reputation,98
reversing the burden honours more faithfully the core objective of
defamation law. As Milo has noted:
Adjudication on truth or falsity would facilitate the restoration of the reputation of an
unjustly defamed plaintiff. It is the case that this adjudication takes place in any event if the
defendant pleads justification for the law of defamation, but a failed defence of justification
does not amount to a finding of falsity in favour of the claimant; all it implies is that the
defendant has failed to prove as a matter of probability that the statement was true. This is
not the same as a finding that as a matter of probability the statement was false. In any
event, the issue of truth and falsity may never arise in a defamation case; classic examples
are cases of absolute and qualified privilege, where the issue of falsity is irrelevant to the
availability of the defence.99
Sixth, it may be noted that through some defamation defences the common law
accepts the ―chilling effect‖ argument and acknowledges that it is better to tolerate the
damage occasioned by speech than to inhibit the publication of material which is of
92 See Hulton v Jones [1910] AC 20.
93 Gatley (2004), above fn 13, at 269 (italics added).
94 Phipson on Evidence, above fn 87, at 196 (reference omitted).
95 See Chapter 1 heading 4.4 ; and Chapter 9 heading 4.2.2, especially text accompanying fn 177.
96 Milo (2008), above fn 10, at 165.
97 See Chapter 9 heading 4 and its various subheadings.
98 Milo (2008), above fn 10, at 166. For a more detailed consideration of that argument see 33–41
(ibid).
99 Milo (2008), above fn 10, at 165–166.
175
public interest (or public concern)100
and which may well be true.101
This
acknowledgement, however, is confined to the defences of absolute and qualified
privilege and excludes the truth and honest opinion defences.102
This exclusion places
an unfair burden upon the defendant:
The defendant must prove the truth of the facts relied on if these latter defences are to be
pleaded successfully. There is a presumption of falsity. The risk of a necessarily fallible
legal process, in other words, is largely borne by the defendant. In view of the popular
hostility to sections of the press that is quite a substantial risk.103
3.3 Falsity burden and the United States
In stark contrast to the current Australian and English approach,104
the United States has
made important strides towards protecting freedom of speech in their law of
defamation. In the United States ―anyone involved in a matter of public concern who
sues the mass media for libel must now offer evidence of falsity to have a case.‖105
This
rule is closely linked to the a ―public figure‖ requirement which is discussed in the next
chapter.106
The US Supreme Court has revised the rules on truth as a libel defence,
particularly shifting the burden of proof from the media to the plaintiff:
Thus, the rule today is that to win a libel case resulting from the media‘s coverage of any
issue of public concern, the plaintiff always bears the burden of proving that the libellous
statement is false. But what about libel cases not involving issues of public concern? The
Supreme Court left that up to the states: the states are constitutionally required to place the
burden of proof on plaintiffs only in cases involving public issues. However, some states
100 As will be argued in Chapter 6 under heading 4.2 the term preferred for the purposes of this thesis is
―matter of public concern‖ rather than ―matter of public interest‖ but the former will be used when
citing the authorities.
101 Barendt (1993), above fn 89, at 456 (reference omitted).
102 Barendt (1993), above fn 89, at 456.
103 Barendt (1993), above fn 89, at 456.
104 The common law of England carries a presumption of falsity although there has been discussion on
this. However, an amendment (Defamation Bill 1996) moved in the House of Lords Committee stage
to place the onus on the plaintiff to show falsity was defeated: see Phipson on Evidence, above fn 87,
at 195; and fn 156 below.
See also Barendt (1993), above fn 89, at 457, where the author advances the argument that there is a
logical basis for English courts to ―alter the rules concerning the burden of proof, just as in the
United States it is usually for the plaintiff to prove that the libel is false.‖
105 Holsinger R and Dilts JP (1997), Media Law, 4th Edn, McGraw-Hill, New York, at 163. This
position was arrived at as a result of the New York Times v Sullivan 376 US 254 (1964) decision.
Briefly stated, the facts were that a police official sued the newspaper for publishing an
advertisement placed by civil rights activists in which it was claimed that Negro students engaged in
non-violent demonstrations were being met by an unprecedented wave of terror. The advertisement
contained several false statements, some of which were minor inaccuracies. The police chief, who
was not named in the advertisement, joined three others in suing the newspaper.
The Supreme Court affirmed and extended the burden on the plaintiff to prove falsity by holding in
Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), that even private
individuals who sue in connection with a matter of public concern must prove falsity. The majority
said that to hold otherwise would have a chilling effect that would be contrary to the First
Amendment‘s protection of true speech on matters of public concern.
106 See Chapter 6 heading 4.1 and its various sub-headings.
176
have completely abandoned the common law rule that presumed all libellous statements to
be false and now require all plaintiffs to prove the falsity of every allegedly libellous
statement. Also, in most cases the old requirement of truth plus good intentions is no longer
valid. As a general rule, there can be no successful libel suit against the media unless the
material is proven false – period. If it cannot be proven false, the publisher‘s motives no
longer matter in most libel suits.107
However, in most US jurisdictions, plaintiffs suing in respect of a matter of
private concern still enjoy the traditional protection.108
For some professional communicators, the common law of libel, with its easy assumption
of falsity and harm, is still there and can be used by private individuals whose lives are
needlessly defamed…Such plaintiffs need prove only identification, publication, and
defamation. Harm and fault are assumed. From then on, the burden of proof is on the
defendants to justify their acts, if they can.109
Thus, American defamation law ―has not been completely brought under the
realm of the First Amendment‖110
which otherwise heavily influenced the way
American defamation law has developed. Private individuals who are needlessly
defamed are, as just noted, still protected by the common law of defamation ―with its
easy assumption of falsity and harm‖. Importantly, for present purposes, in cases that
involve matters of public concern, the First Amendment protection of freedom of
speech has come to bear heavily on the development of defamation law.111
The
107 Overbeck W (2007), Major Principles of Media Law, Thomson Wadsworth, Belmont, CA, at 127
(italics added).
108 See, for instance, Garziano v EI du Pont de Nemours & Co, 818 F 2d 380 (5th Cir 1987). There, the
plaintiff sued his employer who accused him of workplace sexual harassment and referred to the
event in an information bulletin on sexual harassment. While the court agreed that the bulletin was
protected by privilege, it found that there was no reason to spread that information in the community
at large.
As to the question of the extent to which public figures are protected in respect of matters of private
concern, see the discussion in Chapter 6 under heading 4.1 and its various sub-headings.
109 Holsinger and Dilts (1997), above fn 105, at 139 (italics added). As to the view in the quotation that
fault is assumed see the discussion below under heading 3.3.2 where it is noted that ―every person
suing the media for libel must prove some level of fault.‖
110 Holsinger and Dilts (1997), above fn 105, at 139. The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof: or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assembly, and to petition the Government for a redress of grievances.
111 The following forceful defence of freedom of speech expressed by the majority in Gertz v Robert
Welch Inc, 418 US 323 (1974), at 339-340 provides a useful exposition of the principle:
Under the First Amendment there is no such thing as a false idea. However pernicious an
opinion may seem, we depend for its correction not on the conscience of judges and juries but
on the competition of other ideas. But there is no constitutional value in false statements of
fact. Neither the intentional lie nor the careless error materially advances society‘s interest in
―uninhibited, robust, and wide-open‖ debate on public issues. They belong to that category of
utterances which ―are no essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality.‖ Although the erroneous statement of fact is not
worthy of constitutional protection, it is nevertheless inevitable in free debate…―Some degree
of abuse is inseparable from the proper use of every thing; and in no instance is this more true
than in that of the press.‖ And punishment of error runs the risk of inducing a cautious and
177
complete picture of the American plaintiff‘s burden, with some qualifications to be seen
shortly, is to show up to six elements: (a) the matter was published; (b) the words were
of and concerning the plaintiff; (c) the material is defamatory; (d) the defendant is at
fault (the defamation was published as a result of negligence or recklessness); (e) the
material is false (a burden only for persons suing for defamation related to matters of
public concern); and (f) personal harm (such as loss to reputation, emotional distress, or
the loss of business revenues).112
The falsity and fault elements are ―fairly recent additions‖ to American
defamation law;113
and they only apply to cases that impinge on the First Amendment
right to free speech.114
Nonetheless, in practice this means that ―[m]ost plaintiffs have to
satisfy all six elements of a libel suit.‖115
Furthermore, even private-figure individuals
must prove falsity provided that the action involves matters of a public concern. There
is no longer any doubt that the First Amendment requires a private plaintiff to prove
falsity against a media defendant that publishes matters of public concern.116
… the need to encourage debate on public issues that concerned the Court in the
governmental-restriction cases is of concern in a similar manner in this case involving a
private suit for damages: placement by state law of the burden of proving truth upon media
defendants who publish speech of public concern deters such speech because of the fear
that liability will unjustifiably result. Because such a ―chilling‖ effect would be antithetical
to the First Amendment‘s protection of true speech on matters of public concern, we
believe that a private-figure plaintiff must bear the burden of showing that the speech at
issue is false before recovering damages for defamation from a media defendant. To do
otherwise could ―only result in a deterrence of speech which the constitution makes
free.‖117
The US approach has been described as the ―clearest example of departure from
the common law.‖118
This approach recognises that ―requiring the plaintiff to show
falsity will insulate from liability some speech that is false, but unprovably so‖ but such
restrictive exercise of the constitutionally guaranteed freedoms of speech and
press.…―Allowance of the defence of truth, with the burden of proving it on the defendant,
does not mean that only false speech will be deterred.‖ The First Amendment requires that we
protect some falsehood in order to protect speech that matters (references omitted).
112 These six elements are cited by Middleton KR and Lee WE (2007), The Law of Public
Communication, Pearson Education Inc, Boston, at 99; and by Holsinger and Dilts (1997), above fn
105, at 163. Pember (2003/2004), above fn 51, at 136, however, cites only five elements (excluding
the injury element).
113 Pember (2003/2004), above fn 51, at 136-137.
114 Holsinger and Dilts (1997), above fn 105, at 163.
115 Middleton and Lee (2007), above fn 112, at 99 (italics added). The burden of proof for private
persons suing for defamation depends on state law (ibid, at 119).
116 Hirth (2004), above fn 58, at 542.
117 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 777 (references
omitted).
118 Gatley (2004), above fn 13, at 269 fn 22 citing Philadelphia Newspapers v Hepps 475 US 767, 12
Med L Rptr 1977 (1986).
178
an approach has been justified primarily on the ground that the First Amendment
requires the protection of some falsehood in order to protect speech that matters.119
Thus, the US courts have been willing to insulate even ―demonstrably false speech‖
from liability so as to provide ―breathing space‖ for true speech on matters of public
concern. 120
This, however, does not mean that the media are given a carte blanche to
peddle falsity because once the plaintiff‘s burden is satisfied the attention turns to the
defendant and the focus then is on whether the defendant was at fault:
A jury is obviously more likely to accept a plaintiff‘s contention that the defendant was at
fault in publishing the statements at issue if convinced that the relevant statements were
false. As a practical matter, then, evidence offered by plaintiffs on the publisher‘s fault in
adequately investigating the truth of the published statements will generally encompass
evidence of the falsity of the matters asserted.121
It is probably an exaggeration to say that ―the American rule may be said to be a
rule whereby it is better that ten false publications remain unpunished than that one true
one be suppressed.‖122
Given that the elements of falsity, fault and harm are not
comprised in the Australian formulation of the cause of action, and also given that these
elements considerably influence the fate of a defamation action in the USA, it is worth
considering these elements in more detail.
119 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 778.
120 See Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 778. See further
the view expressed in Hustler Magazine Inc et al v Jerry Falwell 485 US 46, at 52 (1988)
(references omitted):
Of course, this does not mean that any speech about a public figure is immune from sanction in
the form of damages. Since New York Times v Sullivan, we have consistently ruled that a
public figure may hold a speaker liable for the damage to reputation caused by publication of a
defamatory falsehood, but only if the statement was made "with knowledge that it was false or
with reckless disregard of whether it was false or not." False statements of fact are particularly
valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they
cause damage to an individual's reputation that cannot easily be repaired by counterspeech,
however persuasive or effective. But even though falsehoods have little value in and of
themselves, they are "nevertheless inevitable in free debate," and a rule that would impose
strict liability on a publisher for false factual assertions would have an undoubted "chilling"
effect on speech relating to public figures that does have constitutional value. "Freedoms of
expression require " breathing space.'" This breathing space is provided by a constitutional rule
that allows public figures to recover for libel or defamation only when they can prove both that
the statement was false and that the statement was made with the requisite level of culpability.‖
121 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 778 (references
omitted)).
122 Schauer F (May 1980), ―Social foundations of the law of defamation – a comparative analysis‖, Vol
1 No 1, Journal of Media Law and Practice 3, at 12. One Australian Law Reform Commission
appeared to concur with Schauer‘s view: see New South Wales Law Reform Commission (August
1993), Defamation, Discussion Paper No 32, Para 10.12.
In any event the law‘s accommodation of such lop-sidedness in burdens is well-acknowledged in the
criminal standard of proof maxim: ―For the law holds, that it is better that ten guilty persons escape,
than that one innocent suffer‖ (Sir William Blackstone (1783), Commentaries on the Laws of
England, 9th ed., Book 4, Chapter 27, at 358 (reprinted 1978)).
179
3.3.1 Falsity
The US defamation law position may be briefly stated as follows: ―Public officials,
public figures, and private persons involved in matters of public concern must prove not
only recklessness or negligence to win libel suits but also falsity.‖123
Private persons
who are not involved in matters of public concern still must prove at least negligence
but not necessarily falsity.124
That said, however, the plaintiff‘s burden of proving
falsity, where the burden arises, is not as onerous as it might appear, and ―it may be
somewhat easier to prove falsity than to prove fault.‖125
In Philadelphia v Hepps the US
Supreme Court said its decision ―adds only marginally to the burdens that the plaintiff
must already bear‖.126
Although the standard of proof for fault is that the evidence has
to be clear and convincing, US appeal courts have held that falsity need only be proved
by a ―preponderance of the evidence,‖ that is, there need be only more evidence than
not that the statements were false.127
If, however, the evidence indicates that the
statements are true, they are not actionable, regardless of the extent of harm caused and
regardless of the defendant‘s motives. In Garrison v Louisiana the Supreme Court held
that truth ―may not be the subject of either civil or criminal sanctions where the
discussion of public affairs is concerned.‖128
3.3.2 Fault
Given the close nexus between falsity and fault,129
it is useful to consider the latter
element in the American defamation scheme. Since the decision of the US Supreme
Court in Gertz v Welch ―every person suing the media for libel must prove some level of
123 Middleton and Lee (2007), above fn 112, at 146 (italics added). Strictly speaking that proposition is
incomplete as it fails to mention the usual elements seen above. The authors also note that the US
Supreme Court has ―never defined ‗matters of public concern‘‖ (at 147). An equivalent term
commonly used in Australia – ―public interest‖ – has also never been defined: see Chapter 6 heading
3.
For a detailed discussion on the ―public figure‖ test, see NSWLRC Discussion Paper No 32, above
fn 122, Chapter 10.
124 Middleton and Lee (2007), above fn 112, at 147; Philadelphia Newspapers v Hepps 475 US 767, 12
Med L Rptr 1977 (1986), at 776-777:
To ensure that true speech on matters of public concern is not deterred we hold that the
common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks
damages against a media defendant for speech of public concern….
125 Holsinger and Dilts (1997), above fn 105, at 163. See also Middleton and Lee (2007), above fn 112,
at 147.
126 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 778.
127 Holsinger and Dilts (1997), above fn 105, at 163; Rattray v City of National City, 23 Med L Rptr
1779 (9th Cir 1995), cert filed, City of National City v Rattray, US No 94-2062; Goldwater v
Ginsburg, 414 F 2d 324, 1 Med L Rptr 1737 (2d Cir 1969).
128 379 US 64, 85 S Ct 209, 12 L Ed 2d 1042, 1 Med L Rptr 1548 (1964).
129 See heading 5 below, especially text accompanying fn 218.
180
fault.‖130
The historical turning point in this area is the US Supreme Court decision in
New York Times v Sullivan where the Court declared unconstitutional the common law
of strict liability when the media defamed a public official.131
This decision, commonly
referred to as the public figure defence, ―constitutionalised‖ US defamation law, with its
ruling that the robust political debate necessary in a democracy is inadequately
protected by a common law requiring a libel defendant to prove the truth to overcome
presumed falsity.132
Australian defamation law took a leaf out of the Sullivan page in
developing the implied freedom of political communication133
defence but did not go
quite as far as the US did, partly because the ―conceptual foundation‖ for the two
approaches was deemed to be different.134
Even so, it is arguable that in addition to the
First Amendment imperative, the extent of the leeway given to American defamation
defendants is itself a product of the free speech-oriented interpretation of the First
Amendment by US Courts, rather than being the product of an incontrovertible
constitutional injunction.135
130 Middleton and Lee (2007), above fn 112, at 142, citing Gertz v Robert Welch Inc, 418 US 323
(1974) (italics added). Also see the same text, at 119:
A libel plaintiff proving defamation, identification, and publication also must prove that a
medium erred in the preparation of a story. The US Supreme Court has said that the First
Amendment bars plaintiffs from collection damages for loss of reputation unless they can show
that defendants published or broadcast with fault, usually negligence or recklessness…The
degree of fault that a plaintiff must prove depends on who is suing. Public officials and public
figures have the heavy burden of establishing that the media published defamation knowing
that their story was false or recklessly disregarded the truth. The burden of proof for private
persons suing for libel depends on state law (bold type in original).
131 New York Times v Sullivan 376 US 254 (1964).
132 Middleton and Lee (2007), above fn 112, at 119. The Supreme Court said in the Sullivan case that
the First Amendment protects criticism of government officials even if the remarks are false and
defamatory. The Court said that public officials cannot successfully sue for libel unless they
establish that defamation has been published with knowing falsity or reckless disregard for the truth.
This burden of proof for public officials has come to be known as New York Times actual malice.
The Sullivan decision superseded, in part, the libel laws of the fifty states (ibid, at 121).
133 They are reflected in a series of ―free speech‖ cases: see Chapter 2 fn 31.
134 Levy v The State of Victoria & Ors (1997) 189 CLR 579, Kirby J, at 637:
The conceptual foundation for the constitutional freedom of communication in Australia is
different from that derived from the First Amendment to the United States Constitution, as it
has been interpreted (italics added).
See also Levy v The State of Victoria & Ors (1997) 189 CLR 579, McHugh J, at 622:
Unlike the Constitution of the United States, our Constitution does not create rights of
communication.
135 See, for instance, the view expressed by Brennan J for the majority in New York Times v Sullivan
376 US 254 (1964), at 269:
The general proposition that freedom of expression upon public questions is secured by the
First Amendment has long been settled by our decisions. The constitutional safeguard, we have
said, ―was fashioned to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people‖ (italics added, reference omitted).
This point is discussed further in Chapter 10 (Conclusion).
181
In the US, a further turning point came in Gertz v Welch,136
which not only
defined public figures but also eliminated the doctrine of strict liability in defamation
law for private persons.137
Since then the law has developed in a way that a defamation
plaintiff – aside from proving defamation, identification and publication – must also
prove that a media outlet erred in the preparation of a story. As earlier pointed out,
Middleton and Lee note: ―Since Gertz v Welch, every person suing the media for libel
must prove some level of fault.‖138
That is, by virtue of the First Amendment, plaintiffs
cannot succeed unless they can show that the media defendant published ―with fault,
usually negligence or recklessness.‖139
As Middleton and Lee note further: ―The Court,
by providing constitutional protection for defamation when a journalist‘s error does not
rise to the level of negligence or recklessness, revolutionised libel law.‖140
This
revolution, however, was not unbridled so as to leave the media free to wreak havoc on
reputations. In respect of fault, once a court decides that a person is a public official, a
public figure, or a private person, the focus of the case ―turns to the question of fault,
that is, whether communicators published the alleged libel carelessly or maliciously.‖141
Private persons must prove that a publisher acted deliberately, negligently or carelessly,
while public officials and public figures must prove that the publisher knew that the
publication was false or published it with reckless disregard for the truth.142
However,
136 418 US 323 (1974).
137 Gertz v Robert Welch Inc, 418 US 323 (1974). The term ―public figure‖ has since undergone
refinement so that a distinction is made between ―public officials‖; ―public figures‖; ―limited, or
‗vortex‘ public figures‖; ―involuntary public figures‖; ―public personalities‖; and ―private
individuals‖: see Holsinger and Dilts (1997), above fn 105, at 164-177.
138 Middleton and Lee (2007), above fn 112, at 142, and 119. Pember (2003/2004), above fn 51, at 161
and 180 takes the same view. In Gertz v Robert Welch Inc, 418 US 323 (1974) the court said the
states may decide what level of fault private libel plaintiffs must meet to collect general damages.
Four states require private persons involved in matters of public interest to prove actual malice; New
York requires a slightly lower standard, requiring private persons to prove gross irresponsibility, and
about thirty states impose the lesser standard of negligence, requiring private persons to prove that
defamation was published with a lack of due care: see Middleton and Lee (2007), above fn 112, at
142–143 (references omitted). See further fn 143 below.
139 Middleton and Lee (2007), above fn 112, at 119. See further Robertson and Nicol (2002), above fn
85, at 75.
In America, defamation actions cannot succeed unless the media are proved at fault: the
claimant must show that the allegations were false and published with a reckless or negligent
disregard for the truth. What US courts found repugnant about United Kingdom law was how it
placed the burden of proving truth on the defendant, and held him liable to pay damages for
statements he honestly believed to be true and had published without negligence.
140 (2007), above fn 112, at 119.
141 Middleton and Lee (2007), above fn 112, at 136 (italics in original).
142 Middleton and Lee (2007), above fn 112, at 136-137. See also Philadelphia Newspapers v Hepps
475 US 767, 12 Med L Rptr 1977 (1986), Stevens J, at 782, where his Honour referred to the
principle in Gertz v Robert Welch Inc, 418 US 323 (1974), at 347:
While deliberate or inadvertent libels vilify private personages, they contribute little to the
marketplace of ideas…it helps to remember that the perpetrator of the libel suffers from its
182
where the defendant is a non-media entity private plaintiffs not involved in a matter of
public concern are permitted to sue for presumed damages without proving fault.143
3.3.3 Harm
Although this element is not directly relevant for the purposes of the reform proposals
in this thesis, its role in the American defamation scheme is described here in the
interests of gaining a complete picture of the ―six‖ hurdles placed in the path of most
American defamation plaintiffs.144
failure to demonstrate the truth of its accusation only if the ―private-figure‖ plaintiff first
establishes that the publisher is at ―fault‖ i.e. either that it published its libel with ―actual
malice‖ in the New York Times sense (―with knowledge that it was false or with reckless
disregard of whether it was false or not,‖) or that it published with that degree of careless
indifference characteristic of negligence (references omitted).
143 Holsinger and Dilts (1997), above fn 105, at 139:
For some professional communicators, the common law of libel, with its easy assumption of
falsity and harm, is still there and can be used by private individuals whose private lives are
needlessly defamed by their employers or by other non-media entities. Such plaintiffs need
prove only identification, publication and defamation. Harm and fault are assumed (italics
added).
In Gertz v Robert Welch Inc, 418 US 323 (1974), at 346, the Court said:
…a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue
of public or general interest may be held liable in damages even if it took every reasonable
precaution to ensure the accuracy of its assertions. And liability may far exceed compensation
for any actual injury to the plaintiff, for the jury may be permitted to presume damages without
proof of loss and even to award punitive damages (italics added).
Thus, the statement in the NSWLRC Discussion Paper No 32, above fn 122, Para 10.54 (italics
added) that ―[i]n the United States, there is no strict liability for defamation, as all plaintiffs must
prove some fault on the part of the defendant‖ must be qualified so that it recognises that this rule
applies only to cases involving media defendants.
On this point see also Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986),
at 774-776. Thus, even when private figures are involved, the constitutional requirement of fault
supersedes the common law‘s presumptions as to fault and damages and the plaintiff must bear the
burden of showing falsity, as well as fault, before recovering damages. See also Dun & Bradstreet
Inc v Greenmoss Builders Inc 472 US 749 (1985) where a three-person plurality suggested that
Gertz v Robert Welch Inc, 418 US 323 (1974) did not apply where the case involved no matter of
public importance. Dun & Bradstreet debatably did not involve the media and concerned a private
matter published to a limited audience by a non-media commercial corporation.
The co-author of the Middleton and Lee (2007) book, above fn 112, in a personal communication to
the author of this thesis reiterated the view that since Gertz v Welch every person suing the media for
libel must prove some level of fault:
Implicit in Hepps, and explicit in Dun & Bradstreet, is a configuration of a private plaintiff and
a private matter. However, the Court has never found such a configuration in a case involving a
media defendant and I think it is highly unlikely that this configuration exists: email from
Professor William E Lee, Grady College of Journalism & Mass Communication, University of
Georgia, Athens, Georgia, on 18 December 2007.
The other co-author of the book in a separate email wrote:
I stand behind the statement that all libel plaintiffs must prove fault to successfully sue the
media…I believe all libel plaintiffs suint the media must prove fault: email from Professor
Kent R Middleton, Grady College of Journalism & Mass Communication, University of
Georgia, Athens, Georgia, on 18 December 2007.
144 See heading 3.3 above.
183
Proof of harm is the sixth element of a plaintiff‘s defamation case in the United
States: ―A plaintiff cannot sue successfully over a harmless libel, although some harm
to reputation may be ‗presumed‘.‖145
American defamation plaintiffs may sue for
presumed damages (the loss of reputation that a defamation is assumed to cause); two
kinds of compensatory damages (one being for actual damages for loss of good name,
shame, humiliation and stress; and the other, for special damages for lost revenue and
defamation-related expenses); and for punitive damages (awards to punish the
defamer).146
Since the Sullivan case, however, it is more difficult for plaintiffs involved
in public affairs to receive awards for presumed damages.147
In Gertz the Court said that
public figures and private plaintiffs must prove actual malice if they are to collect
presumed damages from the media.148
3.4 Falsity burden and England
In England, a proposal to place the burden of proving falsity on the plaintiff made to the
Faulks Committee was greeted by what Robertson and Nicol have described as a
―pompous response‖,149
that is, the Committee favoured the retention of the burden of
proving truth on the defendant because it ―tends to inculcate a spirit of caution in
publishers of potentially actionable statements which we regard as salutary‖.150
There is
older English authority, however, in support of the view that the burden of proof of
falsity should be on the claimant. Mitchell cites one such authority from the late
nineteenth century where ―Lord Esher MR seemed to be departing from that general
rule, and saying that the burden of proof of falsity was on the claimant.‖151
Additional
support for this idea comes from an earlier case where it was held that the burden of
proof of falsity automatically moved to the claimant seeking an interlocutory
145 Middleton and Lee (2007), above fn 112, at 148.
146 Middleton and Lee (2007), above fn 112, at 148.
147 Middleton and Lee (2007), above fn 112, at 148.
148 Gertz v Robert Welch Inc, 418 US 323 (1974), at 334 and 346 418 US 323 (1974). In relation to
private individuals the Court said (at 346):
…a private individual whose reputation is injured by defamatory falsehood that does concern
an issue of public or general interest has no recourse unless he can meet the rigorous
requirements of New York Times. This is true despite the factors that distinguish the state
interest in compensating private individuals from the analogous interest involved in the context
of public persons (italics added).
149 Robertson and Nicol (2002), above fn 85, at 109.
150 Committee on Defamation, HMSO, 1975, Cmnd 5909, Para 141.
151 Mitchell (2005), above fn 69, at 94, citing William Coulson and Sons v James Coulson and Co
(1887) 3 TLR 846.
184
injunction.152
A leading American commentator writing at the time understood that the
burden of proof was reversed in English law. Townshend summarised the English
position as being that ―the court will not in general interfere unless satisfied that the
statements complained of in the document are untrue.‖153
However, the transfer of the
burden to the plaintiff did not gain acceptance, notwithstanding the celebrated position
favouring freedom of speech taken in Bonnard v Perryman154
where the court
underscored the freedom of speech imperative. Lord Coleridge CJ, delivering judgment
of an impressive majority, said:
The right of free speech is one which it is for the public interest that individuals should
possess, and, indeed, that they should exercise without impediment, so long as no wrongful
act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the
contrary, often a very wholesome act is performed in the publication and repetition of an
alleged libel.155
In recent years, however, fuelled by the growing emphasis that both the common
law and constitutional or quasi-constitutional instruments have been giving to freedom
of speech, there has been a growing recognition of the need for reform:
[Reform is] now clearly seen to be necessary to effectuate free speech as well as to bring
libel law clearly into line with other civil actions. A reversal of the burden of proof is
essential if the purpose of Article 10 is to be achieved, namely to inculcate a salutary spirit
of caution in wealthy public figures who wish to use the law to silence their critics.156
152 Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 ChD 501. There Jessel MR, in refusing
an injunction said:
As a general rule the plaintiff who applies for an interlocutory injunction must shew the
statement to be untrue (at 508).
153 Mitchell (2005), above fn 69, at 94, citing Townshend (1890), A Treatise on the Wrongs Called
Slander and Libel, 4th Edn, New York, at 692.
154 [1891] 2 Ch 269.
155 Bonnard v Perryman [1891] 2 Ch 269, at 284 (Lord Esher MR, and Lindley, Bowen and Lopes LJJ
concurring).
156 Robertson and Nicol (2002), above fn 85, at 109. Article 10 refers to the European Convention on
Human Rights incorporated into English law by Section 12, Human Rights Act 1998 (UK). The latter
came into force in October 2000. For a similar view about modern influences on freedom of speech
see Tipping A (2002), ―Journalistic Responsibility, Freedom of Speech and Protection of Reputation
– Striking the Right Balance Between Citizens and the Media‖, Vol 10 Waikato Law Review 1, at 2.
See also the strong views expressed by Lord Lester at the House of Lords Committee stage of the
Defamation Bill 1996 (UK), 571 HL Deb. Cols 239–243, 2 April 1996. There Lord Lester said the
rule as to burden of proof in defamation proceedings ―derived from the Star Chamber‘s concern with
preserving peace is hardly consistent with modern day notions of freedom of speech‖ (Col 239).
Lord Lester added:
The time has come to throw off the shackles of the Star Chamber and to adjust the law of
defamation to contemporary notions of free speech (Col 241).
See further Milo (2008), above fn 10, at 156, for a more recent reiteration of the call for a burden
reversal. See also the extract from Milo (2008) in fn 11 above; and fn 104 above.
185
This view, of course, was set in the English context where the view has now been
taken that ―there is a constitutional right to freedom of expression.‖157
While Australia
lacks a similar constitutional premise for such a move the factors set out under the next
heading provide justification for a reassessment of the present position.158
3.5 Falsity burden and Australia
Burden reversal was given detailed consideration in Australia more than a decade ago
by the New South Wales Law Reform Commission. Despite the fact that it was never
implemented, it is worth examining that proposal in some detail here. In 1995 the
Commission recommended that ―[i]n general falsity should be an essential ingredient of
the cause of action‖ in defamation159
and that the ―burden of proving that a defamatory
imputation is false should rest on the plaintiff.‖160
The Commission said it made sense
to put the burden of proof of falsity on the plaintiff ―simply because the plaintiff, who
‗knows the truth‘, is more likely to be in a position to prove falsity than the defendant to
prove truth.‖161
157 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 628. There Lord Steyn
noted (ibid) that the Human Rights Act 1988 (UK) ―reinforced‖ the constitutional dimension of
freedom of expression, and that that was ―the backcloth‖ against which the defamation appeal before
the court should be considered:
The new landscape is of great importance inasmuch as it provides the taxonomy against which
the question before the House must be considered. The starting point is now the right of
freedom of expression, a right based on a constitutional or higher legal order foundation.
Exceptions to freedom of expression must be justified as being necessary in a democracy. In
other words, freedom of expression is the rule and regulation of speech is the exception
requiring justification. The existence and width of any exception can only be justified if it is
underpinned by a pressing social need. These are fundamental principles governing the
balance to be struck between freedom of expression and defamation (at 628–629, italics
added).
In the same case Lord Nicholls also made similar remarks. While Lord Nicholls appeared on the one
hand to be referring to freedom of speech in relation to ―political matters‖, his Honour also
acknowledged on the other hand that one of the ―contemporary functions of the media is
investigative journalism [which] as much as the traditional activities of reporting and commenting,
is part of the vital role or the press and of the media generally‖ (at 622, italics added). This latter
formulation appears to protect freedom of speech more broadly.
158 See also the discussion in Chapter 10 under heading 5 where more recent strides towards recognising
freedom of speech are discussed.
159 NSWLRC Report No 75, above fn 11, Recommendation 5, and Para 4.1. See further clause 7,
Defamation Bill (1996) NSW exposure draft tabled by the NSW Attorney-General on 18 September
1996 extracted in Gillooly (1998), above fn 42, at 24.
160 NSWLRC Report No 75, above fn 11, Recommendation 7.
161 NSWLRC Report No 75, above fn 11, Para 4.20 (references omitted). It added:
The result is likely to be that litigation and trials should not be overly protracted as they
currently are in the rare cases where justification is relied on as a defence. Further, the
Commission notes that commentators have not identified any serious problems associated with
placing the onus of proving falsity on the plaintiff in United States law; yet there is a good deal
of commentary on the difficult problems caused to plaintiffs (and defendants) by the onus of
proving actual malice.
186
Some of the Commission‘s justifications for its proposal were:162
(a) plaintiffs
who are not required to put falsity in issue can, in theory, use defamation law to protect
undeserved reputations; (b) speaking the truth should generally not give rise to civil
liability simply because the truth is defamatory; (c) the determination of truth or untruth
of the defamatory imputation is the gravamen of the plaintiff‘s complaint in most cases
and yet truth or falsity does not play a critical role on the present approach;163
(d)
forcing the plaintiff to either litigate the issue of truth or concede it is consistent with
the value that vindication164
comes primarily from a finding that a defamatory
publication is false and this approach should apply to ―all cases‖;165
and (e) freedom of
speech would be facilitated ―because it removes the necessity of the defendant‘s having
to prove the truth of the defamatory imputation‖.166
The Commission said:
[I]t is only by making this change that the law of defamation can be made to fulfil its
essential function of vindicating plaintiffs‘ reputations in a way which not only addresses
many intractable and long-standing problems of the law of defamation but also promotes
the flow of accurate information.167
The Commission noted further that in many cases, the plaintiff would discharge
the burden of proving falsity simply by giving evidence denying the veracity of the
162 NSWLRC Report No 75, above fn 11, Paras 4.7-4.15. See also NSWLRC Discussion Paper No 32,
Para 6.32 for a further list of reasons for its proposal that plaintiffs should have to prove falsity if
they wish to claim damages. The reasons the Commission gave there for this proposal are:
• it will bring a damages claim in defamation closer to other torts, where the plaintiff has
the onus of proving most vital elements;
• it will place the onus of proof on the party who would generally be expected to have
best access to the relevant facts; and
• it will encourage plaintiffs to sue for a declaration alone, which will encourage the free
flow of information to the public, and also ensure that false statements can be corrected
and damaged reputations restored.
The Commission also noted the reasons ―generally given for requiring defendants to prove truth‖
(NSWLRC Discussion Paper No 32, Para 6.33):
• it acts as a powerful deterrent to the publication of false information;
• it gives effect to the presumption of innocence, which assumes that a person has a good
reputation in the absence of evidence to the contrary; and
• it removes the inequity of requiring the plaintiff to prove a negative.
163 NSWLRC Report No 75, above fn 11, Paras 4.8-4.9:
The effect of the common law presumption [of falsity] is that the issue of truth must be raised
by the defendant as a defence to the plaintiff‘s claim (the defence of justification)…Whether
the defence of justification is raised or not, truth or falsity may otherwise be raised by either
party as a factor relevant in the assessment of damages. The result of relegating the
determination of the truth or falsity of the defamatory matter to a defence of justification is that
the issue of truth or falsity may not be, and usually is not, litigated in defamation actions, save
on the issue of damages (italics added, references omitted).
164 The term ―vindication‖ is also discussed in Chapter 9 under heading 4.2.2.
165 NSWLRC Report No 75, above fn 11, Para 4.11.
166 NSWLRC Report No 75, above fn 11, Para 4.12.
167 NSWLRC Report No 75, above fn 11, Para 1.16 (italics added).
187
imputation and if the defendant then fails to produce any evidence in answer, the
plaintiff may succeed.168
The Commission also proposed two exceptions to the rule: (a)
when the publication does not involve a matter of public concern; and (b) when the
plaintiff establishes that the matter concerned is ―not capable of being proved true or
false‖.169
The Commission‘s recommendations concerning the burden of proof of falsity
were premised on the ―precision‖ in pleading achieved as a result of the previous NSW
approach to the cause of action in defamation, where the action was founded on the
imputations, with each pleaded imputation giving rise to a separate cause of action.170
By contrast the common law position observed in other Australian jurisdictions was that
the cause of action was founded on the publication of defamatory matter, so that, in
principle, it was always open to the court to find that the matter conveys a defamatory
meaning different from that pleaded by the plaintiff.171
The two exceptions just referred
to merit specific comment. The second of the two exceptions is discussed under the next
heading, while the first exception is the subject of more detailed discussion in the next
chapter.172
3.6 Impossibility of proving truth or falsity
The New South Wales Law Reform Commission justified the proposed exception that
the burden of proof of falsity not be reversed if the plaintiff establishes that the
imputation is ―not capable of being proved true or false‖173
by arguing that on occasion
168 NSWLRC Report No 75, above fn 11, Para 4.21.
169 NSWLRC Report No 75, above fn 11, Para 4.15. See also Para 4.22 and Recommendation 8:
The plaintiff may establish a cause of action for damages in defamation by establishing that the
defamatory imputation is inherently not capable of being proved true or false.
170 NSWLRC Report No 75, above fn 11, Para 1.19. However, in Chakravarti v Advertiser Newspapers
(1998) 193 CLR 519, Kirby J, at 578 said the New South Wales approach had certain disadvantages:
It has led to many pre-trial applications, complex interlocutory proceedings and a potential for
injustice, depending upon the ingenuity and skill of the pleader of the imputations. It enlarges
judicial control over the consideration of the matter complained of by the tribunal of fact. It
may also lead to double-dipping in the calculation of the damages for the wrong done by the
publication, looked at as a whole. Because readers and viewers are not favoured with the
pleaded imputations when they receive the matter complained of, there is a risk that the
attention at the trial will be deflected from the item actually said to have harmed the plaintiff‘s
reputation to an evaluation of pleaded imputations and a debate about whether they truly arise.
Without the clear authority of statute, this approach should not be extended to jurisdictions
which have not so far embraced it (italics added).
Also see George (2006), above fn 25, at 227–230 for a discussion on this point.
171 NSWLRC Report No 75, above fn 11, Para 1.19:
Practically, this is a substantial difference from the New South Wales position, which, by
placing a premium on careful and accurate pleading, achieves a precision in the formulation of
the plaintiff‘s case which is not always attainable in other jurisdictions (ibid).
172 See Chapter 6, especially heading 2.1.
173 See heading 3.5 above citing NSWLRC Report No 75, above fn 11, Para 4.15.
188
a particular form of words is ―inherently incapable of being proved true or false as it is
purely a value judgment which depends on matters of personal impression.‖174
The
Commission also noted that ―[o]f course, the plaintiff will always put forward an
imputation which is inherently capable of being proved true or false in order to prevent
the defendant‘s having the advantage of pleading comment.‖175
Subject to what will be
said later in respect of establishing defamatory meaning,176
the Commission‘s proposal
in this regard is unsatisfactory as it creates room for tactical manoeuvring in relation to
defamatory meaning. Furthermore, if a statement is inherently incapable of being
proved false by the plaintiff or true by the defendant this could give rise to the situation
described in Philadelphia v Hepps where the US Supreme Court said ―the outcome of
the suit will sometimes be at variance with the outcome that we would desire if all
speech were either demonstrably true or demonstrably false.‖177
That is, those suits
could ―succeed despite the fact that, in some abstract sense, those suits are
unmeritorious.‖178
Burdening plaintiffs or defendants with the onus of proving truth or
falsity in circumstances where proof one way or the other is impossible results in a
―zero-sum game‖ – that is, either plaintiffs will benefit or defendants will.179
In the
event of a deadlock arising from the impossibility of proving truth or falsity, a free-
speech-centric approach favouring protection for speech by media defendants about
public figures on matters of public concern would dictate that protection be given to the
publisher of the defamatory statement.180
In the scheme of the reform proposed here the
174 NSWLRC Report No 75, above fn 11, Para 4.22. The example given there was the defendant makes
a statement that: ―The plaintiff has written a bad play.‖ A further example might be, as often arises
in ―restaurant review‖ cases, where the defendant makes negative statements that turn entirely on the
taste of the food served by the plaintiff: see Gacic v John Fairfax Publications Pty Ltd (2006) 66
NSWLR 675; John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218. For a further
example, see the allegation made by former Carlton Football Club assistant coach Tony Liberatore
that the club had ―tanked‖ (threw) matches at the end of last season to secure talented new recruits:
ABC News (2008), ―Carlton denies tanking claims‖, 14 March. Retrieved 20 March 2008, from:
<http://www.abc.net.au/cgi-bin/common/mailto/mailtouser-nojs.pl>
A similar difficulty arose in Grobbelaar v Newsgroup Newspapers Ltd [2001] 2 All ER 437. In that
case England‘s Sun newspaper had argued that it ―is extremely difficult to prove that a professional
sportsman has deliberately under-performed‖: see Milo (2008), above fn 10, at 165.
175 NSWLRC Report No 75, above fn 11, Para 4.22 (italics in original).
176 See Chapter 7.
177 475 US 767, 12 Med L Rptr 1977 (1986), Powell J, at 776.
178 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), Powell J, at 776. In that
case, Powell J in fact said those cases ―would‖ succeed.
179 Milo (2008), above fn 10, at 167 (reference omitted).
180 See also Milo (2008), above fn 10, at 167.
189
plaintiff‘s inability to establish the cause of action would mean that there is no need for
the defendant to mount any defence.181
4. Reversing the existing burden
The foregoing exposition encompasses a number of potential areas for reform but two,
in particular, stand out given especially that the ―very conception of defamation
involves the idea of falsity‖.182
As will be seen shortly one concerns the burden
imbalance at the start of the action. The recommendation to address this imbalance is
that public figure plaintiffs suing media defendants for defamation in relation to matters
of public concern should be required to prove falsity, in addition to the existing three
elements.183
The second concerns a related matter – the concept of fault. It is proposed
that the existence or otherwise of fault on the media defendant‘s part be taken into
account, by way of defence, in determining liability in respect of public figure plaintiffs
suing for defamation in relation to matters of public concern. These two proposals are
discussed in the following sections.
4.1 Burden of proving falsity on plaintiff
It is proposed in this thesis that rather than leaving it to a media defendant to invoke the
truth defence, the burden be reversed so that it is the plaintiff who bears the burden of
proving falsity, in situations where the plaintiff is a public figure suing in respect of a
matter of public concern. Robertson and Nicol described the effectiveness of burden
reversal as a reform measure solution succinctly: ―A simple but far-reaching reform in
libel law, which would enhance freedom of expression, would be to reverse this burden:
to oblige the claimant to prove, on balance, the falsity or unfairness of the criticism.‖184
Or as one newspaper colourfully put it in an editorial after the introduction of the UDA:
181 In NSWLRC Report No 75, above fn 11, Para 4.22, the Commission recommended as follows where
the words are incapable of being proved true or false:
In such cases, the Commission recommends that a plaintiff seeking damages who cannot prove
the falsity of the pleaded imputation relied on should plead that it is not capable of being
proved true or false. If the plaintiff succeeds in showing that the imputation is inherently not
capable of being proved false, then comment will be available as an affirmative defence which
the defendant may choose to establish (italics in original).
182 Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416, Evatt J, at 431 citing TA Street,
Foundations of Legal Liability (1906), Vol 1, at 300. This point was made in Ch 1 heading 3. Put in
another way the search for truth is a ―central issue in defamation actions‖ in defamation: see heading
1 (Introduction) above. See further Gibbons (1996), above fn 4, at 614:
[T]he underlying assumption, that reputation should be protected, is unfounded. What is
required, instead, is a means of dealing with the important concern, indirectly associated with
reputation, that individuals should not be judged by false information.
183 See fn 5 above.
190
―The boot should be on the other foot – it should be up to the person suing for damages
to prove that the material was false.‖185
The present recommendation, however, does
not propose to go so far. That is, it is not proposed that all plaintiffs should bear this
reversed burden but only those who are ―public figures‖ and even so, only in relation, to
matters of ―public concern‖. It may also be noted, however, that falsity and unfairness
referred to above by Robertson and Nicol, involve distinctly different concepts. The
proposal in this thesis is limited to the question of falsity. The reform approach
proposed here is completely opposite to the prevailing Australian and English
approaches but it is entrenched in US defamation law. It has, however, had adherents
both in England, and in Australia.186
In proposing the burden reversal above, the New South Wales Law Reform
Commission said: ―[W]e recommend in this Report that the defence of justification
should be abolished‖.187
Later in the same report the Commission said that the practical
outcome of the burden reversal recommendation would be that ―justification will be
eliminated as a defence in defamation actions.‖188
In other words, the truth defence
would be eliminated as an affirmative defence. The view concerning the burden reversal
approach in the US is that, rather than an elimination of the truth defence, its utility
diminishes, albeit substantially, in the preponderance of cases.189
Likewise, in the
reform scheme proposed here, the truth defence is not eliminated altogether. Rather it
will remain available in cases that fall outside the scope set out above, that is, it will
remain available to private plaintiffs, and even to public figures suing in respect of
speech that does not fall within the ―matter of public concern‖ ambit. Reversing the
burden in question would not mean that the law condones the gratuitous infliction of
184 Robertson and Nicol (2002), above fn 85, at 108-109.
185 Editorial (2006), ―Free speech still hobbled under uniform defamation law‖, above fn 14, at 16. See
further Day M (2006), ―Freedom of speech undefined‖, The Australian, 12 April, at 12:
Truth alone is now a defence and that is a step forward. But it is not as open and shut as that.
Every story in this newspaper today consists of more than a single statement of fact. ―Joe
Bloggs is a crook‖ may stand up if he is one, but the story will most likely go on to say why,
give examples of his crookedness and contain comments from others about his crooked
behaviour. If some of the statements cannot be proved – and it is no easy thing to do –
publishers need to rely on the defence of qualified privilege for the whole article; that is, that
is, a statement may be false but should be published with protection from defamation because
the information contained in the statement is of legal, moral or social importance…journalists
need to reach the status of saints to satisfy the qualified privilege rules.
186 See headings 3.4 and 3.5 above.
187 NSWLRC Report No 75, above fn 11, Para 1.24 (italics added).
188 NSWLRC Report No 75, above fn 11, Para 4.15 (italics added).
189 See Pember (2003/2004), above fn 51, at 201:
191
truth so as to injure a person‘s reputation. Rather, it recognises that if the publication of
the truth satisfies the preconditions referred to above (by meeting the public
figure/public concern elements), any infliction of harm is no more than a by-product of
the pursuit of higher ideals – primarily freedom of speech involving matters of public
concern and the primacy of ―truth‖ – sought to be achieved by placing the truth inquiry
at the start of the exercise, rather than later in the litigation process, as is the case at
present.190
The US burden reversal approach in respect of public figures has not been without
difficulties. For instance, it has been noted that it does not follow that a case brought
under the Sullivan rule ―will always produce an adjudication on the issue of truth.‖191
The discussion in Chapter 3 of this thesis has shown, however, that it is doubtful
whether judicial adjudications always resolve the issue of truth in any event.192
Furthermore, the present reform proposal in fact places the issue of truth in a more
prominent position by locating it at the start of the action. Walker has expressed
reservations about the New South Wales Law Reform Commission‘s burden reversal
proposal and among the criticisms made were: (a) that the Commission expressed
conflicting views about whether there is a necessary connection between reputation and
truth; and (b) that it is incorrect to say that the law is generally only concerned with
protecting well-founded reputations.193
While the Commission may have overstated the
position when it intimated that that the law is generally only concerned with protecting
well-founded reputations, there is nonetheless, much authority in favour of the view that
defamation law should only protect deserved reputations.194
The responses to the first
point have been canvassed elsewhere in this thesis.195
Truth is still a defence in a libel action, but it has lost much of its importance in light of recent
rulings that require most libel plaintiffs to carry the burden of proving a defamatory allegation
to be false when the story focuses on a matter of public concern (italics added).
190 Note, for instance, the view of the New South Wales Bar Association: see text accompanying fn 47
above.
191 Chesterman M (2000), above fn 53, at 167. For a further discussion of some of the problems
involving the Sullivan rule, see Chesterman, at 159-191.
192 See especially Chapter 3 heading 4.3.
193 Walker (May 1997), above fn 18, at 90.
194 See, for example, in Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743, where Lord Diplock,
at 745-746, noted that one element of the balance was the right to protect an ―unsullied reputation if
he deserves it”: see Chapter 4 fn 71.
195 Note, for instance, the view that the common law is averse to permitting a plaintiff to recover
damages ―for a character which he did not possess or deserve; and this the law will not permit‖: see
Chapter 8 quotation accompanying fn 251. Note further the view that a reputation can be acquired
―regardless of one‘s morality or conduct justifying it‖: see discussion in Walker S (1994),
―Regulating the media: Reputation, truth and privacy‖, Vol 19 Melbourne University Law Review
729, at 733 (reference omitted).
192
A further point to note is that because the reform proposed is aimed only at public
figure plaintiffs who are complaining about defamatory matter published by a media
defendant, it follows that where the plaintiff is not a public figure or the matter
complained about is not a matter of public concern or the defendant is not a media
defendant, the traditional elements of the cause of action and the truth defences
remain.196
The retention of the traditional cause of action in the circumstances described
here would preserve the existing burden imbalance to the defendant‘s disadvantage, but
that would be an acceptable chill on speech, if not altogether a ―desirable chill‖.197
Furthermore, the burdens upon the media as a result of retaining this approach in the
present context are not ones the media would find unacceptable because the media is
primarily interested in protection for publication on matters of public concern.198
4.2 Reform recommendations
In this section reform recommendations are made and explanations are provided for
these recommendations:
Recommendation (a)
Furthermore, although Walker, laments that leading textbooks were unhelpful in explaining ―what is
reputation‖, and states that ―it is essential that the concept of reputation is explored‖, Walker does
not go much further than present a collection of views from the authorities about the meaning of
reputation: see Walker, at 732-733. Among the authorities that Walker cited was Plato Films Ltd v
Speidel [1961] AC 1090, but Walker fails to note Lord Radcliffe‘s view in that case that his
Lordship had ―not been able to find that the authorities supply any satisfactory answer‖ to the
problem of treating character and reputation as mutually exclusive: see Plato Films Ltd v Speidel
[1961] AC 1090, at 1130-31.
196 Reforms are proposed to the truth defences in Chapter 8.
197 See text accompanying fn 10 above.
198 See, for example, the opening statement in the Australian Press Council‘s, Print Media Privacy
Standards governing member media organisations. Retrieved 7 February 2008, from
<http://www.presscouncil.org.au/pcsite/complaints/priv_stand.html>:
In gathering news, journalists should seek personal information only in the public interest.
It is suggested that although the Australian Press Council uses the term ―public interest‖ in the
foregoing statement, the term in fact means matters of ―public concern‖ as the following Press
Council commitment expressed in the preamble to its Statement of Principles shows. Retrieved 7
February 2008, from <http://www.presscouncil.org.au/pcsite/complaints/sop.html>:
Freedom of the press carries with it an equivalent responsibility to the public. Liberty does not
mean licence. Thus, in dealing with complaints, the Council will give first and dominant
consideration to what it perceives to be in the public interest.
While the code of ethics of the other peak journalism body, the Media, Entertainment and Arts
Alliance, does not contain such an explicit profession of commitment to matters of public concern or
public interest, it is suggested that their professional ethos in this regard is similar to that of the
Australian Press Council.
193
In addition to proving the “traditional” elements of the cause of action for defamation –
publication, identification and the existence of defamatory matter199
– the plaintiff
should bear the onus of proving the falsity of the defamatory claim or claims as an
essential ingredient of the cause of action where:
(i) the plaintiff is a “public figure”;200
(ii) the matter complained about is a “matter of public concern”;201
and
(iii) the defendant is a “media defendant”. 202
Explanatory notes for Recommendation (a)
This recommendation springs from the following arguments noted above and elsewhere
in this thesis, including: (a) to accord greater protection to the discussion of matters of
public concern203
and to freedom of speech generally;204
(b) the need to bring
defamation law more into line with tort law generally;205
(c) the need to address the
present paradox that appears to marginalise a core value (truth) in the defamation
action;206
(d) the need to correct the unfair presumption-of-falsity burden on the
defendant;207
(e) the need to bring this area of the law more into line with a jurisdiction
which has led the way internationally in freedom of speech matters;208
and (f) to give
effect to a longstanding proposal by the New South Wales Law Reform Commission209
which continues to gather momentum.210
Recommendation (b)
Where the statement is “inherently incapable of being proven true or false by either the
plaintiff or the defendant”211
the scales should be tipped in favour of protecting freedom
of speech where the plaintiff is a “public figure” who is seeking damages against a
199 See Chapter 1 heading 2.
200 This term is defined in Chapter 6.
201 This term is defined in Chapter 6.
202 See the definition suggested below under heading 4.3 Recommendation (a) definition (iii).
203 See, for example, Gillooly‘s observation in Chapter 6 text accompanying fn 113 concerning the
―needs of society in the 21st century‖. Note further, the challenges confronted by the media in
reporting on matters of public interest: see Chapter 2 heading 4.
204 See Chapter 2 and Chapter 10 generally.
205 See heading 3.2.2 above.
206 See heading 1 above.
207 See heading 3.2.2 above.
208 See heading 3.3 above.
209 See heading 3.6 above.
210 For the latest substantial discussion on reform in this area in England see Milo (2008), above fn 10,
especially Chapter 5.
194
“media defendant” for speech on “a matter of public concern”.212
In such a situation,
the plaintiff would fail to establish a cause of action.213
It is suggested that such an
outcome would not be inconsistent with the freedom of speech priority advocated in this
thesis.
Explanatory notes for Recommendation (b)
The issue was discussed above.214
Inevitably one side may be exposed to a setback
where it is impossible to prove that a defamatory imputation is true (defendant is at a
disadvantage) or false (plaintiff is at a disadvantage). The recommendation here, in
keeping with the freedom of speech priority advocated in this thesis, is that the error be
made on the side of the defendant. Thus, if the plaintiff is unable to establish the falsity
of the defamatory statement the plaintiff fails to mount the action.
4.3 Model provisions
The Model provisions here are set out in an order that corresponds with the
recommendations above.
Cause of action for public figure plaintiffs suing on matters of public concern
(a) Where the person suing for defamation is a ―public figure‖ and the matter
complained about is a ―matter of public concern‖ and the defendant is a ―media
defendant‖, the plaintiff – in addition to proving publication, identification and
the existence of defamatory matter – bears the onus of proving the falsity of the
defamatory matter as an essential ingredient of the cause of action.
Definitions:
(i) the term ―public figure‖ has the definition prescribed below;215
(ii) the term ―matter of public concern‖ has the definition prescribed
below;216
and
211 See heading 3.6 above.
212 See Chapter 6.
213 See NSWLRC Report No 75, above fn 11, Paras 4.23–4.26. There, the Commission leaves the
option of raising the fair comment defence to the defendant: see Recommendation 9. The defence of
honest opinion is set out in section 31 UDA.
214 See heading 3.6 above.
215 See Chapter 6 heading 6 Model Provision (a).
216 See Chapter 6 heading 6 Model Provision (c).
195
(iii) the term ―media defendant‖ means a defendant being either an individual
or corporate entity who is engaged in the publication of news and
information.217
Matter not capable of being proved false
(b) Where the plaintiff is a ―public figure‖ who is seeking damages against a ―media
defendant‖ for speech on ―a matter of public concern‖ and the defamatory matter
concerned is not capable of being proved false by the plaintiff, the plaintiff does
not have a cause of action.
5. A “no fault” defence
The idea for a ―no fault‖ defence springs from our earlier examination of the US
position. There the ―degree of journalist‘s fault is the central issue in many libel
suits‖.218
This centrality is illustrated by the role that ―reckless disregard‖ for truth or
falsity plays in defamation in that country.219
Recklessness as to truth has traditionally
been treated as equivalent to knowledge of falsity.220
For the purposes of this thesis the recommendation is not that the plaintiff bear the
burden of proving fault on the defendant‘s part but rather that the media defendant be
entitled to establish an absence of fault on their part in respect of the defamatory
publication. That is, it should be a defence to show that the media defendant was not at
fault in respect of the defamatory publication. The determination as to the existence or
otherwise of fault should be made on the basis of criteria that may legitimately apply to
media defendants taking into account both the interests of freedom of speech and the
217 On this point see also the discussion elsewhere on the meaning of ―media‖ and ―journalism‖:
Chapter 1 fn 3 and Chapter 3 headings 3 and 5.3.1. Also, the body of law in connection with sections
65A(1), (2) and (3) Trade Practices Act 1974 (Commonwealth) concerning ―prescribed publication‖
and ―prescribed information provider‖ may assist in this respect. See also Gillooly (1998), above fn
42, at 8.
For a more recent discussion of the subject see Bond v Barry [2007] FCA 1484.
218 Middleton and Lee (2007), above fn 112, at 119 (italics added); Soloski J (1985), ―The Study and the
Libel Plaintiff: Who Sues for Libel?‖, 71 Iowa L Rev 217, at 218, notes that in one study negligence
or malice was the central legal issue in nearly ninety per cent of libel cases against the media.
219 The terms ―reckless disregard‖ and ―fault‖ are closely linked. In New York Times v Sullivan 376 US
254 (1964), the US Supreme Court imposed on public figure plaintiffs the burden of proving
knowledge of falsity and ―reckless disregard of whether it was false or not‖ (at 280). Also note
Middleton and Lee (2007), above fn 112, at 119 on the US position:
Public officials and public figures have the heavy burden of establishing that the media
published defamation knowing that their story was false or recklessly disregarded the truth.
220 Lange v Atkinson [2000] 3 NZLR 385 at Para 46, cited with approval in Amalgamated Television
Services Pty Ltd v Marsden [2002] NSWCA 419, Para 1244.
196
competing public interest in ensuring an appropriate standard of care in respect of the
kind of publication that is the subject of the defamation complaint.
The assessment of fault against a list of factors is not unknown to defamation law,
much less to the UDA itself. The UDA defence of qualified privilege provides a list of
factors that may be taken into account in deciding whether the defendant‘s conduct was
―reasonable in the circumstances‖.221
It is recommended that the ―no fault‖ defence be
entrenched as a broader defence in the UDA – one that is not confined to the defence of
qualified privilege. The decision of the House of Lords in the Reynolds222
and Jameel
cases223
and section 30(3) UDA provide a useful foundation upon which to embark on
this exercise. In essence, what the Jameel case espouses is improved protection for the
media provided that the media can show that it acted responsibly224
or that it was not
negligent. Notably, there is already strong media support for these approaches
abroad.225
The criteria for establishing fault have a long history in United States case law.226
In England there has been a recent trend toward giving consideration to questions of
journalistic fault.227
A more recent Court of Appeal case in Canada suggests support for
221 Section 30(3).
222 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609.
223 Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279.
224 See, for instance, Lord Hoffmann‘s discussion under the heading ―Responsible journalism‖, Jameel
& Anor v Wall Street Journal Europe [2006] 4 All ER 1279, at 1297–1298. The guideposts for
determining ―responsible‖ journalism are drawn from a variety of quarters, and notably from: (a)
Lord Nicholls‘ ―well-known list of ten matters‖, set out in the Reynolds case, which may be taken
into account (see Jameel, Lord Hoffmann, at 1297; and fn 234 below); (b) Lord Nicholls‘ view in
Bonnick v Morris [2003] 1 AC 300, at 309, that responsible journalism is the point at which a fair
balance is held between freedom of expression on matters of public concern and the reputations of
individuals (see Jameel, Lord Hoffmann, at 1297); and (c) the relevant standards of conduct ―must
be applied in a practical and flexible manner. It must have regard to practical realities‖ (see Jameel,
Lord Hoffmann, at 1297).
225 See fns 227 and 228 below.
226 For a detailed discussion of the factors that may be taken into account in considering journalistic
fault in the United States see Middleton and Lee (2007), above fn 112, at 142-146; Holsinger and
Dilts (1997), above fn 105, at 177-193; Pember (2003/2004), above fn 51, at 181-194.
The factors that are commonly considered in determining questions of fault include: negligence or
failure to exercise reasonable care such as by relying on an untrustworthy source, not reading or
misreading pertinent documents, failure to check with an obvious source, careless editing or news
handling, knowledge of falsity, reckless disregard for the truth; whether time was of the essence for
the media, the interest that was being promoted by the publication, the extent of damage to
reputation if the statement was false. Some of the landmark cases in this area were St Amant v
Thompson 390 US 727, 88 S Ct 1323, 20 L Ed 2d 262, 1 Med L Rptr 1586 (1968); Herbert v Lando
441 US 153, 99 S Ct 1635, 60 L Ed 2d 115, 4 Med L Rptr 2575 (1979); Bose Corp v Consumers
Union 446 US 485, 104 S Ct 1949, 80 L Ed 2d 502, 10 Med L Rptr 1625 (1984); Anderson v Liberty
Lobby 477 US 242, 106 S Ct 2505, 91 L Ed 2d 202, 12 Med L Rptr 2297 (1986); and Masson v New
Yorker Magazine, Inc 501 US 496, 111 S Ct 2419, 115 L Ed 2d 447, 18 Med L Rptr 2241 (1991).
227 In Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, the plaintiffs were found by
the jury to have been defamed by the publication, which said the plaintiffs‘ bank accounts were
being monitored by authorities in a bid to prevent them from being used to funnel funds to terrorist
197
such an approach.228
In Australia, support for a similar approach can be found in the
UDA defence of qualified privilege;229
and from the Press Council.230
Two significant
benefits of such an approach have been previously noted: (a) it would rid defamation
law of ―one of its most archaic and objectionable features – no fault liability‖; and (b) it
organizations. The case is noted for its loosening of the test for ―responsible journalism‖ set earlier
in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, at 626, where Lord Nicholls listed
certain matters which might be taken into account in deciding whether the test of responsible
journalism was satisfied.
See Lord Nicholls‘ list of factors that may be taken into account (below fn 236) and the view that
these factors should be applied in a ―flexible‖ manner: see text accompanying fn 238 below.
For a view welcoming the ―responsible journalism‖ position taken in Jameel see Vassall-Adams G
(2006), ―A resounding victory for newspapers‖, Times Online, 11 October. Retrieved 17 January
2007, from <http://www.timesonline.co.uk/article/0,,28009-2398961,00.html> and Butterworth S
(2006), ―Star-spangled judgment‖, MediaGuardian, 11 October. Retrieved 15 February 2008, from
<http://www.guardian.co.uk/media/2006/oct/11/pressandpublishing.comment>
228 In Cusson v Quan [2007] ONCA 771, Sharpe JA (Weiler and Blair JJA agreeing), Para 124, held,
after reviewing the authorities in overseas jurisdictions, ―that the appropriate way for this court to
reconcile the authorities is to adopt a public interest defence for responsible journalism.‖ In that
case, the defendant newspaper alleged that the plaintiff Canadian police constable, who was
portrayed as a hero for his rescue efforts after the September 11, 2001 attack on the World Trade
Centre, had misrepresented himself to New York police, that he might have compromised rescue
operations, that he had been asked to leave Ground Zero by New York police, and that he faced
disciplinary charges for his conduct.
The media greeted the decision in Cusson v Quan as a ―significant shift away from the
traditional common law‖: see CanWest News Service (2007), ―Court gives journalists new
defence in libel trials‖, 14 November. Retrieved 16 February 2008, from
<http://www.canada.com/topics/news/national/story.html?id=8b65cca4-7aac-4551-8de6-
b84e2c5d0291&k=60086>
The Canadian Newspaper Association (2007), ―Ontario Court of Appeal recognises a ‗public interest
responsible journalism‘ defence in libel actions in Ontario‖, Media Release, 15 November, at 2, said:
For many major media [outlets], the decision merely brings the law into line with what the
media already seek to do.
229 Section 30(3).
230 Note that the Australian Press Council has clearly acknowledged the need to harness responsibility
to freedom (see fn 198 above).
See also Australian Press Council (2001), ―Submission of the Australian Press Council to the NSW
Attorney-General on possible reforms to the NSW defamation laws‖, 10 October. Retrieved 13
February 2008, from <http://www.presscouncil.org.au/pcsite/fop/fop_subs/def2001.html#defences>
where the Council proposed in Submission Item 8(2):
It should be a defence that the defendant was not negligent in publishing the matter. This
should be so if the defendant took reasonable steps to ensure the accuracy of the matter as set
out in Paragraph 4 above (Paragraph 4 identifies a range of situations similar to those identified
by Lord Nicholls in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609).
In the same submission, albeit in respect of the qualified privilege defence, the Council expressed
support for several practical indicia of responsible journalism, including as to whether the media
report is fair and accurate; whether the maker of the statement can be presumed to have particular
knowledge; whether the report is accompanied by the defamed party‘s response; the source‘s
integrity; and the lack of ostensible bias: see Recommendations 4(3) and 4(4).
See further section 134, Civil Law (Wrongs) Act 2002 (ACT) and the discussion on this in Gillooly
M (2004), The Third man: Reform of the Australian Defamation Defences, Federation Press,
Leichardt, NSW, at 219-220.
198
would provide ―a new and powerful reason for journalists and publishers to get their
stories right‖.231
Any suggestion that the notion of ―responsible journalism‖ is too vague is easily
overcome:
But the standard of responsible journalism is as objective and no more vague than standards
such as ―reasonable care‖ which are regularly used in other branches of the law. Greater
certainty in its application is attained in two ways. First, as Lord Nicholls said, a body of
illustrative case law builds up. Secondly, just as the standard of reasonable care in
particular areas, such as driving a vehicle, is made more concrete by extra-statutory codes
of behaviour like the Highway Code, so the standard of responsible journalism is made
more specific by the Code of Practice which has been adopted by the newspapers and
ratified by the Press Complaints Commission. This too, while not binding upon the courts,
can provide valuable guidance.232
Furthermore, questions of media fault are regularly decided in quasi-judicial
contexts such as through adjudications or findings handed down by the Australian Press
Council233
and the Australian Communications and Media Authority234
although it is
not suggested here that such adjudications are an effective alternative to the judicial
process.235
For present purposes the existence of fault may be determined incrementally
231 See Gillooly (2004), above fn 230, at 220 (reference omitted). Note also, more recent empirical
evidence that even ―up market‖ newspapers rely too heavily on press releases. Nick Davies, author
of a text that has caused a stir in journalism circles, states that he engaged specialist researchers from
the University of Cardiff in Wales, to analyse more than 2,000 home news stories, stories about the
UK that had been produced by the best newspapers in the country see The Media Report (2008),
ABC Radio National, ―Journalists and their information‖, 21 February. Retrieved 23 February 2008,
from <http://www.abc.net.au/rn/mediareport/stories/2008/2166826.htm>:
And one of the things I asked them to do was to find out where the raw material in these stories
had come from. And basically, the bottom line was that 80 per cent of these stories, 80 per
cent, were composed wholly, mainly or partially of second-hand material, great chunks of
which came from the public relations industry. So if we run that stuff straight into our
newspapers, what we‘re doing is no longer telling people the truth as we see it, but we‘re
serving the political or commercial interests of these PR outlets. It‘s scary.
In the book (Davies N (2008), Flat Earth News, Chatto & Windus, London), the author makes the
following observation, at 73:
Working in a news factory, without the time to check, without the change to go out and make
contacts and find leads, reporters are reduced to churnalism, to the passive processing of
material which overwhelmingly tends to be supplied for them by outsiders, particularly wire
agencies and PR. In these circumstances, the news factory will produce an effective and
reliable product for its readers and viewers and listeners only if those outside supplies are
delivering an effective and reliable account of the world. Are they?
For a more recent Australian perspective on this subject see: Jackson S (2008), ―PR handouts make
the news‖, The Australian (Media), 5 June, at 33, where the writer refers to Australian studies that
show a similar trend.
232 Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, Lord Hoffmann, at 1297.
233 Australian Press Council adjudications on complaints received are available at
<http://www.presscouncil.org.au/pcsite/adj.html>
234 For example, the Authority, regularly publishes its findings on ―investigations‖ into broadcast (radio
and television) activity: see <http://www.acma.gov.au/WEB/STANDARD/pc=PC_300384>
235 See, for instance, the reservations expressed in Reynolds v Times Newspapers Ltd & Ors [1999] 4
All ER 609, at 623, where Lord Nicholls observed that ―the sad reality is that the overall handling of
199
as we develop our case law236
and by taking into account relevant factors, including the
relevant professional practice codes. Taking such an approach would give the ―fault‖
element a clearer focus and one that the journalism profession itself would, broadly
speaking, require no conversion to. Importantly, it must be recognised that these tests
can be converted into ―hurdles‖ in the ―hands of a hostile judge‖ who applies ―the
closest and most rigorous scrutiny‖.237
What is suggested here is, as proposed in the
Jameel case, that the standard of conduct required of the publisher ―must be applied in a
practical and flexible manner. It must have regard to practical realities.‖238
5.1 Reform recommendations
The reform recommendations under this heading are as follows:
Recommendation (a)
Where the media defendant is sued by a “public figure” plaintiff in respect of a “matter
of public concern”, it should be a defence to show that the media defendant was not “at
fault”239
in respect of the defamatory publication.
Explanatory notes for Recommendation (a)
Placing the burden of proof in respect of the absence of fault in this recommendation
brings about a situation very close to the Australian position as regards trespass to the
these matters by the national press, with its own commercial interests to serve, does not always
command general confidence.‖
236 A useful indicator can be found in Lord Nicholls‘ non-exhaustive list of ten factors in Reynolds v
Times Newspapers Ltd & Ors [1999] 4 All ER 609, at 626: (1) the seriousness of the allegation; (2)
the nature of the information, and the extent to which the subject matter is a matter of public
concern; (3) the source of the information; (4) the steps taken to verify the information; (5) the status
of the information; (6) the urgency of the matter; (7) whether comment was sought from the
claimant; (8) whether the article contained the gist of the claimant‘s side of the story; (9) the tone of
the article; and (10) the circumstances of the publication, including the timing.
237 Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, Lord Hoffmann, at 1297.
238 Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, Lord Hoffmann, at 1297. See
also Lord Bingham‘s view in the same case, at 1291:
Weight should ordinarily be given to the professional judgment of an editor or journalist in the
absence of some indication that it was made in a casual, cavalier, slipshod or careless
manner…[C]onsideration should be given to the thrust of the article which the publisher has
published. If the thrust of the article is true, and the public interest condition is satisfied, the
inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might
if the whole thrust of the article is untrue.
These views were cited with approval by a unanimous Court of Appeal in Cusson v Quan [2007]
ONCA 771, Sharpe JA (Weiler and Blair JJA agreeing), Para 98.
239 See this heading 5.1 Recommendation (b) below.
200
person.240
As noted above, there is a close nexus between fault and the scope of this
thesis.241
Since much turns on how ―fault‖ is determined it remains for the operation of
this rule to be spelt out more clearly and this is done in the recommendations that
follow.
Recommendation (b)
In assessing whether the “media defendant” was “at fault”, the court should take the
following non-exhaustive list of factors into consideration:242
(i) the seriousness of the allegation;
(ii) the source of the information;
(iii) the steps taken to verify the information;
(iv) any unreasonable obstacles to the flow of relevant information to the “media
defendant”;
(v) the status of the information;243
(vi) the urgency of the matter;
(vii) whether comment was sought from the claimant;
(viii) whether the article contained the gist of the claimant’s side of the story;
(ix) the tone of the article;
(x) whether there was malice;244
(xi) the timing of the publication;
(xii) whether the article was presented in a fair and balanced way;
(xiii) the quality of the sources relied upon;
240 See, for example, McHale v Watson (1964) 111 CLR 384. In that case Windeyer J held at first
instance in the High Court that in a case of trespass to the person it is for the defendant ―to prove an
absence of intent and negligence on his part‖ (at 388).
241 See text accompanying fn 218 above.
242 Many of the criteria listed here are drawn from Lord Nicholls‘ list in Reynolds v Times Newspapers
Ltd & Ors [1999] 4 All ER 609: see above fn 236; from the Australian Press Council‘s submission in
2001 to the NSW Attorney-General: see above fn 230; and the UDA qualified privilege defence in
section 30(3). See also fns 130, 139 and 226 above for further references to criteria applicable in the
United States.
243 A distinction may be made between information drawn from a government press release, or the
report of a public company chairman or the speech of a university vice-chancellor, on the one hand,
and on the other, information drawn from the statement of a political opponent, or a business
competitor or a disgruntled ex-employee: see Reynolds v Times Newspapers Ltd & Ors [1999] 4 All
ER 609, Lord Nicholls, at 632.
244 Malice in the present sense is equivalent to that which applies at common law, that is, the
publication though truly expressed was distorted by malice or it was the product of a judgment
warped by malice: see George (2006), above fn 25, at 346 (reference omitted). Malice may be
established by proof that the defendant had improper motives or did not have an honest belief in the
truth of the defamatory matter: Gatley (2004), above fn 13, Chapter 16 generally.
201
(xiv) whether the party adversely depicted by the publication was given an opportunity
to comment on the allegations prior to publication;245
and
(xv) any applicable media professional practice codes.
Explanatory notes for Recommendation (b)
The factors proposed above are not meant to constitute a longer list of burdens on the
media than those proposed earlier by the courts.246
Rather, it is meant to identify as
many factors as possible and to capture them in a convenient place, such as in the
legislation, so as to serve as a useful reference point for all concerned. The factors
identified above in fact mirror many of the media‘s own avowed professional code
commitments and at least one acknowledges unfair hurdles that may be placed in the
way of information gathering.247
Recommendation (c)
In weighing up the criteria set out in Recommendation (b) above the media defendant
should not be required to meet all or most of the criteria set out. The court should adopt
a qualitative rather than a quantitative approach, and apply a flexible test that also
takes into account the circumstances of news production in the particular case and the
broader interests of freedom of speech.
Explanatory notes for recommendation (c)
245 It remains to be seen, however, whether the courts will consider the provision of an opportunity to
comment prior to publication adequate in all cases. The offering of such an opportunity by itself is
likely to be inadequate if the party‘s response is itself the object of distortion. Furthermore, it is not
unknown for some news sources to ―boycott‖ media outlets they consider routinely hostile to them
thereby causing them to refuse to deal with that outlet because they ―are at war‖: see The Media
Report (2008), ABC Radio National, ―Troubles in the West‖, 28 February. Retrieved 13 March
2008, from <http://www.abc.net.au/rn/mediareport/stories/2008/2172534.htm>
See also the observation in Morfesse L (2008), ―Journo lecturers teach the arts of hypocrisy and
waffle‖, The West Australian, 21 February, at 2, where the writer notes that the WA Attorney-
General, Hon Jim McGinty ―doesn‘t talk to us.‖ Mr McGinty and the newspaper have a well-known
history of difficult relations: see, for instance, Banks A (2008), ―McGinty black-bans The West‘s
reporters‖, The West Australian, 15 February, at 1.
246 For instance, Lord Nicholl‘s list in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, at
626, only had ten factors: see fn 236 above.
247 For instance, see clause (vi). Such a provision is justified on the basis that often mechanisms
ostensibly aimed at facilitating the flow of information perform less than ideally or are invoked by
the authorities to unreasonably obstruct information flow. For a detailed catalogue of such
limitations see generally Moss I (2007), Report of the Independent Audit into the State of Free
Speech in Australia, 31 October, report commissioned by the ―Australia‘s Right to Know‖ group,
comprising major Australian news organizations.
202
The media has expressed justified reservations about a list such as the one proposed in
clause (b) above.248
These concerns stem primarily from the fact that, until recently,
these criteria were ―not applied generously‖.249
Further, as Lord Hoffmann observed in
the Jameel case, ―these tests can be converted into ―hurdles‖ in the ―hands of a hostile
judge‖ who applies ―the closest and most rigorous scrutiny‖.250
In any event, it is
proposed here that in weighing up the criteria set out in Recommendation (b) above the
media should not be compelled to meet all or most of the criteria set out. The court
should adopt a qualitative rather than a quantitative approach, and apply a flexible
test251
that also takes into account the practical exigencies of news production252
and the
interests of freedom of speech.253
Recommendation (d)
The “no fault” defence should not deny the media defendant any of the other available
defences.254
248 For a useful summary of statistics showing the poor rate of success suffered by defendants relying on
the ―responsible publication‖ defence, see Milo (2008), above fn 10, at 174–175.
249 See Milo (2008), above fn 10, at 174.
250 See text accompanying fn 237 above citing Jameel & Anor v Wall Street Journal Europe [2006] 4
All ER 1279, Lord Hoffmann, at 1297.
251 This caution is sounded on the basis of evidence that the factors listed can serve as an effective brake
on speech. Accommodating a defence of ―reasonable publication‖ where a publisher is uncertain of
proving the truth of a defamatory statement has been noted to be a formidable one. Until recently,
the English experience indicated that the responsible publication defence was applied strictly, so that
it failed in the majority of cases: see Milo (2008), above fn 10, at 174–175:
It appears logical that the argument from the undesirable chilling effect of the presumption is
no longer as potent as it was prior to the development of the responsible publication defence.
However, it is submitted that the doctrine is illusory…The question now is whether the
defendant would escape liability on the basis of the responsible publication defence. This,
however, depends upon a number of variables, including how generously the defence is applied
by the courts…(ibid, at 174).
The more recent decision in Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279
holds promise for media defendants with its view that the reasonable publication factors should be
generously applied. However, that approach remains ―in its infancy‖: see Milo (2008), above fn 10,
at 176. Milo also notes, at 183:
There is some empirical evidence to suggest that the chilling effect has not been significantly
reduced – indeed, the parameters of the developing defence are unclear and it is arguable that
its effect is to compound the chilling effect on freedom of expression.
252 See Chapter 3 heading 5.3.2.4. In Campbell v MGN Limited [2004] 2 All ER 995, Lord Hoffmann, at
1012-1013, noted: ―The practical exigencies of journalism demand that some latitude must be
given.‖ See also Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 635:
―[I]t will always be necessary to take into account the dynamics of the role of the press…‖
253 In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, the Full Court noted at
Para 1244 that it ―is settled that careless journalism, exuberant reporting or mere failure to inquire is
not prima facie proof of reckless disregard‖ (authorities omitted).
254 On this point see the Australian Press Council recommendation – Item 3.3 in Australian Press
Council (2000), ―Submission of the Australian Press Council to the NSW Attorney-General on
possible reforms to the NSW defamation laws‖ (3 November). Retrieved 13 February 2008, from
<http://www.presscouncil.org.au/pcsite/fop/fop_subs/nswdef.html>:
203
Explanatory notes for Recommendation (d)
The proposal here is to make available an additional defence, rather than to force a
defendant into limited defence options. Indeed, the ―no fault‖ defence provides the
media with a sound basis and incentive to reinforce their own professionalism, while
not depriving them of the more traditional truth defences.
5.2 Model provisions
The Model provisions here are set out in an order that corresponds with the
recommendations above.
“No fault” defence
(a) It is a defence to the publication of defamatory matter involving a ―public figure‖
plaintiff and a ―matter of public concern‖ if it is proved that the ―media
defendant‖ was not at fault in respect of the defamatory publication.
Fault factors
(b) In assessing the existence or otherwise of the media defendant‘s fault, the court
may take the following non-exhaustive list of factors into consideration:
(i) the seriousness of the allegation;
(ii) the source of the information;
(iii) the steps taken to verify the information;
(iv) any unreasonable obstacles to the flow of relevant information to the
―media defendant‖;
(v) the status of the information;
The defence of no negligence must also not impinge on the defences that are otherwise
available to a publisher. A failure to make out the defence should not mean that other defences
are not available. In particular, the defence of taking reasonable steps to ensure the accuracy of
the publication should not limit a publisher's ability to argue that it acted reasonably and that
what it published was true and/or in the public interest. Nor should a failure to establish the
defence be read as an establishment of the reverse - that the paper or its employees have been
negligent.
See also the powerful statement by Lord Nicholls in Reynolds v Times Newspapers Ltd & Ors [1999]
4 All ER 609, at 626, where his Lordship noted:
[I]t should always be remembered that journalists act without the benefit of the clear light of
hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of
the moment. Above all, the court should have particular regard to the importance of freedom
of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The
court should be slow to conclude that a publication was not in the public interest and, therefore,
the public had no right to know, especially when the information is in the field of political
discussion. Any lingering doubts should be resolved in favour of publication (italics added).
204
(vi) the urgency of the matter;
(vii) whether comment was sought from the claimant;
(viii) whether the article contained the gist of the claimant‘s side of the
story;
(ix) the tone of the article;
(x) whether there was malice;
(xi) the timing of the publication;
(xii) whether the article was presented in a fair and balanced way;
(xiii) the quality of the sources relied upon;
(xiv) whether the party adversely depicted by the publication was given an
opportunity to comment on the allegations prior to publication; and
(xv) any applicable media professional practice codes.
Flexible approach
(c) In considering the factors set out in clause (b) above the media defendant is not
required to meet all or most of the matters set out. The court should adopt a
qualitative rather than a quantitative approach, and apply a flexible test that also
takes into account the circumstances of news production in the particular case and
the broader interests of freedom of speech.
Other defences available
(d) The ―no fault‖ defence does not preclude a ―media defendant‖ from relying on
any of the other available defences.
205
CHAPTER 6
Of “public figures” and “matters of public concern”
How these curiosities would be quite forgot,
Did not idle fellows as I am put them down.1
All men naturally desire to know.2
1. Introduction:
This chapter examines the terms ―public figure‖ and ―matters of public concern‖ (or
―matters of public interest‖ in some contexts)3 – two terms of particular significance in
the burden reversal proposal, involving media defendants, made in the last chapter. The
two terms are discussed below.4 The term ―media defendant‖ was defined in the last
chapter.5 It was stated in the last chapter that the burden reversal would apply in limited
circumstances, that is, the plaintiff would have to bear the burden of proving falsity
when suing for defamation, if the plaintiff is a ―public figure‖ and is suing a media
defendant concerning a ―matter of public concern‖.6 It was stated there that these two
terms would be defined in this chapter.7 In approaching this task it is worth
remembering that the Uniform Defamation Act in fact rejected the need for a public
interest/benefit requirement. Thus, the suggestion to reintroduce a similar requirement
through the ―public figure‖ and ―matter of public concern‖ mechanisms may seem odd.
However, the discussion that follows shows why this proposal deserves adoption.
Before that some closely related matters merit consideration – the question of what
―competing interests‖ are sought to be mediated through defamation law and the public
interest/concern element in the defamation scheme.
1 Aubrey J (1626–1697), Brief Lives, ―Venetia Digby‖ in Barber R (ed) (1975), Folio Society,
London, at 119.
2 (Omnes homines naturaliter scire desiderant). Coates A, Jensen K, Dondi C, Wagner B and Dixon
H (2005), A Catalogue of Books Printed in the Fifteenth Century now in the Bodleian Library,
Oxford University Press, Oxford, at 250, Entry A-418 ―Aristoteles‖.
3 The term preferred in this thesis is ―public concern‖, rather than the term ―public interest‖, which is
encountered more frequently in the authorities. The reasons for the preference for the term ―public
concern‖ are discussed under heading 4.2 below.
4 See heading 4 below.
5 See heading 4.3 Model Provision (a)(iii).
6 Chapter 5 heading 1 (Introduction).
7 See Chapter 5 heading 4.3 Model Provision (a)(i) and (ii).
206
2. Competing interests and “balance”
In approaching the discussion under this heading, two propositions, albeit trite, bear
reiterating. One is that ―freedom of expression is not an absolute right‖8 and it may be
subject to any appropriate constraint prescribed by a demonstrably justified law based
on ―countervailing considerations‖.9 The other trite proposition is that the aim of
defamation law is to find the equilibrium between competing interests.10
While it is said
that the aim of defamation law is ―to strike an appropriate balance between two largely
incompatible interests‖11
it is debatable whether the number of competing interests is
limited to two and whether a distinction can be made between a mere balance and an
appropriate balance.12
It is not this author‘s objective to identify the precise number of
competing interests but it appears that it is not limited to ―two‖ and this may be
illustrated by the following formulations of the competing interests. The High Court has
described the tension as one between the ―recognition of freedom of speech and the
necessity of protecting the individual from injury to reputation‖.13
The New South
Wales Law Reform Commission has described the competing interests differently:
The conflict is between two public interests: on the one hand, the interest in the public
protection of individual reputation and the provision of an orderly means of achieving it by
process of law; on the other hand, the interest in the facilitation of the public‘s right to
know and in the discovery of truth.14
8 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 622; Milmo P and
Rogers WVH (2004), Gatley on Libel and Slander, 10th Edn, Sweet & Maxwell, London, at 13–16.
See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, at 561 where the Full
Court of the High Court noted that ―the freedom of communication which the Constitution protects
is not absolute‖ (authorities omitted).
9 See Chapter 2 heading 1.3.
10 See New South Wales Law Reform Commission (October 1995), Defamation, Report No 75, Paras
2.1-2.2. See further the limitations imposed on freedom of speech to protect others‘ rights and
reputations, to protect national security, public order, public health and public morals in Article
19(3) International Covenant on Civil and Political Rights; and the limitations imposed in Article 12
Universal Declaration of Human Rights 1948.
11 Gillooly M (1998), The Law of Defamation in Australia and New Zealand, Federation Press,
Sydney, at 15 (italics added); Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743, at 745-746;
Ballina Shire Council v Ringland (1994) 33 NSWLR 680, at 698-700, 722-729; Theophanous v
Herald and Weekly Times Ltd (1994) 182 CLR 104, at 131; NSWLRC Report No 75, above fn 10,
Para 2.1. Note, however, the view expressed by the full court of the High Court in Lange v
Australian Broadcasting Corporation (1997) 189 CLR 520, at 568, that it is ―not to be supposed that
the protection of reputation is a purpose that is incompatible with the requirement of freedom of
communication imposed by the Constitution‖ (reference omitted).
12 See also Chapter 4 heading 4.
13 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, Para 31.
14 NSWLRC Report No 75, above fn 10, Para 2.1 quoting from the discussion of arguments for a free
speech principle in Barendt E (1987), Freedom of Speech, Clarendon Press, Oxford, at 8-23. For a
more recent treatment of the topic see the 2007 edition of the same title, at 6-30.
207
This latter formulation, unlike the High Court‘s formulation, clearly identifies the
public‘s right to know and to the discovery of truth as a competing interest. Regardless
of how the competing interests are expressed, it is argued in this chapter that certain
burdens upon the defendant in respect of information flow are justified.
2.1 Argument for a “public concern” requirement
The move to truth simpliciter in the UDA was seen in some quarters as an abandonment
of the key privacy protection mechanism.15
The removal of the public interest/benefit
requirement was described as ―a serious mistake and will ultimately lead to a serious
degradation of Australian news and current affairs reporting and a general debasement
of public life.‖16
The reason why the United Kingdom scandal sheets have gotten away with their
publications for so many years is, of course, the fact that the common law of England has
never had a public interest element in its truth defence. That element has always provided
an admittedly somewhat primitive protection to the privacy of citizens. That protection has
now disappeared.17
Although the present position at law is that truth is a complete defence, when the
Australian Law Reform Commission proposed a truth alone defence it appeared, in the
same breath, to advocate a limit:
The other alternative is to separate the questions of defamation and privacy – to recognise
them as relating to separate interests. Defamation law protects against unjustified assaults
on reputation. Privacy law (in the context of publication) protects people from the
distressing and unfair disclosure of personal information, whether true or not and whether
defamatory or not. The addition of the ―public benefit‖ element to the justification defence
had the effect, at a time when damages were the only available remedy, of injecting into
defamation law a privacy value. The time has come to recognise the separate interests, and
the fact that distinct rules and remedies are appropriate, and to deal with each. Truth,
15 Interestingly, this concern was even expressed by the media: see, for instance, Attard M (2006),
Media Watch, ABC Television, ―Truth, Defamation and Privacy‖, 10 April (transcript) where such a
concern is discussed and the observation made that under the UDA ―protection for privacy goes by
the board.‖ In the same program David Levine, a former judge who was head of the NSW Supreme
Court Defamation List for 10 years, is quoted as saying: ―Material doesn‘t have to be in the public
interest so [the media] can end up publishing private gossip.‖
16 McClintock B (2006), ―Coming to terms with defences to defamation – considering practical
implications of key defences under the legislation‖ (Paper), LexisNexis Defamation 2006,
Conference, Sydney, 5-6 April, at 4.
The Commonwealth Attorney-General‘s Department, in the run-up to the UDA, had proposed the
retention of the ‗truth plus public interest‘ defence on the following ground:
[T]he future of an action for invasion of privacy at common law is unclear. Absent legislative
or common law rights, the case for conferring a limited right of privacy in the defamation
context is compelling: see Commonwealth Attorney-General‘s Department, Revised Outline of
Possible National Defamation Law (July 2004). Retrieved 21 August 2007, from
<http://www.ag.gov.au/www/agd/agd.nsf/Page/Defamationlawreform_ReviewofDefamationLa
w>
17 McClintock (2006), above fn 16, at 4.
208
standing alone, should be a defence in defamation. If a statement pertains to matters
outside the private area a publisher may publish it with impunity so long as it is true.18
While this view on the one hand appears to signal a carte blanche to publish the
truth, on the other hand a qualification immediately follows this proposition, urging a
balanced approach, so that the impunity with which a publisher may publish is limited
to ―matters outside the private area‖.19
A more robust approach is reflected in the
principles seen earlier that truth is a ―complete‖ defence and that it is ―not actionable as
defamation maliciously to publish the truth‖.20
This position, however, can be
persuasively countered by the argument that there is a need to prevent ―gratuitous
destruction of reputation, even if the matter published is true‖.21
Gillooly notes:
By omitting any requirement that the recipients have a legitimate interest in receiving the
publication complained of, the defence effectively condones the dissemination of
information that may be deeply damaging to the plaintiff but which is of no benefit to the
publishees. Whilst it may cause the recipients no harm, it certainly does them no good.22
18 Australian Law Reform Commission (1979), Unfair Publication: Defamation and Privacy, Report
No 11, Para 125 (italics added). The paragraph from which the extract was taken was entitled
―Recommendation‖. The same paragraph states:
If it is not true he should correct it and be liable for damages for any injury not remedied by the
correction. If the statement is in the private sphere, as defined, accuracy is irrelevant to the
existence of a right of action. The plaintiff should be entitled to obtain an injunction (if he
knows of publication in advance) and to obtain damages to compensate his hurt feelings and
embarrassment for such publication as is made.
19 ALRC Report No 11, above fn 18, Para 125 (italics added). The Commission further said:
If the statement is in the private sphere, as defined, accuracy is irrelevant to the existence of a
right of action. The plaintiff should be entitled to obtain an injunction (if he knows of
publication in advance) and to obtain damages to compensate his hurt feelings and
embarrassment for such publication as is made.
20 See Chapter 4 heading 1 (Introduction); Gatley (2004), above fn 8, at 267.
21 New South Wales Law Reform Commission (1971), Defamation, Report No 11, Appendix D –
Notes on Proposed Bill and Rules, Para 64.
22 Gillooly M (2004), The Third Man: Reform of the Australasian Defamation Defences, Federation
Press, Leichhardt, NSW, at 51. See further Spencer Bower (1990), A Code of the Law of Actionable
Defamation with a Continuous Commentary and Appendices, 2nd Edn, Legal Books, Redfern, NSW,
at 337:
Why is the venomous revealer of a long-forgotten conviction or offence, or of some youthful
lapse from virtue, amply atoned for and lived down by years of honourable conduct, to be put
on the same impregnable altitude as (e.g.) a minister of State communicating with the
Sovereign, a member of parliament addressing the House, a judge in the judgment seat, or a
witness in the witness-box? Why is a volunteer to be clothed with the same immunity as one
whose public utterances are not only authorised, but required by the State? That this absolute
immunity is quite indefensible, has been the opinion of many of those best qualified to judge.
Also see Gillooly (2004), above fn 22, at 25 and 51ff, for arguments against truth simpliciter in the
context of the ―third man‖ analysis. Note, for instance, the following observation:
The point is that, given the sometimes-negative consequences of truth-telling, there is no
justification for an absolute immunity from liability in favour of the speaker. An additional
requirement that the recipient have a legitimate interest in receiving accurate information on
the topic in question produces a more flexible and defensible outcome than the absolutist
regime of truth simpliciter (at 52-53, italics added).
209
As Bower argues public policy does not require that a publication made solely for
the purpose of causing private misery should be protected despite the longstanding
principle veritas convicii excusat (the truth of a statement exonerates the maker from
liability).
No one has ever contended, or could reasonably contend, that veritas convicii is not the
proper subject of prima facie protection. But it may be, and by many eminent judges and
jurists has been, questioned whether the immunity should be absolute. As above stated, the
only tenable hypothesis on which immunity of this indefeasible character can be defended,
is public policy, which means that the public good imperatively demands that any and
every private disadvantage must yield to it, and yield so unconditionally that the individual
shall not even be allowed to assert that he has been ruined by the publication of that which,
though true, it did not in the least concern or benefit the public to know, and by a
publication made, not with any eye to the interest of the community or of social morality,
but with the sole and wicked object of inflicting private misery. 23
On this premise the Rofe v Smith’s Newspapers Ltd principle24
has been described
as ―unsatisfactory in several respects‖.25
Some of those grounds, briefly stated, are: (a)
defamation law is concerned with protecting actual rather than merited reputation; (b)
primacy placed on truth may be used to justify unfair attacks on a blameless existence;
and (c) it undermines the right to privacy.26
Furthermore, any argument advocating the
dramatic realignment of burdens between plaintiff and defendant must be accompanied
by attention to what is clearly a legitimate countervailing consideration – the defendant
in return for being relieved of the ―presumption of falsity burden‖, must recognise that
this realignment demands that the defendant‘s protection be limited to public figure
plaintiffs and matters of public concern. Such a requirement, or trigger, is neither
diabolical nor unreasonable although there has been disagreement on this.27
23 Spencer Bower (1990), above fn 22, at 336. See further Bower, at 335:
In season and out of season, it is lawful to publish what is true, and not only is it lawful, but the
subject of an immunity which is wholly indefeasible and irrebuttable. On what grounds can so
absolute a protection, whether from the point of view of abstract logic, of personal equity, or of
social utility, be defended?‖
24 See the quotation in Chapter 1 under heading 4. That principle, in short, is that no wrong is done to a
person by telling the truth about her or him.
25 Gillooly (2004), above fn 22, at 51. More recently New South Wales Law Reform Commissioner
Professor Michael Tilbury, speaking in reference to the Uniform Defamation Acts, is reported to
have observed: ―Removing the matter of public interest has exposed the potential for the violation of
a plaintiff‘s privacy to an even greater extent‖: Merritt C (2007), ―Privacy law to hit press freedom‖,
The Australian (Media) 22 March, 13, at 14.
26 Gillooly (2004), above fn 22, at 51–52.
27 See, for instance, the discussion on this point in Weaver RL, Kenyon AT, Partlett DF and Walker CP
(2006), The Right to Speak Ill, Carolina Academic Press, Durham, North Carolina, at 66–67 and the
observation there of the differing views expressed by the court in Rosenbloom v Metromedia Inc,
403 US 29 (1971) and Gertz v Robert Welch Inc, 418 US 323 (1974). In Rosenbloom a plurality
suggested that the court should focus on the ―public interest‖ in deciding whether special defamation
protections apply (at 44–45), whereas in Gertz the court took the view that the ―public or general
interest‖ test was inadequate in private defamation actions (at 346).
210
2.2 Argument against a “public concern” requirement
Any imposition of a ―public concern‖ requirement on publication on privacy protection
grounds may be criticised as giving defamation law an ambit that it does not warrant in
principle. Personal privacy concerns properly belong in the realm of privacy
protection.28
The defamation action should not be used to confer de facto privacy
protection through the public concern requirement.29
There has been controversy both
in Australia and in England as to whether the public concern element should operate at
all in the truth defence,30
or whether that element is significant in the first place.31
As
the New South Wales Law Reform Commission noted:
28 See, for instance, Article 17 International Covenant on Civil and Political Rights; Article 12
Universal Declaration of Human Rights 1948. For mirror provisions in Australian instruments see
section 12 Human Rights Act 2004 (ACT); and section 13 Charter of Human Rights and
Responsibilities Act 2006 (Victoria). See the view in NSWLRC Report No 75, above fn 10, Para
1.22:
The existing law of defamation provides some protection to privacy interests. It does so
because our law has no separate tort of invasion of privacy.
See further, Gatley (2004), above fn 8, at 267-268 where the authors note:
If this course [the requirement of a public interest element] is followed one in effect introduces
in an indirect way a limited form of liability for invasion of privacy by the revelation of
embarrassing private facts.
See also Barendt E (1999), ―What is the Point of Libel Law?‖, Vol 52 Current Legal Problems 110,
at 125:
[T]here is a case for affording the victims of unwarranted media publicity some legal remedy
for their hurt and distress…What is surely unacceptable is that the law of libel should be used
as a surrogate for causes of action for, say, false light privacy or the infliction of mental
distress…
29 See ALRC Report No 11, above fn 18, Para 125, in reference to the former ―public benefit‖
requirement said:
The addition of a ―public benefit‖ element to the justification defence had the effect, at a time
when damages were the only available remedy, of injecting into defamation law a privacy
value.
Gillooly (2004), above fn 22, at 42 notes also that the ―additional requirement of public benefit is
designed to confer a limited form of privacy protection.‖
30 Gatley (2004), above fn 8, at 267 notes: ―Whether truth should in all circumstances be a defence is
controversial…‖ (italics in original). Gatley, at 267 fn 5 notes further that although the Select
Committee of the House of Lords appointed in 1843 to consider the Law of Defamation and Libel
noted that the law was defective in permitting the truth of the imputation by itself to be an absolute
bar to a civil action, and recommended that the truth of the imputation should not be an absolute
defence unless it was provided that it was for the benefit of the community that the truth should be
made known, ―[t]his recommendation was not adopted.‖
In contrast, Bower (1990), above fn 22, at 336-337, contends that ―it is not‖ public policy that a
publication made with the ―sole and wicked object of inflicting private misery‖ should be so
protected and further that the ―truth was never a defence at all to an indictment for libel until 1843,
and is no defence even since that date unless the publication be proved to be for the public benefit,
and the burden is on the party defaming of shewing this public benefit, as well as the truth.‖
31 See, for instance, the contrasting views attributed to two eminent spokespersons on the subject,
former defamation judge David Levine and New South Wales Law Reform Commissioner Professor
Michael Tilbury. Levine has reportedly said in ―my experience it has never been an issue in any
event‖ while the latter is reported as having said: ―Removing the matter of public interest has
exposed the potential for the violation of a plaintiff‘s privacy to an even greater extent‖: see Merritt
(2007), above fn 25.
211
The public benefit or public interest requirement is really designed to protect privacy, not
reputation. When this Commission proposed the new ―public interest‖ defence in 1971, the
Commission acknowledged that the law of defamation was never intended to protect
privacy and ―is not a fit instrument for that task‖.32
The Australian Law Reform Commission too, almost three decades ago,
expressed a preference for separate legislation to protect persons against the publication
of private facts even if true.33
The Commission said further in its recommendation at the
time: ―The time has come to recognise the separate interests, and the fact that distinct
rules and remedies are appropriate, and to deal with each.‖34
Some moves are afoot in
this direction.35
One key proposal being considered is a proposal for an amendment ―to
provide for a statutory cause of action for invasion of privacy.‖36
If these moves lead to
adequate privacy protection it would undermine, if not altogether eliminate, any
argument for reliance on defamation law to safeguard privacy interests. Indeed, the
media, as things stand, have expressed a strong view that Australian laws impacting on
freedom of speech have become extremely excessive.37
3. “Public interest” in the defamation scheme
32 New South Wales Law Reform Commission (August 1993), Defamation, Discussion Paper No 32,
Para 6.10. In NSWLRC Report No 75, above fn 10, Para 2.35 the Commission acknowledged that
―the introduction of privacy concerns into the law of defamation can have a distorting effect on the
function of defamation law‖. It, however, advocated retaining the ―public interest‖ component until
privacy laws are enacted, and recommended that the government ―give urgent consideration to the
development of privacy laws, including the interaction of those laws with the law of defamation‖
(Para 2.36 and Recommendation 1).
33 ALRC Report No 11, above fn 18, Para 124. It is worth noting, however, that in 1983 it did not
favour a separate tort of invasion of privacy: see George P (2006), Defamation Law in Australia,
LexisNexis Butterworths, Chatswood, NSW, Foreword, at xvii.
34 ALRC Report No 11, above fn 18, Para 125.
35 See Australian Law Reform Commission (May 2008), For Your Information: Australian Privacy
Law and Practice, Report No 108. That report contained 275 recommendations. See also Australian
Law Reform Commission (September 2007), Review of Australian Privacy Law, Discussion Paper
No 72. This was ―one of the largest projects ever undertaken by the ALRC‖: see ALRC Discussion
Paper No 72, Para 1.5, at 105. See also ALRC (2007), ―ALRC proposes overhaul of ‗complex and
costly‘ privacy laws‖, Media Release, 12 September.
See also ALRC (2006), Review of Privacy, Issues Paper 31 and the Australian Press Council‘s
submission on privacy and the media exemption to the Privacy Act 1988 (Cth): Herman J (ed),
(February 2007), ―Privacy Issues‖, Australian Press Council News, Vol 19 No 1, at 1. The New
South Wales Government is reportedly considering legal reform aimed at introducing ―a plaintiff-
friendly way of suing the media over invasions of privacy‖: see Merritt (2007), above fn 25.
36 ALRC Discussion Paper No 72, above fn 35, Para 1.5, at 107.
37 It is said, for instance, that some 500 laws impede freedom of speech: see Chapter 2 discussion
under heading 4 on the nationwide campaign by major media organizations against the Australian
arsenal of restrictive media laws.
212
Difficulty has plagued the term ―public interest‖ – the term commonly used to evaluate
a miscellany of interests that compete with the right to protection of reputation. As will
be seen below, an argument is made for an alternative term (public concern)38
but for
present purposes we may note some of the difficulties concerning the term ―public
interest‖. The term has ―never been defined‖39
although in the context of the former fair
comment defence, there are dicta suggesting that it should not be construed narrowly.40
The ALRC in discussing the term in another context states that the ―public interest is an
amorphous concept‖41
and ―impossible to define‖.42
In contrast, however, it was noted
in Reynolds v Times Newspapers Ltd & Ors43
that ―what is in the public interest is a
well-known and serviceable concept. It will, of course, have to be given practical
content.‖44
Indeed, the UDA itself employs the term although it does not define it. The
term‘s appearance in the UDA is discussed under the next heading.
3.1 UDA and the “public interest”
The UDA employs both ―public interest‖ and ―public concern‖ – and with differing
nuances. The objects section of the UDA provides that the Act‘s object is ―to ensure
that the law of defamation does not place unreasonable limits on freedom of expression
and, in particular, on the publication and discussion of matters of public interest and
importance‖.45
It is noteworthy that the reference to discussion of matters of ―public
interest and importance‖ does not occur in the substantive provisions of the legislation.
It is thus useful to ask what the function of the objects section in legislation is. The
Standing Committee of Attorneys-General conveniently provides the answer in the
UDA proposal document: ―The purpose of the objects clause is to draw attention to the
38 See discussion under heading 4.2.
39 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 615.
40 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 615 (authorities
omitted). See further General Manager, WorkCover Authority of NSW v Law Society of NSW (2006)
(CA) 65 NSWLR 502, McColl JA, at 533, noting the High Court‘s position:
The expression ―in the public interest‖, when used in a statute, classically imports a
discretionary value judgment to be made by reference to undefined factual matters, confined
only ―in so far as the subject matter and the scope and purpose of the statutory enactments may
enable...given reasons to be [pronounced] definitely extraneous to any objects the legislature
could have had in view‖: O'Sullivan v Farrer (at 216 per Mason CJ, Brennan, Dawson and
Gaudron JJ). Determining where the public interest lies is a question of fact and degree: Re
Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987)
HCA 27; (1987) 61 ALJR 393, at 395.
41 Australian Law Reform Commission (1995), Open Government: A Review of the Federal Freedom
of Information Act 1982, Report No 77, Para 8.13.
42 ALRC Report No 77, above fn 41, Para 8.13.
43 [1999] 4 All ER 609.
44 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 634 (italics added).
213
principal objectives intended to be achieved by the legislation.‖46
An examination of
that document, however, reveals an oddity. In a section preceding the recommendation
concerning the objects clause, four ―suggested objects‖ are listed – none of which make
any reference to the ―public interest.‖47
Likewise, there is no reference whatsoever to
the ―public interest‖ in the section of that document which sets out the ―key principles‖
that the SCAG ministers agreed to support in the move towards the UDA.48
The
reference to ―public interest‖, however, mysteriously appears in the formal
recommendation.49
The Committee‘s proposal concerning the truth defence was slightly
equivocal: ―For the purpose of a defence, as a minimum standard, the defendant needs
45 Section 3(b) UDA (italics added).
46 Standing Committee of Attorneys-General (SCAG), ―Proposal for uniform defamation laws‖ (July
2004), SCAG Working Group of State and Territory Officers, Part 4 Item 4.1 (italics added). This
view accords, of course, with the position at law generally in Australia. Section 15AA, Acts
Interpretation Act 1901 (Cth) and its counterparts require the courts to prefer a construction of a
provision that would promote the underlying purpose or object of the Act. See Pearce DC and
Geddes R (2006), Statutory Interpretation in Australia, 6th Edn, LexisNexis Butterworths,
Chatswood, NSW, at 154, where the authors note:
A modern day variant on the use of a preamble to indicate the intended purpose of legislation
is the inclusion of a statement of intention as to how an Act is to operate. This is often done by
way of an objects clause, an approach to drafting of legislation that is used from time to time:
see, for example, section 3, Freedom of Information Act 1982 (Cth).
See also Cook C, Creyke R, Geddes R and Hamer D (2005), Laying Down the Law, 6th Edn,
LexisNexis Butterworths, Chatswood, NSW, at 169-170:
As with a preamble, the purpose clause enables the user more clearly to determine the
reason(s) the legislation was passed, which may in turn shed light on the meaning of particular
provisions. Finding the purpose of an Act or section is a mandatory step when construing
legislation in every Australian jurisdiction (italics added).
See, however, Geddes RS (2005), ―Purpose and context in statutory interpretation‖, Vol 2 University
of New England Law Journal 5, at 45 where the author observes:
Although it is tempting to seize upon a statement of purpose in an Act and to strive for an
interpretation that furthers the purpose as defined, the task of relevantly defining purpose may
be more complex.
A further relevant observation in the same work is:
A statement of purpose or object, as with any other provision contained in legislation, is to be
interpreted in its context (at 48).
47 Standing Committee of Attorneys-General, ―Proposal for uniform defamation laws‖, above fn 46,
Part 4 Item 4.1. For completeness those ―suggested objects‖ were to: (a) ensure defamation law is
applied consistently in Australian jurisdictions; (b) ensure defamation laws do not place
unreasonable limits on freedom of expression; (c) provide effective and fair remedies for people who
are defamed; and (d) promote speedy and non-litigious methods of resolving disputes.
48 Standing Committee of Attorneys-General, ―Proposal for uniform defamation laws‖, above fn 46,
Part 3.
49 For convenience that recommendation – Recommendation 1 (Part 4) – is set out here in full:
The uniform defamation laws should contain the following objects: (a) to ensure that the law of
defamation within the State {Territory} of xxx is uniform in substance with the law of
defamation in all Australian jurisdictions; (b) to ensure that the law of defamation does not
place unreasonable limits on freedom of expression, in particular the publication and
discussion of matters of public interest and importance; (c) to provide effective and fair
remedies for persons whose reputations are harmed by the publication of the defamatory
matter; and (d) to promote speedy and non-litigious methods of resolving disputes concerning
the publication of defamatory matter (italics added).
214
to establish that the defamatory matter is in substance true.‖50
It is difficult to resist the
conclusion that the SCAG ministers lacked a wholehearted commitment to the truth
simpliciter defence.
Some further observations may be made here about the UDA and its treatment of
the term ―public interest‖. First, the Act appears to succumb to the common failure to
distinguish clearly between matters in the public interest51
and matters of public
interest.52
It is suggested that the former formulation conveys a meaning more closely
aligned with Lord Denning MR‘s formulation in London Artists v Littler,53
that is, it
refers to matters that people ―may be legitimately interested in, or concerned at, what is
going on; or what may happen to them or others‖.54
The expression ―matters of public
interest‖, however, tends to convey the meaning that would cover matters that are not
necessarily matters of legitimate interest or concern, but rather are matters that people
may be curious about.55
Second, the UDA employs the term ―public concern‖ in
relation to ―proceedings of public concern‖.56
Whilst the UDA provides a definition of
50 Recommendation 14 (italics added). Note also the discussion preceding this recommendation:
In the circumstances, a defence of ‗truth alone‘ may provide adequate protection against
defamatory statements. If this is unacceptable, a defence of truth and public interest could be
considered (italics added).
51 For a reference in the UDA to the expression ―in the public interest‖ see section 30(3)(e).
52 For references in the UDA to the expression ―matter of public interest‖ or its equivalent see sections
3(b); 30(3)(a); 31(1)(b); and 31(2)(b).
53 London Artists Ltd v Littler [1969] 2 QB 375.
54 London Artists Ltd v Littler [1969] 2 QB 375, at 391 (italics added): see quotation accompanying fn
128 below.
55 See McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, Callinan and Heydon JJ,
at 468 where their Honours note the approach taken by judges in their direction to defamation juries
―that it is not enough that the matter might be of some personal or prurient interest, or merely
something about which they may be curious.‖
See also Conley D and Lamble S (2006), The Daily Miracle: An Introduction to Journalism, 3rd
Edn, Oxford University Press, South Melbourne, Victoria, at 34, where the authors note:
The ‗public interest‘ argument is often advanced in media debates, although competitive
pressures can push the term too far: ―Anyone who tries to understand how the media use the
term ‗public interest‘ is hard-pressed to find consistency‖, according to Hurst & White. They
say: ―At times it seems public interest simply applies to any story that is interesting and
appeals to the curiosity of the audience. At others, the term has much more gravity‖ (Hurst &
White, 1994, pp. 15–16, italics added).
An interesting slippage between the terms ―of public interest‖ and ―in the public interest‖ can be
seen in section 30 where section 30(3)(a) refers to ―the extent to which the matter published is of
public interest‖, whereas section 30(3)(e) refers to whether the matter published was a matter ―in the
public interest‖ (italics added). See also text accompanying fn 109 below for another example of
such a slippage.
See also the quotation accompanying fn 134 below for a further reference to the preference for the
―public concern‖ expression.
56 See sections 29(1); 29(2)(a).
215
―proceedings of public concern‖,57
no such attempt is made in respect of matters of
public interest and importance.
3.2 A role for the “public concern” element
Notwithstanding pending developments in respect of Australian personal privacy
protection seen above,58
and objections to harnessing defamation law to fill a privacy
protection void, there is an argument for defamation law‘s truth defence to retain a
―public concern‖ element within the scheme of the present reform. Two qualifications
accompanied the burden reversal proposed in the last chapter, so as to subject the new
liberating rule to two restraints – the burden reversal rule would only apply to matters
complained of that involved public figure plaintiffs complaining in respect of
publication on matters of public concern. These restraints are justifiable on a number of
grounds, and they include the following: (a) these restraints are aimed at preventing the
gratuitous destruction of the reputations of public figure individuals engaged in speech
that bears no public concern quality; (b) these restraints employ established defamation
law mechanisms; (c) one of the UDA‘s objects is to ensure that the law of defamation
does not place unreasonable limits on freedom of expression and, in particular, on the
publication and discussion of matters of public interest and importance;59
and (d) these
restraints do not collide with the media‘s own avowed professional commitments.
The reform advocated here for the imposition of a public interest/concern element
in respect of public figure plaintiffs would also be consistent with, for instance, the
American approach and would also be consistent with the approach favoured in the
context of privacy law reform where the Australian Law Reform Commission appears
to take a tempered view in respect of curbs to protect personal privacy.60
Note also the
following statement: ―In the ALRC‘s view, the freedom of expression is a fundamental
tenet of a liberal democracy.‖61
Significantly, even the media has expressed its support
for the public interest (or, in the present sense, ―public concern‖) requirement in the
57 Section 29(4).
58 See fn 35 above.
59 Section 3(b) UDA.
60 See ALRC Report No 108, above fn 35, and also generally ALRC Discussion Paper No 72, above fn
35, Chapter 38. The ALRC has, for instance, rejected the idea of a Media Complaints Commission
as a regulatory model ―[b]ased on the relatively low rate of privacy-related complaints‖: Discussion
Paper No 72, Para 38.105.
61 ALRC Discussion Paper No 72, above fn 35, Para 38.105.
216
truth defence.62
In any event, the media itself does clearly embrace public interest63
and
privacy64
principles.
4. Calibrating “public figure” and “matters of public concern”
Given the potential for vagueness about the terms public figure and matters of public
concern it is necessary to examine the two terms and to lay further groundwork for
reform recommendations.
4.1 The “public figure” test
At the outset, it is useful to emphasise that the term ―public figure‖ here is distinct from
the term ―matter of public concern‖. The latter is explained below.65
The primary
difference is that the former pertains to the person bringing the action and, for instance,
that person‘s conduct in relation to the matter giving rise to the action whereas the latter
pertains to the subject matter complained about.
Notwithstanding the advocacy here for a broad interpretation of what constitutes
matters of public concern,66
the test is amenable to proportionality controls on freedom
of speech. The American approach has been to classify people who may be legitimately
targeted for scrutiny so that those falling into ―public figure‖ categories must yield
varying concessions to freedom of speech interests. The terminology commonly used to
62 See Chapter 4 fn 30 where it was noted that the Australian Press Council is on record as having
supported the ―public interest‖ requirement in the truth defence.
63 See, for example, Australian Press Council Statement of Principles, Preamble:
Freedom of the press carries with it an equivalent responsibility to the public. Liberty does not
mean licence. Thus, in dealing with complaints, the Council will give first and dominant
consideration to what it perceives to be in the public interest.
The Statement of Principles also explains the term ―public interest‖ as follows:
For the purposes of these principles, ―public interest‖ is defined as involving a matter capable
of affecting the people at large so they might be legitimately interested in, or concerned about,
what is going on, or what may happen to them or to others.
This definition effectively adopts that set out by Lord Denning MR in London Artists Ltd v Littler
[1969] 2 QB 375, at 391 (see text accompanying fn 128 below).
64 See the Australian Press Council Privacy Standards. The list of organizations and their respective
mastheads can be found in a Schedule published on the Press Council‘s website
<http://www.presscouncil.org.au/pcsite/complaints/priv_stand.html>
See also the Media, Entertainment and Arts Alliance code of ethics, Clause 11:
Respect private grief and personal privacy. Journalists have the right to resist compulsion to
intrude.
For a similar commitment in the broadcast industry see Commercial Television Industry, Code of
Practice (July 2004), Free TV Australia, Mosman, NSW, section 4 Clause 4.3.5:
In broadcasting news and current affairs programs, licensees must not use material relating to a
person‘s personal or private affairs, or which invades an individual‘s privacy, other than where
there is an identifiable public interest reason for the material to be broadcast.
65 See heading 4.2.
217
describe such a person is ―public figure‖. Such a person is distinguishable from a
―private person‖ in that the latter ―does not meet the definition of a public official, an
all-purpose public figure, or a limited-purpose public figure‖67
(these terms will be
examined shortly). This, in turn, means that the plaintiff, being a private person, in most
American jurisdictions is not required to prove that the defendant lied or exhibited
reckless disregard for the truth in publishing the libel.68
The public figure test ―has radically altered the cause of action in United States
defamation law.‖69
It has also ―been severely criticised both in the United States and
Australia‖70
and has been consistently rejected in Australia. The High Court in
Theophanous v Herald & Weekly Times Ltd71
entertained the prospect of a form of
public figure test for Australia.72
In Lange v Australian Broadcasting Corporation,73
however, the High Court ―unanimously dispensed with Theophanous without formally
overruling it‖.74
Or, as other commentators have put it: ―the constitutional defence
(established by Theophanous) disappeared without trace‖;75
the High Court in Lange
adopted ―a change of analysis‖;76
or the Theophanous defence ―was abolished by the
66 See heading 5 below Recommendation (e).
67 Pember DR (2003/2004), Mass Media Law, McGraw-Hill, New York, at 180.
68 Pember (2003/2004), above fn 67, at 180. Most plaintiffs will only have to demonstrate that the
defendant failed to exercise reasonable care in preparing and publishing the defamatory material,
although there are a few exceptions to this rule. Varying burdens are placed on ―private‖ plaintiffs in
some states so that in these states (including California, Colorado, Indiana, Alaska and New York)
they must prove a higher degree of fault than simple negligence when suing a media outlet for
defamation based on a story about a matter of public interest (ibid, references omitted).
69 NSWLRC Report No 75, above fn 10, Para 5.7.
70 See Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and
Gaudron JJ, at 134.
71 (1994) 182 CLR 104.
72 See the view of the New South Wales Law Reform Commission in NSWLRC Report No 75, above
fn 10, Para 5.5, that the High Court‘s decisions in Theophanous v Herald and Weekly Times Ltd
(1994) 182 CLR 104 and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 ―may
establish a form of public figure test‖.
73 (1997) 189 CLR 520.
74 Potter R (1997), ―Constitutional Defamation Defence Disappears as Theophanous Effectively
Overruled‖, Vol 16 No 3, Communications Law Bulletin 1, at 1. The author also notes that in Lange
v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court ―said that it was
arguable that Theophanous did not contain any binding statement of constitutional principle‖ (ibid).
The author notes further:
To formally overrule Theophanous would have meant that the High Court would have to
justify overruling a recent case for no other perceived reason than a change in its bench. By
dealing with Theophanous in this manner (―to seize upon‖ the tenuous majority in
Theophanous and Deane J‘s express reservations with the majority justices‘ reasoning), the
case could simply be left hanging; no longer effective precedent, but not actually overruled
(ibid).
75 Gillooly (1998), above fn 11, at 192.
76 Butler D (September 2000), ―Lange revisited: exploring the implied freedom of communication
concerning government or political matters‖, Vol 5 No 2 Media and Arts Law Review 145, at 156.
218
High Court in Lange‖.77
The American approach to public figures is attractive as the following discussion
reveals. As the New South Wales Law Reform Commission noted, albeit on the basis of
Theophanous, it is ―essential to give consideration to the public figure test as it has
developed in American jurisprudence and to the possible lines of development of
Australian defamation law.‖78
The term ―public figure‖ in the American context
envisages three categories of individuals who ―should meet heavier burdens of proof
when suing the media for libel than private plaintiffs‖:79
(a) public officials;80
(b) all-
purpose public figures;81
and (c) limited-purpose (or ―vortex‖) public figures.82
Of the
three categories the last-mentioned is the most contentious. Such public figures must
meet three criteria: (a) the alleged defamation must involve a public controversy; (b) the
plaintiff must have voluntarily participated in the discussion of that controversy; and (c)
the plaintiff must have tried to affect the outcome of that controversy.83
The limited-
purpose category holds great utility for media defendants because it widens
considerably the scope of those who may be considered public figures. Some US courts
have conferred limited public figure status on entertainers, athletes and others who
attract attention because of visible careers and many lower courts have held that those
77 Walker S (2000), Media Law: Commentary and Materials, 1st Edn, LBC Information Services,
Pyrmont, NSW.
78 NSWLRC Report No 75, above fn 10, Para 5.6 (italics added).
79 Middleton KR and Lee WE (2007), The Law of Public Communication, Pearson Education Inc,
Boston, at 129. See Pember (2003/2004), above fn 67, at 181, for a useful summary of the three
kinds of public persons.
80 This refers to those who are at the very least among the hierarchy of government employees who
have or appear to have a substantial responsibility to the public for or control over the conduct of
governmental affairs: see Rosenblatt v Baer, 383 US 75 (1966). In the three decades since the
Sullivan decision, American courts have ruled that public officials include those elected to public
office and non-elected government employees who play major roles in the development of public
policy: see Middleton and Lee (2007), above fn 79, at 125. See also Pember (2003/2004), above fn
67, at 181.
81 They ―occupy positions of such pervasive power and influence that they are deemed public figures
for all purposes‖: Gertz v Robert Welch Inc, 418 US 323 (1974), Powell J for the majority, at 345.
Some examples of all-purpose public figures in the US are activist Jane Fonda, publishing mogul
Ted Turner and long-time American Tonight Show host Johnny Carson: see Middleton and Lee
(2007), above fn 79, at 130 for more examples. See also Pember (2003/2004), above fn 67, at 181.It
has been observed that on occasion plaintiffs ―puffed up with self-importance, have happily admitted
that they were all-purpose public figures‖: Pember (2003/2004), above fn 67, at 165, citing Masson v
New Yorker Magazine Inc, 881 F 2d 1452 (1989).
82 Gertz v Robert Welch Inc, 418 US 323 (1974), Powell J, at 345:
Hypothetically, it may be possible for someone to become a public figure through no
purposeful action of his own, but the instances of truly involuntary public figures must be
exceedingly rare. For the most part those who attain this status have assumed roles of especial
prominence in the affairs of society.
Powell J found that the plaintiff in that case ―did not thrust himself into the vortex‖ of the issue at
hand (at 345).
83 Middleton and Lee (2007), above fn 79, at 131.
219
who seek public attention during their careers ought to have to prove actual malice
when the alleged defamation relates to their public performance.84
Some key aspects of
the limited-purpose public figure are briefly discussed under the following four sub-
headings while the fifth sub-heading answers objections to the public figure test
generally.
4.1.1 Public figure and nature of the controversy
Naturally, the nature of the controversy that generated the libel is an important factor in
determining whether a plaintiff is a limited-purpose public figure. Thus, the following
qualifications have been made in American judicial decisions: (a) a public controversy
is a dispute that in fact has received public attention because its ramifications will be
felt by persons who are not direct participants;85
(b) the media is not permitted to
manufacture a controversy with the purpose of ensnaring those participating in that
controversy as limited-purpose public figures;86
and (c) not all issues that attract the
public‘s interest are controversies for the purpose of this test.87
4.1.2 Public figure and extent of voluntariness
The starting point is that it is critical, for the purpose of determining whether a person is
a limited-purpose public figure, to establish whether the actions of the plaintiff involved
84 Middleton and Lee (2007), above fn 79, at 135.
85 Foretich v Capital Cities/ABC Inc, 37 F 3d 1541 (1994).
86 Khawar v Glob International Inc, 965 P 2d 696 (1998). This was a classic case of ―bootstrapping,
which is not permitted‖: see Pember (2003/2004), above fn 67, at 174. See also fn 90 below on this
point.
87 Time, Inc. v Firestone, 424 IS 448, 1 Media L Rep 1665 (1976). It has also been held that the
outcome of a public controversy has ―foreseeable and substantial ramifications‖ for those not
directly participating in the debate while news coverage is an indication of a public controversy but
is not of itself a sufficient criterion: Waldbaum v Fairchild Publications 627 F 2d, at 1292, 5 Media
L Rep 2629, at 2635-36.
See further Pember (2003/2004), above fn 67, at 167. In Gertz v Robert Welch Inc, 418 US 323
(1974) it was held that the plaintiff was not a public figure although he (Elmer Gertz) was a
reputable attorney, published articles, represented controversial clients and participated in civic
affairs: see Middleton and Lee (2007), above fn 79, at 130. Neither was Mary Alice Firestone who
was ―prominent among the ‗400‘ of Palm Beach Society‖ and an ―active‖ member of the ―sporting
set‖. Firestone sued Time magazine after it incorrectly reported that Russell Firestone had won a
divorce on the grounds ―of extreme cruelty and adultery: Time Inc v Firestone 424 US 448 1 Media
L Rep 1665 (1976). Middleton and Lee (2007), above fn 79, at 131, suggest that although Firestone
was not an all-purpose public figure on the national level, she might have been one on the local or
regional level and thus might have had to prove malice if she sued the local newspaper instead of a
national magazine. See also Pember (2003/2004), above fn 67, at 181. Weaver et al (2006), above fn
27, at 61–66 consider some of the difficulties associated with distinguishing between public figures
and private individuals, and suggest that the Time Inc v Firestone ―decision‘s logic did not
necessarily hold together‖ (at 62).
220
in a controversy were voluntary.88
This is a contentious area, however, because the
American courts have not spoken with one voice on what constitutes voluntariness and
even lawyers who specialise in libel law find the decisions ―often confusing‖.89
The
difficulties that give rise to contradictory judicial findings are not insurmountable in
Australia where, unlike the United States, a uniform approach is being taken in
defamation law. It is suggested that for present purposes a potential plaintiff not be
regarded as a public figure simply because he or she felt compelled to rebut accusations
or was otherwise drawn into public discussion against their will.90
Thus, the mere
existence of a public controversy does not give rise to a basis upon which to claim that
all participants in that controversy are public figures. The public controversy has to be a
genuine dispute over a specific issue affecting a segment of the general public91
and the
nature and extent of the plaintiff‘s participation in that issue should be taken into
account.
4.1.3 Businesses as public figures
In the US, businesses and corporations can sue for defamation, and so can also be
classified as public figures in such an action.92
The position is somewhat different in
Australia where corporations are generally prohibited from suing under the UDA.
Hence, in this thesis, no reform is proposed in respect of businesses and corporations in
light of these UDA free speech-friendly provisions.93
88 Pember (2003/2004), above fn 67, at 174.
89 Pember (2003/2004), above fn 67, at 176. In Foretich v Capital Cities/ABC Inc, 37 F 3d 1541 (1994)
the plaintiffs, who were publicly accused of sexually abusing their grand daughter, did not become
public figures because they appeared at press conferences and public rallies to deny these charges. In
Jewell v Cox Enterprises Inc, 27 MLR 2370 (1999), aff‘d, Atlanta Journal-Constitution v Jewell, Ga
Ct App, Nos A01A15b4-66, 10/01/01, however, a libel plaintiff who stepped into the controversy
was a public person because he voluntarily stepped into the controversy by giving interviews to the
press and was not merely defending himself against accusations that he had planted a bomb in a
knapsack in a park during the 1996 Summer Olympic Games in Atlanta.
90 On this point see the reference in fn 86 above on ―bootstrapping‖. It is not unknown for the media to
―bait‖ people into participating in a public controversy. That is, an individual may be reluctant to
engage with a particular issue but may be forced to do so in order to counter deliberately planted
misconceptions or misrepresentations. Evidence of such tactics is never easy to come by but the
common media practice of relying heavily on media releases and material supplied by parties with
vested interest illustrates the potential for the media to fall victim to manipulation.
91 See Middleton and Lee (2007), above fn 79, at 132.
92 Pember (2003/2004), above fn 67, at 176.
93 Section 9 provides that certain corporations do not have a cause of action for defamation. Note also
the arguments in support of such a handicap outlined in Standing Committee of Attorneys-General,
―Proposal for uniform defamation laws‖, above fn 46, Item 4.5: (a) defamation law was not
developed to protect corporate reputations; (b) other remedies are sometimes available to
corporations; (c) big corporations should not be permitted to use the defamation action to silence
public debate; and (d) corporations are better placed to protect their reputations.
221
4.1.4 Effect of passage of time on public figure status
In the US, the question has arisen as to whether a person who is considered a public
figure should be permanently regarded as such or whether a public person can claim to
be divested of this status, for instance, by the passage of time. The answer, shortly
stated, is that a person should continue to be regarded as a public figure ―but only in
regard to the issues or matters that generated the public-person status‖.94
4.1.5 Answering objections to the ―public figure‖ test
It is appropriate to briefly answer some objections made to the introduction of a public
figure requirement into Australian defamation law.
One objection is that the public figure test is a creature of American defamation
law with its accompanying characteristics and is therefore unsuitable for adoption in
Australia.95
The counter argument to this point is addressed in a later chapter.96
Briefly
stated, that argument is answered by the growing recognition in Australia that ―freedom
of expression is a fundamental tenet of a liberal democracy.‖97
A second objection is that the public figure test does not effectively deter
litigation by public figures, or promote free speech.98
In reply, it is noted that in the
United States there is a high incidence of successful appeals by defendants and a high
incidence of overturning or massive reductions of jury awards.99
Furthermore, a
―significant aspect‖ of the Sullivan decision,100
which laid down new and more
demanding criteria of liability for defamation actions brought by public officials in the
US, ―was its role in protecting critics of government action‖ from ―an unwarranted and
94 Pember (2003/2004), above fn 67, at 178–179. See also Street v NBC, 645 F 2d 1227 (1981), cert.
dismissed 454 US 1095 (1981); Newsom v Henry, 443 So 2d 817 (1984); Contemporary Mission v
New York Times, 665 F Supp, 248 (1987), 842 F 2d 612 (1988).
95 See NSWLRC Discussion Paper No 32, above fn 32, Paras 10.1, 10.6 and 10.7-10.11.
96 See Chapter 10 heading 5.
97 ALRC Discussion Paper No 72, above fn 35, Para 38.105.
98 NSWLRC Discussion Paper No 32, above fn 32, Para 10.6. Curiously the same Discussion Paper
states:
The public figure test removes the ―chilling‖ effect on the media by removing liability for even
gross negligence, where stories about public figures are concerned. The test encourages
publication and contribution to the flow of information available to the public (Para 10.39).
99 NSWLRC Report No 75, above fn 10, Para 5.16. The Commission notes:
…only a small proportion of the huge jury awards of damages survive the appeal process.
Appellate courts often completely overturn or massively reduce the amount of awards (ibid).
100 The decision has been hailed as a victory for press freedom: see Lidsky LB and Wright RG (2004),
Freedom of the Press: A Reference Guide to the United States Constitution, Praeger, Westport,
Conn, at 68.
222
excessive penalty at the hands of a government official.‖101
A third objection is that the public figure test causes undesirable side-effects.102
One suggested example of this is that in the United States there is inadequate emphasis
on the vindication of a reputation wrongly tarnished.103
Another criticism is that the
adoption of the public figure test:
…places little or no value on truth or care, and in fact encourages the dissemination of
totally false information, which the media need not even investigate. The test thus
encourages careless and irresponsible journalism and does not satisfy the public interest in
fairness and accuracy.104
Assuming that these are not extravagant claims it is suggested that concerns in
this regard are well-addressed by the prevailing regulatory framework governing the
Australian media.105
This thesis also makes suggestions to enhance that framework
through the ―no fault‖ defence.106
In response to the above concern about ―inadequate
emphasis on the vindication of a reputation wrongly tarnished‖ this thesis advocates a
restoration of defamation law‘s vindicatory aim.107
A fourth objection is that the American approach to public figures has created
101 Chesterman M (2000), Freedom of Speech in Australian Law: A Delicate Plant, Ashgate Dartmouth,
Hants, England, at 24–25. While the author notes the existence of a ―substantial body‖ of critics of
the Sullivan rule, the author also concedes that the critics ―generally defend the aspirations of the
Sullivan decision‖ and that dissatisfaction with the Sullivan rule is ―by no means unanimous‖ (at
157).
102 NSWLRC Discussion Paper 32, above fn 32, Para 10.6.
103 NSWLRC Discussion Paper 32, above fn 32, Para 10.28.
104 NSWLRC Discussion Paper 32, above fn 32, Para 10.39.
105 See, for example, the regulatory regime overseen by the Australian Communications and Media
Authority (ACMA) that requires broadcast service providers ―to be responsive to the need for a fair
and accurate coverage of matters of public interest‖: see section 3(1)(g), Broadcasting Services Act
1992 (Commonwealth). See further ACMA‘s role in overseeing the broadcast sector‘s complaints
handling process provided for under section 3(1)(i). See also section 5(1)(b)(ii) which empowers
ACMA to ―deal effectively with breaches‖ of the rules established by the Act.
Of further relevance is the detailed report, commissioned by a large grouping of Australian print and
broadcast publishers, which has identified an extensive range of laws that impact on freedom of
speech in Australia: Moss I (2007), Report of the Independent Audit into the State of Free Speech in
Australia, 31 October, report commissioned by the ―Australia‘s Right to Know‖ group, comprising
major Australian news organizations.
Note also Lord Cooke‘s observation in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER
609, at 644, where his Lordship observed that ―in other professions and callings, the law is content
with the standard of reasonable care and skill in all the circumstances. The fourth estate should be as
capable of operating within general standards‖ (italics added). In the same case note Lord Nicholls‘
observation that ―a journalist is not required to guarantee the accuracy of his facts‖ (at 625, italics
added).
106 See, for example, Chapter 5 heading 5.
107 For example, see the observation in Chapter 9 at the end of heading 4.2.2 that ―true vindication can
only come about by ensuring that the defamatory material is neutralised by setting the record set
straight.‖
223
complex categories of plaintiffs.108
In response, it arguable that such categories are
inevitable if we are to attain fairness in deciding the extent of leeway to allocate to
freedom of speech.
A fifth objection is that the public interest in the lives of ―media personalities,
prominent sports stars and such like‖ is not justified because ―public interest in the lives
of [such persons] is of a frivolous nature‖.109
Apart from the slippage in the use of the
term ―public interest‖ in this statement (to mean ―public curiosity‖ or ―prurient interest‖
as opposed to ―public concern‖) it is not within the contemplation of this thesis that
protection be offered to ―frivolous‖ publications but that the protection be restricted to
matters of public concern.
The further objection that the public figure test in the United States ―appears only
to contribute to the problems of lengthy and costly proceedings, with the sole emphasis
on damages as a remedy‖,110
is tenable only if we resort to a ―wholesale importation of
that package.‖111
No importation of such scale is proposed in this thesis.
4.2 The “matters of public concern” test
As a preliminary matter, it should be noted that the use of the expression ―public
concern‖ in the context of the present reform, rather than the more common term
―public interest‖, is deliberate, although occasionally it has been necessary to rely
on the term ―public interest‖ when citing authorities. The term ―public concern‖ is
preferable for the purpose at hand and the reasons for this are explained below.112
In a broad sense the argument for giving special treatment to matters of
public concern is eloquently made by Gillooly albeit in a slightly different
context:
108 Chesterman (2000), above fn 101, at 159. For another discussion opposing the public figure defence
see Attorney-General‘s Task Force on Defamation Law Reform (2002), Defamation Law –
Proposals for Reform in NSW, at 14-23. Retrieved 17 December 2007, from:
<http://www.lawlink.nsw.gov.au/report/lpd_reports.nsf/pages/def_law_proposal>
109 Western Australian Defamation Law Committee (September 2003), Committee Report on Reform to
the Law of Defamation in Western Australia, Para 40. The bases offered in this report for a rejection
of an expanded public figure defence also include the following: (a) there was ―not substantial
support for such an extension in the submissions we received‖; and (b) the Committee did not
consider that the mere fact that a person is in the public eye should result in a reduction in their right
to the protection of their reputation (ibid). See also fn 134 below on this point.
110 NSWLRC Report No 75, above fn 10, Para 5.22.
111 To borrow the words of the New South Wales Law Reform Commission itself: Report No 75, above
fn 10, Para 5.22. The term ―package‖ in the NSWLRC‘s usage referred to the US ―public figure test‖
and the ―package of reforms made in the wake of New York Times Inc v Sullivan‖ that provide
special criteria governing liability for plaintiffs in particular categories, making it more difficult for
those plaintiffs to establish a cause of action in defamation: see Paras 5.22 and 5.1.
112 See, for example, the quotation accompanying fn 134.
224
In the writer‘s submission, it is of critical importance that the interests of a group [the
recipients of defamatory communications] so intimately connected with defamation law be
taken into consideration if we are to arrive at a balanced and coherent legal regime that
meets the needs of society in the 21st century.113
―Matters of public concern‖ are determined by assessing the matter concerned by
reference to the subject matter or nature of the topic, rather than the nature of the
speaker, although often the divide between the two may be unclear.
A wide range of topics have been said to qualify for inclusion as matters to which
the implied freedom of political communication established in the Australian free
speech cases applies.114
Those topics are referred to by the common shorthand name –
―matters of government and politics‖.115
The meaning of the expression
―communication about a government or political matter‖ is imprecise, but there is
support for the view that nothing said in Lange derogates116
from those matters
identified in Theophanous, where it was said that ―political discussion‖ extended to ―all
speech relevant to the development of public opinion on the whole range of issues
which an intelligent citizen should think about‖.117
However, the reasoning in Lange v
Australian Broadcasting Corporation, given as it was in the context of qualified
privilege, did not mean that qualified privilege extended to all matters of public
interest.118
Such matters, it has been said, must be limited to the extent that the text and
structure of the Constitution establish it.119
It is suggested here that the development of
our defamation law need not be limited by similar considerations. ―Matters of public
concern‖ includes but is a far broader term than matters relating to politics and
government.
113 Gillooly (2004), above fn 22, at 20.
114 See Chapter 2 fn 31 for a reference to the ―seven major‖ free speech cases.
115 In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the Full Court of the High
Court said, at 559:
Freedom of communication on matters of government and politics is an indispensable incident
of that system of representative government which the Constitution creates by directing that
the members of the House of Representatives and the Senate shall be "directly chosen by the
people" of the Commonwealth and the States, respectively (italics added).
For the range of matters that may be considered to be ―matters of government and politics‖ see text
accompanying fn 120 below. See also Butler D and Rodrick S (2007), Australian Media Law,
Lawbook Co, Pyrmont, NSW, at 79; George (2006), above fn 33, at 295–296; Gillooly (1998),
above fn 11, at 190–191.
116 On this point note the views concerning the ―overruling‖ of Theophanous referred to in the text
accompanying fns 74-77 above.
117 Butler and Rodrick (2007), above fn 115, at 79 (italics added).
118 See also Peek v Channel Seven Adelaide Pty Ltd (2006) 228 ALR 553; Herald and Weekly Times
Ltd & Anor v Popovic (2003) 9 VR 1.
119 See Brown & Ors v Members of the Classification Review Board of the Office of Film and Literature
Classification (1998) 154 ALR 67, at 86.
225
It was held in Theophanous that the matters within the scope of the term ―matters
of government and politics‖ includes discussion about the conduct, policies or fitness
for office of government members, political parties, public bodies, public officers and
those seeking public office; the discussion of the political views and public conduct of
persons who are engaged in activities that have become the subject of political debate,
for example, trade union leaders, Aboriginal political leaders, political and economic
commentators; and the concept is not exhausted by political publications and addresses
which are calculated to influence choices.120
In Theophanous, the High Court cited
Barendt‘s reference to ―all speech relevant to the development of public opinion on the
whole range of issues which an intelligent citizen should think about‖ and added that ―it
was this idea which Mason CJ endeavoured to capture‖ in an earlier case when he
referred to ―public affairs‖ as a subject protected by the freedom (of political
communication).121
The High Court also cited another eminent free speech advocate
Alexander Meiklejohn‘s view that freedom of speech ―is assured only to speech which
bears, directly or indirectly with issues which voters have to deal with – only, therefore,
to the consideration of matters of public interest‖ but not to ―[p]rivate speech, or private
interest in speech‖.122
However, the High Court noted a problem – ―what is ordinarily
private speech may develop into speech on a matter of public concern with a change in
content, emphasis or context.‖123
Thus, for example, although the Court perceived ―a
difference between entertainment and politics‖ it also noted the potential for ―occasions
when one may merge into the other‖.124
In modern day government the separation
between an individual‘s public and private spheres and their official and private conduct
may be obscure as a result of a the trend towards the privatization of public services,
―out-sourcing‖ and the sponsorship of private activity with funds from the public coffer.
This tendency reinforces the argument for an interpretation that takes such blurring into
account. Such an approach would make for an expanded view of what constitutes
matters of public concern.
120 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 124; Deanne J, at 179–180. See also Butler and Rodrick (2007), above fn 115, at 79.
121 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 124, referring to Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106,
at 138–140. The Barendt work cited in Theophanous was Freedom of Speech (1985), at 152.
122 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 124.
123 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 124.
124 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 124.
226
Support for a broad approach to what should be considered available for public
discussion can be found in the following observation by Lord Simon:
The first public interest involved is that of the freedom of discussion in a democratic
society. People cannot adequately influence the decisions which affect their lives unless
they can be adequately informed on facts and arguments relevant to the decisions. Much of
such fact-finding and argumentation necessary has to be conducted vicariously, the public
press being a principal instrument.125
Importantly, that observation expands the scope of what may be considered
matters of public concern beyond matters of politics and government to more broadly
cover matters that affect people‘s lives. Matters of public concern should not be limited
to but should include the matters covered by the Lange scope which as noted earlier was
made in the context of qualified privilege and not intended to be an exhaustive
statement of what constitutes matters of public concern. The matters identified in
Lange, along with statements made in Theophanous, provide a useful basis upon which
to consider an expanded scope for matters of public concern.
4.2.1 Scope of ―matters of public concern‖
A common media concern is that the former public interest/benefit element in the truth
defence was a privacy protection device in disguise.126
In the Australian experience the
incidence of privacy invasion by the media is not as serious as might be the case in the
United States or in England.127
Within the privacy protection framework there is room
for flexibility so that the scope of protection may be set widely or narrowly. It is
suggested that the notion of ―matter of public concern‖ should be applied broadly to
enable a wide range of matters to qualify as matters of public concern. Lord Denning
MR in his classic statement on the meaning of matters of public interest favoured such a
breadth:
I would not myself confine it within narrow limits. Whenever a matter is such as to affect
people at large, so that they may be legitimately interested in, or concerned at, what is
going on; or what may happen to them or others; then it is a matter of public interest on
which everyone is entitled to make fair comment.128
125 A-G v Times Newspapers [1974] AC 273, Lord Simon of Glaisdale, at 315.
126 See text accompanying fn 29 above.
127 ALRC Discussion Paper No 72, above fn 35, Paras 38.24-38.26 note the low incidence of privacy
complaints against media organisations.
128 London Artists Ltd v Littler [1969] 2 QB 375, at 391 (italics added). Also see Allsopp v Incorporated
Newsagencies Co (1975) 26 FLR 238, at 244-5. For a more recent view on the attitude of the courts
in England towards ―public interest‖ see Gatley (2004), above fn 8, at 312:
To a very large extent, whether an imputation relates to a matter of public interest or not is
determined by value judgment, by the individual perception of the tribunal charged with the
task of making the decision, and current mores and attitudes. The courts now treat many more
matters as being of legitimate public concern or interest than would have been the case in the
227
That formulation, however, warrants further comment, in particular in relation to
―legitimate‖ and matters of public ―concern‖. The two terms appear to impose
constraints on the ambit to be given to ―matter of public concern‖.
American defamation law tends to prefer the term ―public concern‖129
to ―public
interest‖ although the US Supreme Court ―has never defined ‗matters of public
concern‘.‖130
In the Bonnick case131
the Privy Council, building on the terminology in
the Reynolds case, which dealt with qualified privilege,132
appears to have deliberately
chosen the expression ―public concern‖ rather than the more familiar ―public
interest‖.133
For the purposes of this thesis the term preferred is ―public concern‖ rather
than ―public interest‖. What then is the difference between ―public interest‖ and ―public
concern‖? Tipping J offered the following explanation, in the context of qualified
privilege, for preferring ―public concern‖ rather than ―public interest‖:
The expression ―in the public interest‖, although capturing the rationale for the privilege,
carries the risk of subject-matter slippage to ―matters of public interest‖. It is not
necessarily in the public interest to publish to the world at large matters which are of
interest to the public. The concept behind the expression ―matters of public concern ‖ is
designed to convey more exactly what the privilege is about. The use of the word
―concern‖ does not necessarily signify worry, but it does signify that the subject-matter of
the publication must be something about which the public is entitled to be informed. The
subject-matter must be something about which the public has a right to know, as Lord
Nicholls put it in Reynolds.134
nineteenth century, a tendency accentuated by Article 10 of the European Convention on
Human Rights.
129 See, for example, Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at
777. See also Dun & Bradstreet Inc v Greenmoss Builders Inc 472 US 749 (1985), at 758, where the
US Supreme Court noted that it had long held that not all speech is of equal First Amendment
importance, but that it is speech on matters of public concern that is at the heart of the First
Amendment protection.
130 Middleton and Lee (2007), above fn 79, at 147. The common equivalent term ―public interest‖ has
similarly also ―never been defined‖ in English and Australian law: see heading 4 above.
131 Bonnick v Morris & Others, Unreported, PC 30/2001, 17 June 2002.
132 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609.
133 This was Justice Tipping‘s observation: see Tipping A (2002), ―Journalistic Responsibility, Freedom
of Speech and Protection of Reputation – Striking the Right Balance Between Citizens and the
Media‖, Vol 10 Waikato Law Review 1, at 7.
134 Tipping (2002), above fn 133, at 7 (italics added). See also the justification for caution expressed by
Kirby J in Channel Seven Adelaide Pty Ltd v Mannock [2007] HCA Transcript 414 (7 August 2007),
albeit in a slightly different context:
[S]ometimes it has been known for media items to parade as being concerned with great issues
of social importance, but the actuality of the item is focused, in the nature of media today, on
an individual and a sort of infotainment approach. We have to keep our eye on the realities of
the way the media operates today and fashioning requirements of pleading.
In Francome v Mirror Newspapers [1984] 2 All ER 408, Donaldson MR, at 413, noted that the
media ―are peculiarly vulnerable to the error of confusing the public interest with their own interest.‖
See further the distinction drawn between matters that ―the public takes great interest in‖, on the one
hand and, on the other hand, matters that ―affect property of considerable value‖ and is of ―public
importance‖ going beyond the plaintiff and defendants and having ―a very substantial character‖: see
228
A further ground is the confusion that tends to accompany the term ―public interest‖.135
It is suggested that the scope of matters of public concern should properly
acknowledge the full range of matters that intelligent citizens should think about and
this should include issues such as: child or sexual abuse; social misdemeanour by sports
and entertainment personalities; substance abuse in sport; business relationships
involving political personalities; and relationships that expose a conflict between public
and private interests. As Lord Steyn noted, there is a compelling argument to expand the
scope of matters of public concern beyond political discussion:
There are other public figures who exercise great practical power over the lives of people
or great influence in the formation of public opinion or as role models. Such power or
influence may indeed exceed that of most politicians. The rights and interests of citizens in
democracies are not restricted to the casting of votes. Matters other than those pertaining to
government and politics may be just as important in the community; and they may have a
strong claim to be free of restraints on freedom of speech.136
The task of defining the scope of matters of public concern can be accomplished
by the courts conducting an evaluation having regard to all the circumstances while
ensuring that it does not supplant the editor‘s role in the newsroom. The following
proposition from Lord Nicholls, although it was expressed in the context of a privileged
occasion, provides a useful basis upon which to approach the present task:
Whether the public interest so requires depends upon an evaluation of the particular
information in the circumstances of its publication. Through the cases runs the strain that,
when determining whether the public at large had a right to know the particular
information, the court has regard to all the circumstances. The court is concerned to assess
whether the information was of sufficient value to the public that, in the public interest, it
should be protected by privilege in the absence of malice.137
Johansen v City Mutual Life Assurance Society Ltd (1905) 2 CLR 186, Griffith CJ (delivering
judgment of the Full Court), at 188. See also fn 55 above.
135 See, for instance, the discussion under heading 3 above.
See further Pearson M (July 2007), ―A review of Australia‘s defamation reforms after a year of
operation‖, Vol 29(1) Australian Journalism Review 41, at 50, where the author states that
―journalists need a strong public interest defence to defamation‖. This suggestion was made in the
context of the adverse impact of various laws on the flow of information. The term ―public interest‖
here was arguably used to justify greater press freedom. There is, however, another valid
interpretation of the term – that the public interest requires a weighing up of competing public
interests as a result of which the ―public interest‖ may justify a curb on the flow of information in
particular circumstances.
136 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, at 640 (italics added).
137 Reynolds v Times Newspapers & Ors [1999] 4 All ER 609, Lord Nicholls, at 617 (italics added). In
the same passage Lord Nicholls cited Cox v Feeney (1863) 4 F & F 13, at 19, 176 ER 445, at 448,
where Cockburn J approved an earlier statement by Lord Tenterden CJ that ―a man has a right to
publish, for the purpose of giving the public information, that which it is proper for the public to
know‖ (italics added). See also McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70,
Tamberlin J, at 75–76:
The public interest is not one homogenous undivided concept. It will often be multi-faceted
and the decision-maker will have to consider and evaluate the relative weight of these facets
before reaching a final conclusion as to where ―the public interest‖ resides. This ultimate
229
A closely-linked matter concerns what the media consider newsworthy, that is, a
quality that the media attaches to information that it considers appropriate for public
dissemination in keeping with freedom of speech principles.138
Butler states that as
―newsworthiness‖ the public interest defence ―has enjoyed trump status in the United
States, at least in relation to public disclosure of private facts.‖139
In the UK, freedom of
expression commands great weight by virtue of Article 10 European Convention for the
Protection of Human Rights and Fundamental Freedoms.140
Modern communications
with rapid and widespread cross-border dissemination of information compel a liberal
approach in this regard.
4.2.2 Answering objections to the ―matters of public concern‖ test
Two main objections may be identified against the ―matters of public concern‖ test
proposed. First, it may be argued by defendants that this test is a constraint on freedom
of speech because it is more demanding than the ―public interest‖ test. That is, it would
impede the publication of matters that are of interest to the public. This argument is
easily rebutted. The ―public concern‖ test does no more than draw attention to the need
to provide greater protection to matters that the public may legitimately take an interest
in, as opposed to matters of lesser import to public participation in public affairs.141
Furthermore, as noted above, the media have themselves already committed to
evaluation of the public interest will involve a determination of what are the relevant facts of
the public interest that are competing and the comparative importance that ought to be given to
them so that ―the public interest‖ can be ascertained and served. In some circumstances, one or
more considerations will be of such overriding significance that they will prevail over all
others. In other circumstances, the competing considerations will be more finely balanced so
that the outcome is not so clearly predictable.
See also McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, Hayne J, at 443:
It may readily be accepted that most questions about what is in ―the public interest‖ will
require consideration of a number of competing arguments, or features or ―facets‖ of, the
public interest.
138 For a more detailed discussion of the criteria of newsworthiness, see White S (2000), Reporting in
Australia, 2nd Edn, MacMillan, Sth Yarra, Melbourne, at 11–21.
139 Butler D (2005), ―A Tort of Invasion of Privacy in Australia?‖ Vol 29 Melbourne University Law
Review 339, at 380. Middleton and Lee (2007), above fn 79, at 223, state as follows in relation to the
―public interest defence‖:
Newsworthiness is a broad defence allowing the use of information of public interest in
commercial contexts. Newsworthiness has been recognised in reports of commercially staged
press conferences and in the photos on book covers. Newsworthy names and photos may also
be used in incidental advertising for a publication or broadcast (italics added).
The ―public interest defence‖ has been cast in New Zealand, in terms of ―legitimate public concern‖:
see Butler (2005, ibid) citing Hosking [2005] 1 NZLR 1, Gault P and Blanchard J, at 32.
140 Butler (2005), above fn 139, at 380.
230
confining their reach only to matters of public concern. This is illustrated by the
Australian Press Council‘s acknowledgement in its guiding principles that ―[f]reedom
of the press carries with it an equivalent responsibility to the public‖142
and further that
it would give ―first and dominant consideration to what it perceives to be in the public
interest‖ in the sense of what people ―might be legitimately interested in, or concerned
about‖.143
The second objection is that ―matters of public concern‖ is difficult to define.144
The rebuttal simply is that ―what is in the public interest is a well-known and
serviceable concept‖.145
Furthermore, the adoption of the ―matters of public concern‖
test in the present context does not introduce a radical shift in burdens and this test is
neither alien to defamation law nor to the truth defence itself. Importantly, the public
concern requirement would not impose a heavy burden if it were given a reading that
recognises the importance of freedom of speech.146
In the context of the present reform
scheme, if in fact the public concern requirement imposes a constraint on the media, it
is a legitimate one.
5. Reform recommendations
For the purposes of the proposal in Chapter 5 that ―public figure‖ plaintiffs suing on a
―matter of public concern‖ must prove the falsity of the matter published147
the
following recommendations are made.
Recommendation (a)
For the purposes of the burden reversal proposed in Chapter 5, and subject to
Recommendation (b) below, a public figure refers to:
141 See, for instance, the discussion under heading 4.2.1 above and especially text accompanying fn 134
containing Tipping J‘s observation that it is ―not necessarily in the public interest to publish to the
world at large matters which are of interest to the public.‖
142 See fn 63 above for a fuller extract (italics added).
143 See fn 63 above for a fuller extract (italics added).
144 See, for example, text accompanying fns 41 and 42 above, where the ALRC noted that the term is
―an amorphous concept‖ and ―impossible to define‖.
145 See Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 634; heading 4
above.
146 See for instance, Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254, at 262-263:
What is or is not a matter of public interest may be interpreted widely or narrowly: see London
Artists Ltd v Littler [1969] 2 QB 375, Lord Denning MR; cf Allsopp v Incorporated
Newsagencies Co Pty Ltd (1975) 26 FLR 238, Blackburn J, at 244-245. It can be decided only
by reference to the nature of the matter made public and the context of its publication. To say
that a matter is of public interest is to say that it is not merely of private concern but a matter
which properly might concern the ordinary reasonable reader as a member of the public.
147 See heading 4.2 Recommendation (a).
231
(i) any person in public office whether elected to that office or not;148
(ii) any person who seeks a public profile;149
(iii) any person who, while not actively seeking a public profile, is a willing
participant in the creation or promotion of that profile,150
or is a willing
participant in a public controversy or public debate;151
and
(iv) any person who by virtue of his or her office or calling exercises practical power
over the lives of people or influence in the formation of public opinion or as role
models.152
For the purposes of this section the term “public office” means any office whether in a
government department, agency or authority or any body over which a government
department, agency or authority exerts influence or control.
Explanatory notes to Recommendation (a)
The grounds for this recommendation were discussed earlier153
and the footnotes to the
above recommendations point to convenient summaries. The above recommendations
are primarily aimed at recognising that a distinction can and ought to be made between
an individual‘s public and private status.154
The recommendation also recognises that
the term public office should be construed broadly to take account of the fact that the
notion of a ―public‖ office should reflect the government‘s tendency to operate directly
or indirectly in matters of governance.
148 See fn 80 above.
149 That is, a person who seeks or fosters a media image, whether for profit or not, and does so by
voluntarily participating in events or engages in conduct that leads to media coverage for that person.
150 See discussion under heading 4.1 above. Such persons might incidentally find themselves in the
spotlight, but having so gained fame, continue to fan that fame: see for example Cusson v Quan
[2007] ONCA 771 where the police officer concerned was hailed as a hero for his rescue efforts
after the September 11 attacks on the World Trade Centre but was later alleged to have abandoned
his duties with his employer and of having misrepresented himself as a trained dog handler and
civilian search and rescue personnel. The term would also include those who act as spokespersons
for the government department, agency or authority or a private sector organisation.
151 Gertz v Robert Welch Inc, 418 US 323 (1974), at 351–352. It was noted there that absent clear
evidence of general fame or notoriety in the community and pervasive involvement in ordering the
affairs of society, an individual should not be deemed a public figure for all aspects of his or her life.
Rather, the public-figure question should be determined by reference to the individual‘s participation
in the particular controversy that gave rise to the defamation.
152 See Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 640. Lord Steyn‘s
formulation required such persons to wield ―great‖ practical power or ―great‖ influence‖. Some
common examples of such persons are sporting and entertainment stars.
153 See heading 4.1 above.
154 See also the explanatory notes to Recommendation (b) below.
232
Recommendation (b)
In evaluating a person’s public figure status the court shall have regard to the following
non-exhaustive list of factors:
(i) whether the plaintiff voluntarily participated in the public discussion of the issue
concerned. The plaintiff should not be considered a public figure by reason only
of the fact that he or she felt compelled to respond to accusations against him or
her or was otherwise involuntarily drawn into the public discussion;155
(ii) whether there was a genuine controversy involving people beyond the immediate
circle of participants;156
(iii) whether the plaintiff’s role in the controversy was real, and not merely trivial or
tangential;157
(iv) whether the alleged defamation was relevant to the plaintiff’s participation in the
controversy;158
(v) whether the plaintiff benefited materially from public funds or goodwill in the
course of his or her involvement in the matter that is the subject of public
discussion;159
and
(vi) the effect of the passage of time on the person’s public figure status.160
Explanatory notes to Recommendation (b)
The justifications for this recommendation were discussed earlier.161
This
recommendation acknowledges that generalisations about public figures can expose
public figures to unjustified attack or unjustified public exposure. As has been noted:
―Generalisations about all-purpose public figures are risky.‖162
One check on unjustified
attack or public exposure may be achieved by harnessing the person‘s public figure
155 See heading 4.1.2 above.
156 See Tavoulareas v Piro 817 F 2d 762, 260 US App DC 39 (DC Cir 1987), at 772.
157 See Tavoulareas v Piro 817 F 2d 762, 260 US App DC 39 (DC Cir 1987), at 772.
158 See Tavoulareas v Piro 817 F 2d 762, 260 US App DC 39 (DC Cir 1987), at 772.
159 On this point see the case of Hutchinson v Proxmire 443 US 111 (1979). There the court held that a
scientist who received an award to publicise blatant examples of wasteful governmental spending
and who was accused by the defendant of making ―a monkey out of the American taxpayer‖ was not
a public figure and that he had not ―thrust himself or his views into public controversy to influence
others‖ (at 135). Weaver et al (2006), above fn 27, at 63, observe that although the plaintiff was not
a public figure, ―one can question the outcome on the basis that the public clearly had an interest in
knowing how public funds were being spent.‖
160 See heading 4.1.4 above.
161 See heading 4.1.2 above. For a further useful checklist as to what constitutes the varying types of
public figures (public officials, all-purpose public figures, and limited purpose public figures, see
Pember (2003/2004), above fn 67, at 181.
162 Middleton and Lee (2007), above fn 79, at 131.
233
status to the matter which has cast the public figure into the public spotlight.163
A
further check may be imposed by drawing a line between voluntary and involuntary
participants in a matter of public concern. Society has much to lose by subjecting the
public sphere to unbridled public scrutiny that the public sphere becomes uninhabitable
for individuals performing a legitimate public role. A person can be a public figure but
it does not necessarily follow that they should thereby be rendered fodder at the media‘s
hands.
Recommendation (c)
For the purposes of the burden reversal proposed in Chapter 5 a “matter of public
concern” refers to:
(i) matters of government and politics;164
(ii) matters of “public affairs”165
whether they concern matters or government and
politics or not;
(iii) matters that include discussion about the conduct, policies or fitness for office of
the public figure concerned;
(iv) matters that people may be legitimately interested in or concerned about;166
and
(v) all speech relevant to the development of public opinion on the whole range of
issues which people should think about.167
163 Thus, once a person becomes a public figure in connection with a particular controversy, that person
remains a public figure thereafter for purposes of later commentary or treatment of that controversy:
see Street v NBC, 645 F 2d 1227 (1981), cert dismissed 454 US 1095 (1981). This view has been
reinforced consistently in US court decisions: see Pember (2003/2004), above fn 67, at 179.
164 See heading 4.2 above for a discussion of what constitutes matters of government and politics, and
especially text accompanying fn 120.
165 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 124, referring to Mason CJ‘s view in Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106, at 138–140. See especially Mason CJ‘s view, at 139:
Freedom of communication in relation to public affairs and political discussion cannot be
confined to communication between elected representatives and candidates for election on the
one hand and the electorate on the other.
166 See London Artists Ltd v Littler [1969] 2 QB 375, Lord Denning MR, at 391.
167 See the view attributed to Barendt above (text accompanying fn 121). Barendt‘s formulation there
extended the freedom to cover ―all speech relevant to the development of public opinion on the
whole range of issues which an intelligent citizen should think about‖. While Barendt was speaking
in reference to ―political speech‖ it is suggested here that Barendt‘s formulation is capable of a
broader application although the limitation of the freedom to what ―intelligent people‖ should think
about is too restrictive and inconsistent, for instance, with the wider view taken in London Artists Ltd
v Littler [1969] 2 QB 375, at 391 (see quotation accompanying fn 128 above).
234
Explanatory notes for Recommendation (c)
The ambit of ―matters of public concern‖ was discussed earlier and one point made
there was that the matters identified in Lange, along with statements made in
Theophanous, ―provide a useful basis upon which to consider an expanded scope for
matters of public concern‖.168
The broad basis for each of the above suggestions is
indicated in the footnotes to the respective recommendations.
Recommendation (d)
Whether the requirements of the terms “public figure” and “matter of public concern”
are satisfied in a particular case should be decided by the judge.
Explanatory notes for Recommendation (d)
This recommendation is aimed primarily at attaining a greater degree of consistency
than might be the case if the determination was left to the jury. Furthermore, this
recommendation is also consistent with that made by the New South Wales Law
Reform Commission in a similar context.169
Recommendation (e)
The terms “public figure” and “matter of public concern” should be given a broad
reading that takes proper account of importance of freedom of speech.170
Explanatory notes for Recommendation (e)
This recommendation is consistent with the thrust of this thesis.171
6. Model provisions
The model provisions are set out here in an order that corresponds with the
recommendations above.
Meaning of “public figure”
(a) Subject to model provision (b) a public figure refers to:
168 See discussion under heading 4.2 above.
169 See NSWLRC Report No 75, above fn 10, Para 3.16 Recommendation 3.
170 On this point see Chapter 7 heading 4.4 Recommendation (b) and the corresponding explanatory
notes.
171 See, for example, the discussion in this Chapter generally; Chapter 7 heading 4.4 Recommendation
(b) and the corresponding explanatory notes; and Chapter 10 heading 5.
235
(i) any person holding ―public office‖ whether elected to that office or
not;
(ii) any person who seeks a public profile;
(iii) any person who, while not actively seeking a public profile, is a
willing participant in the creation or promotion of that profile, or is a
willing participant in a public controversy or public debate; and
(iv) any person who by virtue of his or her office or calling exercises
practical power over the lives of people or influence in the formation
of public opinion or as role models.
For the purposes of this provision:
(1) the term ―public office‖ means any office whether in a government
department, agency or authority or any body over which a government
department, agency or authority exerts influence or control; and
(2) the term ―person who seeks a public profile‖ means a person who
seeks or fosters a media image, whether for profit or not, and does so
by voluntarily participating in events or engages in conduct that leads
to media coverage for that person.
Factors relevant to “public figure” status
(b) In evaluating a person‘s public figure status the court shall have regard to the
following non-exhaustive list of factors:
(i) whether the plaintiff voluntarily participated in the public discussion
of the issue concerned. The plaintiff should not be considered a public
figure by reason only of the fact that he or she felt compelled to
respond to accusations against him or her or was otherwise
involuntarily drawn into the public discussion;
(ii) whether there was a genuine controversy involving people beyond the
immediate circle of participants;
(iii) whether the plaintiff‘s role in the controversy was real, and not merely
trivial or tangential;
(iv) whether the alleged defamation was relevant to the plaintiff‘s
participation in the controversy;
(v) whether the plaintiff benefited materially from public funds or
goodwill in the course of his or her involvement in the matter that is
236
the subject of public discussion; and
(vi) the effect of the passage of time on the person‘s public figure status.
Meaning of “matter of public concern”
(c) A ―matter of public concern‖ refers to:
(i) matters of government and politics;
(ii) matters of ―public affairs‖ whether they concern matters or
government and politics or not;
(iii) matters that include discussion about the conduct, policies or fitness
for office of the public figure concerned;
(iv) matters that people may be legitimately interested in or concerned
about; and
(v) all speech relevant to the development of public opinion on the whole
range of issues which people should think about.
Decision for judge
(d) Whether the requirements of the terms ―public figure‖ and ―matter of public
concern‖ are satisfied in a particular case should be decided by the judge.
Broad reading
(e) The terms ―public figure‖ and ―matter of public concern‖ should be given a broad
reading that takes proper account of the importance of freedom of speech.
237
CHAPTER 7
Difficulties with “meaning” and “reputation”
When I use a word…it means
just what I choose it to mean –
neither more nor less.1
[B]e sure that you go to the author
to get at his meaning, not to find yours.
Judge it afterwards if you think yourself qualified to do so;
but ascertain it first.2
1. Introduction
This chapter examines difficulties that afflict not just the truth defence, but defamation
law more widely – and this includes difficulties associated with what the words mean
and how that meaning is derived for the purpose of defamation litigation. The ―gist‖ of
the tort of defamation ―is the publication of matter conveying a defamatory
imputation.‖3 The ―crucial question is: Were the words defamatory?‖
4 Of the three
elements of the cause of action,5 the ―first ingredient necessary to found the plaintiff‘s
cause of action‖ is to show that that the matter complained of is defamatory.6 This
ingredient is also, by far, the most contentious of the three elements and ranks high in
the hierarchy of difficulties which defendants pleading the truth defence confront. Many
of the difficult questions concerning the truth defence ―arise from the requirement that
the defendant establish the truth of the precise charge brought by him against the
plaintiff.‖7
The determination of what imputations arise from the allegedly defamatory
1 Lewis Carroll (1832-1898), Through the Looking Glass, Champaign, Illinois: Project Gutenberg,
Boulder, Colorado: NetLibrary, Curtin Electronic Resource, at 32, taken from the following passage:
―When I use a word,‖ Humpty Dumpty said in rather a scornful tone, ―it means just what I
choose it to mean – neither more nor less.‖
―The question is,‖ said Alice, ―whether you CAN make words mean so many different things.‖
―The question is,‖ said Humpty Dumpty, ―which is to be master – that's all.‖
2 John Ruskin (1819–1900), in Sesame and Lilies (1960), ―Of Kings‘ Treasuries‖, George Allen &
Unwin Ltd, London, at 18 (original publication in 1865, emphasis in original).
3 Milmo P and Rogers WVH (2004), Gatley on Libel and Slander, 10th Edn, Sweet & Maxwell,
London, at 28.
4 Weir T (1992), A Casebook on Tort, 7th Edn, Sweet & Maxwell, London, at 507.
5 The three elements are: (a) the matter complained of is defamatory; (b) the plaintiff is identified as
the person to whom the defamatory matter relates; and (c) the matter is published by the defendant
(italics in original): see Gillooly M (1998), The Law of Defamation in Australia and New Zealand,
Federation Press, Sydney, at 22.
6 Gillooly (1998), above fn 5, at 33 (italics added).
7 Tobin TK and Sexton MG (1990), Australian Defamation Law and Practice, Butterworths, Sydney
(LexisNexis Online), Para 11,005.
238
matter ―is of critical importance in defamation litigation, and a fertile source of
dispute‖.8 The complexity that afflicts the determination of meanings creates fertile
ground for tactical battles.9
It is obvious in a jury trial that adducing substantial evidence which is prejudicial to the
plaintiff may well have a significant effect on the damages awarded, notwithstanding the
plaintiff‘s technical success in relation to those parts of the publication about which the
plaintiff has complained. Where justification has been pleaded as a defence there is likely
to be a tactical battle over the extent of the evidence that can be called by the defendant in
support of that plea.10
While there are principles to regulate that conflict ―it must be said that a number
of them are still far from settled.‖11
This chapter examines two salient difficulties that
plague this part of defamation law: (a) questions about the definition of defamation or
defamatory imputation;12
and (b) the fraught nature of establishing defamatory
meaning.13
Before that, however, some preliminary observations on the determination
of defamatory meaning will be made, so as to lay the groundwork for what is to come.14
2. Preliminary observations on the determination of meaning
The truth defence provisions in the UDA, in reflecting the common law position,
employ the term ―imputation‖. The defamatory meaning of the matter complained of
lies in the imputations that it conveys.15
There are two stages to determining whether
8 Gillooly (1998), above fn 5, at 34.
9 Robertson G and Nicol A (2002), Media Law 4th Edn, Penguin, London, at 115 state:
What has to be justified as ―true‖ is not a set of words in their literal meaning, but the
imputation they convey – and they may convey several. English law‘s approach insists on one
defamatory ―sting‖, but a long article or broadcast program may carry a number of defamatory
meanings, some true and others false. This invites a great deal of pre-trial tactical skirmishing:
the claimant will only sue on the false imputations, but the defendant will seek to call evidence
of other ―stings‖ that can be proved…in most cases there will be an overlap, if not a hopeless
entanglement, and the judge will have to resort to case management techniques and
proportionality doctrine to limit the issues and the evidence.
10 Tobin and Sexton (1990), above fn 7, Para 11,005.
11 Tobin and Sexton (1990), above fn 7, Para 11,005.
12 Heading 3 below.
13 Heading 4 below.
14 Heading 2 below.
15 See New South Wales Law Reform Commission (October 1995), Defamation, Report No 75, Para
1.19 for a discussion of the ―substantial difference‖ between previous approaches to imputations in
New South Wales and elsewhere in Australia. In New South Wales a cause of action in defamation
was previously founded on the imputations, each pleaded imputation giving rise to a separate cause
of action. The plaintiff would fail where the imputation was not conveyed by the matter complained
of or where the imputation was found not to be defamatory. By contrast, the common law position in
the other Australian jurisdictions is that the cause of action is founded on the publication of the
defamatory matter, so that, in principle, it is always open to the court to find that the matter conveys
a defamatory meaning or imputation different from that pleaded by the plaintiff. Practically this was
a substantial difference from the New South Wales position, which, by placing a premium on careful
239
words are defamatory, first to decide what the words mean, and then to decide whether
that meaning is defamatory.16
In respect of the truth defence it is a defence to prove that
the ―defamatory imputations‖ conveyed by the publication are substantially true.17
It is
a well-established rule that ―[e]very material part of the defamatory imputation must be
true, otherwise the defence of justification fails.‖18
Imputations can arise in two ways:
(a) from the natural and ordinary meaning of the words complained of; and (b) by way
of innuendo,19
that is, ―a meaning arising from facts extrinsic to the words‖.20
In
deciding what the words complained of mean, the court‘s approach is to apply the
standard of the ordinary, reasonable person, that is, what would ordinary reasonable
people understand by the matter complained of.21
As Kirby J noted: ―The point of the
invocation of the hypothetical reasonable person is to remind decision-makers that they
and accurate pleading, achieved a precision in the formulation of the plaintiff‘s case which was not
always attainable in other jurisdictions (references omitted).
Under the UDA the ―infamous‖ section 7A hearings in New South Wales have been abolished in
favour of a return to a single trial regardless of the number of imputations: see Ryan I (February
2006), ―New Defamation Laws: A Guide‖, Vol 18 No 1, Australian Press Council News, at 1. Under
section 7A a judge would determine whether a pleaded imputation was reasonably capable of being
conveyed by the publication, and whether it was reasonably capable of being defamatory. If these
hurdles were passed, section 7A gave the jury a very limited task: to determine whether the material
was published and whether any pleaded defamatory meaning was conveyed about the plaintiff. The
judge determined whether any defence succeeded, set the quantum of damages, and determined all
issues of fact relating to these questions: see, Kenyon AT (2006), Defamation – Comparative Law
and Practice, UCL Press, Oxon, at 28.
Section 7A trials were said to be the single most controversial aspect of the present defamation
regime in New South Wales. A continuing theme in debate concerning that section was that section
7A jury findings were often perverse or unpredictable, and that the section has increased the costs
involved: see Griffith G (2002), New South Wales Parliamentary Library Research Service,
Defamation Law Reform Revisited, Briefing Paper No. 13/2002. Retrieved 22 August 2007, from
<http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/9CBFF339A14621C5CA256E
CF0008C206>
16 Gatley (2004), above fn 3, at 28.
17 Section 25 UDA. A similar approach is taken in respect of the defence of contextual truth: section 26
UDA (see discussion in Chapter 8 heading 6).
18 George P (2006), Defamation Law in Australia, LexisNexis Butterworths, Chatswood, NSW, at 240.
19 Gillooly (1998), above fn 5, at 53. These two types of meanings are discussed under heading 4.2
below.
20 Gatley (2004), above fn 3, at 971. Innuendo refers to words that, although innocent on their face,
have a defamatory meaning when coupled with facts within the knowledge of the persons to whom
they are addressed: see Gatley (2004), at 100. See also Lewis v Daily Telegraph Ltd [1964] AC 234,
Lord Devlin, at 277-278:
The proposition that ordinary words are the same for the lawyer as for the layman is as a matter
of pure construction undoubtedly true. But it is very difficult to draw the line between pure
construction and implication, and the layman‘s capacity for implication is much greater than
the lawyer‘s. The lawyer‘s rule is that the implication must be necessary as well as reasonable.
The layman reads an implication much more freely; and unfortunately, as the law of
defamation has to take into account, is especially prone to do so when it is derogatory. In the
law of defamation these wider sorts of implication are called innuendoes.
21 Gillooly (1998), above fn 5, at 34-5.
240
may, or may not, reflect the response of the average recipient of the communication and
should make allowance for that possibility.‖22
The issue of multiple meanings or imputations ―remains the source of much
complexity and confusion in defamation law.‖23
There is ample judicial
acknowledgement of the complexity in determining what imputations the matter
complained of conveys.24
One judge noted that ―defamation cases are often conducted
as though they will be won or lost, as they sometimes are, after long and exhausting
battles over particulars of meaning.‖25
Another judge has noted that the imputation has
―over the last twenty-five years evolved into a highly technical lawyer‘s construct.‖26
It
has also been said that the time and resources ―expended profligately in the
determination of what words, sentences and phrases mean are positively scandalous.‖27
Furthermore, the court has the licence to stray from the plaintiff‘s claims and ―this has
the disadvantage that a defendant may be obliged to answer a case not relied on in terms
by the plaintiff.‖28
Lord Devlin noted ―you cannot make a rule about‖ what is the
meaning of words conveyed to the ordinary man.29
22 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Kirby J, at 573.
23 George (2006), above fn 18, at 241.
24 See, for example, David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 (CA), Ormiston JA, at 676:
…the English language has never been precise in that there are so many synonyms and variants
for every word and phrase, and looseness of expression, to the extent of permissiveness, has
been recently encouraged by both educators and lexicographers. Not that the law of defamation
ever assumed that people always said what they meant or meant what they said. In recognition
of these difficulties it has always made allowances for human weakness by permitting the
pleading of and reliance on imputations.
25 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 21.
26 Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139, Levine J, Para 18.
27 This strong view was expressed by Hon Justice David Levine, Supreme Court of NSW, ―Courts and
the media‖ (Speech) 31 August (1999), Para 12. Retrieved 9 February 2004, from
<http://www.lawlinks.nsw.gov.au/sc/sc.nsf/pages/sp_310899> Justice Levine stated bluntly in the
same speech:
Matters of principle have been elevated to an obsessive preoccupation, the playthings of
forensic ingenuity, fantasy and imagination, at the expense of the early, quick and cheap
litigation of real issues that affect the people involved in libel actions. From time to time I have
tried judicially and judiciously to say that the nonsense must end. Not because of any pre-
disposition on my part to the agonies a plaintiff must undergo in prosecuting an action; not
because of a view I have formed of the resources available to a media defendant in the taking
of technical points as part of some suspected campaign or strategy to keep a plaintiff out of
court. I have done so because it simply no longer makes any sense to me. It makes no sense to
me in the wide and important contact of the administration of justice which should involve the
speedy and efficient and fair resolution of disputes (Paras 12-13, italics added).
28 David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 (CA), Ormiston J, at 669.
29 Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Devlin, at 285:
…it is the broad impression conveyed by the libel that has to be considered and not the
meaning of each word under analysis. A man who wants to talk at large about smoke may have
to pick words very carefully if he wants to exclude the suggestion that there is also a fire; but it
can be done. One always gets back to the fundamental question: what is the meaning of the
words conveyed to the ordinary man – you cannot make a rule about that. They can convey a
241
This is a remarkable predicament for defamation law, especially given the wide
acceptance of the importance of ascertaining the meaning of the words complained of.
This point has been emphasised: ―One always gets back to the fundamental question:
what is the meaning of the words conveyed to the ordinary man‖.30
Notwithstanding the
recognition that the determination of meaning is ―fundamental‖ the complexities noted
above render this pursuit almost futile. If ―the fundamental question‖ is to determine
what the words mean and if, as seen above, that process is fraught with difficulty, the
problem that a defendant relying on the truth defence faces in establishing the truth of
the words complained of becomes quite obvious. It has been suggested that any
difficulty that arises is likely to be solved by considerations of practical justice rather
than philology.31
It is useful also to keep in mind that in the law‘s quest to provide
defamed persons with a remedy, the ―real world‖32
should not be forgotten: ―There is a
risk that that ‗real world‘ will be forgotten when in pursuit of a remedy for the
grievance all attention is focused on the artificial construct of the imputation to the
exclusion of the published material which conveyed it.‖33
The defendant is in an
invidious position even before getting to first base with the defence of truth – the
meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the
impression that it is a suspicion that is well-founded.
Lord Devlin‘s discussion of defamatory imputations is described by Tobin TK and Sexton MG
(1999, Service 0), Butterworths, Sydney, Foreword, at (iii), as ―famous‖ and as providing ―clear and
unmistakable guidance on a subject that often causes practical difficulties.‖
30 Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Devlin, at 285 (italics added). See also
Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Kirby J, at 574:
Where words have been used which are imprecise, ambiguous or loose, a very wide latitude
will be ascribed to the ordinary person to draw imputations adverse to the subject. That is the
price which publishers must pay for the use of loose language.
31 See Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135,
Gleeson CJ, at 137. See further, at 137-138:
Almost any attribution of an act or condition to a person is capable of both further refinement
and further generalisation. In any given case a judgment needs to be made as to the degree of
particularity or generality which is appropriate to the occasion and as to what constitutes the
necessary specificity. If a problem arises, the solution will be usually found in considerations
of practical justice rather than philology…the question is ordinarily one to be resolved by
considerations of practical justice in the circumstances of a particular case rather than
considerations of the possibility of linguistic refinement. I agree with the test formulated by
Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, at 155 where his Honour
said: ―…The issue which has to be decided in the particular case is whether there is likely to be
confusion either at the pleading stage or at the trial in relation to the meaning for which the
plaintiff contends.‖
32 Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139, Levine J, Para 20.
33 Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139, Levine J, Para 20. In making this
observation, Levine J said:
In the ‗real world‘ freedom of speech is exercised by the publication of newspaper articles,
reports, television programs, radio broadcasts, books, letters and so on. It is in the same world
that the fact that someone has published such material which usually aggrieves the plaintiff.
The law intervenes to require the aggrieved plaintiff to plead a cause of action in the form of an
imputation drafted by lawyers to get that grievance ‗off the ground‘ in court (Para 20).
242
defendant is subject to a complex and uncertain process of discovering what defamatory
imputations need to be defended. The requirement that the defendant must prove the
truth of the imputations rather than the actual words used34
presents the defendant with
considerable difficulty.
Accordingly, the defendant must establish the truth not only of the natural and ordinary
meaning of the material published, but also of any innuendo meanings which are pleaded.
This may mean that in practice the defence may in some circumstances not be an attractive
one for the media, even where it is confident that the material published is correct.35
A defendant is not permitted to argue for an alternative meaning if the tribunal
rejects that meaning. The defendant ―will not be able to call evidence justifying such a
meaning‖.36
Prominent media law commentator Richard Ackland has expressed the
media‘s dilemma in respect of meanings colourfully: ―In other words, they [the media]
would have to show that they believed in the truth of the meaning that the enemy placed
on the story.‖37
Belief in the truth of the meaning is, of course, irrelevant to the truth
defence, and this may not be what Ackland intended to say. His view is probably more
closely aligned to the following view which draws attention to the plaintiff‘s potential
influence on defamatory meaning.
Claimants will plead the most exaggerated meanings that their counsel consider the words
will conceivably bear in order to maximise the insult and humiliation (and hence the
damages). The defence may well be able to prove the words true in some less defamatory
meaning, but will fail unless that is the meaning the jury chooses to adopt as the ―true‖
meaning.38
A senior journalist complains that much turns ―not on what was written or said,
but on imputations, or meanings, distilled by clever barristers‖.39
Another senior
34 See Gatley (2004), above fn 3, at 274:
It is the imputation contained in the words which has to be justified, not the literal truth of the
words, nor some other similar charge not contained in the words.
35 Butler D and Rodrick S (2007), Australian Media Law, 3rd Edn, Lawbook Co, Pyrmont, NSW, at
52. The example cited there notes that a report that a person has been charged with an offence which
also conveys the imputation that the person is guilty of the offence will not be justified simply by
proof that the person was in fact charged. The defendant would be required to go on to also justify
the imputation of guilt, a task that which would require proof that the person was in fact guilty of the
offence (at 52-53, references omitted).
See also the example cited in Gatley (2004), above fn 3, at 270:
If I say of a man that I believe he committed murder, I cannot justify by saying and proving
that I did believe it. I can only justify by proving the fact of the murder: Kerr v Force (1826) 3
Cranch CC 8, at 24.
36 Tobin and Sexton (1990), above fn 7, Para 11,025.
37 Ackland R (1999), ―The law and freedom of the media‖, 1 UTS Law Review 58.
38 Robertson and Nicol (2002), above fn 9, at 115.
39 Hartigan J (February 2004), ―Press freedom under attack‖, Australian Press Council News, Vol 16
No 1, at 3. Hartigan is the Chairman and Chief Executive of prominent publishing organisation
243
journalist notes that the burden on the defendant is ―to answer not for what the words
were intended to mean, but for what people hypothetically might have understood them
to have meant.‖40
In addition, the defendant is not permitted under a plea of justification
(but is permitted in mitigation of damages) to ―prove the truth of other facts damaging
to the claimant‘s reputation, even if they are in the same sector of the claimant‘s life,
and would be no less damaging to the claimant‘s reputation.‖41
The rule preventing a
defendant from arguing for an alternative meaning if the tribunal rejects that meaning
could put a defendant at a disadvantage in a situation where, for example, the plaintiff
argued at the trial that the matter complained of carried a meaning less injurious than
that originally pleaded by the plaintiff but still defamatory of him.42
Also, in pleading a
justification defence, the ―defendant has to prove not only that the facts are truly stated
but also that any comments upon them are correct.‖43
If we assume that ―comments‖ is
synonymous with ―opinions‖ the formulation in Gatley that the defendant must prove
―that the statements of opinion are correct‖ raises a further question.44
Opinions by their
very nature may be validly held while not necessarily being amenable to being correct.
The courts have acknowledged this in the honest opinion defence context.45
News Ltd. See also media lawyer Michael Cameron‘s view reported in MacLean S (2004),
―Defamation cases take a social reality check‖, The Australian (Media), 21 October, at 15:
I also look forward to the day when juries decide meanings themselves, rather than the current
NSW system where they are force-fed imputations by crafty barristers.
40 Murray P (2003), ―When the truth can be costly‖, The West Australian, 11 October, at 21. Murray is
a former chief editor of The West Australian. Walters (2003), above fn 478, at 60, noted: ―In
practice, the laws of defamation are causing great injustice.‖
41 Gatley (2004), above fn 3, at 274 (italics added).
42 Tobin and Sexton (1990), above fn 7, Para 11,025. This is how Tobin and Sexton express the
problem:
It may be that the plaintiff and defendant differ as to the defamatory meaning attributed to the
matter complained of and that the defendant wishes to justify the meaning contended for by
himself but not that put forward by the plaintiff. Ultimately the question of meaning is one for
the jury and, if the jury rejects the meaning proposed by the plaintiff, the plaintiff will fail. But
if the defendant is not permitted to argue for an alternative meaning, he will not be able to call
evidence justifying such a meaning. This would put the defendant at a disadvantage in a
situation where, for example, the plaintiff argued at the trial that the matter complained of
carried a meaning less injurious than that originally pleaded by the plaintiff but still defamatory
of him (italics added).
43 Sutherland v Stopes [1925] AC 47, Lord Finlay, at 62-63.
44 Gatley (2004), above fn 3, at 273. This is how Gatley expressed the principle:
[T]he defendant, under a plea of justification, must prove that the statements of fact are true
and that the statements of opinion are correct.
45 Section 31 UDA. As to the rationale for this defence see Silkin v Beaverbrook Newspapers Ltd
[1958] 1 WLR 743, at 747:
People are entitled to hold and to express freely on matters of public interest strong views,
views which some of you, or indeed all of you, may think are exaggerated, obstinate, or
prejudiced, provided – and this is the important thing – that they are views which they honestly
hold.
244
3. Meaning of “defamatory imputation”
The logical starting point for the discussion of the difficulties in the context at hand is
the definition of the term ―defamatory imputation‖. Gatley states: ―There is no wholly
satisfactory definition of a defamatory imputation.‖46
The term ―defamatory
imputation‖ is a curious one because it combines two important words whose individual
meaning is unclear to begin with. Given that the determination of meaning goes to the
heart of a defamation action, there is some irony in this. The term ―defamatory
imputation‖ may even constitute an oxymoron as the following discussion shows.
In respect of the adjective ―defamatory‖ it suffices to note, for present purposes,
that the term has eluded a comprehensive definition and this difficulty ―has often been
remarked‖ upon.47
It has been said that there is ―no single, comprehensive definition of
what constitutes defamatory matter.‖48
The commonly used tests of what is
defamatory49
all ―present certain difficulties…and in one respect or another they are
each perhaps too narrow to act as an exclusive test.‖50
That said, a broad definition may
be offered – any imputation is defamatory ―if it would tend to lower the claimant in the
estimation of right-thinking members of society generally or would be likely to affect a
person adversely in the estimation of reasonable people generally.‖51
46 Gatley (2004), above fn 3, at 8 (italics added). See further, Barendt E (1999), ―What is the point of
libel law?‖, Vol 52 Current Legal Problems 110, at 120:
…the absence of an agreed definition of what amounts to a defamatory imputation creates
unnecessary difficulties for the media. They are entitled to feel that the application of the
various tests is unpredictable. In some context [sic] this lack of predictability limits their
freedom to poke fun at celebrities and satirize politicians. Moreover, there is a danger that in
applying these definitions or tests of defamatory meaning, courts may blur the distinction
between insults and wounding allegations on the one hand, and defamatory imputations on the
other.
47 Gatley (2004), above fn 3, at 28. The observation in the Report of the Select Committee of the
House of Lords appointed in 1843, by Lord Lyndhurst LC, at 11, that he ―had never yet seen or a
been able himself to hit upon anything like a definition of libel which possessed the requisites of a
logical definition‖ remains unresolved.
48 Walker S (2000), Media Law Commentary and Case Materials, LBC Information Services,
Pyrmont, NSW, at 132.
49 They are derived from case authority: (a) an imputation to the claimant‘s discredit: Youssoupoff v
Metro-Goldwyn-Mayer (1934) 50 TLR 581, Scrutton LJ, at 585; (b) an imputation which tends to
―lower the plaintiff in the estimation of right-thinking members of society generally‖: Sim v Stretch
(1936) 2 All ER 1237, Lord Atkin, at 1240; (c) the imputation is ―such as is likely to cause ordinary
decent folk in the community, taken in general, to think the less of‖ the plaintiff: Boyd v Mirror
Newspapers Ltd (1980) 2 NSWLR 449, at 452; (d) the imputation causes the claimant to be shunned
or avoided: Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581, Slesser LJ, at 587; and (e) an
imputation which exposes the claimant to hatred, contempt or ridicule: Parmiter v Coupland (1840)
151 ER 340, Parke B, at 340. As Gatley (2004), above fn 3, notes at 36, an imputation may be
defamatory without falling into any of these specific heads.
See further, Gillooly (1998), above fn 5, at 44-46, for a discussion on traditional and modern
formulations of the test for defamation.
50 Gatley (2004), above fn 3, at 29.
51 Gatley (2004), above fn 3, at 36.
245
As regards the word ―imputation‖ the High Court considered that the word
―imputation‖ as used in section 366 of the then Queensland Code was essentially
neutral with regard to the person to whom the act or condition was attributed.52
―Impute‖ is an ordinary English word and, as I understand it, is properly used with
reference to any act or condition asserted of or attributed to a person. The act or condition
is equally imputed to him, whether it be to his credit or discredit…It seems to me to be
nothing to the purpose to say that in textbooks on libel and slander the word ―imputation‖
was generally (and naturally) used in a disparaging sense.53
A conflicting view is that the term carries a disparaging sense.54
On this latter
approach, it would be superfluous to say ―defamatory imputation‖ (for example, as
Gatley did above)55
since the word ―defamatory‖ adds nothing to ―imputation.‖ The
―ordinary‖ or dictionary meaning, for its part, does not resolve the matter as it embraces
both a neutral position so that the meaning ascribed to the matter concerned does not
necessarily connote something discreditable,56
as well as a meaning that leans towards
connoting something discreditable.57
While it has been suggested that the ambiguity in
the meaning of the term may be insignificant,58
it would make for good housekeeping to
clarify the term.
52 Tobin TK and Sexton MG (1999, Service 24), Australian Defamation Law and Practice,
Butterworths, Sydney, Para 3020. The current version of Para 3020 (Tobin and Sexton (1990), above
fn 7) makes no reference to this point.
53 Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84, Griffiths CJ, at 91. Gillooly (1998),
above fn 5, at 34, provides the following illustration:
To say that a person murdered another is to impute an act; to say that a person is corrupt is to
impute a condition. Thus, the imputations are those charges or allegations concerning the
plaintiff that are conveyed by the matter complained of.
54 Almost seven decades after Griffiths CJ said in Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12
CLR 84, that ―imputation‖ was a neutral term, Samuels JA, in considering the term, which was also
used in the Defamation Act 1974 (NSW), said in Petritsis v Hellenic Herald Pty Ltd (1978) 2
NSWLR 174, at 189 (italics added):
There is no reason to suppose that the word ―imputation‖ is used in any sense different from its
ordinary meaning. Hence it means ‗the action of imputing or charging, the fact of being
charged with a crime, fault etc‘; in short, an accusation or charge.
Tobin and Sexton (1999, Service 24), above fn 52, Para 3020, state that the word imputation was
used in jurisdictions other than the code states:
…in the sense of an accusation or charge which attributes to a person an act or condition to that
person‘s discredit. In the code states it [was] used in the sense of an act or condition attributed
to a person, whether to his discredit or not.
55 See text accompanying fn 46 above.
56 See Webster’s Everyday Dictionary (2002), Random House, New York, on the term ―impute‖
(―imputation‖ is the noun for ―impute‖):
to attribute or ascribed (esp. something discreditable) to someone or something.
57 See, for example, Australian Reference Dictionary (1991), Oxford University Press, Melbourne, on
―impute‖:
to attribute (a fault etc) to.
58 In Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84, Griffith CJ, at 91, noted:
246
3.1 A statutory definition or not?
The question of a statutory definition of what is defamatory, and more importantly what
is a defamatory imputation, deserves closer examination. The desirability or otherwise
of introducing a statutory definition of what is defamatory has been the subject of some
debate although the difficulty concerning the meaning of ―defamatory imputation‖ has
not attracted similar attention. One argument, advanced by the Law Council of
Australia, against a statutory definition of what is defamatory is as follows: ―It is
unlikely that any statute can succeed in producing an entirely satisfactory definition of
what is defamatory in circumstances in which the common law judges and textbook
writers have failed to do so.‖59
A similar view was expressed in England.60
This may
explain why even law reform literature sometimes pays little or no attention to this area
of defamation.61
On the other hand, statutory definitions are not unknown, even in Australia, given
that such definitions did feature in pre-UDA legislation.62
Against this backdrop the
Standing Committee of Attorneys General (SCAG), in moving toward the UDA,
considered the ―options for defining what is defamatory‖ and noted five.63
The option it
It seems to me to be nothing to the purpose to say that in textbooks on libel and slander the
word ‗imputation‘ was generally (and naturally) used in a disparaging sense.
59 Standing Committee of Attorneys-General (SCAG), ―Proposal for uniform defamation laws‖ (July
2004), SCAG Working Group of State and Territory Officers, at 11, quoting the Media and
Communications Committee of the Business Law Section of the Law Council of Australia. See
further the SCAG reference to the submission from the Combined Media Defamation Reform
Group, which specifically rejected a statutory definition of what is defamatory. The group said:
The Courts have over centuries defined the common law test of what is defamatory in a way
which appropriately takes into account the competing public interests. By introducing the
proposed statutory test (let alone one which differs from the common law test) the proposal
would throw away that case law and would introduce undesirable uncertainty as to when the
cause of action would arise. It would also cause divergence between the law in Australia and
other jurisdictions such as the UK, Canada and the US, in which similar tests apply (ibid).
60 In Berkoff v Burchill (CA) [1996] 4 All ER 1008, Neill LJ, at 1011 said he was ―not aware of any
entirely satisfactory definition of the word ‗defamatory‘.‖ His Lordship, however, assembled ―some
of the definitions which have been used and approved in the past‖ (ibid). See also text accompanying
fn 82 below.
61 See, for instance, NSWLRC Report No 75, above fn 15, where the Commission made 38 law reform
recommendations. Only two of those recommendations (23 and 26) even mentioned the word
―meaning‖ and even so not in relation to the core issues concerning defamatory meaning. See also
Australian Capital Territory Community Law Reform Committee, Report No 10, above fn 3.
62 See, for instance, the definition of defamatory matter contained in the Tasmanian, Queensland,
Victorian and South Australian legislation: see SCAG Working Group of State and Territory
Officers, ―Proposal for Uniform Defamation Laws‖, above fn 59, at 10.
63 SCAG Working Group of State and Territory Officers, ―Proposal for Uniform Defamation Laws‖,
above fn 59, at 11.
The options were: (a) leave the definition of what is defamatory to the common law; (b) allow the
common law test to apply but briefly explain this test in a preface or explanatory note to the
legislation (c) adopt the definition used in one of the states; (d) adopt the ALRC and Commonwealth
247
chose, which went on to form Recommendation 3, was expressed as follows: ―The
uniform defamation laws should adopt the common law test of what is defamatory and
a short statement describing this test should be included in a preface or explanatory note
to the legislation.‖64
The SCAG, however, did not see fit to incorporate a definition of
what is defamatory into the Act, and the Explanatory Memorandum plainly says so:
―The proposed Act does not seek to define the circumstances in which a person has a
cause of action for defamation. Rather, the proposed Act operates by reference to the
elements of the tort of defamation at general law.‖65
It is also worth noting that although
the UDA contains the heading ―Causes of action‖, the ensuing text does not state what
the cause of action is.66
The Explanatory Memorandum to the legislation, however, does
contain notes on judicial formulations of ―what is defamatory‖,67
while the SCAG
proposals contain a discussion of statutory and common law formulations of what is
defamatory,68
as does the Commonwealth Attorney-General‘s proposals.69
No part of
these formulations, however, actually made it into the UDA itself. While the difficulty
with providing a definition is acknowledged, the absence of any reference in the UDA
to the very purpose of the law legislated upon is perplexing. It is a trite proposition that
formulations as to what is defamatory are plethoric and complex. That is not to say that
a formulation is impossible. It is important that an attempt at definition be made so that
the very law that purports to address the malaise is not left silent on what constitutes the
proposal; and (e) define the action using the existing common law concept of defamation: see SCAG
Working Group of State and Territory Officers, ―Proposal for Uniform Defamation Laws‖, above fn
59, at 11.
64 SCAG Working Group of State and Territory Officers, ―Proposal for Uniform Defamation Laws‖,
above fn 59, at 11 (italics added).
65 See Defamation Bill 2005 (WA), Explanatory Memorandum, explanatory notes to Part 2
―General Principles‖, Division 1. Retrieved 20 December 2007, from
<http://www.parliament.wa.gov.au/web/newwebparl.nsf/iframewebpages/Bills+ -+All>
See also section 6(2) UDA.
66 See the heading to Division 2, UDA. Compare this approach with the proposal to define defamatory
matter contained in the Commonwealth Attorney-General‘s Department, Revised Outline of Possible
National Defamation Law (July 2004), at 11. Retrieved 21 August 2007, from
<http://www.ag.gov.au/www/agd/agd.nsf/Page/Defamationlawreform_ReviewofDefamationLaw>
The proposal in the Revised Outline was that the Act would define defamatory matter as published
matter which tends to: (a) adversely affect the reputation of a person; (b) deter others from
associating or dealing with a person; (c) expose a person to ridicule; or (d) injure a person in their
occupation or financial standing.
67 See Defamation Bill 2005 (WA), Explanatory Memorandum, above fn 65, Part 2 ―General
Principles‖, Division 1.
68 SCAG Working Group of State and Territory Officers, ―Proposal for Uniform Defamation Laws‖,
above fn 59, at 9-11.
69 Revised Outline of Possible National Defamation Law (July 2004), above fn 66, at 10-11.
For a UK perspective, see Berkoff v Burchill (CA) [1996] 4 All ER 1008, and Lewis v Daily
Telegraph Ltd [1964] AC 234.
248
gist of the action. This omission in the UDA should be rectified with a statutory
provision that provides an indication as to what is defamatory.
The second and more important issue in this area, as mentioned above, is the
meaning of ―defamatory imputation‖. As also noted earlier,70
some of the difficulties
included the absence of a wholly satisfactory definition of the term and the
acknowledgement of difficulty in defining it. Differing views were noted above as to
whether the words ―impute‖ or ―imputation‖ are neutral or whether they carry a
disparaging sense. One view was that the term ―imputation‖ is neutral.71
A contrary
view was that the term carried a disparaging sense.72
The meaning of ―imputation‖ is
critical in the defamation action generally, and particularly so in the context of this
thesis since the truth defence must respond to the imputations. If an imputation is not
defamatory no question of reliance on the truth defence arises.73
It would be useful to
clarify the meaning of the term ―defamatory imputation‖ to address the conflicting
perceptions of the term‘s meaning.
3.2 Reform recommendations
The reform recommendations under this heading are as follows:
Recommendation (a)
The following formulations, adapted from the authorities, should be written into the
UDA in order to specify the meaning of “defamatory”. A defamatory publication is one
which when considered against contemporary community standards held by reasonable
people taken in general:74
(i) causes injury to a person’s reputation by exposing that person to hatred,
contempt or ridicule;75
or,
(ii) is a false statement about a person to his or her discredit;76
or,
(iii) tends to make the plaintiff be shunned and avoided;77
or,
70 See heading 3 above.
71 See, for instance, text accompanying fn 53 above.
72 See, for instance, fn 54 above.
73 The question of how defamatory meaning is established is the subject of separate discussion below:
see heading 4.
74 Gillooly (1998), above fn 5, at 45. Gatley (2004), above fn 3, at 29 observes that the definitions
which have been stated in the English cases ―should probably be regarded as cumulative, so that
words which fall within any of them are actionable‖ (italics added).
75 Parmiter v Coupland (1840) 151 ER 340, Parke B, at 342.
76 Scott v Sampson (1882) 8 QBD 491, Cave J, at 503.
77 Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581, Slesser LJ, at 587.
249
(iv) tends to lower the plaintiff in the estimation of right thinking members of
society generally;78
or,
(v) tends to cause others to think less of that person.79
Explanatory notes for Recommendation (a)
The above recommendation strives to heed the view that in modern times, more
generalised statements have attained greater popularity.80
Some of these elements were
set out by Neill LJ in Berkoff v Burchill81
in his Lordship‘s collection of definitions
used and approved in the past, and which were taken on board to varying extents: by the
SCAG group;82
by the Commonwealth Attorney-General;83
in the Explanatory
Memorandum to the UDA;84
and reflected in the leading Australian defamation law and
practice text.85
As the legal texts show, the elements mentioned above are capable of
expanding or narrowing the scope of the defamation or may on their own be
unsatisfactory in particular contexts.86
The primary objective of proposing that they be
set out in the UDA, however, is to address a rudimentary point – to provide an
indication as to the bases for an action in defamation.
Recommendation (b)
The meaning of “defamatory imputation” should be clarified so that it covers any act or
condition asserted of or attributed to a person that is capable of producing the effect or
having the quality or qualities identified in Recommendation (a) above. That is, the
term “defamatory imputation” carries a disparaging sense in regard to the plaintiff.
78 Sim v Stretch (1936) 2 All ER 1237, Lord Atkin, at 1240. See also the American position set out in
the Second Restatement of Torts, set out in Gatley (2004), above fn 3, at 29. Gatley notes that
although the American formulation has never been adopted by an English court, ―it would seem to
provide a workable test consistent with the case law‖ (ibid).
79 Gardiner v John Fairfax & Sons (1942) 42 SR (NSW) 171; Mirror Newspapers Ltd v World Hosts
(1979) 141 CLR 632, Mason and Jacobs JJ, at 638; Humphries v TWT Ltd (1993) 114 ACTR 1, at 6.
80 Gillooly (1998), above fn 5, at 44.
81 [1996] 4 All ER 1008, Neill LJ, at 1011-1013.
82 SCAG Working Group of State and Territory Officers, ―Proposal for Uniform Defamation Laws‖,
above fn 59, at 11.
83 Revised Outline of Possible National Defamation Law (July 2004), above fn 66, at 11.
84 Defamation Bill 2005 (WA), Explanatory Memorandum, above fn 65, notes to Part 2, General
Principles, Clause 6. For a detailed discussion on the subject see Gatley (2004), above fn 3, at 28-40.
85 Tobin and Sexton (1990), above fn 7, Para 3010.
86 For instance, in Tournier v National Provincial Bank [1924] 1 KB 461, Scrutton LJ, at 477 said that
he did not think that the Parmiter v Coupland principle, which his Lordship described as an ―ancient
formula‖ was sufficient in all cases, because words might damage the reputation of a man as a
business man which no one would connect with hatred, ridicule or contempt. Atkin LJ expressed a
similar opinion, at 486-487. It has also been noted that even ―the courts have failed to arrive at any
single formulation‖: Barendt (1999), above fn 46, at 118.
250
Explanatory notes for Recommendation (b)
The basis for this recommendation was considered above87
and is primarily aimed at
clarifying the meaning of the term ―imputation‖ against the backdrop of conflicting
views as to whether it is a neutral term or whether it carries a disparaging sense.
3.3 Model provisions
The order of the model provisions here corresponds with the recommendations above.
Meaning of “defamatory”
(a) A publication is ―defamatory‖ which when considered against contemporary
community standards held by reasonable people taken in general:
(i) causes injury to a person‘s reputation by exposing that person to
hatred, contempt or ridicule; or,
(ii) is a false statement about a person to his or her discredit; or,
(iii) tends to make the plaintiff be shunned and avoided; or,
(iv) tends to lower the plaintiff in the estimation of right thinking members
of society generally; or,
(v) tends to cause others to think less of that person.
Meaning of “defamatory imputation”
(b) The term ―defamatory imputation‖ refers to any act or condition asserted of or
attributed to a person that is capable of producing the effect or having the quality
or qualities identified in Recommendation (a) above.
4. The complex task of establishing defamatory meaning
Two, not necessarily entirely discrete, issues arise for consideration under this heading.
The first is the construct of the ―ordinary, reasonable person‖ (or the moral
community) for the purpose of determining whether the matter conveys a defamatory
imputation. The second is the pinpointing of the meaning for the purpose of the
litigation. These two difficulties are discussed below.
4.1 Finding the “moral community”
87 See headings 3 and 3.1.
251
An ―objective test‖88
is applied to determine ―whether the meaning would tend to lower
the plaintiff in the estimation of ordinary reasonable members of society‖.89
According
to a leading Australian defamation law text: ―The test is whether the publication would
have been likely to cause the ordinary reasonable man or woman to have thought the
less of the plaintiff.‖90
Discrepancies are immediately detectable in the two
formulations. It can be argued that there is a difference between a tendency (a natural
disposition that does not amount to a probability) and a likelihood (which leans towards
being a probability); and between ordinary reasonable members of society and the
ordinary reasonable man or woman.91
This ―ordinary man or woman is a hypothetical
person‖.92
That person is assumed to be a homogenous construct and is expected to
embody qualities akin to a bionic creature. That person is a ―reasonable reader‖;93
―hypothetical ordinary reasonable reader/viewer‖;94
a ―right-thinking [member] of
society‖;95
an ―ordinary man, not avid for scandal‖96
who is ―neither perverse‖,97
nor
88 Loveless v Earl [1999] (CA) EMLR 530, Hirst LJ, at 538-539.
89 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, at 573; Mirror Newspapers Ltd v
Harrison (1982) 149 CLR 293, at 301; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR
500, at 506; Lewis v Daily Telegraph Ltd [1964] AC 234, at 258; Sim v Stretch (1936) 2 All ER
1237, Lord Atkin, at 1240; Capital and Counties Bank Ltd v Henty & Sons (1882) 7 App Cas 741,
Selbourne LC, at 745; Parmiter v Coupland (1840) 151 ER 340, at 342; Gatley (2004), above fn 3,
at 92-93 and 102-105.
90 Tobin and Sexton (1990), above fn 7, Para 3120 (italics added). In Chakravarti v Advertiser
Newspapers (1998) 193 CLR 519, Kirby J, at 572, said the matter complained of should be
considered according to how a reasonable person ―receiving it for the first time, would understand it‖
(italics added).
91 The former appears to envisage a ―single, hypothetical construct as arbiter of what will injure the
plaintiff‘s reputation‖ and ―requires the identification of the views of the majority as opposed to a
minority of ordinary, reasonable people‖ whereas the latter ―appears to permit the attitudes of
minorities within the community of ordinary reasonable people‖: see Baker R (2003, n.d.),
―Defining the moral community: The ‗ordinary reasonable person‘ in Defamation Law‖, Submission
for the Communications Research Forum, at 9. Retrieved 5 September 2007, from
<http://www.crf.dcita.gov.au/papers03/bakerpaperdefamation18final.pdf>
Baker also suggests that membership in society appears to embrace a narrower group, that is, those
who belong to society thus excluding, for instance, the criminal classes: see Baker (at 8), citing Blair
v Mirror Newspapers Ltd [1970] 2 NSWR 604. Also excluded are ―persons who are stigmatised as
deviants‖: see Post RC (May 1986), ―The social foundations of defamation law: Reputation and the
Constitution‖, Vol 74 No 3 California Law Review 691, at 711.
See, however, Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457, Kirby J, at 503,
where his Honour objected to the view that a person convicted for murder is rendered ―libel free‖ as
this offended, in that instance, an express recognition in Tasmanian legislation and offended against
the fundamental notion of equality of all under the law.
92 Heggie v Nationwide News Pty Ltd, Unreported, NSWSC, 27 May 2002.
93 Jones v Skelton (1963) 63 SR (NSW) 644, at 650-651.
94 Carleton v Australian Broadcasting Corporation [2002] ACTSC 127, Higgins J, Para 75.
95 Sim v Stretch (1936) 2 All ER 1237, Lord Atkin, at 1240.
96 Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid, at 260.
97 Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1, at 7.
252
morbid or suspicious of mind;98
is among ―ordinary decent folk in the community, taken
in general‖;99
a ―reader of average intelligence‖;100
a ―hypothetical reasonable
person‖;101
one who ―does not live in an ivory tower‖102
but who ―can and does read
between the lines‖;103
one who is permitted to engage in ―a certain amount of loose
thinking‖;104
and whose ―[s]pecial knowledge is excluded‖,105
as are ―extremes of
suspicion and cynicism…or naivety and disbelief‖.106
As Brennan J noted:
…the issue of libel or no libel can be determined by asking whether hypothetical referees –
Lord Selborne‘s reasonable men or Lord Atkin‘s right-thinking members of society
generally or Lord Reid‘s ordinary men not avid for scandal – would understand the
published words in a defamatory sense. That simple question embraces two elements of the
cause of action: the meaning of the words used (the imputation) and the defamatory
character of the imputation. Whether the alleged libel is established depends upon the
understanding of the hypothetical referees who are taken to have a uniform view of the
meaning of the language used, and upon the standards, moral or social, by which they
evaluate the imputation they understand to have been made. They are taken to share a
moral or social standard by which to judge the defamatory character of that imputation,
being a standard common to society generally.107
The question then is, who really are the persons who constitute this monolithic
moral community? The qualities and qualifications enumerated above create fertile
ground for divergent constructs of the hypothetical person just seen. And even after we
cross that threshold, are the standards of these hypothetical persons fathomable?
Complex questions arise in this regard. These constructs present a potential for
enlarging or limiting the range of material that may be considered defamatory. It also
exposes a ―significant gap‖ between what is real and what is perceived.108
From this
98 Keogh v Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577, at 586.
99 Gardiner v John Fairfax & Sons (1942) 42 SR (NSW) 171, Jordan CJ, at 172.
100 Slatyer v Daily Telegraph Newspaper Co (1907) 7 SR (NSW) 488, Street J, at 504, approved in
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1, at 7, although in the latter case the
expression was slightly modified to ―a man of fair average intelligence‖ (italics added). The
expression used in Mount Cook Group v Johnstone Motors (1990) 2 NZLR 488 was ―ordinary
people of reasonable intelligence‖.
101 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Kirby J, at 573.
102 Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid, at 258.
103 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Hunt CJ, at 165.
104 Morgan v Odhams Press Ltd [1971] 2 All ER 1156, Lord Reid, at 1163.
105 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Kirby J, at 573.
106 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Kirby J, at 573. See also a useful
discussion on the ―tests for meaning and defamation‖ in John Fairfax Publications Pty Ltd v Rivkin
(2003) 201 ALR 77, McHugh J, at 82-84.
107 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, at 505-506 (italics added, authorities
omitted).
108 A study by the University of New South Wales Communications Law Centre involving interviews
with 3000 randomly selected Australians suggests that there is a significant gap between perceived
and real community standards when it comes to the level of harm thought to be done to a person‘s
reputation. The study showed that people tend to think of themselves as being more tolerant than the
average person and this means that there are unnecessary restrictions on free speech. In particular,
the study suggests that ―the law is based on false assumptions about what people think and how
253
potpourri of constructs and their accompanying standards emerges the view that for the
purposes of the law of defamation the words have only a single ―right‖ meaning,109
or
―uniform‖ meaning,110
subject to the following qualification:
This does not mean that more than one meaning cannot be left to the jury, for that happens
every day; but it does mean that the jury or other fact-finder must ignore the undoubted fact
that in many cases it is likely (or even obvious) that different readers will have understood
the publication in different ways, some defamatory, others not.111
For the purposes of the litigation, however, ―the law fixes on a single meaning
that it declares is how ‗reasonable people‘ would understand the words‖.112
From the
above ostensibly ―objective‖ approach, however, comes the curious admission that ―in
practice, the tribunal of fact, judge or jury, will ask itself about its own response to the
matter complained of.‖113
This view appears to ignore the ―third person effect‖.114
Furthermore it appears to ignore the need to maintain an important distinction:
What must be emphasized is that it is the test of reasonableness which guides any court in
its function of determining whether the matter complained of is capable of conveying any
of the imputations pleaded by the plaintiff. In determining what is reasonable in any case, a
distinction must be drawn between what the ordinary reasonable reader, listener or viewer
(drawing on his or her own knowledge and experience of human affairs) could understand
from what the defendant has said in the matter complained of and the conclusion which the
reader, listener or viewer could reach by taking into account his or her own belief which
has been excited by what was said. It is the former approach, not the latter, which must be
taken…115
audiences interpret the media‖: see Baker R (2004), University of New South Wales, ―Defamation –
are the courts getting it wrong?‖, Media Release, 18 October. Retrieved 28 August 2007, from
<http://www.unsw.edu.au/news/pad/articles/2004/oct/DefamationMNE.html> See also MacLean
(2004), above fn 39, at 15.
109 Gatley (2004), above fn 3, at 92. See also Slim v Daily Telegraph [1968] 2 QB 157, at 171-172,
approved by Lord Bridge in Charleston v News Group Newspapers Ltd [1995] 2 AC 65, at 71.
110 See Brennan J‘s reference to the ―uniform view‖ in Reader’s Digest Services Pty Ltd v Lamb (1982)
150 CLR 500, at 505–506: see text accompanying fn 107 above.
111 Gatley (2004), above fn 3, at 92; Charleston v News Group Newspapers Ltd [1995] 2 AC 65. This
situation is made more complex by the ―information explosion‖ of recent times which ―may well
have increased the reservoir of background knowledge which the ordinary reasonable reader may be
presumed to possess‖: see Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254, Higgins J, at
257.
112 Mitchell P (2005), The Making of the Modern Law of Defamation, Hart Publishing, Oxford, at 39.
See also Slim v Daily Telegraph [1968] 2 QB 157, Lord Diplock, at 172:
…the argument between lawyers as to the meaning of words starts with the unexpressed major
premise that any particular combination of words has one meaning which is not necessarily the
same as that intended by him who published them or understood by any of those who read
them but is capable of ascertainment as being the ―right‖ meaning by the adjudicator to whom
the law confides the responsibility of determining it.
See further Gatley (2004), above fn 3, at 87:
Only in a very simple case are words of matter capable of conveying a single, clear,
indisputable imputation.
113 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Kirby J, at 573 (italics added).
114 See fn 162 below on this point.
115 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, approved in Rivkin v
John Fairfax Publications Pty Ltd [2002] NSWCA 87, Grove J, Para 141 (Meagher JA Foster AJA
254
The application of the ―ordinary, reasonable person‖ test is a challenging one and
it renders the process of finding agreement on meanings a complex struggle.
Defamation actions are ―frequently cases of considerable subtlety.‖116
Questions of
construction of the imputations arise and these questions, viewed from one end of the
continuum, are not necessarily susceptible of a simple answer.117
At the other end of the
continuum, reliance on this artificially constructed moral community is said to
constitute a heresy:
For the linguist, it would not be an exaggeration to state that the imposition of a right-
thinking person is nothing short of heresy in natural language interpretation. This is
because the right-thinking person effectively stifles the subjectivity dynamic that is an
intrinsic feature of human discourse. The courts have acknowledged the importance of
context in constructing the defamatory sense. Yet the law of defamation has found it
necessary to decontextualise publications in respect of their actual audiences. Although the
courts have not understood this as an affront to the concept of context itself, it has been
observed that the right-thinking person makes meaning become artificial nonetheless.118
Furthermore, the moral or social standard by which the defamatory character of an
imputation is determined is not amenable to evidentiary proof; it is pre-eminently a
matter for the jury to give effect to a standard which they consider to accord with the
agreeing) (italics added). See further Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293,
Mason J, at 301:
A distinction needs to be drawn between the reader‘s understanding of what the newspaper is
saying and the judgments or conclusion which he may reach as a result of his own beliefs and
prejudices. It is one thing to say that a statement is capable of bearing an imputation
defamatory of the plaintiff because the ordinary reasonable reader would understand it in that
sense, drawing on his own knowledge and experience of human affairs in order to reach that
result. It is quite another thing to say that a statement is capable of bearing such an imputation
merely because it excites in some readers a belief or prejudice from which they proceed to
arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published
material is to be determined by the first, not by the second, proposition. Its importance for
present purposes is that it focuses attention on what is conveyed by the published material in
the mind of the ordinary reasonable reader.
116 David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 (CA), Ormiston JA, at 675. Ormiston JA notes
further (at 675-676):
…many articles in the press (or elsewhere) these days are devised on the ‗no smoke without
fire‘ premise, so that many allegations take a form which might be construed by the jury as
alleging highly improper activity though on detailed analysis the elements of the allegation
would appear less serious. It is this sort of case which might go to the jury with the plaintiff
pleading imputations of high impropriety and the defendant asserting that its meaning referred
to less serious peccadillos which it wished to justify. The ‗smoke‘ could therefore be justified
but it would remain for the jury (or judge) to decide whether the imputation was still one of
‗fire‘. Particulars of a plea of truth of the less serious imputations of ‗smoke‘ would appear to
be either bad or irrelevant if the only allegations on the record are the plaintiff‘s imputations of
‗fire‘, unless the defendant‘s case of ‗smoke‘ explicitly forms part of its pleading.
117 See West & Anor v Nationwide News Pty Ltd [2003] NSWSC 505, Simpson J, Para 57.
118 Harkess J (1998), ―A Linguistic Inspection of the Law of Defamation‖, 8 Auckland University Law
Review 653, at 667. See further, Gatley (2004), above fn 3, at 100:
…language is such an imprecise thing that many statements may carry a range of reasonable
meanings.
255
attitude of society generally.119
These rules, however, are not as clear-cut as they appear
to be.120
Kirby J has objected to the artificiality of the present approach:
The resort to this fiction [the fiction of the ―ordinary reasonable reader‖] has led appellate
courts to define, and refine, the "ordinary reader" whom the judges have in mind. This has
led, in turn, to almost ludicrous elaborations concerned with where the notional
"reasonable, ordinary reader" lives (it is not in an ivory tower) and how he (only recently
has a female reader been postulated) will approach the hypothetical task. It would be
preferable to drop this fiction altogether. Judges should not hide behind their pretended
reliance on the fictitious reasonable recipient of the alleged defamatory material, attributing
to such a person the outcome that the judges actually determine for themselves.121
His Honour said further that behind the verbiage of the judicial formulae conventionally
used lies a notion related to the respective functions of the judge deciding the
acceptability and adequacy of pleadings and the jury deciding the substance of the
wrong of which a plaintiff complains: ―When such activities are subjected to a
functional analysis, the inadequacies of the current incantations emerge in a stark
light.‖122
His Honour did not, however, resolve this dilemma in the case at hand.
Because the parties to this appeal presented their arguments by reference to the
conventional formulation, this is not the occasion to explore a different approach. However,
119 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, Brennan J, at 506. Tobin and Sexton
(1990), above fn 7, Para 3135 declare that the test of whether ordinary, right-thinking members of
society generally would regard the meaning conveyed to be defamatory applies to all cases. Tobin
and Sexton (1990), above fn 7, Para 3120 state:
Because the test is an objective one, evidence cannot be led on the issue of whether or not the
publication is defamatory, by for example asking the witness what he understood the
publication to mean, and whether he regarded it as defamatory. 120 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, provides an interesting twist to the
question of evidentiary proof. There, evidence was called as to the extent to which the conduct
ascribed to the plaintiff was contrary to the ethical standards of journalists in general. Tobin and
Sexton (1990), above fn 7, Para 3140, state that the application of general community standards to
determine whether the words would cause ordinary reasonable members of the community to think
the less of the plaintiff test was ―not qualified at all‖ in the Lamb case by the permitting of evidence
to prove the impact of defamatory imputation on the plaintiff‘s reputation among journalists. In
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, Brennan J went further to state that
there was ―no reason to suspect that the jury erroneously took the challenged evidence into account
in determining the issue‖ (at 506-507). It may be argued that such a conclusion is open to question.
In another case the New South Wales Court of Appeal disagreed with the jury‘s findings on whether
the words complained about conveyed a defamatory imputation (upheld by the High Court): see
John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218 (High Court). See also Gacic v
John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675 (NSWCA); and Gacic v John Fairfax
Publications Pty Ltd [2005] NSWSC 1210 (first instance).
The Australian Press Council in a case note said the findings on appeal ―displays the judiciary‘s
apparently profound lack of respect for jury decisions‖ and the Council expressed dismay at ―what it
reveals about judicial arrogance and contempt for community standards‖: see Ryan I (August 2007),
―John Fairfax Publications v Gacic [2007] HCA 28 – A Case Note‖, Australian Press Council
News, Vol 19 No 3, at 7. For similar criticism see Albrechtsen J (2007), ―Judicial hubris makes
messy meal of our rights‖, The Australian, 20 June, at 12.
121 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716, at 1722–1723 (italics added,
references omitted).
122 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716, at 1723 (reference omitted).
256
generally speaking, the law is moving away from fictions and in the direction of substance
and reality. Acknowledging that the formulations of the imputation will have differing
significance for the cause of action in defamation in different Australian jurisdictions, in a
proper case, a new explanation for judicial decisions on such questions should emerge. It
would abandon fictions and face squarely the purpose of pleading imputations in
defamation, and of sometimes disallowing them.123
In advocating a different approach Kirby J was in effect advocating a more
interventionist role by the court in keeping with modern approaches.124
Applying such
an approach to defamation law would have benefits that extend well beyond the concern
discussed in this section. As Anderson has observed:
Defamatory meaning, colloquium, and substantial truth are normally treated as jury issues
requiring trial, but the Court has already subordinated the jury‘s role by allowing
independent review of those issues after trial. If the jury‘s finding is not to be respected
anyway, it is more sensible to allow judges to make the determination at the beginning of
litigation than to require the parties to engage in years of discovery, litigation, and appeals,
only to have an appellate court eventually dispose of the case on an issue that could have
been decided on the pleadings or with minimal discovery.125
4.2 Finding the meaning
As noted earlier, the rule requiring the defendant to prove the truth of the imputations
―rather than the actual words used‖126
presented the defendant with ―considerable
difficulty.‖127
The UDA does not define what is defamatory or what approach should be
123 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716, at 1723 (italics added, references
omitted).
124 For a useful discussion of the subject see Queensland v JL Holdings Pty Ltd (1996) 189 CLR 146,
Kirby J, at 168-170. Among the observations made there was the following:
The view has been expressed by experienced Australian judges that, without more effective
management of litigation, the system would be likely to collapse…The advent of judicial
management to replace the passive observance of the "game" by a neutral judicial umpire, has
produced a context of judicial intervention, case control, electronic filing and other reforms
which should not be overlooked in reviewing the exercise of a judicial discretion in a particular
case…(italics added, references omitted).
125 Anderson DA (1992), ―Is Libel Law Worth Reforming?‖ (Chapter), in Soloski J and Bezanson RP
(eds) Reforming Libel Law, Guildford Press, New York, at 34. The author also notes the need to shift
away from juries in the interests of freedom of speech:
Ironic as it may be, the shift of power away from juries is unquestionably necessary. Today it
is the prejudice and profligacy of juries that threaten free speech, not the criminal law of libel.
For whatever reasons, the media today are so out of favour with the general populace that
reliance on juries as reliable protectors of freedom of the press would be nostalgic nonsense.
On the whole, judges are more sympathetic to speech interests than jurors and more sensitive
to subtle threats against those interests (at 35).
126 See text accompanying fn 34 above.
127 See, for example, text accompanying fn 35 above where it was noted that the truth defence may ―not
be an attractive one for the media, even where it is confident that the material published is correct‖
and text accompanying fn 37 above where the view of one commentator was noted, that is, that the
media would have to show that they believed in the truth of the meaning that ―the enemy placed on
the story‖.
257
taken in interpreting defamatory matter – that is left to the common law.128
The courts
employ various approaches towards determining the imputations conveyed by the
matter complained of and these approaches are capable of conflicting outcomes. In
deciding whether any particular imputation is capable of being conveyed, the question
is ―whether it is reasonably so capable‖.129
The test of reasonableness, which guides a
court in determining whether the words convey the meaning the plaintiff claims it does,
must keep in mind the distinction between what the audience could understand and
what they concluded.130
A further question may be raised about the courts‘ commitment to balance in
deriving the defamatory meaning and this is illustrated in the following view where,
rather than strive for a balance, the injunction is to find the ―most damaging‖ meaning
in the stipulated continuum:
Ordinary men and women have different temperaments and outlooks. Some are unusually
suspicious and some are unusually naïve. One must try to envisage people between these
two extremes [a commitment to balance] and see what is the most damaging meaning they
would put on the words in question [an abandonment of balance].131
Any strained or forced or utterly unreasonable interpretation must be rejected.132
There are, however, dangers that confront publishers in the common law realm of
divining defamatory meaning and this is well-acknowledged. In Lewis v Daily
Telegraph133
Lord Reid said there was ―no doubt that in actions for libel the question is
what the words would convey to the ordinary man: it is not one of construction in the
legal sense.‖134
In contrast, Kirby J while endorsing this approach,135
also
128 See George (2006), above fn 18, at 129. The failure of the UDA to describe the test for being
defamed or by what means a person can be defamed has been described as ―a great shame‖: Hon Sue
Walker (2005), Defamation Bill 2005 (WA), Second Reading, State Legislative Assembly, Hansard,
13 September, at 5181.
129 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, at 165; Capital and
Counties Bank Ltd v Henty & Sons (1882) 7 App Cas 741, at 745; Lewis v Daily Telegraph Ltd
[1964] AC 234, at 259, 266; Jones v Skelton (1963) 63 SR (NSW) 644, at 650; Farquhar v Bottom
[1980] 2 NSWLR 380, at 385; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, at 302.
130 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, at 166 (italics added).
For the full quotation see text accompanying fn 115 above.
131 Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid, at 259 (italics added).
132 Jones v Skelton (1963) 63 SR (NSW) 644, at 650.
133 Lewis v Daily Telegraph Ltd [1964] AC 234.
134 Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid, at 258 (italics added).
135 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, at 573 (italics added):
It is therefore necessary to remember that relatively few readers will be lawyers reading the
matter in question with the attention appropriate to a large, complex and expensive defamation
case. The ordinary person is a layman, not a lawyer. He or she approaches the perception of the
matter complained of in an undisciplined way and with a greater willingness to draw inferences
and to read between the lines than a lawyer might do, used to precision (at 573-574).
258
acknowledged that in the nature of a defamation action, the matter complained of will
be ―studied and taken apart by lawyers, line by line, in a way that the average reader or
viewer would never do.‖136
Importantly, Kirby J noted: ―This fact presents significant
dangers, especially for publishers.‖137
The dichotomy implied in Kirby J‘s observation
involves lawyers for both sides on the one hand and the audience on the other.
There are, however, other ways of determining meaning. Some examples are the
meaning intended by the publisher and the meaning found by the adjudicator;138
the
literal meaning of the published matter, or what that matter implies, or what is inferred
from it.139
Kenyon has identified ―seven litigation issues about meaning‖ concerned
with: disputes about pleaded meanings; the precision in pleaded meanings; the way a
party is bound to a pleaded meaning; the defence pleading of meaning; defence pleading
in connection with particulars and evidence; the stage of a trial at which meaning is
determined; and presenting the test for defamatory meaning to the jury.140
Going a little
further, it has been emphasised that there is an important distinction between an
implication and an inference.141
As Mitchell has stated, ―there remains the question why
the law has chosen to adopt an apparently unrealistic attitude to interpreting defamatory
words.‖142
The following discussion identifies further aspects of the meaning derivation
process that show why publishers face ―significant dangers‖.143
The process is mired in
complexity, contradiction and doubtful assumptions.
Compare that approach with the one in West & Anor v Nationwide News Pty Ltd [2003] NSWSC
505, where Simpson J held that the imputation ―offers flats for sale‖ cannot be interpreted as
meaning ―advertises flats for sale‖ or ―promotes flats for sale‖ or ―markets flats for sale‖ because it
did not extend to the ―point of contract‖ (Para 58). Likewise, the judge held that the word ―cheating‖
implies some actual loss to the victim, and merely being misled cannot, on its own, result in any loss
and therefore does not prove cheating (Para 87). In this case it appears the approach taken was
clearly a ―lawyerly‖ one.
136 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Kirby J, at 573 (italics added).
137 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Kirby J, at 573.
138 Slim v Daily Telegraph [1968] 2 QB 157, Diplock LJ, at 172: see the full quotation in fn 112 above.
See also Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Hunt CJ, at
165.
139 Jones v Skelton (1963) 63 SR (NSW) 644, at 650.
140 Kenyon (2006), above fn 15, at 112. For a more detailed examination of these seven aspects see 112-
125.
141 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Hunt CJ, at 167
(Mason P and Handley JA agreeing):
An implication is included in and is part of that which is expressed by the publisher…An
inference is something which the reader (or listener or viewer) adds to what is stated by the
publisher; it may reasonably or even irresistibly follow from what has been expressly or
impliedly said, but it is nevertheless a conclusion drawn by the reader (or listener or viewer)
from what has been expressly or impliedly said by the publisher (at 167).
142 Mitchell (2005), above fn 112, at 39. Note further the discussion in fn 162 below on communications
and linguistics research that identifies other ways in which meaning is derived.
143 See text accompanying fn 137 above.
259
Imputations can arise in two ways,144
one being the ―natural and ordinary‖
meaning, and the other being ―innuendo‖.145
The expression ―natural and ordinary
meaning‖ in defamation law has a ―special and somewhat larger content than it has in
the sphere of legal interpretation‖.146
Furthermore the expression is rather misleading in
that it conceals the fact that there are two elements in it.147
The ―two elements‖ are: (a)
the natural and ordinary meaning of the words; and (b) the meaning that will be inferred
from them, which is also regarded as part of their natural and ordinary meaning.148
In
effect, the phrase ―natural and ordinary‖ meaning is a fallacy not least of all because
―[t]he use of a dictionary definition by the tribunal of fact to determine meaning is also
impermissible‖.149
Furthermore, ―in each case the tribunal of fact is entitled to look to
the true meaning of the publication and the true meaning may be implicit rather than
explicit.‖150
Those participating in the quest to establish the natural and ordinary
meaning in defamation law are confronted with a Pandora‘s Box of potential influences
on meaning:
In considering the inferences to be drawn, the ordinary reasonable man is understood to
read between the lines; to have a greater capacity than a lawyer to draw implications; to
approach the task without the same degree of attention to analytical detail as a lawyer; to be
affected by imprecise, ambiguous or loose words; and not to be fettered by strict rules of
construction.151
As for innuendo, two types of innuendo have been recognised: the true or legal
innuendo,152
and the false or popular innuendo.153
A true innuendo is a meaning
144 See Chapter 9 heading 4.1 for a discussion on the ―presumption of good reputation‖.
145 See text accompanying fn 19 above.
146 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, Mason and Jacobs JJ, at 641.
147 Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid, at 258.
148 Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid, at 258.
149 See Tobin and Sexton (1990), above fn 7, Para 4010 fn 3; Aldridge v John Fairfax & Sons Ltd (SC,
NSW), Hunt J, No 9806/1984, 17 September 1985, Unreported. This prohibition on the use of a
dictionary for such a purpose, however, is not without foundation because even in dictionaries words
have more than one meaning: see Weir (1992), above fn 4, at 507.
150 David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 (CA), Ormiston JA, 668; Carrey v ACP
Publishing Pty Ltd [1998] VSC 78, Hedigan J, Paras 18-20.
151 Tobin and Sexton (1990), above fn 7, Para 3170.
152 This refers to a secondary, indirect or extended meaning of the matter complained of and it arises not
from the published words alone, but from those words taken in conjunction with certain extrinsic
facts known to the recipients of the defamatory matter: Gillooly (1998), above fn 5, at 54. See,
further, George (2006), above fn 18, at 151. There appears to be some inconsistency as to this
distinction with Tobin and Sexton (1990), above fn 7, Para 3185 referring to them as ―true
innuendo‖ on the one hand, and ―false innuendo‖ or ―legal innuendo‖, on the other. It is said that
fortunately, the terms ―false innuendo‖ and ―legal innuendo‖ appear to be disappearing from
contemporary legal usage (ibid).
153 This refers to an imputation or meaning alleged to arise from the matter complained of in its
ordinary and natural meaning, without the need for any special knowledge on the recipient‘s part:
Gillooly (1998), above fn 5, at 54.
260
conveyed by particular matter as a result of the recipient‘s knowledge of particular facts
and as such ―the meaning conveyed will vary with the state of knowledge of the
recipient‖.154
That person‘s special knowledge may convert an otherwise innocuous
statement into one that makes grave accusations.155
The ―true‖ or ―legal‖ innuendo is to
be distinguished from a ―false‖ or ―popular‖ innuendo which is a pleaded imputation or
meaning alleged to arise from the matter complained of in its ordinary and natural
meaning, without the need for any special knowledge on the recipient‘s part.156
George
sums up the danger publishers face in this area:
A publisher is responsible for any extended meaning conveyed by the statement to the
persons with knowledge of the existence of extrinsic facts, whether or not the publisher
knew of their existence, and whether or not the publisher was aware of any persons aware
of the unknown extrinsic facts. It does not matter how readers came to know of the
existence of the extrinsic facts. It matters only that they did so either at the time of or before
the statements were published.157
While on the one hand it is acknowledged that words are ―imprecise instruments
for the expression of meaning‖158
and that both defamatory and innocent meanings may
be derived from the words complained about, the ―correct interpretation‖ must be left to
the tribunal.159
The assumption that a ―correct interpretation‖ can be achieved in the
circumstances discussed above is curious. So is the view that the meaning of the words
―is to be determined by the sense in which fair-minded ordinary reasonable persons in
the general community would understand‖ those words – when the meaning of the
words ―cannot be determined by evidence from the plaintiff or the defendant‖.160
Precluding reliance on evidence for the purpose of determining defamatory meaning
defies logic, especially when the exercise is premised on finding an interpretation that
would be reached by fair-minded ordinary and reasonable persons.
154 Gillooly (1998), above fn 5, at 41 and 54.
155 Gillooly (1998), above fn 5, at 41. The example cited there is that of information published only
about a person being at a particular address at a particular time with nothing else to say that a crime
occurred at that place and at that time. This information takes a different hue if the recipient of the
information is separately aware of the crime committed at the time. In this instance, the defamatory
imputation arises only because the recipient brings her/his special knowledge into play.
156 Gillooly (1998), above fn 5, at 54.
157 George (2006), above fn 18, at 152-153.
158 George (2006), above fn 18, at 130 (authorities omitted).
159 George (2006), above fn 18, at 130. This position is ―well-stated‖ in the law of negligence set out in
Prosser‘s Handbook of the Law of Torts, 5th Edn (1984) and referred to in Amalgamated Television
Services Pty Ltd v Marsden (1998) 43 NSWLR 158, at 164:
The most common statement is that if reasonable persons may differ as to the conclusions to be
drawn, the issue must be left to the jury; otherwise it is for the court.
160 George (2006), above fn 18, at 130 (authorities omitted).
261
A further ground for questioning the test for defamatory meaning results from the
phenomenon called the ―third person effect‖.161
It has been argued that the test for
defamatory meaning is ―inappropriate‖ because ―people assume the media affects other
people more than it affects themselves‖.162
Yet another mode of considering defamatory
meaning arises from the ―models of defamation law‖ that the courts apply.163
The scope
that exists for widely conflicting results about meaning is also evident in differing
assumptions about audience perceptions. One view is that it has changed over the ages
so that, for instance, in the days of old, people could be expected to read the entirety of
the matter complained of before forming an adverse opinion about a person whereas
contemporary reading habits and changes in media technology may produce a different
result.164
Defamation law‘s principles in this area are clearly a muddle.
161 Kenyon (2006), above fn 15, at 17.
162 Kenyon (2006), above fn 15, at 17. Kenyon states that this ―third person effect‖, established through
empirical communications research, suggests that juries decide a publication‘s hypothetical
reasonable recipient perceives more damaging defamatory meanings than the jury members
themselves perceive (ibid). Consider, however, the contrary view expressed by Kirby J in
Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, at 573. A further area of research –
linguistics – suggests that the law should recognise every utterance as having both an illocutionary
(or intended) force and a perlocutionary (or perceived) effect. It has been argued that defamation
should be refined to focus on a speech act‘s illocutionary force and should thus apply only to
accusations: see Kenyon (2006), above fn 15, at 18.
163 Magnusson argues that when the courts are called upon to consider whether an imputation is capable
of being defamatory they face a choice between three models of defamation law – ―realist‖,
―idealist‖ and ―intermediate‖. Magnusson suggests that on a realist model, courts aim to provide a
remedy for harm suffered in fact, because of the reactions of those considered by the court to
represent ordinary, hypothetical members of society. On this model the courts accept that an
imputation is capable of being defamatory, even when based on ill-founded attitudes. On an idealist
model the courts ―screen‖ the social and moral attitudes of the ordinary, hypothetical people whose
attitudes determine whether the imputation is capable of being defamatory. By building more
―appropriate‖ moral and social attitudes into these hypothetical judges, courts could, potentially,
avoid compensating harm based upon prejudice or perverse attitudes – for example, while
recognising that while an imputation is capable of being defamatory on the basis of perverse
attitudes, it should not be so regarded for reasons of policy. A third view midway between the
―idealist‖ and ―realist‖ positions, Magnusson suggests, is by adopting a ―realist‖ perspective, except
where this would be contrary to a policy embodied in law: Magnusson RS (2001), ―Freedom of
speech in Australian defamation law: Ridicule, satire and other challenges‖ (2001) 9 Torts Law
Journal 269, at 278-9.
164 See, for example, the differing judicial attitudes towards a case involving the publication of
photographs of the faces of the plaintiffs (television personalities) superimposed upon near-naked
bodies of models in pornographic poses with the headline ―Porn shocker for Neighbours stars.‖ The
text accompanying the headline, however, contained expressions of purported outrage about a
pornographic computer game, which could superimpose the faces of individuals without their
knowledge or consent upon the bodies of others. In that case – Charleston v News Group
Newspapers Ltd [1995] 2 AC 65 – the House of Lords upheld the views of the primary judge and of
the English Court of Appeal and held that the publications were incapable of being defamatory. They
did not agree that some readers read only headlines: see discussion of that case in Chakravarti v
Advertiser Newspapers (1998) 193 CLR 519, Kirby, at 574. Kirby J, however ―would not follow that
opinion [or] adopt its reasoning as part of the common law of Australia‖ (at 575). In his Honour‘s
view the English approach ―ignores the realities of the way in which ordinary people receive, and are
intended to receive, communications of this kind‖ (at 574).
See Gatley (2004), above fn 3, at 47 for a discussion on how an ―imputation can make people think
worse of the claimant at one time and not at another‖. The words, which 100 years ago did not
262
4.3 Judges or juries
The UDA provides that unless the court orders otherwise, a plaintiff or defendant in
defamation proceedings may elect for the proceedings to be tried by jury.165
The Act
also provides that without limiting that provision, a court may order that defamation
proceedings are not to be tried by jury in particular circumstances.166
Where the
proceedings are before a jury it is the jury that determines whether the defendant has
published defamatory matter about the plaintiff and, if so, whether any defence raised
by the defendant has been established.167
This is where Kirby‘s J‘s ―fiction‖, seen
above, highlights the tensions in approaches and the potential for conflicting
conclusions between judges and juries. Two recent cases illustrate the point well – John
Fairfax Publications Pty Ltd v Gacic168
and John Fairfax Publications Pty Ltd v
Rivkin.169
Put simply, in Gacic (which was concerned with the publication of a disparaging
review of a restaurant), the New South Wales Court of Appeal, exercising its power
under legislation,170
disagreed with the jury‘s conclusion that the words were not
defamatory.171
The questions for the High Court were whether the Court of Appeal had
the power to substitute its own answer for that of the jury and whether it erred in
import a slanderous sense, may now; and vice versa: see Harrison v Thornborough (1713) 10 Mod
196, at 197.
165 Section 21(1).
166 Section 21(3). The circumstances set out in this section are: (a) if the trial requires a prolonged
examination of records; or (b) if the trial involves any technical, scientific or other issue that cannot
be conveniently considered and resolved by a jury.
167 Section 22(2).
168 (2007) 81 ALJR 1218.
169 (2003) 201 ALR 77. While this discussion refers only to two cases, several instances of appellate
court intervention to set aside the jury‘s verdict on the basis of perversity in various Australian
jurisdictions have been identified: see Rolph D (September 2004), Commercial Law Quarterly 9, at
9. See also, Rolph D (2003), ―Perverse jury verdicts in New South Wales defamation trials‖ 11 Torts
LJ 28.
170 Section 108(3) Supreme Court Act 1970 (NSW):
Where it appears to the Court of Appeal that upon the evidence the plaintiff or the defendant is,
as a matter of law, entitled to a verdict in the proceedings or on any cause of action, issue or
claim for relief in the proceedings, the Court of Appeal may direct a verdict and give judgment
accordingly.
171 The Court of Appeal held that no reasonable jury, properly directed, could have given any answer
other than that the imputations were defamatory: see Gacic v John Fairfax Publications Pty Ltd
(2006) 66 NSWLR 675, Beazley JA (Handley and Ipp JJA agreeing), at 684:
The food served in any restaurant is its essential business. If the food is ―unpalatable‖ the
restaurant fails on the very matter that is the essence of its existence. This is especially so of a
purportedly high class restaurant. To say of a restaurateur of such an establishment that they
sold ―unpalatable‖ food injures that person in their business or calling and because of that, is
defamatory. In my opinion, no reasonable jury properly directed could reach any other verdict
(ibid).
263
exercising that power.172
The High Court (Kirby J dissenting) held that the Court of
Appeal did have the power and that it did not err and therefore dismissed the appeal.173
There were also clearly opposing views as to whether the restaurant review in question
was defamatory.174
Some of the questions on appeal in the Gacic case overlap the
Rivkin case (which involved a defamation action against a publisher in connection with
articles that referred to the plaintiff in connection with investigations into the plaintiff‘s
company and a suspicious death).175
In the latter case, the Court of Appeal found
unreasonable some of the jury‘s answers that the defamatory imputations concerned
were not conveyed and it ordered a new trial. The difference there was that the Court of
Appeal ―did not assert, still less did it exercise, a power to determine the outstanding
issues for itself.‖176
For present purposes, the sum effect of the two cases is the same – the appeal
court did not agree with the trial jury‘s finding, thereby ignoring a rudimentary test for
determining meaning, which asks ―what an ordinary, reasonable recipient would
understand from the material.‖177
It also raises questions about the purported
commitment to the role of a jury as reflected, for instance, in the following view: ―By
172 See John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218, Kirby J, at 1236.
173 As one commentator put it, ―the NSW Court of appeal tossed the jury verdict in the bin, preferring
its own view that the review was defamatory [and] the High Court agreed‖: Albrechtsen (2007),
above fn 120.
In other recent cases, in a negligence context, members of the High Court have disagreed about the
readiness with which they should disagree with findings of fact made by the courts below: see
Graham Barclay Oysters Pty Ltd & Anor v Ryan & Ors (2002) 211 CLR 540, Gleeson CJ, at 567–
569. For another example where the judges disgreed on this point see New South Wales v Fahy
(2007) 81 ALJR 1021.
174 On the one hand was the view taken by all members of the NSW Court of Appeal and the High
Court majority that no reasonable jury, properly directed, could reach any other conclusion but that
the imputations in question were defamatory: see John Fairfax Publications Pty Ltd v Gacic (2007)
81 ALJR 1218, at 1222, 1229-1230, 1255; Gacic v John Fairfax Publications Pty Ltd (2006) 66
NSWLR 675, at 677, 684, 687, 689.
On the other hand was the view taken by the jury that the imputations concerned were not
defamatory. Kirby J did not find the jury conclusion objectionable. His Honour said, at 1244-1245:
It is far from inconceivable to me that a contemporary jury of Australian citizens might
reasonably conclude that the review of the respondents‘ restaurant was not defamatory of the
respondents. They might take the view that it was basically an example of media entertainment
in which any publicity is good publicity. Or that high price restaurateurs have to exhibit thicker
skin. Or that defamation should be reserved to more serious complaints because ―free speech‖
and the ―free press‖ really matter. Or that any defamation was of the respondents‘ chef and
waiting staff and not of them. Moreover, on subjects as a criticism of a restaurant‘s food and
service, lay jurors are much more likely to reflect community standards than judges, many of
whom, like myself, have no special interest in culinary matters, expensive restaurants or
cuisine generally. Astonishing as it may seem, judges may occasionally lack a sense of irony or
humour. Some may undervalue ―free speech‖ or sometimes even feel hostility to a ―free press‖.
In such matters, therefore, there is safety in the numbers of a jury.
175 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77.
176 John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218, Kirby J, at 1231.
177 Kenyon (2006), above fn 15, at 24.
264
allocating to the jury what is a vital decision in the trial the arrangement maintains an
appropriate degree of community involvement.‖178
It is said further that a jury is
―enjoined to apply their commonsense and experience as ordinary members of the
community. They are asked to determine whether right-minded members of the
community would find a publication to be defamatory.‖179
In reality, however, there is
considerable doubt as to the efficacy of juries.180
Furthermore, there is doubt as to the
extent of their autonomy. This doubt arises from the fact that juries must be guided181
and directed182
in their decisions. Juries can be inimical to the process of attaining a
proper ―balance‖ between the two competing interests of protection of reputation on the
one hand, and on the other, freedom of speech.183
As regards jury prejudice against
defendants the New South Wales Law Reform Commission has noted:
In the late eighteenth century juries were seen as the guardians of free speech and
democratic rights against Government excesses. Now they are often perceived as threats to
free speech because they are hostile to defendants (particularly the media) and occasionally
award excessive damages.184
178 John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218, Kirby J, at 1238 citing the NSW
Attorney-General Hon JP Hannaford‘s Second Reading Speech in the NSW Legislative Assembly
on the bill which provided for the introduction of Section 7A, Defamation (Amendment) Act 1994
(NSW). That amendment provided that the jury would be required to answer two questions at an
early stage of the defamation trial: (a) whether the imputations alleged are conveyed; and (b)
whether, if such imputations were conveyed, they were defamatory. See also this case Gummow and
Hayne JJ, at 1226-1227.
Note, further, Lord Denning‘s observation four decades ago that ―trial by jury has no equal‖ when a
person is on trial for a serious crime or in a civil case when a person‘s honour or integrity is at stake:
Ward v James (No 2) [1966] 1 QB 273, at 295.
179 Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675, Beazley JA, at 686. It has been
noted that there is community support for a jury role in defamation actions and this is ―founded on
the view that by drawing on the combined knowledge of how matters are regarded in the community
at large, a jury is capable of providing a superior results, as compared with a judge who only deploys
his or her own knowledge‖: see NSWLRC Report No 75, above fn 15, Para 3.7.
180 See fn 169 above.
181 In Alford v Magee (1952) 85 CLR 437, the full court of the High Court, at 466, noted:
…the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the
law to the jury in general terms and then leave it to them to apply the law to the case before
them. He held that the law should be given to the jury not merely with reference to the facts of
the particular case but with an explanation of how it applied to the facts of the particular case.
He held that the only law which it was necessary for them to know was so much as must guide
them to a decision on the real issue or issues in the case, and that the judge was charged with,
and bound to accept, the responsibility (1) of deciding what are the real issues in the particular
case, and (2) of telling the jury, in the light of the law, what those issues are.
182 For example, in the New South Wales Court of Appeal it was held that ―the failure to give firm clear
directions‖ to the jury led to a ―substantial miscarriage of justice‖: Gacic v John Fairfax
Publications Pty Ltd (2006) 66 NSWLR 675, Beazley JA, at 677.
183 For an earlier reference to these two competing interests see Chapter 2 heading 1.
184 New South Wales Law Reform Commission (August 1993), Defamation, Discussion Paper No 32,
Para 4.23 (references omitted). Under section 22(3) UDA, of course, juries have no role in relation to
damages.
265
That observation raises a question as to the appropriateness of relying on juries in
the critical exercise of determining an appropriate balance between the two competing
interests referred to above. It is arguable, further, that in the context of modern civil
litigation, where the facts are often specialised or complex and the borderline between
issues of fact and issues of law is blurred, the resolution of disputed facts and issues of
credibility is often best left to judges whose training, experience and tradition of
detachment better equips them to deal with these issues than a jury.185
As Kirby J noted,
in the end when it comes to determining meaning, judges are merely hiding behind a
pretended reliance on the fictitious reasonable recipient and in fact determining the
outcome themselves.186
In the proposal for national uniform defamation laws some
attention was given to the jury role but it did not resolve the problem addressed in this
discussion.187
The foregoing discussion shows that juries do not necessarily represent an ideal
mechanism for the determination of defamatory meaning nor do they strictly constitute
the final arbiter of defamatory meaning.188
There is also room to question the
assumption that juries always reflect community standards.189
Any suggestion that a
185 NSWLRC Report No 75, above fn 15, Para 3.9.
186 See quotation in text accompanying fn 121 above. In Gacic v John Fairfax Publications Pty Ltd
(2006) 66 NSWLR 675 all members of the Court of Appeal found that no reasonable jury, properly
directed, could have given any answer other than that the imputations were defamatory: see fn 171
above.
187 The Commonwealth Attorney-General‘s initial proposal was that juries in defamation trials be
abolished: see Commonwealth Attorney-General‘s Department, Outline of Possible National
Defamation Law (March 2004), at 5. Retrieved 20 February 2008, from:
<http://www.offi.gov.au/www/agd/agd.nsf/Page/Defamationlawreform_Outlineofpossiblenationalde
famationlaw-March2004>
The Commonwealth Attorney-General abandoned this proposal in the Revised Outline of Possible
National Defamation Law (July 2004), above fn 66, at 28-29, suggesting instead that juries could be
involved in determining one or more of the following: (a) whether published matter is defamatory;
(b) whether any defence is available; and (c) what damages to award. This position was reflected by
the SCAG group: see SCAG Working Group of State and Territory Officers, ―Proposal for Uniform
Defamation Laws‖, above fn 59, Recommendation 4, at 13. For a more detailed discussion of the
subject see the SCAG proposals, at 11-13; and NSWLRC Report No 75, above fn 15, Para 3.6-3.20;
Para 3.30-3.35.
188 Note the view of the New South Wales Law Reform Commission, in Discussion Paper No 32, above
fn 184, Para 4.19:
In any case, the jury‘s role in deciding whether the defendant did defame the plaintiff is subject
to the judge’s control. The judge may rule at an earlier separate trial whether the matter
complained of is capable of conveying the imputations alleged. Judges can even rule on appeal
that an imputation is not capable of arising despite the jury‘s finding that it did. Judges also
decide whether imputations are capable of being defamatory; in doing so, they must make
important decisions about current community standards (references omitted, italics added).
On this point see also the recent Gacic case referred to in fn 120 above.
189 See the findings referred to in the study cited in fn 108 above where it was noted that there is a
significant gap between perceived and real community standards when it comes to the level of harm
thought to be done to a person‘s reputation.
266
jury decision is totally autonomous is also open to question in light of the
acknowledgement above that they are subject to being ―guided‖190
and ―directed‖.191
While juries are capable of bringing to the trial process a benchmark for community
standards it is clear that the court can and does play an interventionist role although this
role is not currently reflected in the UDA.
4.4 Reform recommendations
The reform recommendations under this heading are as follows:
Recommendation (a)
The court’s interventionist role in establishing whether an imputation is defamatory be
more clearly recognised in respect of defamation in the UDA.192
This interventionist
role should include a provision that the court may order that defamation proceedings
are not to be tried by jury where it is clear that the matter can be resolved without
reference to a jury’s view of community standards.193
Where the court deems that on the
pleadings the words concerned do raise questions of “community standards”194
a jury
should be left to reflect those standards and the jury’s findings should not be subject to
appellate review except in a demonstrable case of miscarriage of justice.195
See further the observation in NSWLRC Discussion Paper No 32 concerning jury prejudice giving
rise to the view that ―[n]ow they are often perceived as threats to free speech‖: see quotation
accompanying fn 184 above.
190 See fn 181 above.
191 See text accompanying fn 182 above and also fn 188 above.
192 See John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218, Kirby J, at 1238:
If, for reasons of economy, finality, convenience or otherwise, it was thought appropriate that
the Court of Appeal should have the power to substitute its judgment for that of a jury,
Parliament could so provide expressly. It had not done so in the Defamation Act (italics in
original).
193 Note the following view in NSWLRC Report No 75, above fn 15, Para 3.8:
[The Commission] regards as too broadly drawn the argument that juries are, overall, more
likely to arrive at a larger measure of social justice in defamation cases than judges. Many
issues arise in a defamation trial. Not every one of those issues requires such a sensitivity to
community values that it can be resolved only by a decision of a cross-section of the
community. In short, it is the nature of the issue, rather than a general theoretical postulate,
which determines the appropriate mode of trial for that particular issue.
This approach also takes into account the view that the first step in a defamation proceedings, the
deriving of meaning, is one that a judge could perform as well as a jury: see John Fairfax
Publications Pty Ltd v Gacic (2007) 81 ALJR 1218, Kirby J, at 1238.
194 Such a case might include those involving restaurant reviews concerning the taste or quality of food
served in the restaurant concerned.
195 See Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, where Mason CJ, Deane,
Toohey and McHugh JJ, at 39, referred to Supreme Court Rules and said that the Court could order a
new trial if it appeared that ―some substantial wrong, or miscarriage‖ had been occasioned.
To succeed in an appeal against a jury finding in proceedings for defamation the appellant is
required to show that the findings of the jury were perverse, that the verdict is unreasonable in the
267
Explanatory notes to Recommendation (a)
It is clear from the foregoing discussion that the ―ordinary, reasonable person‖ as
manifested in the jury does not have the last word on whether an imputation is
defamatory, and this runs counter to what has been touted as the applicable test, the test
of the ordinary, reasonable person. The solution to this dilemma may be found in Kirby
J‘s observation:
Appellate judges and judges in the practice list working under their supervision, should
acknowledge candidly the reserve function that judges perform in our legal system in
rejecting pleaded imputations that are not reasonably arguable by reference to the matter
complained of. If the third party fiction were dropped, it is likely that a new formulation
would emerge to explain more precisely and accurately the considerations according to
which one imputation is accepted and goes to the tribunal of fact for its decision, and why
another is not, so that that tribunal is spared the necessity of considering it. Or why one
imputation is held defamatory and another is not.196
Experience has shown that ―juries sometimes ‗baffle‘ appellate judges by
repeatedly coming to conclusions which judges regarded as ‗unreasonable‘ or, in the old
language, ‗perverse‘.‖197
Such an outcome is not altogether unusual because experience
has shown that sometimes juries continued to reach conclusions about defamatory
imputations that were different from those reached by judges and, in several well-
known instances, appellate judges have ultimately accepted that jurors were entitled to
sense that the case against it is clear and beyond argument, or that the case can be described as an
extreme one: see Cairns v John Fairfax & Sons [1983] 2 NSWLR 708.
196 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716, at 1723 (italics added).
While Kirby J did not specifically indicate what the ―new formulation‖ would be, his Honour‘s
remarks following the above observation may provide some clues.
One is that ―[b]ehind the verbiage of the judicial formulae conventionally used (to explain why one
imputation is held defamatory and another is not) lies a notion related to the respective functions of
the judge deciding the acceptability and adequacy of pleadings and the judge or jury deciding the
substance of the wrong of which a plaintiff complains‖ (reference omitted): see Favell v Queensland
Newspapers Pty Ltd (2005) 79 ALJR 1716, Kirby J, at 1723.
The other is the observation that ―generally speaking, the law is moving away from fictions and in
the direction of substance and reality‖ (reference omitted, ibid).
197 John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218, Kirby J, at 1237. For a
bizarre jury finding see the New South Wales County Court defamation case involving
plaintiff Joseph Pezzimenti and defendant Essendon City Council and another, held
before Ostrowski J. This case is referred to in Ackland R (1995) , ―Defamation: Judge and
Jury‖, Australian Press Council News , Vol 6 No 1, February. Retrieved 31 December
2007, from <http://www.presscouncil.org.au/pcsite/apcnews/feb95/defam.html>
The transcript of that case shows the following exchange between the judge and the jury foreman:
Foreman: We of the jury find that the City of Essendon is guilty. We of the jury find the
Essendon Gazette is not guilty. We award Mr and Mrs Pezzimenti compensation as follows…
His Honour: Hold on, just hold on will you? I will have to ask you to retire to your room for a
few more minutes…
268
reach a conclusion different from that of the judges.198
It has also been noted that there
has been a ―general decline of juries in civil actions in Australia‖.199
In England it has
been suggested that ―in a more pragmatic and perhaps less principled era, the use of a
jury to determine a person‘s honour is now in retreat‖.200
It has been noted, however,
that in civil law jurisdictions the role of the jury, particularly in the appeal process, is
being expanded in criminal cases.201
It is not suggested here that juries be abolished202
as that would impair the role community values plays in the process203
and undermine
public confidence in the courts.204
As seen from the discussion above, however, there is
a fine balance to tread and the court should be permitted to intervene, and do so in a
timely way, to avert an injustice and to attain certainty and predictability so that the
media know what they can publish.
This interventionist role must be clearly recognised in the context of determining
defamatory meaning. The scope for avoiding reliance on juries is already envisaged in
the UDA.205
Furthermore, where the defamatory imputation is clearly conveyed, as in
198 For a discussion of this point and the relevant cases see John Fairfax Publications Pty Ltd v Gacic
(2007) 81 ALJR 1218, Kirby J, at 1245.
199 NSWLRC Report No 75, above fn 15, Para 3.9.
200 Cooke J (2006), ―Twilight of the libel jury?‖ Vol 14 Tort L Rev 64, at 77.
201 Findlay M (Winter 2007), ―Juries reborn‖, Issue 90 Reform 9, at 9. See also McKillop B (2006),
―Review of Convictions After Jury Trials: The New French Jury Court of Appeal, 28(2) Sydney Law
Review 343.
202 See Section 21 UDA.
203 As Kirby J has noted, a jury role for determining community standards is not altogether irrelevant:
Some judges may feel themselves better able to decide imputations damaging to a business
than, for example, imputations concerned with sexual morality. However, it is not the case that
―community standards‖ are irrelevant in such matters. To say that would be to deny the
legislative scheme that preserves the touchtone of community standards provided by a civil
jury: John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218, Kirby J, at 1244.
204 See, for instance, the extracurial views of the Chief Justice of the High Court Hon Murray Gleeson
(Winter 2007), ―Juries and Public Confidence‖ Issue 90 Reform 12, at 12:
Public participation in the administration of justice is part of our legal tradition. It is important
for Parliaments to keep in mind the public interest in involving the community in the
administration of justice, especially criminal trials. Through the jury system, members of the
public become part of the court itself. This ought to enhance the acceptability of decisions, and
contribute to a culture in which the administration of justice is not left to a professional cadre
but is understood as a shared community responsibility.
See also Cooke (2006), above fn 200, at 65:
The jury has helped to make the law intelligible by keeping it in touch with contemporary
common sense and avoiding the stagnation which can be the result of exclusive domination by
a professional cadre of lawyers concerned with systemisation. There is a danger that rules
produced by such a system become so refined that they cease to bear a relation to the world of
practical life and for centuries the jury system has constantly brought the rules of law to the
touchstone of contemporary common sense.
205 Section 21(1) provides that ―[u]nless the court orders otherwise, a plaintiff or defendant in
defamation proceedings may elect for the proceedings to be tried by jury (italics added). See further
section 21(3).
269
an allegation of criminal conduct,206
it is difficult to see what a jury can bring to the
exercise of determining the existence of a defamatory imputation that the court cannot
on its own resolve.207
It is not suggested here that an interventionist role be introduced,
per se, for such intervention already occurs. What is suggested, however, is that the
potential for such intervention by the court be set out in the UDA in the same way that
the UDA already envisages such circumstances, including those in which the jury may
be dispensed with altogether.208
Such a formal recognition may assist in overcoming
criticism of the courts when they do intervene, as seen in the cases identified earlier.209
The recommendation above involving situations of ―miscarriage of justice‖ is
made on the basis of the approach already provided for in circumstances involving: a
―perverse‖ jury finding; where the verdict is unreasonable in the sense that the case
against it is ―clear beyond argument‖; where the case can be described as ―an extreme
one‖; or where ―some substantial wrong, or miscarriage‖ has occurred.210
Recommendation (b)
In construing defamatory meaning the court should prefer a construction that promotes
freedom of speech rather than the protection of reputation. For the purposes of this
recommendation the court may apply this rule flexibly so that the weight accorded to
freedom of speech interests is greater in the cases of “public figures” and “matters of
public concern”.211
206 See, however, Berry v British Transport Commission [1961] 1 QB 149, at 166, for the view that an
imputation of criminality is not always defamatory.
207 For instance, claims that a person is ―drug smuggler and dealer‖ may be considered clearly
defamatory and not dependent on the operation of ―community standards‖: see Corby v Channel
Seven Sydney Pty Limited [2008] NSWSC 245 (26 March 2008) Para 5. See also Gacic v John
Fairfax Publications Pty Ltd (2006) 66 NSWLR 675, where Beazley JA, at 687, noted Mahoney
JA‘s distinction in the lower court ―between those cases where the issue was the meaning of the
words that had been used in the matter complained of and a case which depended upon community
standards‖. In that case it was observed that the defamatory quality of an imputation that a restaurant
served unpalatable food or provided bad service ―depends upon the general community attitude to
conduct of a particular kind‖ (ibid). Such a case can be distinguished from the kind discussed in
Cairns v John Fairfax & Sons [1983] 2 NSWLR 708. In that case the jury had found there was an
allegation of improper sexual association between two married persons contrary to their respective
marriage obligations but the jury also found that this was not defamatory. The court (Samuels JA
dissenting) held that this was not a perverse or extreme finding.
208 Section 21(3) provides that without limiting subsection (1), a court may order that defamation
proceedings are not to be tried by jury if: (a) the trial requires a prolonged examination of records; or
(b) the trial involves any technical, scientific or other issue that cannot be conveniently considered
and resolved by a jury.
209 See fn 120 above, in particular, the criticisms by the Australian Press Council and journalist
Albrechtsen.
210 See fn 195 above.
211 These terms were explained in Chapter 6. See also the discussion on purposive interpretation in
Chapter 6 fn 46.
270
Explanatory notes to Recommendation (b)
It has been observed in the High Court: ―To the extent that a defamatory meaning is
accepted, free speech is diminished.‖212
While this recommendation is unlikely to
always be an easy one to execute, it is likely that the tribunal‘s predisposition to
freedom of speech can influence the meaning selected. The bases for this
recommendation may be drawn from a number of sources. One is the fact that the
objects section of the UDA makes freedom of speech a priority:
The objects of this Act are – to ensure that the law of defamation does not place
unreasonable limits on freedom of expression and, in particular, on the publication and
discussion of matters of public interest and importance.213
Further support for the free speech oriented approach advocated here can also be
drawn from Kirby J‘s remarks in Gacic.214
His Honour‘s observation was that where
freedom of speech and a free press ―really matter‖215
it could lead ―a contemporary jury
of Australian citizens [to] reasonably conclude that [a negative restaurant] review‖ was
not defamatory.216
In that case the New South Wales Court of Appeal found that the
matter in the restaurant review concerned was defamatory.217
In effect, Kirby J‘s
approach here was to take a ―narrow‖ view of what constituted a defamatory meaning
and hence the defendant‘s burden in respect of proving the truth of the defamatory
imputation would be accordingly reduced.
A similar approach was taken in England by Lord Steyn in the House of Lords in
Reynolds v Times Newspapers Ltd.218
In that case his Lordship referred to the
reinforcement provided to freedom of speech by the Human Rights Act 1988 (UK). His
Lordship cited the ―new landscape‖ provided by the Act as being of ―great importance‖
in resolving freedom of speech questions.219
Lord Steyn said that in that landscape,
―freedom of expression is the rule and regulation of speech is the exception requiring
justification.‖220
That this was the approach intended in Reynolds was made clear in the
212 See John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218, Kirby J, at 1238.
213 Section 3(b) UDA.
214 John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218.
215 John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218, Kirby J, at 1244.
216 John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218, Kirby J, at 1244. For a more
detailed extract see fn 174 above.
217 Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675.
218 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 628. For the full
extract of his Lordship‘s remarks see Chapter 5 fn 157.
219 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 628.
220 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 629.
271
subsequent House of Lords decision in Jameel, where Lord Hoffmann referred to
Reynolds as having ―attempted to redress the balance in…favour of greater freedom for
the press to publish stories of genuine public interest‖.221
It is suggested that elevating the priority given to freedom of speech can also
apply to the exercise of construing the meaning of words in the defamation context.222
While such approaches would not automatically provide a precise gauge in each
exercise to determine defamatory meaning, it is suggested that elevating freedom of
speech as a priority would have the effect of lightening the defendant‘s burden. That
aside, the elevated status of the freedom of speech imperative here is consistent with the
direction taken generally in this thesis.
4.5 Model provisions
The model provisions here are set out in an order that corresponds with the
recommendations above.
Role of jury
(a) The court may order that defamation proceedings are not to be tried by jury where
it is clear that the matter can be resolved without reference to a jury‘s view of
community standards. Where the court deems that on the pleadings the words
concerned raise questions of community standards:
(i) a jury should be left to reflect those standards; and
(ii) the jury‘s findings should not be subject to appellate review except in
a demonstrable case of miscarriage of justice.
Freedom of speech
(b) In construing defamatory meaning the court should prefer a construction that
promotes freedom of speech rather than the protection of reputation. For the
purposes of this clause the court may apply this rule flexibly so that the weight
accorded to freedom of speech interests is greater in the cases of ―public figures‖
and ―matters of public concern‖.
221 Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279.
222 Note also the observation in Chapter 8 text accompanying fn 46 where the capacity of a court to take
a ―strict or a generous approach‖ is noted.
272
CHAPTER 8
The Truth Defence in all its forms
That a lie which is all a lie may be met
and fought with outright,
But a lie which is part a truth
is a harder matter to fight.1
True and False are attributes of speech,
not of things.
And where speech is not,
there is neither Truth nor Falsehood.2
1. Introduction
This chapter examines the various truth defences available in defamation law under the
UDA and at common law. When the New South Wales Law Reform Commission
recommended that ―falsity should be an essential ingredient of the cause of action in the
tort of defamation‖3 it said that ―[t]he effect of this proposal is that justification will be
eliminated as a defence in defamation actions.‖4 In the scheme of this thesis, however,
although it was recommended that falsity should be an essential ingredient of the cause
of action, this recommendation was confined to circumstances where the plaintiff is a
public figure; the matter complained about is a matter of public concern; and the
defendant is a media defendant.5 It was recommended in Chapter 5 that if any of those
three prerequisites is not met the truth defences ―should continue to be available‖.6
Thus, plaintiffs who are not public figures or who are suing the media on matters that
are not matters of public concern would retain the present ability to sue for defamation
without having to bear the added burden of proving falsity of the publication.
Consequently, unlike the New South Wales Law Reform Commission position seen
above the truth defence is not eliminated.
1 Lord Alfred Tennyson (1859), ―The Grandmother‖, st. 8, in Tennyson: Poems and Plays, Oxford
University Press, London, 1968, st. 8, at 210.
2 Thomas Hobbes (1588–1679), Leviathan (1651), in Hobbes: Leviathan, JM Dent & Sons, London,
Part 1, Ch 4, at 15.
3 New South Wales Law Reform Commission (October 1995), Defamation, Report No 75, Para 4.15,
Recommendation No 5.
4 NSWLRC Report No 75, above fn 3, Para 4.15 (italics added).
5 See Chapter 5 generally, and heading 4.2 Recommendation (a), especially.
6 Chapter 5 heading 1 (Introduction).
273
It is against this backdrop that this chapter examines the difficulties with the
present bundle of truth defences and makes reform recommendations specific to these
defences. While a variety of truth defences are available, these have developed in an ad
hoc fashion and the courts have often taken differing approaches in applying these
defences. The UDA provides that the Act ―does not affect the operation of the general
law‖ except as provided in the Act.7
2. The truth defence in all its forms
The truth defence takes different forms even within the realm of the truth per se
defences. The UDA provides for two truth defences: substantial truth8 and contextual
truth.9 At common law, however, two ―other‖ truth defences have applied – the
defences of Polly Peck10
and partial truth.11
These defences are not always
acknowledged as variations of the truth defence12
and so they will be addressed
separately in this chapter even though they have many common strands. Furthermore,
partial truth has been considered to be ―not a defence to the cause of action‖ but
―relevant to the question of damages.‖13
This and other distinctions and similarities
between these defences will be considered in the following sections with a view to
bringing together the various truth defences.
All the truth defences discussed below permit reliance on something less than the
full truth. It is proposed that the UDA set out the truth defences more comprehensively
and clearly. Put simply, the reformed truth defences – that is, defences that are
grounded in the notion of truth – should fall under two broad categories. Both
categories are discussed in greater detail below, but in brief, they may be distinguished
as follows:
(a) Defence of substantial truth: The defence, which is reflected in the existing
section 25 UDA defence, is mounted in response to published defamatory
7 Section 6(2).
8 See discussion under heading 4 below.
9 See discussion under headings 5 and 6 below.
10 Polly Peck (Holdings) v Trelford [1986] 1 QB 1000; see discussion under heading 7 below.
11 See discussion under heading 8 below.
12 Gillooly M (1998), The Law of Defamation in Australia and New Zealand, Federation Press,
Sydney, in Chapter 8 discusses ―truth and related defences‖ where substantial truth and contextual
truth are discussed in separate sections; while George P (2006), Defamation Law in Australia,
LexisNexis Butterworths, Chatswood, NSW, discusses these two defences in separate chapters: truth
(Chapter 19) and partial truth and contextual truth (Chapter 20). The manner of organising these
topics in the texts, however, is of no significance for present purposes.
13 Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 63; see also
discussion under heading 8 below, and especially fn 227 below.
274
imputations about which the plaintiff has complained. To succeed in this defence
the defendant must prove the substantial truth of the matter complained about.
(b) Defence of contextual truth: The defence, which is partly reflected in the existing
section 26 defence, is mounted in response to published defamatory imputations
about which the plaintiff has not complained but which are relevant to a
consideration of the plaintiff‘s claim.
In both circumstances, the applicable test of truth should be the test of ―substantial
truth‖.14
More is said about this term below.15
3. “Truth” in the context of the truth defences
A key factor in considering any of the truth defences concerns the very conception of
the term ―truth‖. This was discussed in detail in Chapter 3 and it was seen that truth
itself is an amorphous and contentious term with varying manifestations. It was seen,
for instance, that according to the correspondence theory of truth when something
happens ―it really is so and that the statement concerning it is true‖16
and that in the
context of a trial viewed according to the correspondence theory, if a person was guilty
it meant that ―he did it‖.17
On the other hand, applying the coherence theory, guilt or
otherwise is found ―at the end of a specifically legal procedure‖ and should not be
confused with the lay view that ―he did it‖.18
It was argued that the construction of
reality in the courtroom is ―at base, a coherence as opposed to a correspondence theory
of truth‖.19
It was noted that the coherence/correspondence dichotomy created the
paradox that legal inquiry was amenable to at least two, potentially, different (or
conflicting) truths – substantive truth (or ―actual truth‖) and formal legal truth (which is
created by the fact-finder).20
An important proposition proffered was that the legal
inquiry process was ―not conducive to establishing substantive truth‖.21
It was also
noted there that journalistic truth was more amenable to the correspondence theory (and
hence to substantive truth) than legal truth ―because unlike legal truth which comes to
14 In the UDA sections 25 (defence of justification) and 26 (defence of contextual truth) require proof
of substantial truth.
15 See heading 3.
16 Chapter 3 heading 2.1.1.
17 Chapter 3 heading 6.1.
18 Chapter 3 heading 6.1.
19 Chapter 3 heading 6.1.
20 Chapter 3 heading 6.1.
21 Chapter 3 heading 6.1.
275
rest at a fixed point in the trial process, journalistic truth is open to review indefinitely
and competing notions of the truth coexist until the ‗ultimate truth‘ emerges.‖22
4. Substantial truth principles
Under the Uniform Defamation Act 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.23
The UDA defines ―substantially
true‖ as ―true in substance or not materially different from the truth‖.24
In all other
respects, the common law principles apply.25
At common law it has always been
possible to successfully defend an action in defamation by establishing that the
imputation in question is true in substance and in fact.26
If this plea is made out, there
can be no inquiry into the alleged malice or other conduct of the defendant.27
It is
enough that the imputation was true.28
As noted earlier, however, this ―apparently
22 Chapter 3 heading 6.2. See also the following observation in Chapter 3 heading 6.3 which is
reproduced here for convenience:
Ideally, the test of truth should be guided by correspondence/substantive truth principles. In
practice, the truth-certifying processes of the courts and of journalism tend to render this ideal
difficult to attain. As seen above, the question ―did he really do it‖ (or ―is this really so‖) so as
to justify the defamatory publication is open to diverging legal outcomes that illustrate the
chasm between coherence (formal legal truth) and correspondence (substantive truth).
23 Section 25 UDA. See also discussion under heading 1 above. See further Gillooly (1998), above fn
12, at 104-105; George (2006), above fn 12, at 240; Sutherland v Stopes [1925] AC 47, at 55;
Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416, at 420-421; Australian Ocean Line v
West Australian Newspapers (1985) 58 ALR 549, at 596-597.
In Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 63 (authorities
omitted) provides the following useful summary of ―well-established‖ principles that apply to a
pleading of the defence of substantial truth:
The following propositions are well-established and apply to pleading a defence of
justification:
(i) The whole libel that is all the defamatory imputations must be proved as true; it is no
defence to prove that part of the defamatory libel is true. The publisher must prove the truth of
the defamatory sting. The general rule is that the publisher must prove every injurious
imputation which the jury may find in the words complained of.
(ii) The defence is that the words complained of were true in substance and in fact. This means
that the publisher must prove the sting or stings of the libel are true. The publisher need not
prove an irrelevant comment or any slight inaccuracy in the article is true. Errors or mistakes
of no real substance do not defeat the defence provided they make "no substantial difference to
the quality of the alleged libel or in the justification pleaded for it". Every fact stated must be
proven as true, unless immaterial or trivial and which in no way alters the defamatory sting of
the article.
24 Section 4.
25 George (2006), above fn 12, at 242; and section 6(2) UDA.
26 Tobin TK and Sexton MG (1990), Australian Defamation Law and Practice, Butterworths, Sydney
(LexisNexis Online), Para 11,001. Milmo P and Rogers WVH (2004), Gatley on Libel and Slander,
10th Edn, Sweet & Maxwell, London, at 267 states that it is a defence to establish that the
imputation is ―substantially true‖.
27 Tobin and Sexton (1990), above fn 26, Para 11,001.
28 Tobin and Sexton (1990), above fn 26, Para 11,001.
276
straightforward principle has given rise to some extremely difficult and still unsettled
issues of law.‖29
The principles governing the defence as culled from the authorities shed further
light on how this defence operates. What is required is that the defendant meet the
―sting‖, the ―main charge, or gist‖ of the libel.30
The defendant must ensure that ―the
sting of the libel or, if there were more than one, the stings of the libel should be made
out.‖31
The defendant ―must prove the truth of all the material statements contained in
the libel; there must be a substantial justification of the whole libel‖.32
In accordance
with Howden v “Truth” and “Sportsman”Ltd,33
for the imputations to be substantially
true it is ―necessary that the defendant establish the substantial truth of each component
part‖ of the imputations.34
In all Australian States and Territories the truth of the
imputations needs to be established for the defence to be made out.35
The issue of what
may be advanced under a plea of justification is ―closely linked to the meaning or
meanings which the defamatory words are reasonably capable of bearing.‖36
The
defendant must prove the truth of the imputations rather than the actual words used.37
To establish the truth of the publication ―a true and not a misleading picture must be
presented to the reader‖.38
Some allowances are made so that the strictness of the
demands of the defence is alleviated. It is said: ―Provided the justification meets the
substance and effect of the imputation, minor inaccuracy will not exclude the
defence.‖39
Also, the plea ―must not be considered in a meticulous sense‖.40
The sting
of the libel may be made out despite ―mistakes here and there…which would make no
29 Tobin and Sexton (1990), above fn 26, Para 11,001; Chapter 1 heading 4.
30 Gatley (2004), above fn 26, at 275; Gillooly (1998), above fn 12, at 105.
Also note, sting and common sting are different things. A common sting is described in the text
accompanying fn 133 below.
31 Sutherland v Stopes [1925] AC 47, Lord Shaw, at 58-9. For a discussion of what the defendant has
to prove in order to succeed in the defence of justification see West & Anor v Nationwide News Pty
Ltd [2003] NSWSC 505, Simpson J, Paras 40–42.
32 Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416, Evatt J, at 425; Dixon J, at 420.
33 (1937) 58 CLR 416.
34 West & Anor v Nationwide News Pty Ltd [2003] NSWSC 505, Simpson J, Para 56.
35 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, Beazley JA, Giles and
Santow JJA, Para 809.
36 Gatley (2004), above fn 26, at 274 (references omitted).
37 Gatley (2004), above fn 26, at 274; and Gillooly (1998), above fn 12, at 105.
38 Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416, Evatt J, at 424; Bashford v
Information Australia (Newsletters) Pty Ltd [2000] NSWSC 665, Para 19. The New Zealand
Defamation Act section 8(3) expresses it as follows: ―not materially different from the truth‖.
39 To say that a plaintiff was sentenced to a fine with an alternative of three weeks imprisonment was
justified by showing that the alternative jail term was in fact two weeks: Alexander v North Eastern
Railway Co (1865) 6 B & S 340.
40 Sutherland v Stopes [1925] AC 47, Lord Shaw, at 58-9.
277
substantial difference to the quality of the alleged libel or in the justification pleaded for
it‖.41
4.1 Substantial truth difficulties
Questions remain as to the meaning of the term ―substantially true‖ which appears in
section 25 UDA (the term is also used in section 26): ―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.‖ The UDA defines
―substantially true‖ as ―true in substance or not materially different from the truth‖.42
However, there is ―little authority as to what ‗not materially different from the truth‘
means‖.43
This ambiguity is illustrated in Mann v Mackay Television44
where the
defendant had imputed to the plaintiff continuous and regular sexual conduct with his
two stepdaughters over an extended period. The court held that it was insufficient for
the defendant to prove sexual misconduct against the two girls on seven occasions.45
It
would be impossible to provide a clear rule, enforceable in every circumstance, as to
41 Sutherland v Stopes [1925] AC 47, Lord Shaw, at 58-9. Lord Shaw said:
If I write that the defendant on 6 March took a saddle from my stable and sold it the next day
and pocketed the money all without notice to me, and that in my opinion he stole the saddle,
and if the facts truly are found to be that the defendant did not take the saddle from the stable
but from the harness room, and that he did not sell it the next day but a week afterwards, but
nevertheless he did, without my knowledge or consent, sell my saddle so taken and pocketed
the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury
notwithstanding these errors in detail.
The Australian High Court endorsed that principle in Howden v “Truth” and “Sportsman” Ltd
(1937) 58 CLR 416, at 424-5. Also see Potts v Moran (1976) 16 SASR 284, at 306; West & Anor v
Nationwide News Pty Ltd [2003] NSWSC 505, Simpson J, Para 41; and Lange v Atkinson [1998] 3
NZLR 422, at 435.
42 Section 4.
43 Burrows J and Cheer U (2005), Media Law in New Zealand, 5th Edn, Oxford University Press,
Melbourne, at 145.
44 [1992] 2 Qd R 136.
45 Mann v Mackay Television [1992] 2 Qd R 136, Macrossan CJ, at 138-139.
It is necessary to notice that there is variation between the publication itself and the
defendant‘s general summary under the heading of justification. Eight years of having sex with
Karen is reduced to six years of sexual abuse of her. This six years is, in the defendant‘s
particulars, further reduced to a bare three occasions — one of manual interference in 1980 and
two of sexual abuse in 1978 and 1979. In the case of Tracey there is a similar variation. The
publication referring to molestation as far back as she can remember becomes sexual abuse
over a number of years which she is unable to specify and then in the particulars is reduced to
three occasions of sexual intercourse over six years and one occasion of manual interference
occurring two years earlier. There is in my opinion a significant difference between the
allegations in the publication and the facts which the defendant advances as providing
justification.
For another example see Burrows and Cheer (2005), above fn 43, at 145, citing Pepi Holdings v
Pauanui Publishing Ltd CA, 25 August 1997, CA 22/97. In that case it was held that importing or
offering for sale cars known to have had their odometers rewound is not materially different from
actually rewinding them as had been alleged in the publication sued upon. Thus, imputed
responsibility was equivalent to an allegation of actual responsibility.
278
what the expressions ―true in substance‖ and ―not materially different from the truth‖
mean. The latitude that the expression permits is not altogether undesirable as it leaves
room for a discretion that can be exercised to avoid an absurd result. The court may,
however, still take a strict or a generous approach46
and this potentially exposes the
media to liability where the distinction between what is and is not ―materially different‖
is blurred, or where the court takes a clearly ―strict‖ approach.
A weakness in this area for the defendant is that the level of difficulty in relying
on this defence rises with the level of generality of the imputation conveyed.47
While
such an approach appears appropriate, in reality it can work less than ideally for the
media where the court takes a strict approach.48
In a discussion concerning substantial
truth, Simpson J noted that questions of construction of the imputations arise and
―questions of construction are not necessarily susceptible of simple answer‖49
and this
dilemma may extend to even apparently simple questions.50
This defence has been
described as ―a considerable compromise‖51
but in reality remains demanding. The
―extent of truth‖ the defendant is required to prove turns heavily on the imputations said
to be conveyed by the words complained of. It is the imputation contained in the words
which has to be justified, not the literal truth of the words.52
The issue of what may be
advanced under a plea of justification is ―closely linked to the meaning or meanings
which the defamatory words are reasonably capable of bearing‖.53
As a result, an
46 As for the notion of strictness or generosity see, for instance, the observation in Burrows and Cheer
(2005), above fn 43, at 145, where the authors state that the New Zealand Court of Appeal has
interpreted the phrase not materially different from the truth ―very generously‖.
See further Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, at 1297, where Lord
Hoffmann discusses the adverse effect on media defendants when certain prescribed factors
governing media conduct are evaluated by ―a judge hostile to the spirit of Reynolds, they can
become ten hurdles‖. On the other hand, Lord Hoffmann observed how a less strict approach would
require that the said factors ―be applied in a practical and flexible manner [having] regard to
practical realities‖ (ibid).
47 Gillooly (1998), above fn 12, at 111.
48 See fn 46 above. As illustrated in Mann v Mackay Television [1992] 2 Qd R 136, where the
plaintiff‘s sexual misconduct against his two stepdaughters on seven occasions was found not to
justify the imputation that the plaintiff was guilty of continuous and regular sexual misconduct
against the two stepdaughters over long periods.
49 West & Anor v Nationwide News Pty Ltd [2003] NSWSC 505, Para 57.
50 In West & Anor v Nationwide News Pty Ltd [2003] NSWSC 505, for instance, Simpson J, said he did
not find the question – what is the meaning of “offers flats for sale”? – an easy one to resolve (Paras
57-58). His Honour expressed similar difficulties in respect of other imputations: see Paras 61 and
63, in particular. Also see Chapter 7 fn 135 on this point.
51 Hon Dr GG Jacobs, Defamation Bill 2005 (WA), Second Reading, State Legislative Assembly,
Hansard, 13 September 2005, at 5171.
52 Gatley (2004), above fn 26, at 274.
53 Gatley (2004), above fn 26, at 274 (references omitted).
279
expanded view of meanings may convey far more than was conceivable to the
defendant and thereby magnify the defendant‘s burden.
The present concern is not directly with the potential disadvantage to the
defendant resulting from the way defamatory meaning is determined.54
The present
concern is with the room available for the discretion referred to above and the
consequent ―strict or generous approach‖55
that may be taken by the court where the
distinction between what is and is not ―materially different‖ from the truth is blurred.
Given that a strict or generous approach provides a degree of latitude for the court, it is
proposed that this latitude be applied in a manner favouring the media defendant where
it is established that the media‘s professional conduct in establishing the truth of the
matter complained about was not unreasonable in the circumstances. A useful guide in
this respect would be the factors identified earlier in respect of the ―no fault‖ defence.56
4.2 Reform recommendations
The reform recommendations under this heading are as follows:
Recommendation (a)
In exercising its discretion as to whether the defendant has established that the
defamatory imputations carried by the matter complained of are “true in substance or
not materially different from the truth”57
the court may have regard to evidence of the
defendant’s efforts to establish the truth of the matter complained about. For this
purpose the court may have regard to the factors identified in respect of the “no fault”
defence.58
Explanatory notes for Recommendation (a)
The grounds for this recommendation were canvassed above in this chapter. Further
grounds may also be found in the arguments in Chapter 3 where the concept of the
―truth certifying‖ process was noted in the context of court trials.59
As in the case
54 The difficulties associated with establishing defamatory meaning were considered in detail in
Chapter 7, see especially the discussion under heading 4.
55 See text accompanying fn 46 above.
56 See Chapter 5 heading 5.
57 See section 4 UDA.
58 See Chapter 5 heading 5.
59 See fn 245 where it was noted that ―the judicial process is simply a particular method of attempting
to get at the truth, a particular truth certifying procedure‖: citing Bankowski Z (1988), ―The Jury and
Reality‖ (Chapter), in Findlay M and Duff P, The Jury Under Attack, Butterworths: North Ryde,
280
involving the judicial truth-certifying process, it may be argued that there is room to
accommodate journalistic truth applying the same rationale. It was noted above that the
authorities offer little guidance on what the expressions ―true in substance‖ and ―not
materially different from the truth‖ mean.60
It was also noted that there is room for a
strict or a generous approach.61
Two examples were cited to illustrate the potential for
the court‘s discretion in this area to be exercised in a strict or defendant-unfriendly
manner.62
The aim of this recommendation is to make an allowance for the nature of
media work, especially in news and current affairs reporting, where it is not always
possible to ensure truth in substance even though the fact gathering process may be
meticulously executed. What is being advocated here, furthermore, is not aimed at
facilitating media conduct that encourages the reckless destruction of reputation by
innuendo. Instead, the objective here is to make an allowance for the court to recognise
that in some circumstances63
the media defendant may be considered to have acted
professionally (for example, the media defendant concerned observed the governing
ethics code provisions) in causing the publication of the matter concerned. One
objective of this approach is to accommodate situations where potential plaintiffs
subject the media to exceptional difficulty64
in the latter‘s quest to fulfil their
Sydney, at 15. Note also the inadequacies of the court‘s truth-seeking process discussed in Chapter 3
under heading 4.3.
60 See text accompanying fn 43 above.
61 See fn 46 above.
62 Mann v Mackay Television [1992] 2 Qd 136; Pepi Holdings v Pauanui Publishing Ltd CA, 25
August 1997, CA 22/97: see fn 45 above.
63 An example of a circumstance in which the media may face inordinate difficulty or unjustified
obstruction in pursuing a matter of legitimate public concern is illustrated by allegations surfacing in
Western Australia concerning improper sexual advances and harassment of women by male
politicians.
In one case, the individual concerned initially sought to deflect allegations that he had ―sniffed‖ the
chair of a former female political party staff member: see Spagnolo J (2008), ―Buswell ‗sniffed‘ staff
chair‖, The Sunday Times, 25 April (Retrieved 30 May 2008, from
<http://www.news.com.au/perthnow/story/0,21598,23603249-948,00.html>
In another incident the male individual concerned initially admitted to and apologised for any
offence caused by claims that he had made propositions of a sexual nature to a female government
adviser but was later reported to have resorted to legal threats against further publication: see Strutt J
and Adshead G (2008), ―Logan in legal bid to muzzle sex claim‖, The West Australian, 27 May, at 1.
Likewise, another senior male politician has been alleged to have engaged in questionable conduct
involving a female colleague: see Adshead G (2008), ―Bob‘s hands on Bible say Premier lifted
shirt‖, The West Australian, at 2. The report quoted veteran radio broadcaster Bob Maumill as
saying: ―He (the politician concerned) can throw whatever vitriol at me he wants, but I say he lifted
the shirt and revealed a bra…The only way this story will probably go anywhere is if the Premier
decides to sue me.‖
64 Such difficulty may arise through unfair threats against the media; improper use of power to obstruct
the flow of information; and other obstacles placed in the way of information gathering. See also the
criticism attributed to former Western Australia Freedom of Information Commissioner Bronwyn
Keighley-Gerardy, that ―[t]he FOI process is just a mockery‖: Hampson K (2008), ―Government
‗making a mockery‘ of FOI‖, The West Australian, 23 May, at 5. The criticism was made in the
281
professional obligations. In evaluating this question, the factors identified earlier in
connection with the ―no fault‖ defence may provide assistance.
Recommendation (b)
Where, on the facts, the distinction between what is or is not “materially different from
the truth” is unclear the courts should prefer a construction that promotes freedom of
speech rather than the protection of reputation.65
For the purposes of this
recommendation the court may apply this rule flexibly so that the weight accorded to
freedom of speech interests is greater in the cases of “public figures” and “matters of
public concern”.66
Explanatory notes for Recommendation (b)
It was noted above in deciding whether the defamatory imputation was not materially
different from the truth the court may take a strict or a generous approach.67
It is
recommended here that the evaluation of the ―material difference‖ question be
approached with this latitude in mind. Such an approach recognises the discretion that
rests with the courts to set freedom of speech limits. The recommendation here is
consistent with the freedom of speech priority advocated in this thesis and the
acknowledgement of freedom of speech as the ―starting point‖ has been noted earlier.68
context of the WA government‘s refusal to release a report on Aboriginal unemployment prepared
by the government‘s special indigenous affairs adviser Lt-Gen John Sanderson. For a further
example of obstruction note the police raid on a newspaper office to trace the source of a leak of
information concerning planned government expenditure on political advertising: Egan C (2008),
―Raid a scary sign of the times‖, The Sunday Times, 4 May, at 87; The Weekend Australian (2008),
―The rise and rise of the secretive state‖ (Editorial), 3-4 May, at 16. Note further that even a
parliamentary inquiry to identify the circumstances that led to the ―raid‖ took part of its testimony in
camera even though reportedly ―the so-called confidential Cabinet document at the centre of the raid
was openly discussed in public with other witnesses‖: see Campbell K (2008), ―Premier‘s man gives
secret raid evidence‖, The West Australian, 10 June, at 1.
Note further, the observation that a ―continuing culture of secrecy is evident in some areas of
government [affecting] FOI administration‖: Moss I (2007), Report of the Independent Audit into the
State of Free Speech in Australia, 31 October, report commissioned by the ―Australia‘s Right to
Know‖ group, comprising major Australian news organizations, at 102. See also fn 63 above.
65 See Chapter 7 heading 4.4 Recommendation (b), where a similar approach is proposed in respect of
construing defamatory meaning.
66 These terms were explained in Chapter 6.
67 On the difficulty with the question of material difference from the truth, see text accompanying fn 43
above. Also see fn 46 above where Burrows and Cheer (2005), at 145, observed that the New
Zealand Court of Appeal has interpreted the phrase not materially different from the truth ―very
generously‖.
68 See the discussion in Chapter 2 heading 1.1, noting that freedom of speech is ―an important value
recognised by law‖ and the view taken in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER
282
Recommendation (c)
The heading to the Section 25 UDA defence should be changed from “Defence of
justification” to “Defence of substantial truth”.
Explanatory notes for Recommendation (c)
The arguments for this recommendation were set out in Chapter 1, where four grounds
were cited for the preference for the term ―truth‖, rather than for the term
―justification‖.69
Furthermore, the heading proposed for this section would more
accurately reflect the content of the provision that it carries and better distinguish it
from the remaining truth defences.
4.3 Model provisions
The model provisions here are set out in an order that corresponds with the
recommendations above.
Regard for efforts to establish truth
(a) Where a media defendant pleads the truth defence the court, in exercising its
discretion as to whether the defendant has established that the defamatory
imputations carried by the matter complained of are ―true in substance or
not materially different from the truth‖70
may have regard to evidence of the
defendant‘s efforts to establish the truth of the matter complained about. For
this purpose the court may have regard to the factors identified in respect of
the ―no fault‖ defence.
“Material difference” from the truth
(b) Where, on the facts, the distinction between what is or is not ―materially different
from the truth‖ is unclear and the action is against a media defendant, the courts
should prefer a construction that promotes freedom of speech rather than the
protection of reputation. For the purposes of this provision the court may apply
this rule flexibly so that the weight accorded to freedom of speech interests is
greater in the cases of ―public figures‖ and ―matters of public concern‖.
609, Lord Nicholls, at 621, that his Lordship‘s ―starting point is freedom of expression‖. See also the
related discussion on this in the explanatory notes to Recommendation (b) in Chapter 7 heading 4.4.
69 See heading 1. The reasons listed there included the argument that the term ―justification‖ that is
used in the UDA is vulnerable to confusing application.
70 See section 4 UDA.
283
Defence of substantial truth
(c) 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.
5. The new contextual truth defence
Further to what was noted above71
in the reformed truth defence regime the various
truth defences other than the defence of substantial truth would fall under the
contextual truth defence. In essence, this category would encompass the truth defences
that do not overlap the defence of substantial truth. The contextual truth defence in the
context of the reform proposed in this thesis will incorporate aspects of the truth
defences other than the defence of substantial truth that the common law has variously
recognised, with a view to broadening the scope of the protection available to a
defendant.
To undertake this exercise it would be useful to set out the key features of the
three defences known as contextual truth, Polly Peck and partial truth. There is a
common thread between contextual truth, Polly Peck and partial truth – ―what they
have in common is an assertion by the defendant of a meaning which is wholly or partly
different from that asserted by the plaintiff, which is admitted or proved to be
defamatory of the plaintiff, and which the defendant claims to justify by reason of its
truth‖.72
The discussion under the remaining headings in this chapter will address the
three truth defences other than the substantial truth defence in the following order:
contextual truth; Polly Peck; and partial truth. The reform recommendations are made
after considering the principles and difficulties involving these defences.
6. Contextual truth principles
The defence of contextual truth is spelt out in section 26 UDA. It provides that it is a
defence to prove that, ―in addition to‖ the defamatory imputations complained of, one
or more other imputations carried by the same matter are substantially true, and the
defamatory imputations complained of do not further harm the plaintiff‘s reputation
because of the substantial truth of the contextual imputations.73
Levine J, speaking in
71 See discussion under heading 1 (Introduction).
72 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 21.
73 Section 26 UDA, is set out here in full:
284
the context of section 16 Defamation Act (1974) NSW,74
said the purpose of the
contextual truth defence ―is really quite simple‖:75
It is to operate in circumstances where a publication conveys various imputations,
substantially different one from the other, but in respect of which the plaintiff elects to sue
on one or some only. It entitles the defendant properly to defend the action by pleading the
other imputations not sued upon, and justifying them to bring about a just result that
otherwise an undeserving plaintiff, by reason of what was in fact published of that plaintiff,
should not succeed.76
To be sure, that observation was made in respect of the precursor to section 26
UDA. Section 26 appears to be largely, although not precisely, based upon section 16.77
The most obvious difference between the two provisions is that section 16 required that
the imputation relate to a matter of public interest or qualified privilege.78
It is
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 [sic] 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.
74 Section 16 provides:
(1) Where an imputation complained of is made by the publication of any report, article, letter,
note, picture, oral utterance or other thing and another imputation is made by the same
publication, the latter imputation is, for the purposes of this section, contextual to the
imputation complained of.
(2) It is a defence to any imputation complained of that —
(a) the imputation relates to a matter of public interest or is published under qualified
privilege;
(b) one or more imputations contextual to the imputation complained of —
(i) relate to a matter of public interest or are published under qualified privilege; and
(ii) are matters of substantial truth; and
(c) by reason that those contextual imputations are matters of substantial truth, the
imputation complained of does not further injure the reputation of the plaintiff.
75 Blake v John Fairfax Publication Pty Ltd [2001] NSWSC 885, Para 12.
76 Blake v John Fairfax Publication Pty Ltd [2001] NSWSC 885, Para 12. In that case the defendant
sought to rely on the contextual truth defence contained in section 16 Defamation Act 1974 (NSW).
Hunt J in Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386, at 397, said ―the whole
purpose‖ of the defence was to allow a defendant who failed to establish the truth of one of the
plaintiff‘s imputations to assert that the combined effect of the substantial truth of the other
imputations was such that the publication of the imputation whose truth had not been established did
not further injure the plaintiff‘s reputation.
Section 16, in turn, has its origins in section 5 Defamation Act 1952 (UK). George (2006), above fn
12, at 257-258 suggests that the purpose of section 26 of the UDA is the same as described by
Levine J in Blake v John Fairfax Publication Pty Ltd [2001] NSWSC 885.
See also Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, Levine J, at 96, on ―the
question of law‖ that should be addressed by this defence.
77 Tobin and Sexton (1990), above fn 26, Para 11,100. Previously the defence of contextual truth used
to be available in the Australian Capital Territory, New South Wales and Tasmania. The present
discussion does not focus on the contextual defence code provisions in the other two jurisdictions –
the Australian Capital Territory and Tasmania. For some difficulties associated with the Tasmanian
and ACT contextual truth defences, see Gillooly (1998), above fn 12, at 117 and 120.
78 George (2006), above fn 12, at 258.
285
suggested that except for the authorities relating to this element, the section 16 cases
―are likely to be relevant to the construction of the UDA provision on contextual
truth.‖79
Under the UDA the defence of contextual truth is available to defendants both
for contextual imputations that are separate and distinct, as well as those that are
substantially similar to the defamatory imputations the plaintiff complains about.80
Of
course, where the imputations fall into the latter category, the section 26 defence
effectively turns into the section 25 defence. The new defence is wider than was
previously available under either common law Polly Peck or statutory contextual truth
defences.81
It remains to be seen how this variation will fully impact on the defence
under the UDA.
6.1 Rationale for contextual truth
The defence of contextual truth was introduced ―to prevent the partial truth defence
from operating unjustly in a [situation] where the matter complained of contained a
serious charge…together with a minor charge‖.82
The defence was designed to apply
―where a plaintiff selects lesser imputations from the published material, and thereby
seeks to sidestep or duck the truth of the most serious imputations in the publication.‖83
In applying the provision, it was held that where the words contain two or more distinct
imputations, the defence of truth does not fail merely because the truth of every charge
is not proved if the words not proved to be true do not materially injure the plaintiff‘s
reputation, after taking into account the truth of the remaining charges.84
Thus, in the
79 Tobin and Sexton (1990), above fn 26, Para 11,100.
80 Minter Ellison (2006), ―News Alert – New Defamation Laws‖, 1 February. Retrieved 14 September
2007, from
<http://www.minterellison.com/public/connect/Internet/Home/Legal+Insights/News+Alerts/NA+-
+New+uniform+defamation+laws> The defence must be specifically pleaded: Moore v News of the
World [1972] 1 QB 441 (UK and Tasmanian defences); and SCR (NSW) Pt 67 r 13(1).
81 Minter Ellison (2007), above fn 80. The statutory contextual truth defence has been described has
―roughly comparable‖ to the Polly Peck plea in common law jurisdictions: see Craftsman Homes
Australia Pty Ltd & Ors v TCN Channel Nine Pty Ltd & Ors [2006] NSWSC 519, Smart AJ, Paras
15 and 827.
82 Gillooly (1998), above fn 12, at 117.
83 John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541,
Hodgson JA, at 554.
84 Section 18 of the Defamation Act 1957 (Tas). See also John Fairfax Publications Pty Ltd v Blake;
David Syme & Co Ltd v Blake (2001) 53 NSWLR 541, Hodgson JA, at 556, where his Honour said it
would depend upon the circumstances whether a defendant could rely on a contextual imputation
using general words:
It may be that if a defendant did publish four vague but seriously defamatory allegations about
a plaintiff, and the plaintiff chose to sue on the least damaging of them, the defendant would be
able to rely on the other three as contextual imputations. It may be that there would be no
injustice in that case, so long as what the defendant is required to do is to prove the substantial
truth of the words actually published, as fairly understood. What I think is particularly
286
context of the minor and serious charges contained in a publication, it would be unfair
to the defendant if the defence were to fail only because the defendant got the minor
charge wrong and the serious charge right.85
Furthermore, it was held to be ―basic‖
under the section 16 defence that both the imputation pleaded by the plaintiff and the
contextual imputation pleaded by the defendant ―must be conveyed by the matter
complained of at the same time and that each must differ in substance from the other.‖86
If the jury rejects the plaintiff‘s imputation to which the defence of contextual truth is
pleaded and if that is the only imputation relied on by the plaintiff there must be
judgment for the defendant and the defence of contextual truth does not arise for
consideration.87
On the other hand, the defence of contextual truth is not a device ―to
enable the defendant to lead evidence on the ‗almost getting it right‘ basis‖88
and doing
so ―with the object of reducing the amount of damages awarded.‖89
Section 16 was in the form recommended by the NSW Law Reform Commission
pursuant to which the Defamation Act (1974) NSW was enacted.90
It was intended to
objectionable is for a defendant to introduce as contextual imputations vague expressions
different from those actually published, and then to seek to gain some advantage from that
vagueness.
85 See Gillooly (1998), above fn 12, at 117. In the example cited there the serious charge could be an
accusation of murder, which was proved true, and the minor charge could be an allegation of riding a
bicycle without lights, which was not proved true. In Pavy v John Fairfax Publications Pty Ltd
[2000] NSWSC 328, Simpson J, Para 9 said it is fundamental to this defence that the imputation(s)
pleaded by the defendant be such that it would:
…dilute the imputation(s) pleaded by the plaintiff so that it or they, taken with the contextual
imputation(s), does or do not further injure the plaintiff‘s reputation. Put simply, the contextual
imputation(s) must be more damaging to the plaintiff‘s reputation than the imputation(s)
pleaded on his/her behalf.
86 Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, Hunt J, at 39-40. That is, the defendant‘s
contextual imputations must be capable of being conveyed by the matter complained of ―at the same
time as and in addition to the imputations pleaded by the plaintiff‖ (at 44, italics in original). For a
useful summary of questions of law that arise in the defence of contextual truth, after it is found that
the matter complained of is capable of conveying the imputation the plaintiff pleaded to which the
defendant pleads the contextual truth defence, see Hunt J, at 40.
87 Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, Hunt J, at 40. His Honour also noted:
It follows, therefore, that both imputations must be conveyed by the matter complained of
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 several imputations contended for by both parties.
88 Marquard v Littlemore & Anor [1997], NSWSC, Unreported, 29 August, Levine J, at 9. As his
Honour noted, if what the plaintiff has pleaded as imputations are true then the defendant justifies
those imputations. If there are other imputations not pleaded by the plaintiff and they are true, then
the defendant justifies them as contextual imputations and does so for the purpose provided by the
statute.
89 Waterhouse & Anor v Hickie (1995) Aust Torts Reports 81-347, Priestley JA (Mahoney and Powell
JJA agreeing), at 62,496. His Honour emphasised that the defendant cannot succeed in this defence
unless the truth of the contextual imputation (or imputations) is of such a nature that the plaintiff‘s
imputations are incapable of causing further injury to his reputation (at 62,494).
90 Waterhouse & Anor v Hickie (1995) Aust Torts Reports 81-347, Priestley JA, at 2, citing New South
Wales Law Reform Commission (1971), Defamation, Report No 11, Paras 73-74.
287
allow a defendant to ―rely in defence on all or some of the imputations not sued on‖.91
So the Act, which retained the previous defence of justification to imputations sued on
(in section 15) added, by section 16, a further defence by reference to defamatory
imputations not sued on.92
For the purposes of determining whether the section 16
defence was capable of being made out, the Court had to focus on the facts, matters and
circumstances said to establish the truth of the contextual imputation, rather than on the
terms of the contextual imputation itself.93
What was required was the weighing of the
seriousness of each of the plaintiff‘s imputations against the seriousness of the facts,
matters and circumstances that were said to establish the truth of the contextual
imputations.94
Where a plaintiff pleaded an imputation in general terms, which was not
restricted to the facts stated in the matter complained of, the defendant in justifying the
imputation was also not restricted to the facts stated by it in the matter complained of.95
91 In Waterhouse & Anor v Hickie (1995) Aust Torts Reports 81-347, Priestley JA, at 62,490, provides
a useful illustration of how section 16 works:
A publication made a number of defamatory imputations about a person (the plaintiff). The
plaintiff sued. The plaintiff, being of opinion that the publisher (the defendant) would be able
to justify…one or more of the imputations, but not all, sued on one or more imputations which
the plaintiff thought the defendant could not justify. The imputations which the plaintiff
thought the defendant could justify (and on which the plaintiff had not sued) might be of such
weight (if justified) that the plaintiff‘s reputation could not really have been affected by the
imputation or imputations on which the plaintiff had sued, and to which the defendant had no
defence. Nevertheless the plaintiff might still get judgment. Section 16 was intended to prevent
this by allowing the defendant in such a case to rely in defence on all or some of the
imputations not sued on.
In Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, Levine J, at 106-107, said the
effect that section 16 sought to achieve is set out in Plato Films Ltd v Speidel [1961] AC 1090,
where Lord Denning said that where there was a minor and a major charge and the plaintiff sued on
the minor charge, where the words so cohered together, it was necessary for the jury to see all the
words in order to make a correct appreciation of their impact, to avoid the injustice of damages being
awarded on the minor charge.
92 Waterhouse & Anor v Hickie (1995) Aust Torts Reports 81-347, Priestley JA, at 62,490.
93 John Fairfax & Co Pty Ltd v David Syme & Co Ltd (2001) 53 NSWLR 541, Spigelman CJ, at 543
(Rolfe AJA agreeing, italics added). Referring to section 16, Spigelman CJ said further, at 543:
It is ‗by reason‘ of such ‗substantial truth‘ that a defence to an imputation pleaded by a plaintiff
can be made out on the basis that the plaintiff‘s imputation does not ‗further injure the
reputation of the plaintiff‘.
94 McBride v John Fairfax Group Pty Ltd [2007] NSWSC 717, Price J, Para 13.
95 Allen v John Fairfax and Sons Ltd [1988] NSWSC, Unreported, 2 December, Hunt J, at 9, citing
Maisel v Financial Times Ltd (1915) 112 LT 953, at 955. Applying that principle in McBride v John
Fairfax Group Pty Ltd [2007] NSWSC 717, Price J, Para 17 said:
I see no reason in principle why the defendant cannot raise a defence of contextual truth by
pleading a contextual imputation in the same way — provided that that contextual imputation
otherwise complies with the requirements of that defence as I have already outlined them. If
the matter complained of conveys to the same ordinary reasonable reader two imputations at
the same time, one of a general nature (of a Maisel type) and another of a specific nature
which, even although related to the same subject matter of the general imputation, differs in
substance from it, the policy behind s 16 requires that the defendant be permitted to plead the
former as a contextual imputation to the plaintiff‘s cause of action based upon the latter.
288
Although Levine J held that the contextual truth defence is ―quite simple‖96
it has a
number of difficulties.
6.2 Contextual truth difficulties
The phrasing of the section 26 defence in the UDA is awkward, and appears somewhat
limited in scope.97
The section 26 defence, in effect, protects the defendant only where
the imputations argued by the defendant are separate and distinct from those that the
plaintiff complains about; and it is only useful to the defendant in circumstances where
a publication contained minor defamatory imputations (which the defendant could not
defend) and serious defamatory imputations (which the defendant could defend) but the
plaintiff only chose to complain about the minor defamatory imputations.98
Furthermore, it assists the defendant only where the defamatory imputations that the
defendant cannot defend do not further harm the plaintiff‘s reputation because of the
substantial truth of the contextual imputations.
Among the criticisms of section 16(2) was that it ―has not proved easy to
construe‖99
and that it is ―more convoluted than the Polly Peck defence‖.100
The
approach taken in the ACT allowing for a contextual truth defence apparently on the
basis of its similarity with the Polly Peck defence101
was rejected in the Northern
Territory in Hart v Wrenn.102
The defence of contextual truth may appear to be similar
to the Polly Peck defence, but there are ―obvious differences‖ although the courts seem
divided on this.103
Another difficulty concerns imputations and the acknowledged
―extremes‖ in between which ―there must, of course, be many degrees [and] the jury
could well have considerable difficulty in weighing or measuring the relative worth or
value of the two imputations conveyed.‖104
If a publication ―described the plaintiff
96 See text accompanying fn 75 above.
97 Section 26 UDA is set out in full in Chapter 1 fn 67.
98 See discussion under heading 6.1 above, and especially text accompanying fn 83.
99 Tobin and Sexton (1990), above fn 26, Para 11,120.
100 Moore v TWT Ltd (1991) 105 FLR 350, Higgins J, at 358.
101 Gillooly (1998), above fn 12, at 120; Woodger v Federal Capital Press of Australia Pty Ltd (1992)
107 ACTR 1, Miles CJ, at 24. See also Whelan v John Fairfax Publications Pty Ltd (2002) 56
NSWLR 89, Levine J, at 97-98, where the defendant pleaded contextual imputations in respect of the
publication in New South Wales and Polly Peck in respect of interstate publications.
102 (1995) 5 NTLR 17.
103 Gillooly (1998), above fn 12, at 120. Two obvious differences are that: (a) the notion of a ‗common
sting‘ seen in Polly Peck is foreign to the defence of contextual truth; and (b) the concept of
weighing imputations to determine whether any further injury is done to reputation seen in the
defence of contextual truth is unknown to the Polly Peck defence.
104 Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, Hunt J, at 39 – italics added to draw
attention to the fact that this part of the discussion focuses on the situation where the jury has to
289
(falsely) as a share swindler and (truly) as a rapist, the jury could well have considerable
difficulty in weighing or measuring the relative worth or value of the two imputations
conveyed.‖105
The situation becomes more complex where the defendant pleads ―several
contextual imputations‖106
in relation to each of the plaintiff‘s imputations. The courts
have taken different approaches in this regard. One approach is to determine ―the
question of whether the imputation pleaded by the plaintiff did not further injure his or
her reputation by looking at the particulars of truth rather than the imputation pleaded
by the defendant.‖107
This approach is not one of ―weighing imputation against
imputation‖ but to ―focus on the facts, matters and circumstances said to establish the
truth of the contextual imputation, rather than on the terms of the contextual imputation
itself‖.108
A second approach considers that the plaintiff‘s reputation is injured not by
the facts, matters and circumstances set out in the particulars of truth but by the
publication carrying the contextual imputation, with the result that the question was
determined by weighing imputation against imputation.109
A third approach has been to
hold that the defendant is entitled to have the jury consider the combined effect of all of
balance a single contextual imputation pleaded by the defendant against a single imputation pleaded
by the plaintiff. Compare this scenario with the one discussed next, where the jury has to balance
―the several imputations pleaded‖ by both parties. Hunt J (at 39-40) identified two examples of the
operation of the defence, one ―easy‖ and the other at ―the other end of the scale‖. In the former
instance, the publication accuses the plaintiff (falsely) of having been charged with a criminal
offence and imputes (truly) that he is guilty of such office. If the plaintiff sued only on the
imputation conveyed by the assertion that he had been charged with that offence, the defendant
would be entitled to plead the contextual imputation that the plaintiff was in fact guilty of such an
offence and that such contextual imputation was substantially true. In this instance, the jury must
weigh the relative value of the several imputations pleaded by both sides. There is ―little doubt in
this example‖ the jury would find that, by reason of the substantial truth of the contextual imputation
pleaded by the defendant, that pleaded by the plaintiff did not further injure his reputation.
In the latter instance, the publication describes the plaintiff (falsely) as a blackmailer and (truly) as
having unlawfully remained in the country on an expired visa. If the plaintiff sued and complained
only of the assertion that he was a blackmailer, a defence of contextual truth based upon the
imputation that the plaintiff was an illegal immigrant would be doomed to failure.
105 Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, Hunt J, at 39.
106 Tobin and Sexton (1990), above fn 26, Para 11,125.
107 Tobin and Sexton (1990), above fn 26, Para 11,125, citing the approach taken by Spiegelman CJ and
Rolfe AJ in John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53
NSWLR 541.
108 See John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR
541, Spigelman CJ (Rolfe AJA agreeing), at 543. This was described as ―the correct approach to this
question‖ in McBride v John Fairfax Group Pty Ltd [2007] NSWSC 717, Price J, Para 12.
109 John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541,
Hodgson JA, at 556. In a later case on this point Hodgson JA (McColl JA and McClellan AJA
agreeing) said ―the approach of the majority in Blake still required a contextual imputation to be
formulated so that the facts, matters and circumstances that could be relied on to establish its truth
bore a reasonable relationship both to the contextual imputation itself and to the published material
relied on by the plaintiff‖: Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190,
Paras 32 and 38.
290
his contextual imputations in determining whether the plaintiff's imputation to which
they are pleaded was likely further to injure the plaintiff's reputation, and not to require
that each of the defendant's contextual imputations individually differ in substance from
the plaintiff's imputations to which it is pleaded — provided however that the combined
effect of the defendant's contextual imputations do so.110
Another issue concerns the degree of precision and specificity required for a
defendant‘s contextual imputation. It would appear that the degree of precision and
specificity might differ, for example, between cases where the facts, matters and
circumstances were at the lower end of the relevant range of seriousness of conduct111
and ―other cases‖.112
The question whether a contextual imputation is sufficiently
precise and specific raises questions of practical justice. It may be unjust to allow a
defence on the basis of contextual imputations to range widely over alleged
discreditable conduct that has nothing to do with matters raised by the subject
material.113
Another difficulty that arose in construing section 16 concerned the
defendant‘s ability to rely on an imputation published by someone else. It is ―certainly
110 Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386, Hunt J, at 399. Hunt J held that it does
not accord with either commonsense or reality if the jury is to be restricted to weighing or measuring
each of the contextual imputations separately against the imputation of the plaintiff which cannot be
established as being true, without having regard to the combined effect of those imputations (at 397,
italics added). This view was cited with approval by the Court of Appeal (Handley, Beazley and
Stein JJA) in TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682, at 692-3.
See further Sleeman v Nationwide News Pty Ltd [2004] NSWSC 954, Levine J, Para 31, for a
reference to ―different approaches‖ to the question of whether there is ―another imputation‖ as seen
in the judgments of Spigelman CJ and Ipp JA in John Fairfax Publications Pty Ltd & Anor v Jones
[2004] NSWCA 205.
111 See Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190, Hodgson JA, Para 33
(McColl and McClennan AJA agreeing), citing the Blake case as an example of a case where the
―facts, matters and circumstances were at the lower end of the relevant range of seriousness of
conduct.‖
112 Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190, Hodgson JA, Para 34,
citing the case at hand as an example of a case where the principle from Blake would require greater
precision and specificity for a defendant‘s contextual imputation.
To take the contextual imputation under consideration here, a defendant could, in order to
show that a person was not a fit and proper person to supervise other scientists, rely on facts,
matters and circumstances such as that the plaintiff had supplied prohibited drugs to students or
even murdered students. It would be absurd to suggest that the injury to reputation against
which the question of further injury to reputation was to be assessed under s.16(2)(c) was to be
gathered from those facts, matters and circumstances; but in my opinion, the approach of the
majority in Blake would mean that in such a case, the relevant injury to reputation would be at
the outer limit of the injury that could be caused by this rather generally and imprecisely
worded contextual imputation.
113 See Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190, Hodgson JA, Para 37.
His Honour did not accept that problems associated with lack of precision and specificity in the
pleading of contextual imputations could always be overcome by the provision of particulars.
It is true that particulars of a contextual imputation can alert the plaintiff to the case it has to
meet; but this does not overcome the unfairness of allowing the particulars to extend to matters
in the plaintiff‘s life that go beyond what is fair and reasonable having regard to the content of
the material complained of and the imputations relied on by the plaintiff (Para 38).
291
the law‖ that the defendant may rely upon material in addition to the precise matter
complained of by the plaintiff in order to support a defence of contextual truth where
the defendant himself published that additional material.114 The defendant may not,
however, rely upon additional material published by someone else simply because that
additional material was published at the same time as, and adjacently to, that which was
published by the defendant as this would ―run counter to the purpose‖ of the defence.115
Also, the defence does not permit a defamatory imputation to be justified by reliance on
injury to reputation done by an earlier defamatory publication because this ―would
frustrate the limited purpose‖ of the defence.116
Thus, artificial barriers have been
erected to prevent the defendant‘s reliance on materials that may otherwise be relevant
to establishing the plaintiff‘s reputation.
A further difficulty is the possibility of this defence considerably expanding the
trial by requiring consideration of the argument that a number of the contextual
imputations pleaded were not capable of being rationally considered by the jury as so
affecting the plaintiff‘s reputation that the plaintiff‘s imputation did not further injure
it.117
Putting the total weight of all the contextual imputations to the jury ―may have the
effect of enabling the defendants to raise a great many issues at the trial. The trial may
become cumbersome and complicated.‖118
This, however, did not seem to be a reason
114 Pioneer International Ltd & Ors v Knox & Anor (1991) 22 NSWLR 266, at 269.
115 Pioneer International Ltd & Ors v Knox & Anor (1991) 22 NSWLR 266, at 269.
116 Chappell v Mirror Newspapers Ltd [1984] Aust Torts Reports 80-691, Moffitt P, at 68,950 (Samuels
and Priestley JA agreeing).
117 Tobin and Sexton (1990), above fn 26, Para 11,125 citing Waterhouse & Anor v Hickie (1995) Aust
Torts Reports 81-347. See also TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682, at
682. There, the court (Handley, Beazley and Stein JJA) in ordering a fourth trial of the action, said it
was an ―unsatisfactory, indeed an appalling, state of affairs but this is only one of a number of libel
actions in the last ten or fifteen years with a history of multiple trials‖ (at 704). The trial judge was
found to have erred in finding that the legal requirements for contextual imputation were not met. In
discussing the availability of the defence of contextual truth the court said:
A defendant‘s ability to combine contextual imputations is therefore subject to legal
restrictions and a trial judge may have to rule on whether particular combinations are
permissible. A single contextual imputation pleaded to an imputation must differ in substance
from it, but where a defendant is entitled to rely on the combined effect of more than one
contextual imputation, the only requirement is that their combined effect should differ in
substance from the imputation to which they are pleaded. A defendant is thus entitled to
combine contextual imputations, within limits, but is entitled to have them considered
severally, provided they differ from the imputation to which they are pleaded (at 693,
authorities omitted).
118 Waterhouse & Anor v Hickie (1995) Aust Torts Reports 81-347, Priestley JA, at 62,495. See also
NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd [1989] A Def R 40,371, at 40,372:
It has nevertheless become apparent over the years that some defendants who are regular
litigants in defamation proceedings have been pleading defences of contextual truth which do
not have any real prospect of success, in circumstances where it would seem that they were
pleaded for no reason other than to put before the jury the evidence to which I have referred
and for the purpose which I have identified. A plaintiff is entitled to insist upon such defence
292
for circumscribing the number of contextual imputations upon which the defendants
may rely and it appears that this was a direct result of section 16 in the form in which it
was deliberately enacted.119
As Priestley JA noted, it ―may undoubtedly be difficult in
certain cases to cull out section 16 defences of the unmeritorious kind from those which
should be left to the jury.‖120
Finally, it has been suggested that contextual truth
defences, like the truth defences generally, carry a risk of aggravating damages if they
fail.121
7. Polly Peck principles
This is a controversial area. Like the defence of partial truth discussed below the UDA
makes no explicit reference to the well-known Polly Peck defence, a defence that arises
from the Polly Peck case122
in England. To aggravate matters this defence was in an
uncertain state before the UDA and remains so even after its enactment. Tobin and
Sexton noted of the former Defamation Act 1974 (NSW): ―There is a real question as to
whether the Polly Peck plea might be made under the Code, given that it is the
publication of a defamatory imputation that constituted the cause of action.‖123
In ―the
first judgment handed down concerning the provisions of the Uniform Defamation Act
2005‖ a ―different view was taken‖ in the Supreme Court of Tasmania, as to the
availability of the Polly Peck defence, to that expressed by the New South Wales
being removed from the issues for trial if it is clear either that that is the only purpose for
which they have been pleaded or that that is the only effect which they will have.
119 Waterhouse & Anor v Hickie (1995) Aust Torts Reports 81-347, Priestley JA, at 62,495. Priestley JA
said:
…the object of the section was to enable the jury to consider the value they should attach to a
plaintiff‘s reputation if a defendant was able to prove the matters listed in the section. A
defendant relying on a number of contextual imputations undertakes to justify them. A
defendant who recklessly relied on contextual imputations which the defendant had little
chance of proving, in the hope of lengthening a trial, to smear a plaintiff or, broadly speaking,
to try to prevent a plaintiff having a proper case considered by a jury, is subject to two controls.
The first is that mentioned by David Hunt J in NRMA Insurance Ltd, that is that at the pre-trial
stage the obviously unmeritorious or embarrassing defence will be removed from the issues for
trial; the other is that if the defendant takes s.16 issues to trial and the jury not only find the
truth of the contextual imputations not established but also come to the conclusion they were
not genuinely put forward, then the jury will be entitled, no doubt with considerable
encouragement from the plaintiff, to be very liberal in its award of damages (italics added).
120 Waterhouse & Anor v Hickie (1995) Aust Torts Reports 81-347, Priestley JA, at 62,496.
121 See Moore v TWT Ltd (1991) 105 FLR 350, Higgins J, at 352.
122 Polly Peck (Holdings) v Trelford [1986] 1 QB 1000.
123 (1990), above fn 26, Para 11,137.
293
Supreme Court.124
Given this uncertainty the discussion in this chapter would be
incomplete without attention to this defence.
In considering Polly Peck it is worth noting that in many cases, the defendant may
wish to establish the truth of a defamatory allegation in the publication in question
about which the plaintiff has not complained.125
Typically this happens when a
defendant is confronted with pleaded defamatory imputations and disagrees with those
pleaded imputations. The defendant may, instead, wish to put forward and justify his or
her imputations.126
The disadvantage of such an approach to the plaintiff is clear – it
could permit the adduction of substantial evidence that is prejudicial to the plaintiff and
may, for example, depress the damages.127
Where a publication contains more than one
separate and distinct defamatory statement it is not uncommon for the plaintiff to
complain about one or more of the defamatory imputations but not of other defamatory
imputations in the same publication – usually for fear of being met by a plea of
justification.128
The principle to be applied in such a case ―is clear‖129
and it is
illustrated in the New Zealand case of Templeton v Jones.130
It is elementary that a defendant may not justify – that is to say, prove the truth of – that of
which the plaintiff does not complain. If an article or speech or a broadcast makes several
charges against the plaintiff, he is entitled to sue on one charge only. The defendant may
then justify that charge if he can, but he is not allowed to confuse the issue by bringing
evidence that the other charges are true. He is fully entitled to point out…that the plaintiff
has not complained of the other charges made at the same time. But that goes only to
damages.131
124 Tobin TK and Sexton MG (1990), Australian Defamation Law and Practice Bulletin, No 39,
September 2006, ―Introduction‖. The Tasmanian case was Caccavo v Daft [2006] TASSC 36. The
NSW case was Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 759.
125 Tobin and Sexton (1990), above fn 26, Para 11,005. In Bond v John Fairfax Publications Pty Ltd &
Anor [2002] WASC 130, Hasluck J, Para 15, described Polly Peck one of two alternatives for a
defendant contemplating a plea of justification:
…a defendant who wants to plead justification can do so in one of two ways. The first way is
to plead that one or more of the imputations which the plaintiff says arise from the words
complained of are true in substance and in fact. The facts relied on to prove truth must be set
out in full in the pleading and be proved at trial. However, if a defendant takes the view that
the imputations pleaded by the plaintiff do not arise from the words complained of and they are
not in the position to justify the plaintiff‘s imputations, there is another course open to them.
That course is known as a Polly Peck defence, that is to say, a defendant can plead the
imputations which he says arise from the words complained of and then justify those
imputations.
126 See Bell v Kingsbay Pty Ltd (No 2) [2001] VSC 498, Gillard J, Paras 50-51; see quotation
accompanying fn 135 below.
127 Tobin and Sexton (1990), above fn 26, Para 11,005.
128 Tobin and Sexton (1990), above fn 26, Para 11,015.
129 Gillooly (1998), above fn 12, at 107.
130 [1984] 1 NZLR 448.
131 Templeton v Jones [1984] 1 NZLR 448, at 451. Here the defendant described the plaintiff as a man
who despised bureaucrats, politicians, women, Jews and professionals – with which the plaintiff only
took issue with the reference to Jews. The defence pleaded truth and gave particulars to justify all the
allegations it made. At first instance and on appeal the court agreed that the defendant‘s particulars
294
This principle was applied in England in a similar situation but the English Court
of Appeal reached a somewhat different result. This was the Polly Peck case132
from
which the defence gets its name. In this case a newspaper had published three articles in
the same edition about an individual and companies that he controlled. One of the
companies was Polly Peck plc. The articles made several allegations of misconduct
against the individual and his companies and the general thrust was that the plaintiffs
had deceived or negligently misled shareholders, investors and the public as to their
business operations. The plaintiffs complained only about portions of the publications.
The defendant pleaded the truth defence and gave particulars, which tended to justify
the allegations made in both the parts complained about and the parts not complained
about. The plaintiffs sought to strike out the particulars concerning the allegations that
they did not complain about. The relevant principles from this case are:
Where a publication contains two or more separate and distinct defamatory statements, the
plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the
truth of the others by way of justification. 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 extent 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…133
The ―common sting‖ principle is not an issue about the meaning of the words
complained about, but it does relate to the meaning of the publication as a whole.134
The
circumstances in which such a defence arises was further explained as follows:
Often, when a defendant is confronted with the pleaded defamatory imputations, he is
placed in a dilemma. He and his advisers disagree with the alleged defamatory imputations.
Sometimes the defendant, in such circumstances, wishes to put his imputations, and having
performed that exercise, wishes to justify the words.135
supporting the other allegations were irrelevant to the plaintiff‘s complaint and therefore struck them
out. Despite agreeing that the various allegations were ―variations or illustrations of a theme: namely
that the plaintiff indulges in the politics of hatred [the allegations were] specific and severable
nonetheless‖ (at 452).
132 Polly Peck (Holdings) v Trelford [1986] 1 QB 1000.
133 Polly Peck (Holdings) v Trelford [1986] 1 QB 1000, O‘Connor LJ, at 1032 (Goff and Nourse LJJ
agreeing, italics added). In Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89,
Levine J, at 109 said:
It is to be observed that the ‗common sting‘ does not emanate from a vacuum. It must be
identifiable by reference to the matter complained of, the imputations pleaded by the plaintiff
and the contextual imputations available to the defence.
In Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 23-24,
said the Polly Peck decision contains two principles which are set out in full in fn 264 below, see
items 2 and 3.
134 Gatley (2004), above fn 26, at 282; Carlton Communications plc v News Group Newspapers Ltd
[2001] EWCA Civ 1644, Simon Brown LJ, Para 47.
135 Bell v Kingsbay Pty Ltd (No 2) [2001] VSC 498, Gillard J, Paras 50-51.
295
That is, this defence allows a defendant to allege that the publication conveys
several imputations which carry a common sting, and to seek to justify that common
sting rather than a particular imputation the plaintiff alleges.136
As Gillooly notes, the
advantages to the defendant are obvious.
If he or she can establish that the several defamatory allegations contained in the
publication in question have a ‗common sting‘ to them and that the common sting is true,
then the defence of truth succeeds despite the fact that the truth of the specific allegation of
which the plaintiff complained cannot be proved. 137
In such a case, the unproved allegation is regarded as a ―slight inaccuracy of detail not
affecting the substance of the charge‖.138
Such a defence would succeed, for example, in
a case where an article read as a whole was capable of conveying the meaning
(―common sting‖) that the plaintiff was sexually promiscuous but the defendant was
unable to prove the truth of the allegation about the single affair in respect of which the
plaintiff sued.139
Likewise, the defence could arguably work in a case where it was said
that a person had been convicted six times for dishonesty, but on being sued, only two
convictions were proven.140
The situation is less clear in the New Zealand case where a
plaintiff who was described as ―a man who despised bureaucrats, politicians, women,
Jews and professionals‖ only complained about the allegation that he despised Jews.141
The New Zealand Court of Appeal, despite agreeing that the various allegations were
―variations on or illustrations of a theme: namely that the plaintiff indulges in the
politics of hatred‖,142
held that the trial judge was right to strike out the particulars
relating to the other allegations. That is, the court considered the allegation of anti-
semitism severable from the other allegations. In the Polly Peck case O‘Connor LJ said
he would have decided Templeton v Jones differently and expressed doubt that the
allegation of anti-semitism was severable from the rest of the allegations.143
Where the common sting argument does not altogether succeed, the evidence led
by the defendant on matters about which the plaintiff did not complain may have the
136 Butler D (December 2000), ―Is Polly Peck at risk of losing its sting?‖ Vol 5 No 4 Media and Arts
Law Review 259, at 259. Also see Morris AJH (November 2000), ―Polly Peck Defence: Its Future in
Australia‖ 74 ALJ 760, at 769:
A defendant can have no legitimate reason for wishing to litigate the truth of an imputation in
respect of which the defendant has not been sued and upon which judgment cannot be given
for the plaintiff.
137 Gillooly (1998), above fn 12, at 109 (italics added).
138 Hart v Wrenn (1995) 5 NTLR 17, at 22.
139 Khashoggi v IPC Magazines Ltd & Anor [1986] 1 WLR 1412 (CA).
140 See Plato Films Ltd v Speidel [1961] AC 1090, at 1141-1142.
141 Templeton v Jones [1984] 1 NZLR 448.
142 Templeton v Jones [1984] 1 NZLR 448, at 452.
296
effect of ―depressing the level of damages‖.144
Further, this effect may extend ―perhaps
almost to vanishing point‖.145
Another important feature of this defence is that if a
defendant seeks to justify a meaning that is different from that asserted by the plaintiff,
it should plead that alternative meaning. This is because, it has been held, libel law
ought not to be an exception to the modern rules of pleading which are directed to
precisely defining the issues between the parties, providing the benchmarks against
which the relevance of evidence is to be assessed and deciding those issues on their
merits.146
Polly Peck followed the decision in Lucas-Box v News Group147
and extended
the right of the publisher to plead justification not only in respect of the imputations
which were likely to be found by the jury, but also permitted the publisher, where the
facts justified it, to plead a common sting in the article even in relation to matters not
specifically relied upon by the plaintiff.148
The essence of the decision in the Lucas-Box
case (and here it may have broken new ground) is that the justification must be pleaded
so as to inform the plaintiff and the court precisely what meaning the defendant will
seek to justify.149
The Polly Peck decision, however, did not change the well-established
law that if there were separate and distinct defamatory allegations and the plaintiff
selected only one of them for complaint, the publisher was not entitled to assert the truth
of any other defamatory imputation by way of justification.150
Thus, as observed by
Brooke LJ in Cruise v Express Newspapers Plc:151
It is no defence to a charge that ―you called me A‖ to say ―Yes, but I also called you B on
the same occasion and that was true,‖ if the second charge was separate and distinct from
the first. It may in any case be difficult to decide whether the two charges are indeed
143 Polly Peck (Holdings) v Trelford [1986] 1 QB 1000, at 1031.
144 Gillooly (1998), above fn 12, at 109 and 112.
145 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116, Neill LJ, at 120, cited in Whelan v John
Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, Levine J, at 107.
146 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Gaudron and Gummow JJ, at 544
(authorities omitted).
147 [1986] 1 WLR 147.
148 Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 65.
149 See Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 68 (authorities
omitted). The difference between the two cases is that in Lucas-Box pleas, the defendants must make
clear the meanings they seek to justify if the meanings are found to be conveyed. Polly Peck pleas
can arise where publications make multiple allegations and plaintiffs complain about only one. If the
other allegations are distinct, defendants cannot raise them in defence. But if the allegations have a
common sting, defendants can rely on their truth – that is, the truth of the common sting – in Polly
Peck pleas: see Kenyon AT (2006), Defamation – Comparative Law and Practice, UCL Press,
Oxon, at 117.
150 Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 65.
151 [1999] QB 931.
297
separate and distinct but whether they are or not is a question of law which can
conveniently be determined on an interlocutory application of this kind.152
7.1 Polly Peck difficulties
As indicated in the previous section the status of the Polly Peck defence in Australia
remains uncertain. In Caccavo v Daft,153
an action under the UDA, the defendants
sought to plead a defence of justification and the plaintiff applied to strike that plea out
citing four grounds. One of these grounds was that the defendant‘s Polly Peck defence
had been excluded by necessary implication by section 25 of the UDA, and by the
section 3 purpose of creating uniformity, given the unavailability of the defence in other
Australian jurisdictions.154
Master Holt in Caccavo held: ―[I] do not accept the
plaintiffs‘ contention that Polly Peck is not part of Australian law‖.155
While the following discussion focuses on whether Polly Peck is available in
Australia, sight should not be lost of other difficulties with the defence. For example,
one is the difficulty in deciding whether the allegations are ―specific and
severable/separate and distinct‖.156
A further difficulty inherent in the defence is that its
efficacy depends on the level of abstraction with which the several imputations
contained in a publication are regarded, with a view to identifying the relevant common
sting.157
At one wide level of abstraction the words contained could be interpreted as
but instances or emanations of a single proclivity but at a narrower level of abstraction
each allegation may be seen as distinct and separate from the others, thus raising a
question of how the appropriate level of abstraction is determined in a given case.158
Another difficulty concerns the narrow way in which the defence has been applied in
some cases. This may be illustrated by reference to David Syme & Co Ltd v Hore-
152 Cruise v Express Newspapers Plc [1999] QB 931, Brooke LJ, Sir John Knox and Stuart-Smith LJ
agreeing, at 954-955 (references omitted). In that case Hollywood actors Tom Cruise and Nicole
Kidman sued in respect of a publication that, inter alia, imputed that Mr Cruise was sterile and,
further, that the plaintiffs were hypocrites, frauds and liars. The plaintiffs objected to the whole
article, but complained of only one of two defamatory statements in it. The defendants pleaded
justification and sought to rely on the statement that the plaintiffs did not complain about but which,
because the article was set out in full by the plaintiffs in their statement of claim, formed part of their
pleading. The judge struck out the plea of justification. The Court of Appeal held (at 955) that the
judge was ―entitled‖ to strike out part of the defence that contained ―no common sting between the
other allegations which were made and the allegation in relation to the Church of Scientology‖. It
may also be noted that while the trial judge said he would have considered an allegation that
somebody is a member of the Church of Scientology is capable of being defamatory, the Court of
Appeal did not agree (at 955-956).
153 [2006] TASSC 36.
154 Caccavo v Daft [2006] TASSC 36.
155 Caccavo v Daft [2006] TASSC 36, Para 1.
156 See text accompanying fn 210 below.
157 Butler (December 2000), above fn 136, at 261.
158 Butler (December 2000), above fn 136, at 261.
298
Lacy159
which appeared to narrow the utility of Polly Peck to defendants. Taking into
account that Polly Peck permits defendants to establish the truth of meanings other than
those pleaded by the plaintiff and that the defendant would be required to effectively
plead those meanings so as not to take the plaintiff by surprise, views expressed in the
David Syme case suggest that this would not be allowed if the meaning proposed by the
defendant does not carry the same general sting as the meanings relied on by the
plaintiff. As Tobin and Sexton note:
The avenues open to a defendant under Polly Peck and a number of other English — and
Australian — decisions would be significantly narrowed by the approach taken by the
Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy where two members of
the court proposed this limitation on the kind of meanings that might be raised by the
defendant and alleged to be true…It might be asked what utility is left in the defence if a
defendant is limited to pleading a meaning that is not substantially different from those
pleaded by the plaintiff and not more serious than those meanings. It is difficult to see in
these circumstances how the defendant's meaning could be significantly – and
advantageously – different from those already pleaded by the plaintiff.160
As for the main problem with Polly Peck addressed in this chapter, even before
the UDA took effect there were conflicting views even as to whether the defence
applied in Australia. On one view Polly Peck ―has generally been approved and
applied‖ although support for it was said to be ―by no means unanimous‖.161
Another
view was that while the Polly Peck defences are well-established law in England it was
doubtful whether these defences were part of the common law of Australia.162
Two
members of the High Court, Brennan CJ and McHugh J, criticised the defence as one
that is ―contrary to the basic rules of common law pleadings and in many contexts will
raise issues which can only embarrass the fair trial of the action‖.163
Two other
members of the court, in fact, ―tacitly endorsed‖ the Polly Peck principles.164
Across the
Australian States and Territories opinion has been similarly divided and the following
sections consider the conflicting views in this regard. These differences are not
159 David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 (CA).
160 (1990), above fn 26, Para 11,020, citing David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 (CA),
Charles JA, at 686, and Ormiston J, at 675-676. See also Anderson v Nationwide News Pty Ltd
[2001] 3 VR 619, where Ashley J took the same approach and struck out meanings pleaded by the
defendant on the basis that their sting was quite different from that of the meanings alleged by the
plaintiff. This principle has also been accepted by a number of interlocutory decisions of the Western
Australian Supreme Court: see Reynolds v Nationwide News Pty Ltd [2001] WASC 90; Jackson &
Ors v ACP Publishing Pty Ltd [2001] WASC 121; Wallis v Wallis [2001] WASC 134. See also
Caccavo v Daft [2006] TASSC 36, Para 53,190.
161 Gillooly (1998), above fn 12, at 110; see also discussion of the conflict in Jackson & Ors v ACP
Publishing Pty Ltd [2001] WASC 121, Paras 8–31; and David Syme & Co Ltd v Hore-Lacy (2000) 1
VR 667 (CA), at 684-689.
162 Bell v Kingsbay Pty Ltd (No 2) [2001] VSC 498, Gillard J, Paras 54-55.
163 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Brennan CJ and McHugh J, at 527. See
discussion under heading 7.1.1 below.
299
necessarily jurisdictional in nature because there have been varying approaches even
within the same jurisdiction.165
7.1.1 Objections to the Polly Peck defence before the UDA
In the High Court in Chakravarti v Advertiser Newspapers,166
Brennan CJ and McHugh
J cited ―the fundamental defect in the reasoning in Polly Peck‖, referred to Templeton v
Jones167
and noted that Cooke J, speaking on behalf of the New Zealand Court of
Appeal ―rejected the notion that the defendant can take severable parts of a publication
each containing defamatory imputations, link them together, and give the publication a
meaning at a sufficiently high level of abstraction to subsume the meanings of the
severable parts.‖168
Their Honours ―strongly criticised‖169
Polly Peck, adding:
That is, a defendant cannot take a part of an article that wrongly alleges that the plaintiff
has convictions for dishonesty and a part that imputes that the plaintiff has defrauded
shareholders. On that hypothesis, it would be outrageous if the defendant could obtain a
finding that the article was true in substance and in fact when it plainly was not. Yet that it
is the sort of finding that must result from applying the central proposition of Polly Peck.
That proposition is that: ―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: Polly Peck [1986] QB 1000, at
1032.‖…No injustice is done by holding a defendant to the fundamental principles of
pleading by requiring a defence to respond to the statement of claim.170
In Queensland, Helman J held that although Polly Peck has been generally
approved and applied,171
―there is high persuasive authority that it does not apply in
Australia‖.172
In the ACT, Crispin J said he shared the misgivings Brennan CJ and
164 Gillooly (1998), above fn 12, at 110. See text accompanying fn 180 below.
165 Note, for instance, that ―a differently constituted Victorian Court of Appeal appeared to soften [their]
stance‖ on the defence in Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1: see Butler
D and Rodrick S (2007), Australian Media Law, 3rd Edn, Lawbook Co, Pyrmont, NSW, at 55 on
this point. See further the observation by George that the practice of permitting a defendant to assert
different meanings to those pleaded by the plaintiff and then to attempt to justify those meanings,
provided that they are not more serious and not substantially different from the meanings pleaded by
the plaintiff, has been accepted in Victoria, South Australia, Western Australia, the Australian
Capital Territory and the Northern Territory; and that the Polly Peck defence was not available in
Queensland prior to the UDA and was also not available in New South Wales because the defence of
truth was governed exclusively by section 15 of the Defamation Act 1974 (NSW): George (2006),
above fn 12, at 252-253.
166 (1998) 193 CLR 519.
167 Templeton v Jones [1984] 1 NZLR 448, at 452.
168 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Brennan CJ and McHugh J, at 529.
169 Butler and Rodrick (2007), above fn 165, at 55.
170 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Brennan CJ and McHugh J, at 529.
171 Robinson v Laws [2000] QSC 082, Para 3, Unreported, citing Gillooly (1998), above fn 12, at 110.
172 Robinson v Laws [2000] QSC 082, Para 31. In Robinson v Laws [2001] 1 Qd R 81, de Jersey CJ, at
92, noting Helman J‘s view that Polly Peck does not apply in Australia said: ―The Polly Peck
approach should not be considered open in Queensland.‖ His Honour accepted the appellant‘s
submission that:
300
McHugh J expressed about Polly Peck173
while Gallop ACJ cast doubt on the defence
by holding that there was force in the defendant‘s contention that Polly Peck was not
fully argued and considered in the Chakravarti case.174
In Victoria, Charles JA said he
did not consider that there was any decision binding his court to apply Polly Peck or
treat is as governing defamation procedure in Victoria.175
In the same jurisdiction,
Nathan J said this defence may be referred to as ―hijacking the plaintiff‘s claim‖ and
warned that ―control of the litigation could be lost.‖176
In New South Wales, Simpson J
held that while the view in Robinson v Laws177
was not strictly binding on him he would
take the same view ―as a matter of judicial comity‖.178
7.1.2 Support for the Polly Peck defence before the UDA
In contrast to Brennan CJ and McHugh J‘s position above in Chakravarti v Advertiser
Newspapers, Gaudron and Gummow JJ in that case appeared to accept the English and
Australian decisions that established the Polly Peck form of pleading while Kirby J did
not consider the question.179
Gaudron and Gummow JJ‘s discussion was ―in terms
suggesting that the defence was available in Australia‖.180
In New South Wales, Levine
J took the view that Polly Peck applies in Australia:
… if it is accepted that the meaning for which the defendant contends is the meaning properly
conveyed by the words of which the plaintiff complains, to the exclusion of the meaning
asserted by the plaintiff, the plaintiff fails to make out the actionable wrong on which the
plaintiff has sued. There is no scope for a defendant then to advance any positive grounds of
defence in respect of an entirely different actionable wrong, on which the plaintiff has not
chosen to sue (at 83).
McKenzie J in the same case expressed a similar view (at 108).
173 Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd [1994] ACTSC 717,
Para 199.
174 Kelly v Nationwide News Pty Ltd (1998) 147 FLR 410, Para 21.
175 David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 (CA), Charles JA, at 682.
176 Kennett v Farmer [1988] VR 991, at 995-6. His Honour, however, went on to allow the defence to
plead particular meanings to raise a defence of partial justification.
177 Robinson v Laws [2001] 1 Qd R 81, where de Jersey CJ rejected the Polly Peck approach for
Queensland: see fn 172 above.
178 Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 759.
179 Tobin and Sexton (1990), above fn 26, Para 11,035. For Gaudron and Gummow JJ‘s discussion of
this aspect see especially 542-546. Their Honours note, at 546:
As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings
which are comprehended in, or are less injurious than the meaning pleaded in his or her
statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a
meaning which is simply a variant of the meaning pleaded. On the other hand, there may be
disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a
meaning which focuses on some different factual basis. Particularly is that so if the defendant
has pleaded justification or, as in this case, justification of an alternative meaning. However,
the question whether disadvantage will or may result is one to be answered having regard to all
the circumstances of the case, including the material which is said to be defamatory and the
issues in the trial, and not simply by reference to the pleadings.
180 Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 62.
301
Until there are enunciated clear and authoritative statements from the appropriate appellate
courts in each State and Territory in which the problem arises…the ultimate decision as to
the availability of the Polly Peck defence will have to be determined by the High Court. In
the meantime I propose to conform with what I perceive to be the more generally held view
that a defendant in an appropriate State or Territory is entitled to plead a Polly Peck
defence and thus will decline to strike out the pleading of it.181
In Victoria, Gillard AJA noted that the ―starting point‖ of the truth defence
appeared to run counter to Polly Peck182
but his Honour did not rule out a role for a
―permissible‖ Polly Peck defence. His Honour identified two circumstances when Polly
Peck would be appropriate first, where the plaintiff does not plead the proper
imputations arising from the words complained of and forming the basis of the
plaintiff‘s case, and second, where there is a common sting which is not separate and
distinct from the way the plaintiff has pleaded his case.183
His Honour added:
Justice and fairness to both parties require a Polly Peck defence where a defendant
proposes to plead justification in relation to meanings which are conveyed by the words
complained of forming the basis of the plaintiff‘s case. But the defence is not available as a
partial justification, and is not available where there is a separate and distinct defamatory
imputation not relied upon by the plaintiff which is not inextricably bound up with the way
the plaintiff has pleaded the imputations. The court must be vigilant to ensure that what is
pleaded as a Polly Peck defence is a proper and permissible one.184
181 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, Levine J, at 100. See also 99–
101 on conflicting authorities as to whether Polly Peck applies in Australia. Levine J also referred to
learned commentary that can expose differing views as to the status of Polly Peck and the effect of
Chakravarti v Advertiser Newspapers (1998) 193 CLR 519: see Morris (November 2000), above fn
136, at 769 on the one hand, and on the other, Maher LW (1993) ‖Defamatory meaning and the
defence of truth: Polly Peck in Australia‖ 1 Torts Law Journal 219, at 229.
182 See Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, at 62-63:
The starting point [in pleading justification in a libel case], is the very important principle, that
the plaintiff pleads the case he wishes to seek compensation for, which constitutes his cause of
action. He establishes the ground rules for the litigation. The article may convey a number of
defamatory imputations. A plaintiff is entitled to sue in respect of one only provided the
imputation is separate and distinct from the other imputation in the publication. It is not open
to the publisher to plead that the ignored defamatory imputation is conveyed by the article and
that it is true. That has never been the law and is not the law: see Cruise v Express Newspapers
Plc [1999] QB 931 (italics added).
183 Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 67.
184 Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 67.
On the question of unfairness to the defendant see further Jackson & Ors v ACP Publishing Pty Ltd
[2001] WASC 121, Anderson J, Para 18, where his Honour identified two areas of possible
unfairness: (a) it may be unfair to a defendant to allow a plaintiff to go to trial on the basis of the
imputations conveyed by selected words in a publication. This is because those words in the context
of the whole publication may not carry the meaning, which the particular words complained of
literally carry, standing alone. In the context of the whole article, they may carry a different
meaning, which the defendant may be able to justify. That is, the plaintiff may be suing on words
taken out of context and, in such a case, the defendant ought, in fairness, to be able to plead the true
meaning of the words in their true context and to justify that meaning (Para 18); and (b) the one that
arises from the principle of law or rule of practice that in a defamation action the tribunal of fact is
not confined to the precise meaning contained in the imputation paragraphs of the statement of
claim…the latitude that is given to the tribunal of fact to decide the true meaning of the words
complained of, even if that is not the meaning pleaded by the plaintiff, places a defendant at risk
(Para 22).
302
As earlier noted, the Victorian Court of Appeal in David Syme & Co v Hore-
Lacy185
held that in certain circumstances, such a defence was appropriate.186
In another
Victorian case, Hedigan J was emphatic about the place of Polly Peck:
There is no doubt that the Polly Peck plea has become firmly entrenched in virtually all
jurisdictions in Australia and has been recognised and acted on as part of the common
law…Until the Court of Appeal, or the majority of the High Court, declare that it is not the
law, I regard myself bound to treat it as the law in Victoria.187
In Western Australia Steytler J noted that the extent to which Polly Peck applies
in Western Australia ―depends on how the reasoning of the various judges [in
Chakravarti v Advertiser Newspapers Ltd] is to be understood.‖188
His Honour said the
Polly Peck defences ―should be permitted to continue…at least until there has been
further guidance from the High Court.‖189
7.1.3 Polly Peck views following the UDA
In Tasmania, in Caccavo v Daft – the first case to consider Polly Peck under the UDA –
there was no need to determine whether the defence was still part of Australian law
because the particulars in that case were defective. Master Holt, however, did not accept
the plaintiff‘s contention that Polly Peck was not part of Australian law.190
The Master
185 (2000) 1 VR 667.
186 See Bell v Kingsbay Pty Ltd (No 2) [2001] VSC 498, Gillard J, Para 56. Gillard J, Para 57, citing
David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 (CA). Gillard J, however, had ―some difficulty
accepting the reasoning of Brennan CJ and McHugh J, because the Polly Peck defences ensure that
the defendant is given an opportunity to justify a meaning which may be found by the tribunal of
fact, consistent with the way the plaintiff has pleaded and sought to prove his case.‖ See also Herald
and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 61-62:
The Polly Peck defence is well-established law in England. It has been followed in
Australia…Recently, Levine J in Whelan v John Fairfax Publications Pty Ltd (2002) 56
NSWLR 89, carefully considered the Australian cases concerning the defence and was of the
opinion that it was a proper defence in Australia. I respectfully agree. I think that it does have
its place in the law of defamation in this State in order to do justice to both the plaintiff and the
publisher to ensure the issues between the parties were clearly defined.
187 Carrey v ACP Publishing Pty Ltd [1998] VSC 78, Hedigan J, Para 28 (italics added, authorities
omitted). In Kelly v Nationwide News Pty Ltd (1998) 147 FLR 410, Gallop ACJ, Paras 32-33, said:
The gravamen of their [Brennan CJ and McHugh J‘s] dicta is that the imputations to be
determined may not be raised by way of pleading by the defendant. In the circumstances, it
would be courageous for any trial judge to ignore the dicta of their honours in this area.
188 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314, Steytler J, at 324. See generally Steytler J,
at 323-328 for a discussion on Polly Peck and related cases.
189 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314, Steytler J, at 328. See also Moir v Flint &
Anor [2001] WASC 183, McLure J, Para 19 for a statement as to the applicability of Polly Peck in
Western Australia. The statement of the rule in David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667
(CA), which reviewed this area of the law has been applied in Western Australia – that a defendant
can plead a different meaning from that contended for by the plaintiff and then justify it, provided
the meaning is not substantially different from nor more injurious than those pleaded by the plaintiff.
190 Caccavo v Daft [2006] TASSC 36. In his judgment in Caccavo Master Holt referred to Chakravarti
v Advertiser Newspapers (1998) 193 CLR 519, and noted Brennan CJ and McHugh J‘s strong
criticism of the Polly Peck defence. Master Holt noted that this ―has continued to be the subject of
303
also said, however, that for publications to which the UDA applies ―it would appear for
pleading purposes that debate about the permissibility or allowable extent of a Polly
Peck defence may in practical terms be sterile because of the Act, section 26 defence of
contextual truth.‖191
Master Holt stated as follows, after summarising the Polly Peck
defence:192
The statutory defence of contextual truth differs in that the defendant can go to quite
separate and distinct defamatory statements in the publication and identify them, prove the
substantial truth of them and without traversing the plaintiff's meaning claim as a complete
defence that because of the truth of the matters put forward by the defendant the plaintiff
was not further harmed by the imputation or imputations the subject of the plaintiff's claim.
It would appear that if the defendant cannot plead a meaning under Polly Peck because the
plaintiff has not attempted to avoid the real meaning or real sting or because the plaintiff's
case is based on a separate and distinct defamatory statement in the publication or because
the defence is not part of Australian common law it can nonetheless be pleaded under the
contextual truth provision in the Act. That is, provided it is coupled with the simple
assertion that in light of its truth the plaintiff is not further harmed.193
However in Victoria, Gillard J took a different view in Li v Herald and Weekly
Times Pty Ltd194
that the defence is established law in England and is available in
Australia. His Honour noted that the defence ―is well established law in England and is
available in Australia, although some criticism has been made by two members of the
High Court in Chakravarti v Advertiser Newspapers Ltd.‖195
7.1.4 A place for Polly Peck
The Polly Peck defence is not without its utility and the disadvantages that Polly Peck
presents are not beyond remedy.196
Australian courts may find it ―useful‖.197
A formal
debate‖, citing Gillard AJA‘s view in Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR
1, where his Honour appeared to query the approach taken by Brennan CJ and McHugh J. Master
Holt also noted Levine J‘s view in Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR
89, where Levine J said that at least for pleading purposes a Polly Peck defence should not be
regarded as never being available unless and until there is such a determination by the High Court or
by each of the appropriate appellate courts in each State and Territory: Caccavo v Daft [2006]
TASSC 36, Para 3.
191 Caccavo v Daft [2006] TASSC 36, Para 3.
192 Caccavo v Daft [2006] TASSC 36, Para 3. That summary of Polly Peck is provided here for
convenience:
Under the Polly Peck defence a defendant puts up a meaning different to the meaning
complained about by the plaintiff but which the defendant says in the context of the publication
is the sting of the part of the publication about which the plaintiff complains, and then as a
complete defence justifies that meaning often by reference to charges in the publication about
which the plaintiff had not complained.
193 Caccavo v Daft [2006] TASSC 36, Para 3.
194 [2007] VSC 109.
195 Li v Herald & Weekly Times Pty Ltd [2007] VSC 109, Para 90.
196 See David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 (CA), Charles JA, at 686. There his
Honour did acknowledge the potential for unfairness to the plaintiff arising from a Polly Peck
304
recognition of Polly Peck would go some way towards ensuring that the defendant is
not prevented from ―deploying his full essential defence‖.198
It has been suggested that
with appropriate limitations the Polly Peck defence ―may be seen as being a vehicle for
flexibility whilst keeping the potential for injustice to a minimum.‖199
Among the
limitations Butler has suggested are: (a) a defendant should be entitled to suggest that
the words complained of bear a different meaning from that alleged by the plaintiff and
if he does so elect, he must plead the meaning suggested in the defence; and (b) while
the judge and jury are not confined by the meanings asserted by the parties, any
meaning they give the publication must only be a nuance or variation, and not
substantially different from or more serious than that proposed by the plaintiff or the
defendant.200
Care must be taken, however, to avoid limiting the defendant to pleading a
meaning that is substantially similar to those pleaded by the plaintiff.201
Any
reservations about the legitimacy of the Polly Peck should be tempered by the need to
prevent the plaintiff from ―[establishing] the ground rules for the litigation‖.202
pleading – it allows the defendant to raise false issues, which can only embarrass the fair trial of the
action and will on occasions unfairly prevent a plaintiff from pursuing a defamation claim. His
Honour, however, also noted that the criticisms of Polly Peck would not stand if the defendant were
limited to justifying a meaning which was one upon which the plaintiff might himself obtain a
verdict on the pleadings as they stand:
Nor should a defendant be unfairly prejudiced if the defendant were limited to pleading a
meaning which was sufficiently close (in the manner already suggested) to the plaintiff‘s
meanings, so that the plaintiff himself could succeed upon that meaning on the pleadings as
they stand. If the defendant is limited to pleading a meaning on which the plaintiff would be
permitted to go to the jury, a false issue is not thereby raised. The issues are instead identified
and confined, to the benefit of the court and the parties (at 686-687, italics added).
197 See Kenyon (2006), above fn 149, at 324. The author states, citing the approach taken in the English
case Haslam v Times Newspapers, Unreported, QBD, Gray J, 15 November 2001:
…Australian courts may find it useful to consider the sectors of reputation addressed by the
imputations, the connection between the imputations, common features to the imputations, and
whether the defence meaning is material to or probative of the plaintiff‘s meaning.
198 This phrase is borrowed from McPhilemy v Times Newspapers Ltd [1999] EMLR 751, at 771.
199 Butler (December 2000), above fn 136, at 266.
200 Butler (December 2000), above fn 136, at 266. Butler cautions that the threshold question for this
defence is whether the publication contains a number of imputations which are capable of being
interpreted as carrying a common sting:
However, even where a common sting is identified, it is suggested that the defence should not
apply where the common sting can only be derived by adopting such a high level of abstraction
that the defendant would be permitted to justify the common sting by proving allegations
which are substantially different from or less serious than, rather than merely variations or
nuances of, the meaning or meanings alleged by the plaintiff.
201 It has been noted that some courts have taken a narrow approach prompting the following statement,
which is part of a quotation seen in text accompanying fn 160 above:
It might be asked what utility is left in the defence if a defendant is limited to pleading a
meaning that is not substantially different from those pleaded by the plaintiff and not more
serious than those meanings.
202 See Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, at 62-63. In that case, Gillard
AJA did not rule out a role for Polly Peck but was in favour of limiting its role. His Honour
emphasised the plaintiff‘s role, noting: ―He (the plaintiff) establishes the ground rules for the
305
In New Zealand Polly Peck has been superseded by legislation that is even more
favourable to the defendant, so that the defendant need not argue that the allegations in
the publication in question have a common sting in order to be able to plead and prove
the truth of allegations not complained of – the entitlement is automatic.203
There is also support for the defence amongst the legal profession on the ground
that Polly Peck addresses ―the danger of claimants ‗picking and choosing‘ too much
about what they sue on.‖204
At present, however, this defence presents some difficulties.
One dilemma simply stated is whether the plaintiff is confined at trial to the exact
imputations pleaded or whether the court has a discretion to permit the consideration of
some imputation ―other than the imputations pleaded in the statement of claim‖.205
The
defence has also been criticised as ―controversial‖, by placing ―an unfair weapon in the
hands of defendants in ‗common sting‘ cases‖, allowing a defendant to ―side-step the
real issue‖.206
A pleading which takes the form of denying that the defendant committed the conduct
alleged by the plaintiff, alleging that the defendant committed quite different conduct, and
asserting a lawful defence in respect of the conduct which the defendant claims to have
committed, is obviously objectionable.207
Gillard AJA cautioned that the defence, if it is pleaded, must be a permissible one
―otherwise there is a real risk that it will raise a false issue which will embarrass and
complicate the fair trial of an action‖.208
As noted by Miles CJ, Polly Peck unfortunately
litigation‖ (at 63). Note also the view that Polly Peck addresses ―the danger of claimants ‗picking
and choosing‘ too much about what they sue on‖: see text accompanying fn 204 below.
203 Gillooly (1998), above fn 12, at 111. See Defamation Act 1992 (NZ):
Section 8(2)(b): In proceedings for defamation based on only some of the matter contained in a
publication, the defendant may allege and prove any facts contained in the whole of the
publication.
Section 8(3)(b): In proceedings for defamation, a defence of truth shall succeed if…Where the
proceedings are based on all or any of the matter contained in a publication, the defendant
proves that the publication taken as a whole was in substance true, or was in substance not
materially different from the truth (emphases added).
204 Kenyon (2006), above fn 149, at 188, citing respondents to a study.
205 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314, Anderson J, at 317.
206 See authorities cited in Butler (December 2000), above fn 136, at 263. However, note also that there
are a number of ―technical limitations on the pleading of a Polly Peck defence‖: Bond v John Fairfax
Publications Pty Ltd & Anor [2002] WASC 130, Hasluck J, Para 19-21, citing Clark v Richards &
Anor [2002] WASC 49, McLure J, at Para 16. They are: (a) the imputations must relate to a distinct
charge arising from the words complained of; (b) a Polly Peck imputation cannot be more injurious
or damaging than the plaintiff‘s imputations; (c) the scope of what can be pleaded in a Polly Peck
defence is affected by the extent to which the tribunal of fact may depart from the imputations
pleaded by the plaintiff and yet still find in the plaintiff‘s favour.
207 Morris (November 2000), above fn 136, at 763.
208 Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, at 62. On false issues see Allworth v
John Fairfax Group Pty Ltd (1993) 113 FLR 254, Higgins J, at 258:
…it is most important that false issues are avoided in defamation actions. False issues are most
encouraged when a plaintiff pleads exaggerated or ambiguous imputations. Precision is
306
has the potential to convert ―a modest and narrow claim by a plaintiff into a wide-
ranging expansive and expensive inquiry‖.209
A further significant point arising in the
Polly Peck area concerns the difficulty in deciding whether the allegations are ―specific
and severable/separate and distinct‖.210
As the cases of Templeton v Jones and Polly
Peck show, somewhat inconsistent results are reached despite applying the same
principle.211
In both cases, the court agreed that a defendant might not use the truth
defence to justify something that the plaintiff did not complain about. That is, where
there are two distinct defamatory imputations, if the plaintiff complains of one, the
defendant is not permitted to justify the other. However, although in both cases the
defendant had sought to rely on the truth of allegations that plaintiff had not complained
about, it was held in one (Templeton) that the allegations were ―specific and severable
nonetheless‖212
so that the defendant was not entitled to rely on particulars of matters
not complained about. In the other case (Polly Peck) the court held that all the
allegations had a common sting and therefore could not be regarded as separate and
distinct because ―the subjects raised in the articles are linked and form the grounds of a
single composite criticism.‖213
required to avoid inappropriate attempts by the defendants to plead justification (authorities
cited there)…Precision in pleading tends also to reduce the need for defendants to introduce
contextual imputations.
Also see McBride v Australian Broadcasting Corp [2000] NSWSC 747, Levine J, Paras 23–39 for a
discussion on the question of ―precision‖ in the pleadings.
209 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 21. See also
Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 62:
…a Polly Peck defence would be a rare animal and not often available. Unfortunately, there is
a trend in this State that defence counsel feel that unless they have pleaded a Polly Peck
defence, they have not done their job.
210 See Gillooly (1998), above fn 12, at 108.
211 These terms are used, respectively, in Templeton v Jones [1984] 1 NZLR 448, at 452, and Polly Peck
(Holdings) v Trelford [1986] 1 QB 1000, at 1032. The view taken in Templeton v Jones can be
contrasted with the view in Polly Peck where the court took the view that the plaintiffs could not
artificially limit the area of debate to selected portions of the articles (at 1030). An approach similar
to that in Polly Peck was taken in Khashoggi v IPC Magazines Ltd & Anor [1986] 1 WLR 1412
where the plaintiff was seeking an interlocutory injunction against the further distribution of a
magazine that apparently alleged that she had engaged in a number of extra-marital affairs. She
chose to complain only of the allegation that she had had an affair with a particular man. The
defendants did not claim to be able to prove the truth of that particular allegation but indicated that
they would plead Polly Peck – that all the allegations had a common sting – that is, that the plaintiff
was a promiscuous woman who had many extramarital affairs and that they would prove the truth of
that (see Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, at 67). In the course of
discharging the injunction that had been granted Sir John Donaldson MR after referring to Polly
Peck said: ―…the Polly Peck principle applies and, notwithstanding that the defendants may not be
able to prove the particular affair complained of, they will be able to adduce evidence which will
justify the sting of the article and the sting of that statement on the footing, I suppose, that it is not
more defamatory to have an extra-marital affair with one person rather than another in the
circumstances of the case (at 1417).
212 Templeton v Jones [1984] 1 NZLR 448, at 452.
213 Polly Peck (Holdings) v Trelford [1986] 1 QB 1000, at 1019.
307
There is a real question as to what scope remains for the Polly Peck plea in the
light of the defence of contextual truth provided by the UDA.214
Given, however, that
the legislation preserves the defences available under the general law the plea appears to
remain technically open. There may well be circumstances where there would be an
advantage to the defendant over and above that provided by the statutory defence.215
Butler and Rodrick sum up the main dilemma concerning Polly Peck:
[T]he position regarding the Polly Peck defence is in a state of flux. State appellate court
authority is divided on whether to support, read down or reject the defence, while there was
a lack of a clear majority on the point in Chakravarti. The enactment of uniform legislation
has not altered this position. The final fate of Polly Peck in this country awaits a clear
decision of the High Court.216
7.1.5 Summary of Polly Peck elements
The following key propositions may be stated about this complex and unsettled defence:
(a) Where the plaintiff alleges several distinct defamatory meanings but there is
arguably a ―common sting‖ to them upon which the plaintiff does not expressly
rely, then the defendant may seek to justify the common sting and the plaintiff is
not entitled to restrict the defendant to justify the meanings selected by the
plaintiff.217
(b) Where the plaintiff alleges a defamatory meaning or several distinct defamatory
meanings but the defendant denies the meaning or meanings alleged by the
plaintiff and asserts an arguable claim that in the context of the whole publication
a different defamatory meaning or several different defamatory meanings from
that or those alleged by the plaintiff, the defendant may seek to justify that
In Polly Peck (Holdings) v Trelford [1986] 1 QB 1000, O‘Connor LJ made it clear he would have
decided Templeton v Jones [1984] 1 NZLR 448, differently:
I am very doubtful that the allegation [of anti-semitism] is clearly severable from the rest of the
passage…I would have thought that the words in their context were at least capable of meaning
that the plaintiff was an intolerant bigot, preaching politics of hatred in the hope of political
advantage, and that, if that was the sting of the passage as a whole, the defendant was entitled
to introduce the particulars which were rejected (at 1031). See also BCNZ v Crush [1988] 2
NZLR 234, at 238.
214 Tobin and Sexton (1990), above fn 26, Para 11,001.
215 Tobin and Sexton (1990), above fn 26, Para 11,001.
216 (2007), above fn 165, at 56. Compare that view with the view that ―it appears that the Polly Peck
defence may be pleaded, subject to the limitations placed upon it‖: George (2006), above fn 12, at
253.
217 This is the principle from Polly Peck (Holdings) v Trelford [1986] 1 QB 1000, and described as the
―first Polly Peck principle‖ by Miles CJ in Woodger v Federal Capital Press of Australia Pty Ltd
(1992) 107 ACTR 1, at 23-24; see fn 264 below.
As it was expressed in the Polly Peck case, where there are several defamatory allegations in the
matter published, these defamatory allegations in their context may have a common sting. In such an
event, they are not to be regarded as separate and distinct allegations, and the defendant is entitled to
justify the sting: Polly Peck (Holdings) v Trelford [1986] 1 QB 1000, O‘Connor LJ, at 1032 (Goff
and Nourse LJJ agreeing); see quotation accompanying fn 133 above.
308
different defamatory meaning or meanings and again the plaintiff is not entitled to
restrict the defendant to seeking to justify the meaning or meanings elected by the
plaintiff.218
(c) The Polly Peck defence permits the defendant to ―point out [that] the plaintiff has
not complained of the other charges made at the same time. But that goes only to
damages.‖219
(d) The Polly Peck defence did not change the well-established law that if there were
separate and distinct defamatory allegations and the plaintiff selected only one of
them for complaint, the publisher was not entitled to assert the truth of any other
defamatory imputation using the truth defence.220
(e) There is ―doubt about the availability of a Polly Peck defence at all as part of the
common law in Australia‖221
although it is well-established law in England.222
(f) There is doubt as to the scope of Polly Peck. For example, the principle is capable
of a narrow or a wide interpretation. This difficulty springs from the question of
―severability‖ of the allegations, that is, whether the allegations are ―specific and
severable‖. Where they are, the defendant must justify each of allegations
complained about to succeed in the defence223
thereby placing a heavier burden
on the defendant. Where they are not, and the common sting is established, the
defendant gains an advantage over the plaintiff by being able to prove the truth of
parts of the matter published that the plaintiff did not complain about.224
While
218 This is the principle from Polly Peck (Holdings) v Trelford [1986] 1 QB 1000, and described as the
―second Polly Peck principle‖ by Miles CJ in Woodger v Federal Capital Press of Australia Pty Ltd
(1992) 107 ACTR 1, at 24; see fn 264 below.
219 Templeton v Jones [1984] 1 NZLR 448, at 451. See also Chakravarti v Advertiser Newspapers
(1998) 193 CLR 519, Brennan CJ and McHugh J, at 529 where their Honours said it would be
―outrageous‖ if on a Polly Peck pleading the defendant could obtain a finding that the article was
true in substance and in fact when it plainly was not. Their Honours held further that no injustice is
done by holding a defendant to the fundamental principles of pleading by requiring a defence to
respond to the statement of claim. On the other hand, in the same case, Gaudron and Gummow JJ, at
546, appeared to accept the Polly Peck pleading. For another useful summary of how Polly Peck
operates see Caccavo v Daft [2006] TASSC 36, Master Holt, Para 3.
220 See Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 65.
221 See text accompanying fn 162 above, citing Bell v Kingsbay Pty Ltd (No 2) [2001] VSC 498, Gillard
J, Paras 54-55; Caccavo v Daft [2006] TASSC 36, Master Holt, Para 3.
222 Bell v Kingsbay Pty Ltd (No 2) [2001] VSC 498, Gillard J, Paras 54-55.
223 See the observation under heading 7.1.4 above that ―where there are two distinct defamatory
imputations, if the plaintiff complains of one, the defendant is not permitted to justify the other.‖
224 See the observation in the text accompanying fn 211 above that ―somewhat inconsistent results are
reached despite applying the same principle‖. See also text accompanying fn 213 above where it was
noted that in the Polly Peck case the court held that all the allegations had a common sting, whereas
in Templeton v Jones (1984) 1 NZLR 448 it was held that the allegations did not have a common
sting.
309
the defence is attractive to the media, much turns on ―the level of abstraction‖225
with which the several imputations contained in a publication are regarded.
8. Partial truth principles
The UDA makes no reference to ―partial truth‖ as a defence but it is well-established.226
One important aspect of this defence that distinguishes the partial truth defence from the
contextual truth defence seen above, is that the former is ―not a defence to the cause of
action, which is the publication of defamatory words‖ but it is ―relevant to the question
of damages‖.227
In Whelan, while Levine J was ―content to hold that a defence of partial
justification was still available at common law‖, his Honour held that this defence ―will
not defeat the plaintiff‘s claim except to the extent of reducing the amount of damages
to which a plaintiff may be entitled.‖228
In that case, the defendants had argued for an
―extension of the defence of partial justification‖ so that where a defence of partial
justification succeeds, ―there should be judgment for the defendant.‖229
The defendant
argued that ―the common law should now be changed‖230
and that it should adopt the
position reflected in section 5 Defamation Act (UK)231
and the related comments of
Neill LJ in Pamplin.232
Levine J, however, held that none of the authorities to which his
225 See text accompanying fn 157.
226 See, for instance, the discussion in Gatley (2004), above fn 26, at 280-287. Note that the discussion
commences with the heading ―Partial justification: Introduction‖. See further below fn 281 on this
point.
227 Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, Gillard AJA, at 63 (italics added).
See also Gillooly (1998), above fn 12, at 297-298 and authorities listed there. Gillard AJA in
Popovic also listed the following as being among ―well established‖ propositions that apply to a
pleading of a defence of truth (at 63):
The whole libel that is all the defamatory imputations must be provided as true; it is no defence
to prove that part of the defamatory libel is true. The publisher must provide the truth of the
defamatory sting…A publisher may justify part only of the words complained of provided the
part sought to be justified contains a distinct and separate imputation. What is important is that
the particular defamatory imputation is severable from the other defamatory imputation and
conveys a distinct and separate imputation. The plaintiff must not be left in any doubt as to
what the defendant seeks to justify. But importantly this partial justification is not a defence to
the cause of action, which is the publication of defamatory words. However, it is relevant to
the question of damages, and if proven, results in a reduction in damages (italics added,
authorities omitted).
228 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, at 108.
229 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, at 108.
230 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, at 108.
231 Section 5 provides:
In an action for libel or slander in respect of words containing two or more distinct charges
against the plaintiff, a defence of justification shall not fail by reason only that the truth of
every charge is not proved if the words not proved to be true do not materially injure the
plaintiff‘s reputation having regard to the truth of the remaining charges.
232 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116, at 120:
310
Honour had been referred extend the common law defence to the point where, if it
succeeds, there should be judgment for the defendant.233
It has also been noted that while there are differences between the defences of
partial truth, Polly Peck and contextual truth what they have in common is an assertion
by the defendant of a meaning which is wholly or partly different from that asserted by
the plaintiff, which is admitted or proved to be defamatory of the plaintiff, and which
the defendant claims to justify by reason of its truth (and previously, in some
jurisdictions, for the public benefit).234
Partial truth is closely associated with the
question of choice of meanings discussed in the Polly Peck context, ―because such a
plea also amounts to an attempt by the defendant to justify an imputation other than that
precisely pleaded by the plaintiff.‖235
The distinction between Polly Peck and partial
truth is that the former permits the defendant to draw upon parts of the published matter
that were not complained about to justify the common sting or substantial truth of the
publication.236
Partial truth, on the other hand, is confined to matters that the plaintiff
complained about and does not include other parts of the publication as in the case of
Polly Peck.237
These difficulties will be discussed in more detail in the next section and
for now we may merely note some broad principles gleaned from the authorities
concerning the defence of partial truth.
As noted earlier the UDA does not specifically refer to ―partial truth‖ (or ―partial
justification‖)238
as a defence although this rule is well-established at common law.239
The rule has been expressed as follows: ―Where the plaintiff‘s claim raises expressly or
by implication several distinct defamatory meanings, the defendant may seek to justify
It is to be remembered that section 5 of the Defamation Act 1952 enables a defendant to
succeed on the issue of liability even though he does not prove the truth of all the defamatory
material of which complaint is made (italics added).
His Lordship also said that even though the defendant may not be able to bring himself within the
statutory extension of section 5, the defendant may nevertheless ―be able to rely on such facts as he
has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial
justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be
of great importance on the issue of damages‖ (ibid).
233 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, at 108.
234 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 21; see text
accompanying fn 72 above.
235 Tobin and Sexton (1990), above fn 26, Para 11,040.
236 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 23-4.
237 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 23 citing
Howden v “Truth” and “Sportsman” Ltd (No 2) (1938) 38 SR (NSW) 287. See also Whelan v John
Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, at 102.
238 The terms ―partial truth‖ and ―partial justification‖ are used synonymously for present purposes: see
George (2006), above fn 12, at 257; and Gillooly (1998), above fn 12, at 115.
239 It is discussed, for instance, in Gatley (2004), above fn 26, at 280; Gillooly (1998), above fn 12, at
115; and George (2006), above fn 12, at 257 and the various cases referred to there.
311
any one of them.‖240
It has been said further that the defence could reduce damages
―perhaps almost to vanishing point‖.241
As such this defence holds some attraction for
the media. According to Levine J, ―[t]he defence of ‗partial justification‘ in modern
defamation law was usefully summarised and placed in context by Miles CJ in Woodger
v Federal Capital Press of Australia Pty Ltd‖:242
where the plaintiff‘s claim raises
expressly or by implication several distinct defamatory meanings, the defendant may
seek to justify any one of them, and ―[t]his is the defence of partial justification‖.243
The availability of partial truth is dependent upon the matter proved to be true
being severable from the remainder of the defamatory material. So, if an imputation as
framed in a statement of claim, combines two separate and distinct charges, either
charge (that is, part of the pleaded imputation) may be separately justified.244
The
defence can operate ―distributively‖ and so may protect to the extent that the
defamatory imputations are justified:245
If only some of the imputations are proved correct then, to the extent that the other
imputations are unverified, the defence fails – the defamation has only been partially
justified. However, in such circumstances, though the plaintiff succeeds overall, he or she
may not recover damages in respect of the imputations proved true.246
The defence of partial truth springs from a recognition of the existence at common
law of the right to plead such a defence and the recognition that ―the speaking of truth is
240 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 23 citing
Howden v “Truth” and “Sportsman” Ltd (No 2) (1938) 38 SR (NSW) 287. See also Miles CJ‘s
proposition on partial justification in fn 264 below.
241 See fn 232 above.
242 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, Levine J, at 102, citing Woodger
v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 23-24. Miles CJ‘s
―list‖ is set out in full in fn 264 below.
243 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, Levine J, at 102 (italics added).
244 Gillooly (1998), above fn 12, at 106, see especially fn 15 (references omitted).
See also Prager v Times Newspapers Ltd [1988] 1 All ER 300, Purchas J, at 308-309, cited with
approval in Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, Levine J, at 107:
It is clearly open to a defendant to plead in anticipation of any of the reasonable alternative
defamatory meanings and to justify on that limited basis. In this regard care must be taken to
distinguish between pleading a lesser, and different defamatory meaning and achieving a
partial justification of the whole sting of the libel pleaded by the plaintiff. Although a partially
established plea of justification may be considered by the jury in mitigation of damages, it is
not open to a defendant to plead specific facts in partial justification of a libel with the sole
purpose of mitigating damages. Where the libel contains more than one charge, then a
defendant may seek to justify one or some of the charges without justifying all of them but,
before pleading justification of any individual charge, as in fraud, counsel is under a duty to
satisfy himself that evidence is available to justify the plea…
245 Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416, Evatt J, at 431.
246 Gillooly (1998), above fn 12, at 106 (italics in original, references omitted).
312
not a ground of legal liability at all‖.247
Flowing on from this, the evidence of truth in
relation to a defamatory imputation, if established after an apt pleading, ―may be
regarded as entirely obliterating that imputation, and as leaving the ground open for
dealing with the residue of the untrue imputation. In other words, the defence of partial
truth ―can operate ‗distributively‘, and so may protect pro tanto.‖248
Thus, the defendant
may justify part only of a libel containing several distinct charges but if the defendant
―omits to justify a part which contains libellous matter, he is liable in damages for that
which he has so omitted to justify.‖249
As Lord Denning observed in Plato Films Ltd v
Speidel250
with reference to a situation in which a newspaper reports that a man was
convicted six times for dishonesty but finds that he has only been convicted twice:
Although the newspaper cannot justify in whole it can justify in part. It can plead that, in so
far as the words meant that he had been convicted twice, they were true and thus bring the
two convictions before the jury…This rule is based on sound sense…If this were not so, the
plaintiff would recover damages for a character which he did not possess or deserve; and
this the law will not permit.251
Likewise, in Howden v “Truth” and “Sportsman” Ltd (No 2),252
Jordan CJ cited with
approval the view in Sutherland v Stopes253
that ―a justification need not be to the
whole, but may be to a part.‖254
8.1 Summary of partial truth elements
The following key elements may be identified concerning the partial truth defence:
(a) The principle applies where several distinct defamatory meanings are conveyed
by the matter complained of either expressly or by implication and the defendant
247 TA Street, Foundations of Legal Liability, (1906), Vol 1, at 275, cited in Howden v “Truth” and
“Sportsman” Ltd (1937) 58 CLR 416, Evatt J, at 431; see also Whelan v John Fairfax Publications
Pty Ltd (2002) 56 NSWLR 89, Levine J, at 103.
248 Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416, Evatt J, at 431. See also Whelan v
John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, Levine J, at 103; and Gillooly (1998),
above fn 12, at 106.
249 Clarke v Taylor & Anor (1836) 2 Bing (NC) 654, Tindal CJ, at 664-665.
250 [1961] AC 1090.
251 Plato Films Ltd v Speidel [1961] AC 1090, at 1141-2. See further Howden v “Truth” and
“Sportsman” Ltd (No 2) (1938) 38 SR (NSW) 287, Jordan CJ, at 290-291 (references omitted):
There can be no doubt that, at common law, in a civil action…―a justification need not be to
the whole, but may be to a part. If a man says that a certain neighbour of his was guilty of
manslaughter and was also a thief; it is perfectly open to take a plea of justification of either
charge only‖: Sutherland v Stopes [1925] AC 47, at 78. It is, however, necessary that the part
sought to be separately justified should be severable, and also that the pleading should clearly
indicate exactly what the severed part is which is sought to be separately justified.
252 Howden v “Truth” and “Sportsman” Ltd (No 2) (1938) 38 SR (NSW) 287.
253 Sutherland v Stopes [1925] AC 47, at 78.
313
proves only some of the imputations. In such a case this defence protects to the
extent that the defamatory imputations are justified.255
(b) The imputations that the defendant is permitted to defend are ―confined to matters
that the plaintiff complained about and does not include other parts of the
publication‖.256
(c) The availability of the defence of partial truth is dependent upon the matter
proved to be true being severable from the remainder of the defamatory
material.257
(d) Whether an allegation is severable is a question of substance, not form – the test is
whether it is a substantially separate and self-contained allegation, or whether it is
merely one ingredient of a connected whole, which when taken as a whole,
conveys a damaging imputation that is not contained in its parts taken
separately.258
(e) If an imputation, as framed in a statement of claim, combines two separate and
distinct charges, either of the charges may be separately justified.259
8.2 Partial truth difficulties
One difficulty concerns whether ―partial truth‖ can be properly characterised as a
defence in the first place. There have been conflicting views on this.
So long as the plaintiff's imputations and the defendant's imputations arise from the same
publication, I cannot see why the defendant should not have the benefit of the imputations
that are justified, at least in so far as the injury caused to the plaintiff's reputation by the
unjustified imputations does not exceed that caused by the justified imputations. I am less
sure whether these matters, taken together, go to the matter of a defence as to liability or
whether they go to damages, and whether if they constitute a defence as to liability, it is a
defence of ―partial justification‖. Probably if it is a matter of defence, the defence is one
which overlaps that of partial justification.260
254 Howden v “Truth” and “Sportsman” Ltd (No 2) (1938) 38 SR (NSW) 287, at 290-291 (references
omitted). Thus, if a man says that a certain neighbour of his was guilty of manslaughter and was also
a thief; it is perfectly open to take a plea of justification of either charge only.
255 See text accompanying fn 245 above.
256 See text accompanying fn 237 above.
257 See text accompanying fn 244 above, citing, for example, Gillooly (1998), above fn 12, at 106, fn
15.
258 See quotation accompanying fn 269 below citing Howden v “Truth” and “Sportsman” Ltd (No 2)
(1938) 38 SR (NSW) 287, at 290-1.
259 See Gillooly (1998), above fn 12, at 106, fn 15.
260 Miles CJ in Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, at 23 (italics
added).
314
Gillooly for example, as Miles CJ did,261
refers to this as ―the defence of partial
justification or partial truth.‖262
George, however, expresses it slightly differently: ―At
common law, partial justification is no defence to the whole of the plaintiff‘s claim, but
may reduce the amount of damages to which the plaintiff is entitled.‖263
Another difficulty is whether any real differences exist between the truth defences
that remain after the defence of substantial truth is excluded. Miles CJ‘s enumeration, in
Woodger v Federal Capital Press, of the various truth principles264
provides a starting
point for a questioning of the classification of the truth defences. One reading of Miles
CJ‘s ―list‖ of propositions in the Woodger case suggests that the defence of partial truth
is a stand-alone defence that is distinct from, for example, the contextual truth defence
and the Polly Peck defences.265
At the same time, however, Miles CJ was ―unable to see
where the difference lies ultimately between the defence of contextual imputation in
261 See fn 264 below item 1.
262 (1998), above fn 12, at 115.
263 (2006), above fn 12, at 257 (italics added).
264 Miles CJ‘s ―list‖ in Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, at
23-24 is set out here in full.
1. Where the plaintiff‘s claim raises expressly or by implication several distinct defamatory
meanings, the defendant may seek to justify any one of them: see Howden v “Truth” and
“Sportsman” Ltd & Anor (No 2) (1938) 38 SR NSW 287. This is the defence of partial
justification (italics added).
2. Where the plaintiff alleges several distinct defamatory meanings but there is arguably a
‗common sting‘ to them upon which the plaintiff does not expressly rely, then the defendant
may seek to justify the common sting and the plaintiff is not entitled to restrict the defendant to
seeking to justify the several meanings selected by the plaintiff. This has been referred to as the
Polly Peck principle: Khashoggi v IPC Magazines Ltd & Anor [1986] 1 WLR 1412, at 1417. I
call it the first Polly Peck principle.
3. Where the plaintiff alleges a defamatory meaning or several distinct defamatory meanings
but the defendant denies the meaning or meanings alleged by the plaintiff and asserts an
arguable claim that in the context of the whole publication a different defamatory meaning or
several different defamatory meanings from that or those alleged by the plaintiff arise, the
defendant may seek to justify that different defamatory meaning or meanings and again the
plaintiff is not entitled to restrict the defendant to seeking to justify the meaning or meanings
selected by the plaintiff. That was the effect of what was said in Polly Peck by O‘Connor LJ (at
868-9), Goff and Nourse LJJ agreeing, and I call it the second Polly Peck Principle.
4. Where the plaintiff alleges a particular defamatory meaning, the defendant may, without
denying that defamatory meaning, seek to assert a separate and additional defamatory meaning
which is justified and the effect of which is so serious that there can be no further injury to the
plaintiff‘s reputation caused by the meaning upon which the plaintiff relies. This is what is
called is called in New South Wales the defence of contextual imputation. In my view, it
applies in the Australian Capital Territory.
5. The defendant may, should, or ‗in a case where there are several stings, perhaps must‘ (Kelly
v Special Broadcasting Service [1990] VR 69, at 74, per Murphy J) plead or give particulars of
any defamatory meaning which the defendant will seek to justify, whether or not such
defamatory meaning has been pleaded by the plaintiff. This is simply a modern rule of
pleading which enables any of the defences abovementioned to be put properly before the
Court.
265 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, Levine J, at 102.
315
New South Wales and the principles that lie behind the Polly Peck judgment.‖266
His
Honour noted an earlier view that ―the two defences [contextual truth and Polly Peck
were] virtually indistinguishable‖ although the defence of contextual truth was ―more
convoluted‖.267
A further issue concerns the question of severability. It is said that the question of
whether an allegation is severable is one of substance not form:268
The test is whether it is a substantially separate and self-contained allegation, or whether it
is merely one ingredient of a connected whole, which, when taken as a whole, conveys a
damaging imputation that is not contained in its parts taken separately.269
This difficulty is illustrated in Goody v Odhams Press Pty Ltd270
where, it has
been observed, ―a rather artificial notion of severance‖271
was applied. The issue of
severability also afflicts the Polly Peck defence and was discussed in more detail
above.272
A final point concerns whether it can be argued that O‘Connor LJ‘s view in Polly
Peck itself proscribes partial justification:273
Where a publication contains two or more separate and distinct defamatory statements the
plaintiff is entitled to select one for complaint and the defendant is not entitled to assert the
truth of the others by way of justification.274
266 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 23.
267 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 23, citing
Moore v TWT Ltd (1991) 105 FLR 350, Higgins J, at 358 (italics added).
268 Howden v “Truth” and “Sportsman” Ltd (No 2) (1938) 38 SR (NSW) 287, Jordan CJ, at 290-291.
269 Howden v “Truth” and “Sportsman” Ltd (No 2) (1938) 38 SR (NSW) 287, Jordan CJ, at 290-291.
Jordan CJ referred to the example in Edsall v Russell (1842) 4 Man & G 1090; 134 ER 446 where
the alleged slander consisted in a statement that the plaintiff, an apothecary, had given a child too
much mercury and poisoned it. It was held that justification could not be pleaded restricted to the
giving of too much mercury, because the phrases in combination suggested criminal negligence,
whilst the first phrase (poisoned it) divorced from its context did not (italics added).
270 [1967] 1 QB 333.
271 Tobin and Sexton (1990), above fn 26, Para 11,040. In Goody v Odhams Press Pty Ltd [1967] 1 QB
333 the plaintiff who had been convicted and was serving a thirty-year jail term for participation in a
robbery sued for defamation on the basis of a publication that carried the imputation of participation
in the robbery and also referred to the plaintiff‘s current imprisonment (at the time it was a rule that
a conviction was not evidence of guilt). The defendant pleaded that in so far as the words
complained of alleged that the plaintiff was imprisoned for thirty years they were true in substance
and in fact. Lord Denning MR considered that the words ―now in prison for thirty years for his part
in the mail raid‖ were severable from the rest of the article and could be made the subject of partial
justification. As noted by Tobin and Sexton (1990), above fn 26, Para 11,040:
While the words themselves may technically be separated from the remainder of the
publication, they would appear to go to the essential charge of participation in the robbery.
272 See text accompanying fn 156 above.
273 See Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, Levine J, at 108, where the
plaintiffs mounted such an argument.
274 Polly Peck (Holdings) v Trelford [1986] 1 QB 1000, O‘Connor LJ, at 1032.
316
Levine J in Whelan v John Fairfax Publications Pty Ltd said this misconstrues
what O‘Connor LJ was saying:
The defendants are not entitled to justify the separate distinct meaning with a view to
defeating that (untrue) meaning of which the plaintiff expressly complain (sic). That does
not derogate from the continued defence of partial justification outside the ambit of Polly
Peck…275
9. Reform recommendations
The reform recommendations under this heading are as follows:
Recommendation (a)
The existing defence of contextual truth should be reformulated to improve its clarity
and expanded to incorporate the Polly Peck common sting principle.
Explanatory notes to Recommendation (a)
While the defence of substantial truth is well-recognised in its own right and is reflected
in the UDA,276
the UDA at present additionally provides only for the defence of
contextual truth although, as seen above, there are other truth defences outside of the
defence of substantial truth (section 25 UDA).277
The present recommendation is for
the expansion of the section 26 defence by drawing upon both contextual truth and
Polly Peck.278
These defences should then be set out in the revised section 26 entitled
―Defence of Contextual Truth‖.
Recommendation (b)
The “factors in mitigation of damages”279
in the UDA should be expanded280
so that it
expressly recognises the mitigatory effect of partial truth on damages. This would also
serve to remove any doubt that partial truth is a defence281
that can operate to the point
where, if it succeeds, there should be judgment for the defendant.282
275 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89, Levine J, at 108 (italics added).
276 The defence of substantial truth was discussed under heading 4 above and its various sub-headings.
277 See especially discussion under headings 6, 7 and 8 above.
278 These defences were discussed above under headings 6, 7 and 8, respectively.
279 They are set out in section 38(1) UDA.
280 Section 38(1) ccurrently lists five mitigatory factors and they are cited in Chapter 9 fn 161.
281 See section 5 Defamation Act 1952 (UK). Gatley (2004), above fn 26, at 280 referred to this
section under a discussion on ―Partial justification: introduction‖. Gatley noted that this
section could ―in limited circumstances, allow a complete defence even if only part of the
libel [was] proved true‖ (italics added).
282 See text accompanying above fn 229.
317
Explanatory notes for Recommendation (b)
As noted earlier, the UDA makes no reference to partial truth although it is a well-
established mitigatory factor.283
It was noted earlier that there has been argument that
the scope of partial truth should be extended to the point where, if it succeeds, ―there
should be judgment for the defendant‖.284
Such an approach could have the effect of
turning partial truth into a defence to liability rather than confining its role to the
reduction of damages on the basis that some of the imputations complained of are
proven to be true. It is not advocated in this thesis that partial truth be accepted as a
defence to liability.285
Rather, it is suggested that partial truth retain its traditional role
of merely defeating the plaintiff‘s claim only ―to the extent of reducing the amount of
damages‖286
a plaintiff may be entitled to. The appropriate place for this
acknowledgment is section 38 UDA in light of this section‘s concern with factors
relevant to mitigation (a further discussion of ―mitigation of damages‖ occurs in the
next chapter).287
Recommendation (c)
Taking into account the earlier recommendation that places the burden of proving
falsity on a “public figure” plaintiff who is suing a “media defendant” on a “matter of
public concern”288
it is recommended that a “public figure” plaintiff who is suing a
“media defendant” on a “matter of public concern” should similarly bear the burden of
proving the falsity of any contextual imputations relied on by the defendant.
Explanatory notes for Recommendation (c)
The aim here is to make the operation of the contextual truth defence consistent with the
earlier burden reversal recommendation.289
Thus the plaintiff is also required to bear the
burden of proving falsity in contextual truth situations.
283 See discussion under heading 8 above.
284 See text accompanying above fn 229.
285 See, for instance, Levine J‘s observation in the text accompanying above fn 233.
286 See text accompanying above fn 228.
287 See Chapter 9 heading 4.2.1.
288 See especially Chapter 5 heading 4.
289 See especially Chapter 5 heading 4.
318
9.1 Model provisions
The order of provisions corresponds with the order of recommendations above.
Defence of contextual truth
(a) It is a defence to the publication of defamatory matter if:
(i) the defendant proves that in addition to the defamatory imputations of
which the plaintiff complains, one or more other imputations (―contextual
imputations‖) are substantially true; and the contextual imputations do not
further harm the reputation of the plaintiff because of the substantial truth of
the contextual imputations;290
or
(ii) the plaintiff alleges several distinct defamatory imputations but there is a
common sting to them upon which the plaintiff does not expressly rely, then
the defendant may seek to justify the common sting and the plaintiff is not
entitled to restrict the defendant to justify the imputations selected by the
plaintiff.291
Partial truth a mitigating factor
(b) Evidence that one or more imputations complained of are partially true is
admissible on behalf of the defendant, in mitigation of damages for the
publication of defamatory matter.
Public figure burden
(c) A ―public figure‖ plaintiff who is suing a ―media defendant‖ on a ―matter of
public concern‖ should bear the burden of proving the falsity of any contextual
imputations relied upon by the defendant.
290 This clause is based on the existing section 26 UDA but it has been slightly rephrased. See further
the reference in above fn 264 to the ―second Polly Peck principle‖ (Item 3).
291 This principle is drawn from Polly Peck (Holdings) v Trelford [1986] 1 QB 1000. See also fn 264
above where it was described as the ―first Polly Peck principle‖ (Item 2). This provision is suggested
on the basis of the Polly Peck defence discussed under heading 7 above and, for example, draws
upon the recognition of ―obvious differences‖ noted between contextual truth and Polly Peck: see fn
103 above; and the support identified for this defence in the discussion under headings 7.1.2 and
7.1.4 above.
319
CHAPTER 9
Defendant’s other hurdles
For words divide and rend;
But silence is noble till the end.1
There are no whole truths;
All truths are half-truths.
It is trying to treat them as whole truths
That plays the devil.2
1. Introduction
In this, the last of the substantive chapters of this thesis, some final matters bearing
upon the defendant are considered. Briefly stated they concern: (a) the barriers to the
admissibility of evidence; (b) the onus and standard of proof the defendant must meet;
and (c) the ―high stakes‖ nature of the truth defence coupled with inadequate attention
to corrections. The difficulties for the defendant with the first of these concerns include
strict evidentiary rules that make it difficult to prove the truth. The difficulties involving
the second include the fairly high standard of accuracy required of the defendants by the
courts and difficulties media defendants face in meeting the courts‘ evidentiary
requirements. The difficulties involving the third concern the marginalisation of
corrective and vindicatory outcomes and the higher risk of failing in the defence. The
distribution of burdens between plaintiff and defendant is disproportionate. The plaintiff
is accorded a privileged position and the defendant, conversely, occupies an invidious
position, with ―strict limitations upon what can and cannot be used legitimately as
material in mitigation of damages.‖3 The heavy burden the defendant bears severely
discourages deployment of the truth defence. The discussion below considers these
matters and makes reform recommendations. Before that a further point must be made.
A major plank in this thesis has been to alleviate the defendant‘s burden so that
the burden is reversed in cases involving a ―public figure‖ plaintiff suing a ―media
defendant‖ on a ―matter of public concern‖. That is, in such cases the plaintiff should
1 Algernon Charles Swinburne (1865), ―Who hath given man speech‖ (choruses from Atalanta in
Calydon) in Poems/by Swinburne, Selected and Introduced by Bonamy Dobree, Hammondsworth,
Middlesex, Penguin Books, 1961, at 29.
2 Alfred North Whitehead (1861–1947), in Dialogues of Alfred North Whitehead/As Recorded by
Lucien Price, Greenwood Press, Westport, Connecticut, 1954, Prologue.
3 Sutcliffe v Pressdram Ltd [1991] 1 QB 153, Russell LJ, at 193, noting that such an approach was laid
down in Plato Films Ltd v Speidel [1961] AC 1090.
320
bear the burden of proving falsity.4 Against this backdrop the recommendations
proposed below do not necessarily all have room for operation. One obvious
circumstance in this regard is where a plaintiff in a ―reversed burden‖ situation fails to
discharge the burden of proof of falsity. In such a circumstance, no question of making
a defence arises and therefore none of the burdens or proposals discussed below is
triggered. On the other hand, the burdens or proposals below would be triggered where
the burden reversal does not operate.5 It would also operate if the legislature decides not
to embrace the proposed burden reversal.
2. Principles governing admissibility of evidence
It is a trite proposition that to determine whether the imputations are true or
substantially true ―it is necessary to refer to the evidence‖ concerning the published
material.6 Strict evidentiary rules, however, present significant hurdles to a successful
truth defence.7 Leading defamation law practitioners and commentators, Robertson and
Nicol, sum up the defendant‘s challenge:
They must convince the jury that the words were true, or the comment was honest, or that
publication of the report was ―privileged‖. The burden of proving these defences rests
squarely on the media…[this] rule stems, of course, from the absurd presumption that
every defamation is false. Libel trials commence with this (often false) assumption that the
claimant has a spotless character and then the media defendant bears the burden of proving
it [the defence], and by admissible evidence.8
Leaving the law of defamation to one side, the law of evidence, broadly speaking,
comprises a complex body of rules that essentially ―approve certain information
presented to the courts as being not only logically probative of an issue or otherwise
material‖ but also ―not affected by undesirable features that should lead to its
exclusion.‖9 As a general proposition, the rules of evidence have an important role to
4 See Chapters 5 and 6.
5 See Chapter 8 heading 1 (introduction).
6 See Sun Earth Homes Pty Ltd & Ors v Australian Broadcasting Corporation [1993] FCA 467,
Wilcox J, Para 108.
7 Walters B (2003), Slapping on the Writs, UNSW Press, Sydney, at 11.
8 Robertson G and Nicol A (2002), Media Law 4th Edn, Penguin, London, at 108-109 (italics added).
9 R v Pfitzner (1976) 15 SASR 171, Wells J, at 196. The ―exclusionary rules‖ were discussed in
Chapter 3, under heading 4.3. For example, statistics that the defendant relied on to say that a referee
was biased, without more, were held to be not sufficient to prove the truth of the defendant‘s claim
of bias: Harrigan v Jones [2001] Aust Torts Reports 81-621, Matthews AJ, at 67,275. In this case
the defendant‘s truth defence that the referee was biased was based ―solely‖ on statistics for the 1998
season showing that the plaintiff ―consistently granted a disproportionate number of penalties in
favour of ex-Super League teams‖ and no ―evidence‖ of bias, per se, was led (at 67,269 and 67,275).
321
play and the controls on hearsay evidence, for instance, are not altogether unjustified.10
Other influences, however, come to bear on what evidence is ―admissible‖. The ―main
general rule governing the entire subject is that all evidence that is sufficiently relevant
to an issue before the court is admissible and all that is irrelevant, or insufficiently
relevant, should be excluded‖.11
It is said further that the ―first and most important rule
of the law of evidence‖ is ―that evidence is only admissible if it is indeed relevant to an
issue between the parties.‖12
The objects of proof are ―either facts in issue or facts
relevant to facts in issue.‖13
The main facts in issue are all those facts that the claimant
in a civil action, or the prosecutor in criminal proceedings, must prove in order to
succeed, together with any further facts that the defendant or accused must prove in
order to establish a defence.14
The ―facts in issue‖ are determined first by the
substantive rules of law; second, by the charge and plea in criminal cases and by the
pleadings in civil cases; and third, by the manner in which the case is conducted.15
These rules when applied to defamation, taken together with the flaws concerning the
court‘s ―truth-seeking‖ role discussed in Chapter 3,16
place defamation defendants in an
extraordinarily invidious position.17
2.1 Burden of strict evidentiary rules
Even if a statement is true, and its publication is in the public interest, difficulties in
proving the truth of a statement according to the strict evidentiary rules can result in the
person making the statement being ordered to pay damages.18
Lord Keith in Derbyshire
C.C. v Times Newspapers captured the essence of the media‘s dilemma: ―Quite often
the facts which would justify a defamatory publication are known to be true, but
10 See, for instance, Lord Devlin‘s view that ―[n]o one would suggest that it is contrary to natural
justice to act on hearsay‖: Official Solicitor of the Supreme Court v K [1963] 3 All ER 191, at 238,
208.
11 Tapper C (2007), Cross & Tapper on Evidence, 11th Edn, Oxford University Press, Oxford, at 69
(references omitted).
12 Tapper (2007), above fn 11, at 69. See also sections 55(1) and 56(1) Evidence Act 1995
(Commonwealth).
13 Tapper (2007), above fn 11, at 30.
14 Tapper (2007), above fn 11, at 30.
15 Waight PK and Williams CR (1995), Evidence – Commentary and Materials, 4th Edn, Law Book
Co, North Ryde, NSW, at 1.
16 See discussion under heading 4 and its various sub-headings.
17 See, for example, the discussion in Chapter 3 under heading 4.3 on the weaknesses in the court‘s
truth-seeking approach.
18 Walters (2003), above fn 7, at 11. For similar views see Barendt E, Lustgarten L, Norrie K and
Stephenson H (1997), Libel and the Media: The Chilling Effect, Oxford University Press, Oxford, at
69; and Armstrong M, Lindsay D and Watterson R (1995), Media Law in Australia, 3rd Edn, Oxford
University Press, South Melbourne, at 31.
322
admissible evidence capable of proving those facts is not available.‖19
The Australian
High Court cited this observation with approval in Theophanous v Herald & Weekly
Times20
and cited Lord Keith‘s view among the authorities that ―speak eloquently of the
tendency of the law of defamation to inhibit the exercise of the freedom of
communication‖.21
Various commentators have echoed this view.22
Robertson and
Nicol state that the defendant‘s burden of tendering admissible evidence is:
…impossible where witnesses have died or have been promised confidentiality, and
difficult when the evidence comes (as in sleaze cases it often does) from criminals or low-
life characters or even from investigative journalists (who can look fairly grubby in the
witness box). Juries instinctively hesitate to find they have proved their allegations against
glamorous film stars or experienced policemen or popular sportsmen.23
There are also inconsistencies concerning the application of evidentiary rules. For
instance, different evidentiary rules apply in relation to natural and ordinary meaning
19 [1993] AC 534, Lord Keith, at 547 (italics added). Presumably, Lord Keith was there suggesting that
the truth was known to the media, as indeed has been suggested by Barendt et al (1997), above fn 18,
at 191, in reference to the ―most obvious manifestation‖ of the ―direct chilling effect‖:
Most often perhaps this takes the form of omission of material the author believes to be true
but cannot establish to the extent judged sufficient to avoid an unacceptable risk of legal action
and an award of damages.
20 (1994) 182 CLR 104.
21 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron
JJ, at 131. In the same case, Deane J observed, at 184, that the effect of defamation law was ―to deter
the ordinary citizen from publishing even true defamatory statements‖.
22 Barendt et al (1997), above fn 18, at 190 note:
Because of the risks and uncertainties in the process of ascertaining and demonstrating factual
truth, a rule that penalizes factual falsity has the effect of inducing some self-censorship as to
materials that are in fact true (italics in original).
Armstrong et al (1995), above fn 18, at 31 note:
The burden of establishing truth has enormous practical significance for the operations of the
media. It is not enough to believe strongly in the truth of a defamatory report, no matter how
reliable the source of information may be. To rely on the truth of their publications, the media
must be able to prove it in court by legally admissible evidence. It is not always easy to do so.
Mitchell P (2005), The Making of the Modern Law of Defamation, Hart Publishing, Oxford, at 95
notes:
…there are good reasons why a defendant might be inhibited from pleading justification for
allegations that he believed were true. For instance, the evidence he had of truth might be
inadmissible; or he might be a journalist concerned to protect his sources, and would not
therefore want to call those sources as witnesses.
23 Robertson and Nicol (2002), above fn 8, at 109. The authors cite the example of Grobbelaar v
Newsgroup Newspapers Ltd [2001] 2 All ER 437. In that case the Court of Appeal ―for the first
time‖ took the extreme step of quashing a libel jury verdict on the grounds of perversity. It had
awarded £85,000 to an obviously corrupt Bruce Grobbelaar (a former Liverpool and Southampton
goalkeeper) after having been ―skilfully deflected from the path of logic‖ by forensic tactics and then
―left undecided about Grobbelaar‘s story‖ – a result fatal to the defendants on whom the burden of
proof lay. The Court of Appeal quashed the verdict and stripped away the damages and Mr
Grobbelaar took the case to the House of Lords, which reinstated the jury verdict but awarded him
just £1 in damages. The authors note further that if Grobbelaar had borne the legal onus of
disproving The Sun‘s allegations, he would not have won the unjust verdict and would not have had
the effrontery to come to court in the first place.
323
and to innuendo.24
Generally, in contrast to the broad approach taken by the courts in
the trial process, witnesses may not be called to give evidence as to what they
understood to be conveyed by the allegedly defamatory matter.25
Where a false
innuendo is pleaded meaning is determined according to the ―objective‖ test. Where a
true innuendo is pleaded, however, the objective test of meaning is not applied – instead
a witness possessing the requisite special knowledge may be asked what he or she
understood the matter to mean.26
Furthermore, evidence that some recipients of the
defamatory statement did not believe the matter or did not think the less of the plaintiff
on account of it is admissible on the question of damages, although it is not admissible
at the outset in deciding whether a valid complaint has been established.27
If evidence of
this kind is admissible at all there is no reason in principle why it should not be
admissible at a critical stage of the proceedings – the outset. Placing such an inquiry –
the question of damage to reputation – at the forefront of proceedings would be entirely
consistent with a core objective of the defamation action. The benefit of such an
approach would be to speedily dispose of an action.
In addition to the inconsistent application of the rule against admission of
evidence as to whether the audience thought the matter was defamatory, a further rule
bears noting. In cognisance of the need to consider the impact of the publication on
recipients, where the ―range of publication is small it may be possible to prove that none
of the recipients believed in the truth of the imputations or thought less of the plaintiff
as a result.‖28
Such evidence, however, only goes to the question of damages, and would
reduce the damages that otherwise would have been awarded.29
Also having a similar
effect are questions of the ―quality‖ of the publication. Defamatory accusations
contained in a ―notorious scandal sheet‖ may well be given less credence than those
contained in the ―quality press‖.30
Such an approach appears to tacitly condone media
that are colloquially referred to as the ―gutter press‖.
24 The term ―innuendo‖ was explained in Chapter 7 under heading 4.2.
25 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, at 506; John Fairfax & Sons Ltd v
Hook (1983) 72 FLR 190, at 193.
26 Gillooly M (1998), The Law of Defamation in Australia and New Zealand, Federation Press,
Sydney, at 57-58. Difficulties concerning the determination of the meaning of words were dealt with
in Chapter 7 under heading 4.
27 Gillooly (1998), above fn 26, at 58 (references omitted).
28 Gillooly (1998), above fn 26, at 281 (italics in original).
29 Morgan v Odhams Press Ltd [1971] 2 All ER 1156, at 1178.
30 Gillooly (1998), above fn 26, at 281.
324
2.2 Limits on hearsay evidence
The limits on ―hearsay‖ evidence are another problematic area. Hearsay evidence is,
broadly speaking, an anathema to legal trials. The rule against hearsay prohibits
witnesses repeating out-of-court statements made by others in order to establish the
truth of those statements.31
There are, of course, exceptions to the rule32
but none are
relevant for present purposes.33
As Pearson notes in the context of the truth defence in
defamation law: ―The laws of evidence do not allow for what is known as ‗hearsay‘
testimony – the recounting in court of another person‘s out-of-court statements.‖34
The
general aversion to hearsay testimony has been justified on several grounds.35
It has
been noted, however, that the rule against hearsay ―often operates to prevent the
reception of totally reliable evidence.‖36
The hearsay rule operates in other ways to inhibit the publication of a legitimate
public interest matter.37
A source that wishes not to be identified is useless to the
defence unless the source is ready to come forward and provide admissible evidence.38
It is commonplace for journalists to rely on sources who have been promised
31 Section 59(1) Evidence Act 1995 (Commonwealth) provides:
Evidence of a previous representation made by a person is not admissible to prove the
existence of a fact that the person intended to assert by the representation.
The general rule is that a witness can give evidence only of facts of which he has personal
knowledge, something that he has perceived with one of his five senses: Tapper (2007), above fn 11,
at 58. See also Waight and Williams (1995), above fn 15, at 629.
32 See section 59(3) Evidence Act 1995 (Commonwealth). Note also that it has been held that it is not
hearsay when it is proposed to establish by the evidence, not the truth of the statement, but the fact
that it was made. The fact that it was made, quite apart from its truth, is frequently relevant in
considering the mental state and conduct thereafter of the witness or of some other person in whose
presence the statement was made: see Subramaniam v Public Prosecutor [1956] 1 WLR 965, at 970
(italics added).
33 For various provisions concerning hearsay evidence see Part 3.2 Evidence Act 1995
(Commonwealth).
34 Pearson M (2007), The Journalist’s Guide to Media Law, 3rd Edn, Allen & Unwin, Crows Nest,
NSW, at 208.
35 The retention of an exclusionary rule for hearsay evidence has been justified on the following
grounds: out of court statements are usually not on oath; there is usually an absence of testing by
cross-examination; the evidence might not be the best evidence; there are dangers of inaccuracy in
repetition; there is a risk of fabrication; to admit hearsay evidence can add to the time and cost of
litigation; and to admit hearsay evidence can unfairly catch the opposing party by surprise: see
Australian Law Reform Commission Report No 102, New South Wales Law Reform Commission
Report No 112 and Victoria Law Reform Commission Final Report (2005), Uniform Evidence Law,
Para 7.9 (references omitted).
36 Waight and Williams (1995), above fn 15, at 630 (italics added).
37 Stern v Piper [1997] QB 123, at 128-34, 135-6.
38 See Armstrong et al (1995), above fn 18, at 38. Other ―complications with the admissibility of
evidence‖ include difficulties with the tendering of audiotapes, videotapes, photocopied documents,
and journalists‘ notebooks where they may not have been filed efficiently or notes were written
illegibly: see Pearson (2007), above fn 34, at 208.
325
confidentiality especially when reporting on sensitive topics.39
It is sometimes very
difficult for the media to prove the truth of statements, particularly where this may
require the disclosure of confidential sources;40
or where witness credibility is called
into question;41
or where material concerning the allegations is available to the media
on good authority42
but which the media is unable to present in the manner required by
the judicial process.43
This argument, however, is not aimed at securing a blanket
protection for ―repetition‖ of rumour and hearsay.44
As a result of these difficulties Australian media defendants may be more hesitant
in printing stories if they have doubts about whether evidence would establish ―truth‖ to
the satisfaction of a court.45
In addressing the media‘s common complaint that its
39 Longstanding media efforts to bring about legislative recognition of journalist-source confidentiality
have resulted in a limited protection brought about by a ―shield law‖ which sets out a guided
discretion for the court to exclude evidence that would disclose confidential communications made
to a journalist under an ethical obligation not to disclose that information. The Commonwealth
shield law gives a court the discretion to direct that evidence not be brought if doing so would
disclose a protected confidence; or the contents of a document recording a protected confidence; or
protected identity information: section 126B, Evidence Amendment (Journalists’ Privilege) Act 2007
(Commonwealth). The States and Territories, however, have so far declined to adopt similar rules. In
New South Wales the ―professional confidential relationship privilege‖ created in the Evidence Act
1995 (NSW), although not expressly aimed at journalists and their confidential sources, may protect
journalists‘ confidential sources after it was held in NRMA v John Fairfax Publications Pty Ltd
[2002] NSWSC 563 that journalism is ―a profession‖ (see especially Para 149–152).
40 Cheer U (2005), ―Myths and realities about the chilling effect: The New Zealand media‘s experience
of defamation law‖, 13 Torts Law Journal 259, at 268. Barendt et al (1997), above fn 18, at 133,
note the problem that ―especially plagues investigative work in all media…the unwillingness of
sources which are quite prepared to talk off the record to speak publicly and appear in court.‖
41 Burrows J and Cheer U (2005), Media Law in New Zealand, 5th Edn, Oxford University Press,
Melbourne, at 144. For a recent significant case in which the defence on justification failed woefully
on this count see Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510,
especially Levine J, Paras 2907-2910. Upheld on appeal in respect of the defence of justification:
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, Paras 769, 812 and 814.
42 For instance, reliable leaks to the media from highly placed sources are par for the course, if not a
bedrock, in journalistic activity. See further Goldstein T (2007), Journalism and the Truth: Strange
Bedfellows, Northwestern University Press, Illinois, at 50:
A reporter may be absolutely convinced that a story is correct. The sources are impeccable.
The facts have been checked. The facts may not be provable in court, but the reporter is not
writing for a court.
43 Butler D and Rodrick S (2007), Australian Media Law, 3rd Edn, Lawbook Co, Pyrmont, NSW, at
52, refer to circumstances where the truth defence may be an unattractive one for the media ―even
where it is confident that the material published is correct‖ (italics added). See also discussion under
heading 2 above on the limits placed on admissible evidence.
44 For a discussion of the ―repetition rule‖, see Milmo P and Rogers WVH (2004), Gatley on Libel and
Slander, 10th Edn, Sweet & Maxwell, London, at 270; and Thompson v Australian Consolidated
Press Ltd (1968) 3 NSWR 642, at 643. The rule, in essence, is that it is not enough when repeating a
rumour to say that it is true by proving the rumour‘s existence.
See the illustration in Gillooly (1998), above fn 26, at 38, that the truth of a rumour that Jane Brown
is dishonest requires it to be shown that Jane is dishonest and not merely that there is a rumour to
this effect. See also the illustration in Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416,
at 428-429, where Evatt J said the truth of the statement that a person is a scoundrel is established by
proof that that person is a scoundrel.
45 Dent C and Kenyon AT (June 2004), ―Defamation law‘s chilling effect: a comparative content
analysis of Australian and US newspapers‖ Vol 9 No 2 Media and Arts Law Review 89, at 98. The
326
knowledge of the truth is not assured of acceptance in court, much of course turns on
how a media defendant‘s claim to have knowledge of the truth can be translated into
admissible evidence in court. For the present it is sufficient to note that the problem at
hand is clear:
One final point concerning the impact of the law on what the national press can safely
publish requires emphasis. It is that there exists a massive gap between what we believe
most people would regard as sufficient evidence to establish the truth of a given set of facts,
and what both practical realities and legal rules will permit a newspaper to rely upon for a
defence in court. By ―practical realities‖, we mean the problems of obtaining documentary
and witness evidence sufficient to convince a jury.46
2.3 Alleviating the hearsay rule
The uniform Evidence Acts contains a general exclusionary hearsay rule that provides as
follows: ―Evidence of a previous representation made by a person is not admissible to
prove the existence of a fact that the person intended to assert by the representation.‖47
This rule has been under considerable pressure with the result that various statutory and
common law exceptions have been introduced.48
Consequently a more relaxed approach
has been taken in cases requiring a more inquisitorial, rather than adversarial,
approach.49
The range of exceptions between the statutory and common law rules
differs.50
For defamation law purposes, however, hearsay and rumour are said to have
the same effect as a direct statement.51
More recently, a relaxation of the hearsay rule
has been proposed in relation to the general exclusionary hearsay rule as codified in
section 59 of the uniform Evidence Acts. Three law reform commissions have
recommended an amendment to this hearsay rule:
same text suggests that the weakness of Australian defamation defences has led to weaker media
scrutiny of the corporate sector, at 108.
46 Barendt et al (1997), above fn 18, at 69.
47 See Section 59(1) Evidence Act 1995 (Commonwealth).
48 ALRC Report No 102, NSWLRC Report No 112 and VLRC Final Report (2005), above fn 35, Para
7.1 refers to three categories of exceptions. For a convenient list of the common law exceptions see
Para 7.7 (ibid).
49 See Tapper (2007), above fn 11, at 10. Such an approach is taken, for instance, in cases involving
children. As Butler-Sloss P observed in Re T [2004] 2 FLR 838, Para 28:
The strict rules of evidence applicable in a criminal trial, which is adversarial in nature, are to
be contrasted with the partly inquisitorial approach of the court dealing with children cases in
which the rules of evidence are considerably relaxed.
50 ALRC Report No 102, NSWLRC Report No 112 and VLRC Final Report (2005), above fn 35, Para
7.6.
51 So statements like ―it is rumoured that‖ or ―I have been told that X is a thief‖ convey the imputation
that X is a thief not merely that there is such a rumour or that the speaker has been so informed.
Hence in order to establish the defence of truth in respect of such a statement, it must be proved that
X actually is a thief‖: see Gillooly (1998), above fn 26, at 105 (references omitted). See also fn 44
above for another example.
327
The uniform Evidence Acts should be amended to provide expressly that, for the purposes
of section 59, in determining whether a person intended to assert the existence of facts
contained in a previous representation, the test to be applied should be based on what a
person in the position of the maker of the representation can reasonably be supposed to
have intended; and the court may take into account the circumstances in which the
representation was made.52
Further, the commissions have recommended an amendment to the section 60
hearsay rule:53
The uniform Evidence Acts should be amended to confirm that section 60 operates to
permit evidence admitted for a non-hearsay purpose to be used to prove the truth of the
facts asserted in the representation, whether or not the evidence is first-hand or more
remote hearsay.54
The present argument, as noted above, is not that ―blanket protection be accorded
to repetition of rumour and hearsay‖. Rumour and repetition is a mainstay of
journalistic activity. It does not necessarily follow, however, that such rumour and
repetition are always untrue.55
Nor does it mean that the publication of unattributed
material has no redeeming feature.56
It is also instructive to note the view of the
European Court of Human Rights that under Article 10 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms a ―general requirement for
journalists systematically and formally to distance themselves from the content of a
quotation that might insult or provoke others or damage their reputation was not
52 ALRC Report No 102, NSWLRC Report No 112 and VLRC Final Report (2005), above fn 35,
Recommendation 7-1 (italics added).
In England it has been noted that reformers were sufficiently disenchanted with the hearsay rule ―to
propose a general power to admit hearsay where the maker of the statement is unavailable‖:
McEwan J (2004), ―Ritual, Fairness and Truth: The Adversarial and Inquisitorial Models of
Criminal Trial‖ (Chapter), in Duff A, Farmer L, Marshall S and Tadros V (2004), The Trial on Trial,
Hart Publishing, Oxford, at 68.
53 Section 60 Evidence Act 1995 (Commonwealth) provides:
The hearsay rule does not apply to evidence of a previous representation that is admitted
because it is relevant for a purpose other than proof of the fact intended to be asserted by the
representation.
54 ALRC Report No 102, NSWLRC Report No 112 and VLRC Final Report (2005), above fn 35,
Recommendation 7–2.
55 See Conley D and Lamble S (2006), The Daily Miracle: An Introduction to Journalism, 3rd Edn,
Oxford University Press, South Melbourne, Victoria, at 159:
Newspapers should not publish rumours unless there is a particularly strong reason. Journalists
investigate them to determine their validity. If publication occurs as a result of that
investigation, it means that the newspaper has found the information is not just a ―rumour‖ but
is factual. There might, rarely, be a case for publishing a rumour as a rumour when speculation
has become so widespread the matter should be aired for debate, denial, or resolution.
56 In NRMA v John Fairfax Publications Pty Ltd [2002] NSWSC 563, Master Macready, Para 161 took
into account policy considerations based on the desirability of the flow of information and the
centrality of keeping the identity of sources confidential to achieve this end.
328
reconcilable with the press‘s role of providing information on current events, opinions
and ideas‖.57
What is proposed for present purposes is that the kind of exigencies already
recognised as requiring the operation of exceptions to the hearsay rule be extended to
the journalism profession in limited circumstances that may be governed by a range of
factors and driven by both the interests of justice and freedom of speech. Such factors
would include the nature of the publication complained about, so that publications
relying on hearsay concerning matters of national security, public safety, official
corruption and other concerns of high public interest order are more leniently treated.58
Such an approach is further justified by the difficulty concerning media reliance on
source confidentiality to report on ―sensitive‖ subjects and the lack of protection for
journalists‘ confidential sources. There is ample justification for the protection of
journalists‘ confidential sources but while this protection is available at Commonwealth
level59
it is not available at State and Territory level.60
There is no shortage of support
57 See Gatley (2004), above fn 44, citing Thoma v Luxembourg (2003) 36 EHRR 21, Para 64. As
Gatley also notes, at 271:
To deny the existence of the ―repetition rule‖ would make nonsense of much of the law of
privilege.
58 Additional support for a hearsay-friendly approach can be found in a ―radical‖ South African
amendment, which, among other things, provides that hearsay evidence may be admitted in the
interests of justice having regard to the nature of the proceedings; the nature of the evidence; the
purpose for which the evidence is tendered; the probative value of the evidence; the reason the
evidence is not given by the person upon whose credibility the probative value of such evidence
depends; any prejudice to a party which the admission of such evidence might entail; and any other
factor that the court considers relevant: see Tapper (2007), above fn 11, at 598-599, citing section
3(c), Law of Evidence Amendment Act No 45 1988 (South Africa). Also see section 2(1), Civil
Evidence Act 1988 (Scotland), which Tapper observes ―appears to be the first legislation anywhere
in the common law world to have abolished the hearsay rule‖ (at 600). The section provides:
In any civil proceedings –
(a) evidence shall not be excluded solely on the ground that it is hearsay;
(b) a statement made by a person otherwise than in the course of proof shall be admissible as
evidence of any matter contained in the statement of which direct oral evidence by that person
would be admissible; and
(c) the court, or as the case may be the jury, if satisfied that any fact has been established in
those proceedings, shall be entitled to find that fact proved by the evidence notwithstanding
that the evidence is hearsay (italics added).
59 Evidence Amendment (Journalists’ Privilege) Act 2007 (Commonwealth).
The events leading to the enactment of Commonwealth legislation providing limited recognition of
journalists‘ confidential sources were precipitated by the plight of two Herald Sun journalists Gerard
McManus and Michael Harvey who were fined for contempt of court after they refused to disclose
the key source of an article they wrote: R v Gerard Thomas McManus & Michael Harvey [2007]
VCC 619.
60 Note the observation above concerning the difficulties presented by journalists‘ undertaking of
confidentiality to their confidential sources: see quotation accompanying fn 23 above.
The Standing Committee of Attorneys-General has had this issue before them for some time but they
are reportedly divided on whether such a law should be introduced at State and Territory level. Some
State and Territory Attorneys-General have refused to accept a Federal call for nationwide shield
laws for journalists‘ sources reportedly because they consider such laws unworkable: Merritt C
329
for the enactment of such statutory protection, if such support is required.61
A broader
acceptance of hearsay evidence may also help overcome constraints media defendants
face in accessing official documents.62
2.4 Reform recommendations
The reform recommendations under this heading are as follows:
Recommendation (a)
Evidence that some recipients of the defamatory matter did not believe the matter or
that the matter did not cause them to think less of the plaintiff should be considered
early in the proceedings and not left for consideration on the question of damages.
Explanatory notes for Recommendation (a)
The arguments for this recommendation, discussed above,63
included the observation
that contrary to the broad trial approach, generally ―witnesses may not be called to give
evidence as to what they understood to be conveyed by the allegedly defamatory
matter‖.64
An anomaly was also noted as to false and true innuendo, with meaning
established according to the objective test for the former, whereas for true innuendo a
witness with the requisite knowledge may be asked what he/she understood the matter
to mean.65
A further anomaly was noted. Evidence that some recipients of the
defamatory statement did not believe the matter or did not think the less of the plaintiff
(2007), ―States reject journos‘ sources law‖, The Australian, 13 April, at 23. More recently the
Western Australia Attorney-General Jim McGinty was quoted as saying ―I support shield laws‖ but
that he had ―no timeline on when they would be introduced to Parliament‖: see Guest D (2008),
―McGinty lifts ban on The West but defends blackout decision‖, The West Australian, 5 May, at 5.
61 In this respect see: ALRC Report No 102, NSWLRC Report No 112 and VLRC Final Report (2005),
above fn 35, Paras 15.15-15.37 (especially Para 15.37), and Recommendation 15-1; Western
Australia Law Reform Commission (May 1993), Professional Privilege for Confidential
Communications, Report, Project No 90; Western Australia Law Reform Commission (December
1991), Professional Privilege for Confidential Communications, Discussion Paper, Project No 90;
and Senate Standing Committee on Legal and Constitutional Affairs (October 1994), First Report of
the Inquiry into the Rights and Obligations of the Media: Off the Record (Shield Laws for
Journalists’ Confidential Sources, especially Chapter 7.
Furthermore, such recognition of journalists‘ confidential sources can be found in section 202(4),
Broadcasting Services Act 1992 (Commonwealth) which provides that it is a reasonable excuse for a
person to refuse to answer a question or to produce a document if the person is a journalist, and the
answer to the question or the production of the document would tend to disclose the identity of a
person who supplied the information in confidence to the journalist.
62 See generally Moss I (2007), Report of the Independent Audit into the State of Free Speech in
Australia, 31 October, report commissioned by the ―Australia‘s Right to Know‖ group, comprising
major Australian news organizations, and see especially Chapters 4-6.
63 See discussion under heading 2.1 above.
64 See text accompanying fn 25 above.
330
on account of it is admissible on the question of damages, but not at the outset in
deciding whether a valid complaint exists.66
Recommendation (b)
In defamation proceedings hearsay evidence may be admitted and in considering
whether to admit that evidence the court may have regard to:
(i) the interests of justice;
(ii) the interests of freedom of speech;
(iii) the importance of the evidence in the proceeding;
(iv) the nature of the evidence;
(v) the purpose for which the evidence is tendered;
(vi) the probative value of the evidence;
(vii) the reason the evidence is not given by the person upon whose credibility the
probative value of such evidence depends, including the existence of journalist-
source confidentiality obligations and the potential of harm to the confider if
source-confidentiality was not upheld;
(viii) any prejudice to a party that the admission of such evidence might entail;
(ix) the nature and gravity of the defamatory publication concerned; and
(x) any other factor the court considers relevant.67
Explanatory notes for Recommendation (b)
The difficulties in this area and some potential responses were discussed above.68
It was
noted that while the prohibition of hearsay evidence was not entirely unjustified, it
―often operates to prevent the reception of totally reliable evidence‖.69
Other obstacles
that obstruct the publication of matters of public interest identified included: (a) the
difficulty of relying on confidential sources to testify as to the truth of the matter
published;70
and (b) the media‘s difficulty in converting material obtained on good
authority but which they are unable to present in a judicially appropriate manner.71
65 See text accompanying fn 26 above.
66 See text accompanying fn 27 above.
67 These proposals are inspired by the South African and Scotland reforms referred to in fn 58 above,
and by section 126B(4), Evidence Act 1995 (Commonwealth). Also see generally ALRC Report No
102, NSWLRC Report No 112 and VLRC Final Report (2005), above fn 35, Chapter 15.
68 See discussion under headings 2.2 and 2.3, respectively, above.
69 See text accompanying fn 36 above.
70 See text accompanying fn 40 above.
71 See text accompanying fn 43 above.
331
Some ways to alleviate the difficulties present in this area were discussed above.72
It
was argued that the exigencies of journalism justify the operation of exceptions to the
hearsay rule in the interests of justice and freedom of speech.
2.5 Model provisions
Effect of defamatory matter on recipients
(a) Evidence that some recipients of the defamatory matter did not believe the matter
or that the matter did not cause them to think less of the plaintiff should be taken
into account at the point of consideration of whether the matter complained of was
defamatory rather than be left for consideration on the question of damages.
Hearsay evidence
(b) In defamation proceedings hearsay evidence may be admitted and in considering
whether to admit that evidence the court may have regard to:
(i) the interests of justice;
(ii) the interests of freedom of speech;
(iii) the importance of the evidence in the proceeding;
(iv) the nature of the evidence;
(v) the purpose for which the evidence is tendered;
(vi) the probative value of the evidence;
(vii) the reason the evidence is not given by the person upon whose credibility
the probative value of such evidence depends, including the existence of
journalist-source confidentiality obligations and the potential of harm to
the confider if source-confidentiality was not upheld;
(viii) any prejudice to a party which the admission of such evidence might
entail;
(ix) the nature and gravity of the defamatory publication concerned; and
(x) any other factor the court considers relevant.
72 See discussion under heading 2.3 above.
332
3. Defendant’s burden and standard of proof
Two aspects are considered under this heading. One is the ―onus‖ of proof and the other
is the ―standard‖ of proof. Under the proposals made in this thesis, the onus on the truth
or falsity issue may rest on the plaintiff or the defendant depending on the
circumstances. Under the Chapter 5 proposal, a public figure plaintiff suing a media
defendant on a matter of public concern must bear the onus of proving falsity thus
significantly shifting, in the defendant‘s favour, the burdens as between plaintiff and
defendant.73
However, where there is no reversal of onus, the plaintiff must discharge
the onus of proof with regard to the traditional three elements.74
The defendant then
bears the onus of establishing the truth defence.75
The ―standard of proof‖ required of
both plaintiff and defendant is on the balance of probabilities. This ―balance of
probabilities‖ requirement is discussed under the following sub-headings.
3.1 Different standards of proof
The standard of proof in a civil trial is a civil and not a criminal standard,76
that is, in a
civil trial the standard of proof is on the balance of probabilities.77
That remains so
―even where the matter to be proved involves criminal conduct or fraud.‖78
In a
defamation action while the standard of proof appears to be the same for both plaintiff
and defendant it has been noted that ―although the defendant has to prove truth only on
the balance of probabilities, the courts have tended to require a fairly high standard of
accuracy.‖79
Furthermore, ―the more improbable an allegation the stronger must be the
73 See Chapter 5 especially discussion under heading 4.
74 See Chapter 8 discussion under heading 1 (Introduction). The traditional three elements are: (a) that
the matter was published; (b) that the meanings relied upon by the plaintiff were conveyed by the
publication; and (c) that these meanings were defamatory of the plaintiff: see Gillooly (1998), above
fn 26, at 22.
75 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, Para 11.
76 In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, Levine J, Para 27,
observed that the ―usual starting point‖ for a discussion of the relevant principles is Briginshaw v
Briginshaw & Anor (1938) 60 CLR 336, Dixon J, at 361-362. See also George P (2006), Defamation
Law in Australia, LexisNexis Butterworths, Chatswood, NSW, at 241; and Rejfek v McElroy (1965)
112 CLR 517, at 521:
…[t]he difference between the criminal standard of proof and the civil standard of proof is no
mere matter of words: it is a matter of critical substance. No matter how grave the fact which is
to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect
to any matter in issue in such a proceeding to attain that degree of certainty which is
indispensable to the support of a conviction upon a criminal charge.
77 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, Levine J, Para 24.
78 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, Mason CJ, Brennan, Deane
and Gaudron JJ, at 449-450 (authorities omitted).
79 Burrows and Cheer (2005), above fn 41, at 268. The authors note, however, that the court has regard
to the gravity of the case and the seriousness of the allegations, particularly where the allegation is
one of fraud (see Reeves v Saxon CA, 177 December 1992, CA 134/89). The authors also note (at
333
evidence that it did occur before, on the balance of probabilities, its occurrence will be
established.‖80
Or as stated in another case, the more serious the allegation the more
cogent or strict must be the evidence which is required to prove it on the balance of
probabilities.81
That is, the strength of the evidence necessary to establish a fact or facts
on the balance of probabilities ―may vary according to the nature of what it is sought to
prove.‖82
In other words, there is a variable standard of proof which has the potential to
operate somewhat harshly on the defendant. This standard takes a plaintiff-centric view
of defamatory imputations and it does not take into account journalistic imperatives that
sometimes require the production of articles under intense pressure,83
although it may
be argued that deadlines are often self-imposed. The granting of some latitude to the
media may be considered in particular circumstances84
but would need to discourage
sloppiness.85
A further point concerning the standard of proof is that, the moral or social
standard by which the defamatory character of an imputation is determined is not
amenable to evidentiary proof; it is pre-eminently a matter for the jury to give effect to a
standard, which they consider to accord with the attitude of society generally.86
144) that in one New Zealand case a correspondent wrote in a letter to the newspaper that, having
witnessed a drunken brawl outside a hotel, he could conclude only that the publican had been
serving liquor to persons already drunk. In the ensuing defamation action it was held to be
insufficient for the newspaper to prove that the publican had served liquor to one drunk; the letter
used the plural (footnote references omitted).
80 Chase v News Group Newspapers Limited (2003) 11 EMLR 218, Brooke LJ, at 227 (Rix and Keene
LJJ agreeing).
81 See Three Rivers District Council and others v Bank of England (No 3) [2001] 2 All ER 513 (HL);
Tipene v Apperley HC Wellington, 16 October 1980, A 161/75; Neat Holdings Pty Ltd v Karajan
Holdings Pty Ltd (1992) 110 ALR 449, Mason CJ, Brennan, Deane and Gaudron JJ, at 450
(authorities omitted); Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419;
Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503, Para 35.
82 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, Mason CJ, Brennan, Deane
and Gaudron JJ, at 450 (italics added, authorities omitted).
83 See Chapter 3 heading 5.3.2.4 for a discussion of difficulties the media face in this area.
84 Sometimes the urgency of the situation is self-evident; the epitome is the newspaper that warns of
defective food containers that if used could case lethal poisoning: see Baker R (June 2002),
―Extending Common Law Qualified Privilege to the Media‖, Media and Arts Law Review Vol 7 No
2, at 99. Such circumstances arose in Canada in 1983, and a defence of qualified privilege was
allowed: Camporese v Partoon (1983) 150 DLR (3d) 208. Other journalistic practices too have been
identified as potentially affecting the number of published defamatory statements – for example,
self-censorship, journalistic ethics, or attitudes within particular media organizations: see Dent and
Kenyon (2004), above fn 45, at 110-111.
85 For illustrations of whether sufficient care was exercised see Heytesbury Holdings Pty ltd v City of
Subiaco (1998) 19 WAR 440, at 458 where Steytler J noted that the defendants failed to take steps
―which were reasonably open to them to verify the accuracy of what was said‖ in circumstances in
which the errors could easily have been discovered. A similar view was reached in Moriarty and
Wortley v Advertiser Newspapers Ltd [1998] SADV 3843 (Unreported), 9 July 1998, Sulan J. In this
case the court did not see any ―urgency to publish‖ the report in question before giving the plaintiffs
an opportunity to respond. See further Butler D (September 2000), ―Lange revisited: Exploring the
implied freedom of political communication concerning government or political matters‖, Vol 5 No
3 Media and Arts Law Review 145, at 150-151.
86 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, Brennan J, at 506.
334
In respect of the standard of proof required in meeting the truth defence it was
noted earlier that the courts expect of the media a ―fairly high standard of accuracy‖87
and that there was a lack of judicial appreciation of ―journalistic imperatives that
sometimes require the production of articles under intense pressure.‖88
Although
accuracy and proof are linked, they are distinct concepts. Broadly speaking, the pursuit
of accuracy is not incompatible with journalistic ideals.89
It is, however, the proof of
accuracy in court that presents the difficulty for the media.90
While lower standards of
accuracy bear the danger of fomenting journalistic sloppiness, greater judicial
accommodation of flexibility91
would augur well for freedom of speech. Such flexibility
is already countenanced in the law, which ―looks for probability, not certainty.
Certainty is seldom attainable.‖92
3.2 A third standard of proof?
Subject to the qualifications shortly to be discussed, it is generally accepted that there
are two primary standards of proof, commonly referred to as the ―proof beyond
reasonable doubt‖ (for criminal cases) and ―proof on the balance of probabilities‖ (for
civil cases).93
However, it is sometimes suggested that there is, however, a third
standard. A third standard is clearly available in the United States. It is said to lie
87 See text accompanying fn 79 above.
88 See text accompanying fn 83 above. See also Chapter 8 fn 63 for a discussion of ―inordinate‖
difficulties the media may face in their news gathering efforts.
89 Chapter 3 heading 5.3.2.1.
90 See, for instance, the advice to publishers from the Arts Law Centre of Australia (n.d.), ―The Law of
Defamation – For Material Published Before 1 January 2006‖. Retrieved 25 January 2008, from
<http://www.artslaw.com.au/LegalInformation/Defamation/DefamationLawsBeforeJan06.asp>
If you want to argue that the defamatory imputations are true, how can they be proved? What
has been done to verify their accuracy? Remember proof has to be to the stringent standards
demanded by a court. Sources need to be first hand (what if they wish to remain confidential?).
91 See the discussion in Chapter 3 heading 5.3.2.4 generally and note, in particular, Lord Hoffmann‘s
acknowledgement of the need for ―latitude‖ to meet the ―practical exigencies of journalism‖ in
Campbell v MGN Limited [2004] 2 All ER 995, at 1012-1013 (see Chapter 3 fn 394).
92 In re H and Others (Minors) [1996] AC 563, Lord Nicholls, at 587. Lord Nicholls also noted that
probability ―is an unsatisfactorily vague criterion because there are degrees of probability.‖
93 See Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, Dixon J, at 361:
At common law two different standards of persuasion developed. It became gradually settled
that in criminal cases an accused person should be acquitted unless the tribunal of fact is
satisfied beyond reasonable doubt of the issues of the issues the burden of proving which lie
upon the prosecution. In civil cases such a degree of certainty is not demanded (italics added).
See further the extract from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
in fn 101 below; and In re H and Others (Minors) [1996] AC 563, Lord Nicholls, at 587:
Proof beyond reasonable doubt, in whatever form of words expressed, is one standard. Proof
on a preponderance of probability is another, lower standard having the in-built flexibility
[appropriate for different types of proceedings].
335
between proof on a preponderance of probability,94
on the one hand, and proof beyond
reasonable doubt, on the other.95
The standard ―lying midway‖ between the two is
―proof by ‗clear, strong and cogent‘ evidence‖96
In Australia there has been debate as to
whether there is a similar intermediate standard applicable in civil cases and it arises
from the Briginshaw case.97
It has been referred to as ―the Briginshaw test‖98
or ―the
Briginshaw standard‖.99
In essence, this test/standard requires that where the nature of
the allegation is serious (e.g. there is a suggestion of criminality) the defendant must
satisfy a higher burden of proof. This test/standard applies to any situation where
serious allegations are made and it is based on the principle that a court in a civil action
should not lightly find that a party has engaged in the conduct concerned.100
As
accusations of wrongdoing usually involve serious consequences for the defendant, it is
argued that justice demands that the accuser, whether in civil or criminal matters, carries
the burden of proof to the higher standard.101
The relevance of Briginshaw to
defamation has been expressed in the following terms:
94 An alternative term for ―balance of probability‖: see In re H and Others (Minors) [1996] AC 563,
Lord Nicholls, at 587.
95 Tapper (2007), above fn 11, at 185.
96 Tapper (2007), above fn 11, at 185. The relevant statement from Tapper is set out here in full:
Three standards of proof are recognised in the United States: proof by ―clear, strong and
cogent‖ evidence, lying midway between proof on a preponderance of probability and proof
beyond reasonable doubt.
97 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
98 As expressed, for example, in George (2006), above fn 76, at 241; Amalgamated Television Services
Pty Ltd v Marsden [2002] NSWSC 419, Beazley, Giles and Santow JJA, Para 61.
99 See, for example, Li v Herald & Weekly Times Pty Ltd [2007] VSC 109, Gillard J, Para 293.
100 See Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, Dixon J, at 361-362:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative
of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable
satisfaction is not a state of mind that is attained or established independently of the nature and
consequence of the fact or facts to be proved. The seriousness of an allegation made, the
inherent unlikelihood of an occurrence of a given description, or the gravity of the
consequences flowing from a particular finding are considerations which must affect the
answer to the question whether the issue has been proved to the reasonable satisfaction of the
tribunal. In such matters ‗reasonable satisfaction‘ should not be produced by inexact proofs,
indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the
issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion
may be reached on materials of a kind that would not satisfy any sound and prudent judgment
if the question was whether some act had been done involving grave moral delinquency (italics
added).
Thus, Briginshaw will not apply where there has been no allegation of misconduct: see De Plevitz L
(2003), ―The Briginshaw ‗Standard of Proof‘ in Anti-Discrimination Law: ‗Pointing With a
Wavering Finger‘‖ Vol 27 Melbourne University Law Review 308, at 315.
101 The High Court explained the Briginshaw principle in Neat Holdings Pty Ltd v Karajan Holdings
Pty Ltd (1992) 110 ALR 449, Mason CJ, Brennan, Deane and Gaudron JJ, at 449-450.
336
Where the defamatory imputation suggests the commission of a crime, or having regard to
the gravity of the matter alleged, the standard of proof must satisfy the Briginshaw test.
While that standard of proof is on the balance of probabilities, it should be understood in
the sense of clear or cogent or strict proof where so serious a matter as criminal conduct is
alleged (authorities omitted).102
It is not entirely clear whether this is a test or a standard and whether it constitutes
a third standard, between the ―beyond reasonable doubt‖ and ―balance of probabilities‖
or whether this third standard is merely an aspect of the balance of probabilities
standard.103
The courts have ―for some time‖ grappled with the ―logical difficulty‖ of
requiring more cogent evidence to prove fraud, but still holding that the allegation must
be proved on a balance of probabilities.104
In the Briginshaw case, Dixon J observed:
No doubt an opinion that a state of facts exists may be held according to indefinite
gradations of certainty; and this has led to attempts to define exactly the certainty required
by the law for various purposes. Fortunately, however, at common law no third standard of
persuasion was definitely developed (italics added).105
There is much support for the view that there are only two standards of proof. In
Australia McHugh J, for instance, expressed strong reservations about the Briginshaw
test.
[T]here are only two standards of proof: balance of probabilities and proof beyond
reasonable doubt. I know Briginshaw is cited like it was some ritual incantation. It has
The ordinary standard of proof required of a party who bears the onus in civil litigation in this
country is proof on the balance of probabilities. That remains so even where the matter to be
proved involves criminal conduct or fraud. On the other hand, the strength of the evidence
necessary to establish a fact or facts on the balance of probabilities may vary according to the
nature of what it is sought to prove. Thus, authoritative statements have often been made to the
effect that clear or cogent or strict proof is necessary ‗where so serious a matter as fraud is to
be found‘. Statements to that effect should not, however, be understood as directed to the
standard of proof (authorities omitted, italics added).
102 George (2006), above fn 76, at 241, citing Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, at
361-362.
Note also that in the extract provided above George refers to it as a ―test‖ and as a ―standard‖. The
significance of this for present purposes is twofold: (a) if it is a standard it appears to compete for
recognition as the ―third‖ standard of proof, although George expresses this as no more than the
―balance of probabilities‖ standard; and (b) while it is described a as a ―balance of probabilities‖
test/standard, it requires clear or cogent or strict proof where criminality is alleged, thus appearing
to incline towards the criminal standard of proof.
103 See De Plevitz (2003), above fn 100, at 309.
In fact, ―standard‖ is a misnomer as in the common law there are only two standards of proof:
beyond a reasonable doubt for criminal cases and on the balance of probabilities for civil.
Note, however, the apparent view of it as a separate standard of proof as expressed, for instance, in
Li v Herald & Weekly Times Pty Ltd [2007] VSC 109, Gillard J, Para 293:
The standard which rests upon the defendants to prove the defence of justification is on the
balance of probabilities, but I accept that the standard is what is described as the Briginshaw
standard (italics added).
104 Auburn J, Bagshaw R, Day D, Grevling K, Hochberg D, Hollander C, Mirfield P, Oakley AJ,
Pattenden R and Whale S (Eds) (2005), Phipson on Evidence, 16th Edn, Sweet & Maxwell, London,
at 155.
105 See Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, Dixon J, at 361 (italics added).
337
never impressed me too much. I mean, it really means no more than, ‗Oh, we had better
look at this a bit more closely than we might otherwise‘, but it is still a balance of
probabilities in the end.106
In England Lord Nicholls referred to the possibility of a ―third standard‖ but did
not favour such a standard. His Lordship noted that if the balance of probability
standard were departed from, and a third standard were substituted in some civil cases,
it would be necessary to identify what the standard is and when it applies.107
His
Lordship further noted:
The only alternative which suggests itself is that the standard should be commensurate with
the gravity of the allegation and the seriousness of the consequences. A formula to this
effect has its attraction. But I doubt whether in practice it would add much to the present
test in civil cases, and it would risk causing confusion and uncertainty. As at present
advised I think it is better to stick to the existing, established law on this subject. I can see
no compelling need for a change.108
That said, however, in respect of the ―balance of probabilities‖ standard ―it can
hardly be doubted that there are degrees of probability‖.109
Regardless of whether a
third standard does or should exist at law generally, the purpose of the reform proposed
in this thesis is to entrench in defamation law the principle that there are only two
standards of proof – balance of probabilities and proof beyond reasonable doubt. This
would overcome the ambiguity noted above as to whether a third standard exists.110
Importantly, for present purposes, the impact of the varying degrees of proof on
defamation defendants needs to be addressed so as to not impose an unduly onerous
standard upon defendants. For defamation law purposes the present standard of proof
weighs heavily against the defendant111
and should be made more amenable to freedom
106 See Witham v Holloway (High Court of Australia, 10 February 1995, Transcript of Proceedings).
For good measure, even the legitimacy of two standards is questioned. See Hilbery J‘s remarks in the
course of argument in R v Murtagh and Kennedy (1955) 39 Cr App Rep 72, cited in Tapper (2007),
above fn 11, at 170:
I personally have never seen the difference between the onus of proof in a civil and criminal
case. If a thing is proved, it is proved, but I am not entitled to that view.
107 In re H and Others (Minors) [1996] AC 563, at 587.
108 In re H and Others (Minors) [1996] AC 563, at 587.
109 Tapper (2007), above fn 11, at 170. Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, Dixon J,
at 361 referred to ―gradations of certainty‖.
110 See text accompanying fn 103 above.
111 See Barendt et al (1997), above fn 18, at 195-196 for a statement that supports this claim. Under the
heading ―burden of proof‖ the authors state:
We have pointed out in this Chapter and at various points in the book the considerable
difficulties media (and other) defendants may have in establishing truth. Awareness of these
difficulties, at all levels in a media enterprise, produces the ―chilling effect‖ analysed in the
previous section.
See also Pearson M (July 2007), ―A review of Australia‘s defamation reforms after a year of
operation‖, Vol 29(1) Australian Journalism Review 41, at 44:
338
of speech.112
As Lord Nicholls noted: ―Built into the preponderance of probability
standard is a generous degree of flexibility in respect of the seriousness of the
allegation.‖113
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd their Honours
observed that statements to the effect that clear or cogent or strict proof is necessary
―where so serious a matter as fraud is to be found‖ should not be understood as directed
to the standard of proof.114
Rather, they should be understood as merely reflecting a conventional perception that
members of our society do not ordinarily engage in fraudulent or criminal conduct and a
judicial approach that a court should not lightly make a finding that, on the balance of
probabilities, a party to civil litigation has been guilty of such conduct.115
Such an approach appears to hold out the potential for a more generous treatment
of the media defendant.116
3.3 Reform recommendations
Truth was rarely used as a defence because it was often too hard to find the evidence to prove
it, and it also required proving the truth of an arising imputation, which could be difficult.
See further the discussion on the ―chilling effect‖ in Chapter 1 under heading 1.2.
112 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, at 361-2, may assist in identifying degrees of
gravity; see also text accompanying fn 100 above.
113 In re H and Others (Minors) [1996] AC 563, Lord Nicholls, at 587. His Lordship also noted:
When assessing the probabilities the court will have in mind as a factor, to whatever extent is
appropriate in the particular case, that the more serious the allegation the less likely it is that
the event occurred and, hence, the stronger should be the evidence before the court concludes
that the allegation is established on the balance of probability. Fraud is usually less likely than
negligence. Deliberate physical injury is usually less likely than accidental physical injury. A
stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with
his under age stepdaughter than on some occasion to have lost his temper and slapped her (at
586).
114 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, Mason CJ, Brennan, Deane
and Gaudron JJ, at 450.
115 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, Mason CJ, Brennan, Deane
and Gaudron JJ, at 450 (authorities omitted).
116 The latitude available in this regard may be illustrated by the different approaches taken in two cases
as to whether the allegation concerned was serious.
In Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503, Simpson J, Para 35, that the
imputations of corruption as Mayor in that case were ―perhaps, not as grave as the allegations the
defendant in Marsden sought to prove‖.
On the other hand, in the Marsden case (Amalgamated Television Services Pty Ltd v Marsden [2002]
NSWCA 419, Para 56) the Court of Appeal was in no doubt about the gravity of the allegations in
that case:
The appellant challenged this characterisation [that the allegations were grave], submitting that
given the respondent's admitted lifestyle of casual and promiscuous sex the allegations were
not grave or serious. We do not agree. The imputations involved allegations of criminal
conduct of a type abhorred in our community. The allegations were of ―knowing‖ engagement
in a criminal act with a 15-year-old having administered drugs to the boy upon whom the
criminal act was perpetrated and of engaging in criminal acts under, in effect, a screen of
339
The reform recommendations under this heading are as follows:
Recommendation (a)
In a civil proceeding for defamation, there should only be one standard of proof. That
standard is proof on the balance of probabilities. The court must find the case of a
media defendant in a defamation action proved if it is satisfied that the case has been
proved on the balance of probabilities. Thus, the “third” test or standard referred to
above would be eliminated.
Explanatory notes for Recommendation (a)
The grounds for this recommendation were discussed above.117
This recommendation is
aimed at clarifying the situation concerning whether an intermediate standard of proof
applies in civil cases arising from the Briginshaw case.118
It was noted above that there
is authority favouring only two standards generally – proof on the balance of
probabilities and proof beyond reasonable doubt.119
Judicial suggestions of a third
standard should not be understood as directed to the standard of proof at all but rather as
―merely reflecting a conventional perception that members of our society do not
ordinarily engage in fraudulent or criminal conduct‖ and that therefore ―a court should
not lightly make a finding that, on the balance of probabilities, a party to a civil
litigation has been guilty of such conduct.‖120
Such an approach would provide the court
the flexibility required in the circumstances of the case, without going so far as to
enforce an intermediate standard or a strict standard of proof.
3.4 Model provision
The model provision under this heading is as follows:
deliberately refraining from enquiring about the ages of the persons upon whom the criminal
acts were perpetrated. The allegations were, unarguably, very serious (italics added).
117 See discussion under headings 3, 3.1 and 3.2.
118 See text accompanying fn 97 above.
119 Witham v Holloway (High Court of Australia, 10 February 1995, Transcript of Proceedings),
McHugh J; see especially the quotation accompanying fn 106 above.
See also In re H and Others (Minors) [1996] AC 563, at 587; see especially Lord Nicholls‘
comments accompanying fn 108 above.
120 See the position taken in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, at
450, referred to in the text accompanying above fn 114 and above fn 115.
340
Standard of proof
(a) The applicable standard of proof in a civil proceeding for defamation is proof on
the balance of probabilities and the court must find a media defendant‘s case
proved if it is satisfied that the case is proved on this standard.
4. Truth a “high stakes” defence
An action in defamation generally is a high stakes area, but the stakes involving the
truth defence are particularly high. To begin with, as Robertson and Nicol note: ―There
is the crippling legal cost of preparing a full-blooded counter attack.‖121
Prior to the
UDA, damages and other costs had been known to reach staggering sums in some cases
and this was noted in Chapter One.122 It has been observed that defamation actions have
―been so lucrative in this country‖123
and that ―most defamation defences that are
litigated to judgment fail.‖124
This obviously was a significant media concern and the
UDA sought to address it with a ceiling imposed on damages for non-economic loss125
and the limitation period on actions reduced to 12 months, where it was not already so
121 (2002), above fn 6, at 114.
122 In the well-known Marsden Case (Amalgamated Television Services Pty Ltd v Marsden [2002]
NSWCA 419), with legal costs included Channel Seven is reputed to have entered a settlement of
around $6 million to $9 million: see Heaton G (2004), ―Privacy – boldly going where defamation
hasn‘t gone before‖, Vol 9 No 4, Media and Arts Law Review 295, at 296. Another report suggests
that the settlement included Mr Marsden‘s $6 million legal bill: Author Unknown (2003), ―Hefty
payout over under-age sex slur‖, The West Australian, 4 September, at 5. It was a confidential
settlement: see Marsden J (2004), I Am What I Am, Penguin, Camberwell, Victoria, at 356. Marsden
states in the book (at 359):
Although I can‘t divulge the amount of the settlement, I am entitled to guess what the cost to
[Channel] Seven will be – and if they have any change out of $30 million, I would be
surprised.
Other well known large awards in Australia include: (a) $1.7 million in Jackson & 9 Ors v TCN
Channel Nine Pty Ltd [2002] NSWSC 1229, Paras 90 and 92; and (b) Milligan L (2002), ―Wedding
video costs Nine $1.7m‖, The Weekend Australian, 21-22 December, at 9. See also Obeid v John
Fairfax Publications Pty Ltd [2006] NSWSC 1059 where the action reportedly could cost the
publisher ―more than $1 million in damages and legal costs‖: King D (2006), ―Fairfax to pay $1m
for Obeid defamation‖, The Australian, 13 October, at 6; and Meade A (2008), ―Fallout yet to hit
from show‘s $5 million blunder‖, The Australian (Media), 5 June, at 40, where it was reported that
the Channel Seven TV network was left ―an estimated $5 million out of pocket‖ following a
confidential settlement reached between the parties in a defamation action brought by Mercedes
Corby, the sister of convicted drug smuggler, Schapelle Corby.
123 Pelly M (2007), ―Internet age reopens defamation bonanza‖, The Australian (Legal Affairs), 20 July,
33-34, at 33.
124 Rolph D (1999), ―The Third Man: Reform of the Australasian Defamation Defences by Michael
Gillooly‖ (Book Review) Vol 27 Sydney Law Review 761, at 764.
125 For instance, section 35(1) provides that unless the court orders otherwise under section 35(2), the
maximum amount of damages for non-economic loss that may be awarded is $250,000 or the
adjusted applicable amount at the time of the award. Section 35(2), however provides that a court
may order the payment of damages for non-economic loss that exceed the maximum damages
amount if the court is satisfied that an award of ―aggravated damages‖ is warranted.
341
reduced.126 Not enough time has passed to form an authoritative view as to whether
these changes have had the desired effect. Conflicting views have been expressed as to
whether they are working.127
On the one hand, it is suggested that the ―number of new
defamation actions has apparently decreased significantly since the commencement of
the harmonised Defamation Acts‖ but ―there are still actions under the old laws passing
through the courts.‖128
There is, however, force in the view that the damages ―cap‖ in
the UDA may not work given that it is commonplace these days for the media to
publish their materials simultaneously in a variety of mediums. For example, as
defamation lawyer Stuart Littlemore QC explains it, in cases against Channel Nine‘s A
Current Affair and Channel Seven‘s Today Tonight, both programs are rebroadcast on
Sky news and streamed on the web – the $250,000 cap then potentially turns into a
$750,000 liability, excluding any aggravated damages.129
You multiply the 250 by the number of other republications, and the cap does not in any
event limit aggravated damages – for conduct by the publisher before, during and after the
publication worsening the subjective injury…Newspapers put their material on the web, so
that is a separate and distinct publication and every day it is up there is another publication.
And if you go to Google you can still see defamatory stories even after they have been
withdrawn. Finding defendants‘ use of other media is an obvious opportunity to get over
the ridiculous cap on damages.130
It is suggested that the UDA appears to deal with this potential for explosion in
the damages by limiting ―the maximum amount that may be awarded in ‗defamation
proceedings‘ rather than for ‗a cause of action‘: s. 35(1).‖131
To overcome this,
however, a plaintiff could bring separate defamation proceedings for each separate
publication subject to the requirement under section 23 for leave from the court in
which the further proceedings are to be brought.132
It has also been indicated that the
126 See George (2006), above fn 76, at 239.
127 Defamation lawyer Peter Bartlett has reportedly expressed the view that the $250,000 cap has been
effective, whereas defamation lawyer Stuart Littlemore QC has reportedly said the limit may prove
to be illusory: Pelly (2007), above fn 123, at 33. In a subsequent case in which Mr Littlemore acted
for the defamation plaintiff who succeeded in her action against Channel Seven, the television
network was reported to have been ―facing a potential damages payout close to $2 million‖ but had
reached a ―confidential agreement‖ to settle the case: see Wilson A (2008), ―Seven in damages
payout to Corby‖, The Weekend Australian, 31 May–2 June, at 5. See also fn 122 above on this case.
128 Ryan I (October 2007), ―Press Freedom 2007‖ (Chapter 7), State of the News Print Media in
Australia: A Supplement to the 2006 Report, Sydney, at 62-63.
129 Pelly (2007), above fn 123, at 33.
130 Pelly (2007), above fn 123, at 33, quoting Stuart Littlemore QC.
131 George (2006), above fn 76, at 405. On this point see also Davis v Nationwide News Pty Ltd [2008]
NSWSC 693. In that case McClellan CJ said that the ―consequence [of sections 35(1), 22(4), 23 and
34 UDA] must be that the monetary maximum limits the damages which can be awarded in the
proceedings, even if those proceedings involve multiple causes of action‖ (Paras 8–10).
132 George (2006), above fn 76, at 405. As a result, all actions arising from the multiple publication of
the same defamatory matter should be determined in the one set of proceedings for which the court
within its discretion may assess damages in a single sum: section 39.
342
section 39 provision enabling damages for multiple causes of action to be assessed as
one is ―not to be taken as giving the judge the ability to discount, so that the plaintiffs
will lose money as a result of the judge rolling all the causes into one‖.133
The High
Court referred to the potential for absurdly high awards if a plaintiff was permitted to
bring, say, fifty-two actions all heard together for fifty-two ―closely-related defamatory
comments‖.134
Another consequence of the ―cap‖ is its potential to inflate damages
awards where such awards were previously low.135
Furthermore, there is no cap on
damages in so far as compensation for harm sustained. Thus, the section 34 UDA
provision requiring the court ―to ensure that there is an appropriate and rational
relationship between the harm sustained by the plaintiff and the amount of damages
awarded‖ could bring about an award that might be considered staggering.136
133 The question was put to the WA Attorney General Hon Jim McGinty in Parliament and Mr McGinty
confirmed that this was the position: see Hon Sue Walker/Hon Jim McGinty, Defamation Bill 2005
(WA), Consideration in Detail, State Legislative Assembly, Hansard, 15 September 2005, at 5513.
134 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, Mason CJ, Deane, Dawson and Gaudron JJ,
at 55-56:
…it would border on the absurd and be all but impossible to prevent multiple compensation if
the jury were instructed that they could not address the question of what represented, in their
view, appropriate damages for the total "harm" which had been caused to the plaintiff by all
fifty-two defamatory publications. Similarly, if the jury awarded the plaintiff $100,000 for
each publication, it would make a mockery of the administration of justice if, in a context
where the legislature had expressly restricted damages for defamation to compensation for
harm suffered, an appellate court were required to disregard the fact that the total of the fifty-
two verdicts ($5.2 million) far exceeded the maximum amount which was reasonably capable
of being seen as appropriate compensation for the total harm which the plaintiff had sustained.
The fact that the total of the verdicts is obviously excessive in that sense does not mean, of
course, that all the verdicts should be set aside. It would be necessary to consider each verdict
to ascertain whether, in the context of the case as a whole, it is excessive (at 56).
It would appear that the real scope of operation of the damages cap remains unclear. This ambiguity
was highlighted in the Mercedes Corby case (Corby v Channel Seven Sydney Pty Limited [2008]
NSWSC 245) where it was reported that ―one question that was not settled concerned the $267,500
cap on damages under the uniform legislation‖: Pelly M and Wilson A (2008), ―Give jury a payouts
role, says Littlemore‖, The Australian (Legal Affairs), 6 June, at 33-34. According to that news
report Mr Littlemore (for the plaintiffs) was prepared to argue that there were eight different
publications, ―meaning a payout of more than $2.1 million was possible‖.
135 See, for instance, the view expressed by the Western Australian Defamation Law Committee
(September 2003), Committee Report on Reform to the Law of Defamation in Western Australia,
Para 62:
The general level of awards and damages in Western Australia is low, relative to other
jurisdictions, notably New South Wales. In that context, and given the recommendation we
have made for excluding damages in respect of injury to feelings, we do not see any need to
recommend a cap or limit on damages. Such a limit on damages might have the inadvertent
effect of lifting the current level of awards by suggesting that the awards should be towards the
upper level of that limit (italics added).
136 See, for example, the reported view in legal circles that an individual named as a ―prime‖ and ―only‖
suspect in a Perth murder could be awarded as much as $5 million if he won a defamation action: see
Cowan S (2008), ―Rayney threatens to sue police over murder case‖, The West Australian, 17 May,
at 1.
343
It is submitted that the difficulty in this area is partly alleviated by the reform
proposals outlined in this thesis so far.137
Two matters merit further discussion. The first
is the question of damage to the plaintiff‘s reputation (including the related question of
the efficacy of the damages award as a vindicatory mechanism in a defamation action).
The second is the risk of higher damages facing a defendant who relies on the truth
defence and fails to prove the truth of the matter. These two concerns are discussed
under the remaining headings.138
4.1 Presumption of good reputation
The starting point in defamation law is that the claimant ―is presumed to have and to
enjoy an unblemished reputation‖.139
It is not suggested here that the presumption be
reversed so that the starting point becomes ―the plaintiff is in reality a person of bad
character hypocritically presenting to the world a mask of good character‖.140
However,
the presumption of good reputation on occasion overlooks a person‘s true reputation.141
It has been observed that the law of defamation has been controversial ―because it has
provided protection to criminals and the corrupt, to rogues and villains, preventing
exposure of their true characters and maintaining their undeserved reputations‖.142
The
precise basis for the presumption that the plaintiff has a good reputation ―is unstated and
its existence remains uncertain‖.143
In Dow Jones & Co Inc v Gutnick the court appears
to envisage a need for the existence of a reputation:
137 For example, the burden reversal proposed in Chapter 5 heading 4 and the ―no fault‖ defence
proposed in Chapter 5 heading 5.
138 Headings 4.1–4.7 in respect of the first concern, and headings 4.8–4.10 in respect of the second
concern.
139 See Chapter 5 quotation accompanying fn 21.
140 Harnett B and Thornton JV (May 1949), ―The truth hurts: A critique of a defense to defamation‖,
Vol 35 No 4 Virginia Law Review 425, at 433.
141 Even commentators who defend the presumption of good reputation have conceded that ―[i]t may
well be in some instances that the plaintiff is such a hypocrite‖: Harnett and Thornton (May 1949),
above fn 140, at 433.
142 George (2006), above fn 76, at 3. For a more recent instance of defamation law being employed in
similarly dubious circumstances see Ollis v Jenman & Anor [2008] NSWSC 67. In that case the
plaintiff was awarded $20,000 in damages in the New South Wales Supreme Court. A jury found
that an article published about him contained 10 defamatory imputations. The plaintiff was
previously ―ordered to pay back $11 million he was found to have dishonestly obtained from
Westpac‖ bank: see King D (2007), ―Plaintiff‘s past record put on trial‖, The Australian, 4
September, at 5. In that case Smart AJ said (Para 128):
The plaintiff has a poor reputation and has had a poor reputation for a long time. His financial
fraud and dishonesty has overshadowed all else.
See also Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457 where the defamed
respondent was serving a life sentence for murder.
143 George (2006), above fn 76, at 79.
344
In defamation, the same considerations that require rejection of locating the tort by
reference only to the publisher‘s conduct, lead to the conclusion that, ordinarily, defamation
is to be located at the place where the damage to reputation occurs. Ordinarily that will be
where the material which is alleged to be defamatory is available in comprehensible form
assuming, of course, that the person defamed has in that place a reputation which is
thereby damaged. 144
The law will not permit a plaintiff to recover damages in respect of injury to a
reputation that he or she does not have or ought not to have.145
The common law is,
however, also ―strict about the admissibility of evidence of bad reputation‖.146
The
development of a law ―heavily weighted towards reputation over free speech‖,147
crudely put, is a legacy of defamation law‘s re-fashioning in the nineteenth and
twentieth centuries ―to serve the British class system from the perspective of that
extraordinary institution, the Victorian club‖. It was ―an age when social, political and
legal life was lived in gentlemen‘s clubs in Pall Mall‖ and at a time when ―judges
helped these upper-class claimants by creating ‗presumptions‘ that any slur on their
character must be false, published maliciously and would do their reputations serious
damage in ‗right-minded society‘.‖148
These presumptions are a common sore point for
the media primarily because the foundations for these presumptions are becoming
increasingly unsustainable. In the modern age, the access to greater empirical testing,
for example, militates for a review of legal presumptions that drive defamation principle
in this regard.149
The core findings from one study suggest that the law is ―based on
144 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, Gleeson CJ, McHugh, Gummow and Hayne
JJ, at 606-607 (italics added). Their Honours emphasise this point, at 609:
In considering what further development of the common law defences to defamation may be
thought desirable, due weight must be given to the fact that a claim for damage to reputation
will warrant an award of substantial damages only if the plaintiff has a reputation in the place
where the publication is made.
145 M’Pherson v Daniels [1829] 10 B & C 263, at 451.
146 George (2006), above fn 76, at 81.
147 Robertson and Nicol (2002), above fn 8, at 74.
148 Robertson and Nicol (2002), above fn 8, at 74. See also Chapter 1 heading 4.1 for Robertson and
Nicol‘s view that in the nineteenth and twentieth centuries the common law was refashioned to serve
the British class system from the perspective of ―that extraordinary institution, the Victorian club‖
giving rise to a law heavily weighted towards protecting reputation. There is, of course, more to
defamation law than this. For a convenient summary of the history of defamation law in England and
Australia, see George (2006), above fn 76, Chapters 2 and 3 respectively. Also see, generally,
Mitchell P (2005), above fn 22.
149 The historical presumption of harm to reputation is not necessarily borne out by reality as illustrated
by the well-known saga involving then Opposition Leader Kevin Rudd. Mr Rudd had visited New
York‘s ―Scores‖ gentlemen‘s club (or ―strip club‖ to use 21st Century nomenclature) in 2003. This
activity made the news in 2007 in the run-up to a federal election. Morgan Poll reported that 87 per
cent of the 633 electors polled Australia-wide were ―not concerned about Mr Rudd‘s drunken visit to
a New York strip club while on a Government-funded trip to the United Nations‖: Roy Morgan
International (2007), ―Electors not concerned about Rudd‘s Drunken visit to New York Strip Club;
For the first time majority disapprove Mr Howard‘s handling his job as Prime Minister‖, Finding No
4200, 23 August. Retrieved 24 August, from <http://www.roymorgan.com/news/polls/2007/4200/>
345
false assumptions about what people thought and how audiences interpreted the
media‖.150
According to a University of New South Wales Communications Law Centre
study false assumptions about community values consistently favour the plaintiff at the
expense of the media in defamation cases.151
4.2 Presumption of damage
On top of the presumption of good reputation discussed above, is another contentious
one – the law ―presumes that the publication of a defamatory statement damages a
person‘s reputation, without the need to prove that anyone knowing the person has read
the statement.‖152
For an imputation to be defamatory it ―need have no actual effect on a
person‘s reputation; the law looks only to its tendency, so there is a cause of action even
if the words were not believed by the audience‖.153
This is another source of angst for
the defamation defendant because such a presumption fails to acknowledge that, in truth
This is a telling result if we accept that the disclosure of this four-year-old information in the run-up
to an election was undoubtedly aimed at damaging the individual‘s reputation. See further, Wright S
(2007), ―Strip trip fails to slow Rudd‘s rising support‖, The West Australian, 24 August, at 10. An
even more bizarre suggestion was made – that Mr Rudd‘s visit to the strip club could even ―attract
voters‖ to Mr Rudd: see Probyn A (2007), ―Strip club visit may help Rudd, says WA Senator‖, The
West Australian, 21 August, at 5. A news poll conducted the following week appeared to confirm the
view that the then ―Opposition Leader has not been hurt by his drunken escapade in a New York
strip club‖: see Shanahan D (2007), ―Rudd opens up crushing lead‖, The Australian, 4 September, at
1. All said, Mr Rudd went on to become Prime Minister later in the same year leading his party to an
emphatic victory. See also the discussion in Gatley (2004), above fn 44, at 47-48, noting ―radical
changes in public attitudes towards sexual behaviour in the last 40 years‖; and at 52-54 highlighting
conflicting social attitudes towards sexual conduct over different periods, contexts and geographical
areas.
150 MacLean S (2004), ―Defamation cases take a social reality check‖, The Australian (Media), 21
October, at 15.
151 Communications Law Centre (May 2004), ―The proposed defence of honest and reasonable
opinion‖, National Defamation Research Project, Submission to the Attorney-General of Australia
Concerning Proposals for a National Defamation Law, University of New South Wales. The
Centre‘s project director Roy Baker said:
What we found is truly staggering. Only 18 per cent of people [surveyed] said they would
think less of a man for being gay. But 71 per cent said they thought the ―ordinary reasonable
person‖ would think less of him. Thirty per cent said they would think less of someone for
having a criminal parent, while 77 per cent thought the ―ordinary reasonable person‖ would
judge such a person badly. Assuming our interviews reflect ordinary reasonable people, then
this shows how as a society we overestimate levels of intolerance: Baker R (2004),
―Defamation – are the courts getting it wrong?‖ (Media Release), 18 October. Retrieved 4
March 2008, from <http://www.unsw.edu.au/news/pad/articles/2004/oct/DefamationMNE.html>
152 See George (2006), above fn 76, at 78 (italics added).
153 Gatley (2004), above fn 44, 29-30 (italics added). See further the view in Dow Jones & Co Inc v
Jameel [2005](CA) 16 EMLR 353, Lord Phillips MR, that the presumption that a defamatory
publication caused some damage to its victim was, in practice, ―irrebuttable‖ (at 365 and 366) and
further that the introduction of Article 10 of the European Convention on Human Rights did not
make this presumption of damage incompatible with English law (at 367). Also note the view that
the concept of ―tendency‖ presents a problem for media defendants because it ―pitches the common
law test at a fairly low threshold‖: see John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR
1218, Gummow and Hayne JJ, at 1230.
346
damage might not have been sustained. The law‘s very approach in this area is not
grounded in the notion of truth but in notions of presumption and tendency.
Once the publication of defamatory matter is proved, the law presumes damage except in
cases of slander not actionable per se. A plaintiff is not required to prove that his reputation
has in fact been damaged. He is entitled to rely on the presumption that some damage will
inevitably be caused to his reputation by the publication of defamatory matter. Once the
tribunal of fact finds for the plaintiff on liability, it must award damages, even if only
nominal damages. The infringement of the plaintiff's rights itself entitles him to
damages.154
This approach is based on age-old authority: ―In all such cases the law presumes
that some damage will flow in the ordinary course of things from the mere invasion of
the plaintiff's rights and calls it general damage.‖155
Such a presumption, however, is
open to the criticism that the rule operates to the plaintiff‘s advantage even when in
reality no real damage may have occurred.156
[I]t is worth pointing out that the presumption of damages is an anomaly in the law of
torts…There is, therefore, a case for reconsideration of the position in libel law…In other
words a plaintiff should be asked to show how he has suffered some loss of standing or
esteem and that the publication was probably responsible for the loss. It should not be
enough for him to simply claim…that he felt hurt, distressed, or even outraged by the
publication.157
4.2.1 Mitigation of damages
The issue of mitigation of damages deserves closer inspection in the context of the
financial stakes that a defamation defendant faces. Even where a complete defence of
truth or justification cannot be established the truth or otherwise of the published
material remains relevant on the issue of damages.158
A defendant may rely on a
number of mitigating factors that ―may lead to a reduction in the amount of damages
awarded.‖159
The UDA provides a non-exhaustive160
list of five factors that may be
154 Tobin TK and Sexton MG (1990), Australian Defamation Law and Practice, Butterworths, Sydney
(LexisNexis Online), Para 20,005. The authors cite the case of Wisdom v Brown (1885) 1 TLR 412,
where Lord Coleridge CJ, in answer to the jury‘s question, said that it could not find for the plaintiff
and then award no damages at all. Consequent upon the introduction of the UDA, the presumption of
damage has been extended to all cases of slander: section 7(2).
155 Ratcliffe v Evans [1892] 2 QB 524, at 528. See further Dow Jones & Co Inc v Jameel [2005](CA) 16
EMLR 353, Paras 28-29, where the English Court of Appeal considered that a publication defaming
an identifiable individual would not be permitted to submit that no damage had been caused to the
plaintiff even if no one reading or viewing the publication had prior knowledge of the individual in
question.
156 See the example cited in fn 155 above.
157 Barendt E (1999), ―What is the point of libel law?‖, Vol 52 Current Legal Problems 110, at 123.
158 Gillooly (1998), above fn 26, at 297. Note also the recommendation made earlier concerning this
point – see Chapter 8 heading 9 Recommendation (b).
159 Gillooly (1998), above fn 26, at 292; George (2006), above fn 76, at 396; Chakravarti v Advertiser
Newspapers (1998) 193 CLR 519, at 557.
160 Section 38(2).
347
taken into account in mitigation of damages.161
Other factors, however, have also been
identified.162
Against a backdrop of mixed approaches as to whether truth should be permitted
in mitigation of damages (when it had not been pleaded as a defence), it is now
accepted at common law that a defendant could adduce evidence of truth in mitigation
of damages.163
This position was previously also reflected in New South Wales, where
the plaintiff was permitted to tender evidence as to the falsity of the imputations in
aggravation, and conversely the defendant was permitted to tender evidence of the truth
in mitigation, without having pleaded truth as a defence.164
Earlier approaches resisted
the tendering of evidence of truth in mitigation of damages when it had not been
pleaded as a defence.165
In New South Wales it has been held that evidence of the truth
of a particular imputation could only be adduced in mitigation of damages if it was an
161 Section 38(1). These factors are whether: (a) the defendant has apologised to the plaintiff; (b) the
defendant has published a correction; (c) the plaintiff has already recovered damages for a similar
publication; (d) the plaintiff has sued separately over a similar publication; and (e) the plaintiff has
received or agreed to receive compensation in relation to a similar publication.
It may be noted that although section 13 Defamation Act 1974 (NSW) formerly provided that it was
also a defence to show that the circumstances of the publication were such that the person defamed
was not likely to suffer harm, this defence ―has rarely succeeded‖: see Bashford v Information
Australia (Newsletters) Pty Ltd [2000] NSWSC 665, Davies AJ, Para 15.
162 For example, other factors that may mitigate damages include the conduct of the defendant
generally, the plaintiff‘s prior bad reputation, the defendant‘s innocence, the truth of the defamatory
matter; and the defendant‘s lack of malice: see Gillooly (1998), above fn 26, at 292-302; and George
(2006), above fn 76, at 396.
163 See Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254, Higgins J, at 264; Singleton v
Ffrench (1986) 5 NSWLR 425; Australian Consolidated Press v Uren (1966) 117 CLR 185,
Windeyer J, at 204-205. See also Gillooly (1998), above fn 26, at 297 and authorities referred to at
fn 230; and George (2006), above fn 76, at 391. In Woodger v Federal Capital Press of Australia
Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 21, said:
…in England, where truth alone is a complete defence, the defendant is not allowed to plead or
call evidence of truth in mitigation of damages. In the Australian Capital Territory and other
jurisdictions where truth alone is not a defence, but provides a defence only when combined
with the element of public benefit (in the ACT) or public interest (in some Australian
jurisdictions) evidence of truth is admissible in mitigation of damages.
164 Section 47 Defamation Act 1974 (NSW).
165 See, for instance, Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524, Halse Rogers
J, at 546:
Logically, I can see no reason why truth should be allowed to be set up in mitigation of
damages. In an action for libel damages are given for injury to a man‘s reputation and, unless
the statements complained of can be shown to have been published for the public benefit, there
seems no reason why the defendant should be allowed to escape lightly for the wrong he has
done [merely] by showing that he has, after all, only spoken the truth.
In the same case Jordan CJ, at 530, said:
…as a general rule, it is not legitimate to give evidence of truth in mitigation of damages where
justification has not been pleaded. There are, however, exceptional cases where the evidence
might be given without such a plea, e.g., where the libel consists of a statement that the
plaintiff has a bad reputation, or to rebut a claim for exemplary damages, as where the plaintiff
contends that the defamatory facts alleged are the gratuitous invention of the defendant.
348
imputation of which the plaintiff complained.166
As Gillooly noted, a defendant who is
desirous of ―circumventing this evidentiary prohibition may sometimes resort to
pleading a defence of contextual truth in order to render admissible proof of the
contextual imputations‖.167
As noted earlier Hunt J in NRMA Insurance v Amalgamated
Television Services168
criticised the circumvention techniques and held that a plaintiff is
―entitled to insist upon such defences being removed from the issues for trial if it is
clear either that this is the only purpose for which they have been pleaded or that this is
the only effect which they will have.‖169
The potential for such ―circumvention‖,
however, would not arise in the first place if the defendant were permitted to refer more
widely to material that ought to be considered in establishing the plaintiff‘s
reputation.170
That is, although there may be other defamatory publications containing
true information concerning the plaintiff‘s generally bad reputation the defendant is not
permitted to tender such publications in its own defence.
The common law rule was that absent evidence of a generally bad reputation at
the time of the defamatory publication, damages are to be assessed on the basis ―that the
166 Section 47 Defamation Act 1974 (NSW); NRMA Insurance Ltd v Amalgamated Television Services
Pty Ltd [1989] A Def R 40,371, at 40,372.
167 Gillooly (1998), above fn 26, at 298.
168 NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd [1989] A Def R 40,371. There
Hunt J said the defence of contextual truth provides a defence to the plaintiff‘s causes of action, but:
…does not provide the defendant with the opportunity of being able…to put before the jury
evidence which establishes in effect no more than that it almost got it right, with the object of
reducing the amount of damages awarded (at 40,372).
169 NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd [1989] A Def R 40,371, at 40,732.
For the full extract see Chapter 8 fn 118.
170 Among the limitations the defendant confronts in respect of the plaintiff‘s reputation are: (a) in
determining the ―sector‖ applicable, the ambit of the evidence should not be artificially enlarged or
limited: see Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430, Ipp AJA, at
437-438; Goody v Odhams Press Pty Ltd [1967] 1 QB 333, at 340-1; Australian Broadcasting
Corporation v O’Neill (2006) 229 ALR 457); (b) where evidence of a prior conviction is sought to
be tendered as evidence of misconduct, that prior conviction must be relevant to the plaintiff‘s
defamation complaint: see Goody v Odhams Press Pty Ltd [1967] 1 QB 333, at 340-1; (c) the extent
of cross-examination of a plaintiff in respect of specific acts of misconduct is a matter for the trial
judge‘s discretion and cross-examination as to credit should not be allowed if it is intended to
illegitimately introduce specific instances of misconduct in the absence of a plea of justification or in
the absence of particulars of bad reputation: see George (2006), above fn 76, at 83; (d) a defendant is
not permitted to mitigate damages by tendering evidence of other defamatory publications
concerning the plaintiff and must answer for the defendant‘s own publication without regard to what
others have published: see Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, McHugh J, at 99;
Chappell v Mirror Newspapers Ltd [1984] Aust Torts Reports 80-691, at 68,942; Dingle v
Associated Newspapers Ltd [1964] AC 371; Creevy v Carr (1835) 7 Car & P 64 (173 ER 29); (e)
matters that occur after the publication of defamatory material are not allowed as proof of bad
reputation: see Rochfort v John Fairfax & Sons Ltd (1972) 1 NSWLR 16, at 22-23; Pamplin v
Express Newspapers Ltd [1988] 1 WLR 116, at 119; Carson v John Fairfax & Sons Ltd (1993) 178
CLR 44, at 101; Gatley (2004), above fn 44, at 275; and (f) the common law is ―strict about the
admissibility of evidence of bad reputation‖ and will not allow evidence to be admitted of rumours
and suspicions, nor evidence of previous acts by the plaintiff unconnected with the defamatory
349
plaintiff was a person of good reputation whose damages are not to be reduced by
reason of any other publication‖.171
The rationale for this rule was expressed in
Harrison v Pearce to be that ―[o]ne wrongdoer cannot avail himself of the wrong of
another‖.172
McHugh J, however, cast doubt on the validity of this rule when making
the following observation in the context of section 48 Defamation Act 1974 (NSW):
―Whatever the historical justification of the rule may have been, it seems unlikely that it
would now command unqualified support.‖173
McHugh J did not explain the reason for
his reservation. It is suggested, however, that one immediate weakness in the Harrison v
Pearce rule is that it assumes that the publication the defendant seeks to rely upon is
also false. While this rule may be justified on the ground of preventing the proceedings
from becoming expansive and expensive, it also limits access to material that may be
true.
Given the recognition at common law that a defendant could adduce evidence of
truth in mitigation of damages, it is unclear why the UDA did not see it fit to clearly
specify this element as one of the factors in mitigation of damages.174
The UDA,
instead, leaves it to section 38(2) to permit the court to go beyond the five ―mitigation
of damages‖ factors identified in section 38(1). It is noteworthy that this concern was
significant enough for inclusion in the former section 47(b) Defamation Act 1974
(NSW).175
A further difficulty confronting the defendant who is considering pleading
truth in mitigation of damages, of course, concerns the limits discussed earlier on
admissible evidence.176
4.2.2 Vindication through damages
imputations, particularly if the defendant does not plead justification: see George (2006), above fn
76, at 82-83.
171 See Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, McHugh J, at 100.
172 Harrison v Pearce (1858) 1 F & F, Martin B, at 569 [175 ER 855], at 856.
173 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, at 100.
174 On this point see Chapter 8 heading 9 Recommendation (b). That recommendation was to alter the
list of mitigating factors in the UDA to include truth as a mitigating factor.
175 That section provided that on the question of damages where it is relevant to the question that the
imputation complained of was true or a matter of substantial truth evidence on this may be adduced.
176 See above fn 170.
350
The plaintiff in a defamation action is entitled on publication to damages – ―[i]n
particular, he is entitled to damages to vindicate him.‖177
The award of damages,
however, does not adequately address the vindicatory objective – a key objective of
defamation law. As Tobin and Sexton note the law ―has long recognised that the
vindication of the plaintiff is an essential part of the remedy in a defamation action.‖178
Vindication is the ―chief purpose‖.179
Lord Radcliffe‘s famous words were: ―A libel
action is fundamentally an action to vindicate a man's reputation on some point as to
which he has been falsely defamed, and the damages awarded have to be regarded as
the demonstrative mark of that vindication."180
Tobin and Sexton note further that it is
―not simply the verdict‖ in the plaintiff‘s favour ―but the amount of damages awarded
which determines the nature and extent of vindication a plaintiff has obtained.‖181
Hence, because the sum awarded is the means of vindicating the plaintiff, the damages
awarded must be ―sufficient to convince a bystander of the baselessness of the
charge‖.182
The damages ―cap‖ imposed under the UDA, if it indeed fulfils the objective
of imposing a ceiling on the size of the award, 183
potentially undermines this aspect of
an award of damages in defamation proceedings. Furthermore, it is arguable that true
vindication can only come about by ensuring that the defamatory material is neutralised
by setting the record set straight.
4.2.3 Imprecision in arriving at damages
The approach taken towards damages reveals another difficulty. While the rationale for
the tort of defamation is the protection of reputation, compensatory damages ―are not
limited to damage to reputation‖.184
Damages are said to be ―at large‖185
and take into
177 John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131, McHugh JA, at 143 (italics added). Tobin
and Sexton (1990), above fn 154, Para 20,025 cite this case for its discussion on the difficulty of
computing damages sufficient to include the element of vindication. See further the discussion in
Chapter 1 under heading 4.4 on ―vindication‖.
178 (1990), above fn 154, Para 20,020 (italics added). See also Blackstone Commentaries on the Laws of
England, 15th ed, vol 3, Ch 8, Note, at 126:
And the chief excellence of the civil action for a libel consists in this, that it not only affords a
reparation for the injury sustained, but it is a full vindication of the innocence of the person
traduced (italics added).
179 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, Brennan J, at 69.
180 Dingle v Associated Newspapers Ltd [1964] AC 371, at 396.
181 (1990), above fn 154, Para 20,020 (italics added).
182 Broome v Cassell [1972] AC 1027, Lord Hailsham LC, at 1071 (italics added).
183 See text accompanying above fn 129 and above fn 134 for doubts expressed in this regard.
184 Tobin and Sexton (1990), above fn 154, Para 20,015.
185 Broome v Cassell [1972] AC 1027, Lord Hailsham LC, at 1071.
351
account various criteria.186
It is mired in subjectivity, imprecision and ―inextricable
confusion‖.187
As Lord Hailsham has noted, the principle of restitutio in integrum which
compels the use of money as the sole instrument for restoring the status quo necessarily
involves a factor larger than any pecuniary loss, and ―has necessarily an even more
highly subjective element.‖188
Furthermore, the sufficiency of the amount awarded is
not to be determined by reference solely to circumstances past and present; the amount
must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the
future.189
The whole process of assessing damages ―is essentially a matter of impression
and not addition.‖190
This is because damage to reputation ―cannot be measured as harm
to a tangible thing is measured.‖191
The difficulty of quantifying the extent of injury to
the plaintiff‘s feelings is compounded by the difficulties of assessing precisely the
extent of injury to the plaintiff‘s reputation.192
Defamation awards are made on the basis
that it is ―impossible to track the scandal, to know what quarter the poison may reach‖
and to ―recompense a man or a woman for the…pain of a false accusation.‖193
The
determination that an accusation is ―false‖, however, is done through a process that is
heavily stacked against the defendant.194
The difficulty confronting the tribunal in
186 In McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86, Pearson LJ, at 104, held that
compensatory damages may include actual pecuniary loss, anticipated pecuniary loss, social
disadvantages which result or may be thought likely to result, natural injury to feelings, natural grief
and distress, and the defendant‘s high-handed, oppressive, insulting or contumelious behaviour.
In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, Brennan J, at 70, said damages were
awarded ―to vindicate the plaintiff‘s reputation‖; and that ―other heads of damage are compensation
for the external consequences produced by the publication of the defamation and ‗a solatium‘ for the
plaintiff‘s internal hurt‖.
187 Broome v Cassell [1972] AC 1027, Lord Hailsham, at 1073.
188 Broome v Cassell [1972] AC 1027, at 1071.
189 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, Brennan J, at 69-70; Broome v Cassell
[1972] AC 1027, Lord Hailsham, at 1071.
190 Broome v Cassell [1972] AC 1027, Lord Hailsham, at 1072; see Coyne v Citizen Finance Ltd (1991)
65 ALJR 314, Toohey J, at 320.
191 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, Windeyer J, at 150. In a passage
described as the starting point in respect of defamation damages (see Carson v John Fairfax & Sons
Ltd (1993) 178 CLR 44, Brennan J, at 69) Windeyer J added (at 150):
It seems to me that, properly speaking, a man defamed does not get compensation for his
damaged reputation. He gets damages because he was injured in his reputation, that is simply
because he was publicly defamed. For this reason, compensation by damages operates in two
ways — as a vindication of the plaintiff to the public and as consolation to him for a wrong
done. Compensation is here a solatium rather than a monetary recompense for harm
measurable in money. The variety of the matters which, it has been held, may be considered in
assessing damages for defamation must in many cases mean that the amount of a verdict is the
product of a mixture of inextricable considerations.
192 Tobin and Sexton (1990), above fn 154, Para 20,015.
193 Ley v Hamilton (1935) 153 LR 384, Lord Atkin, at 386.
194 Gillooly, for instance, provides a convenient summary of some of the criticisms of the common law
rule preventing the adduction of evidence of specific acts of misconduct by the plaintiff to prove his
or her poor reputation: Gillooly (1998), above fn 26, at 293-294. Those criticisms include the fact
352
assessing damages places the defendant at its mercy. Lord Hailsham acknowledged that
such awards ―may put the plaintiff in a purely financial sense in a much stronger
position than he was before the wrong.‖195
Any suggestion that the ―cap‖ on damages
introduced under the UDA now serves to limit the awarding of exorbitant damages must
take into account the potential for conflicting approaches as to what might constitute an
appropriate award even within the scope of the UDA ―cap‖.196
4.3 Tension between damages and vindication
It was noted previously that ―to vindicate the plaintiff‘s reputation [is] the primary
objective of the law of defamation‖.197
It was also noted that the damages awarded
―have to be regarded as the demonstrative mark of that vindication‖.198
It is also said
that an award of damages is ―the remedy usually sought‖ by plaintiffs.199
Vindication
has been held to be an ―an essential part of the remedy‖200
although it has also been held
to be ―part of compensation‖.201
And especially relevant for present purposes is the
view that the ―chief purpose of the law in creating a cause of action for defamation is to
provide vindication to counter the injury done to the plaintiff in his or her
reputation.‖202
that it ―excludes the basic material upon which the reputation rests‖; and the difficulty in finding
witnesses prepared to testify to the plaintiff‘s bad reputation may ―enable a notorious rogue to
recover damages for defamation upon the basis that he is a man of unblemished reputation‖ (at 294,
authorities omitted).
195 Broome v Cassell [1972] AC 1027, at 1071.
196 See, for instance, John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259. The award in this case
was $400,000 in respect of one newspaper article and $200,000 in respect of another. These amounts
were set aside by Kirby P and Priestley JA, although Mahoney J did not consider them excessive.
Kirby P said the amounts ―smack of the punitive‖ (at 275). This decision was affirmed by the High
Court but only by a narrow (4:3) majority: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.
197 Chapter 1 heading 4.2.
198 See also discussion under heading 4.2.2 above.
199 Butler and Rodrick (2007), above fn 43, at 94.
200 Tobin and Sexton (1990), above fn 154, Para 20,020. See further, Carson v John Fairfax & Sons Ltd
(1993) 178 CLR 44, at 60. In Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503,
Simpson J, Para 132, observed:
There are three purposes in an award of damages: consolation for personal distress and hurt
caused to the plaintiff by the publication; reparation for harm done to the plaintiff‘s reputation;
and vindication of the plaintiff‘s reputation (reference omitted).
See also Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 37:
Damages have to represent a vindication to the plaintiff, which in some cases may go beyond
mere compensation for the value of loss of reputation. In addition, the plaintiff is entitled to be
compensated by way of a sum which will console him for the hurt to his feelings brought about
by what he sees as a loss of his reputation (italics added).
201 John Fairfax and Sons Ltd v Carson (1991) 24 NSWLR 259, Mahoney JA, at 300.
202 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, Brennan J, at 69.
353
The following discussion opens to question the traditional view that ―[b]y a
successful action the injured reputation is vindicated. The ordinary means of vindication
is by the verdict of a judge or jury and an award of damages.‖203
An award of damages,
however, does not necessarily procure vindication if we take as a starting point that to
―vindicate‖ means ―to clear, as from an accusation‖.204
The following view – although it
was expressed pre-UDA it remains valid – illustrates the confused picture that emerges
in this general area:
Vindication does not come from a finding that a publication is defamatory. To determine
that the publication reduces the plaintiff‘s standing in the eyes of the community itself does
nothing to restore the plaintiff‘s reputation in that community. Only a finding that what was
published is false can do so. This is recognised at common law in two ways. First, a finding
of falsity is implicit in a defamation verdict. Once the plaintiff has proved the imputation to
be defamatory, it is presumed to be false. In the law of New South Wales, however, there is
(at least outside the context of political discussion) no such presumption. Secondly,
recognising that the falsity of the imputation is inferred from the defamation verdict, the
damages awarded must be of an amount which, in the circumstances, is ―the minimum
necessary to signal to the public the vindication of the [plaintiff‘s] reputation‖.205
While the foregoing passage acknowledges that only a finding that what was
published is false can restore the plaintiff‘s reputation in that community, it is left to
implication and presumption to deliver that message. A question about the ―amount‖ of
damages in that passage is raised in the next section. A damages-centric approach to
vindication relies on an assumption that damages serve the vindicatory objective well,
although there is no empirical evidence to this effect.206
While an award of damages has
203 Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, Lord Bingham, at 1289. See
also Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, Windeyer J, at 150:
When it is said that in an action for defamation damages are given for an injury to the
plaintiff‘s reputation, what is meant? A man‘s reputation, his good name, the estimation in
which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it
cannot be measured as harm to a tangible thing is measured. Apart from special damages
strictly so called and damages for a loss of clients or customers, money and reputation are not
commensurables. It seems to me that, properly speaking, a man defamed does not get
compensation for his damaged reputation. He gets damages because he was injured in his
reputation, that is simply because he was publicly defamed. For this reason, compensation by
damages operates in two ways – as a vindication of the plaintiff to the public and as a
consolation to him for the wrong done. Compensation is here a solatium rather than a monetary
recompense for harm measurable in money. The variety of the matters which, it has been held,
may be considered in assessing damages for defamation must in many cases mean that the
amount of a verdict is the product of a mixture of inextricable considerations. One of these is
the conduct of and the intentions of the defendant, in particular whether he was actuated by
express malice.
204 Webster‘s Everyday Dictionary (2002), Random House, London, at 591.
205 New South Wales Law Reform Commission (October 1995), Defamation, Report No 75, Para 2.6
(references omitted, brackets in original, italics added).
206 Note the observation in NSWLRC Report No 75, above fn 205, Para 2.25, that ―there is no empirical
evidence about what plaintiffs and ordinary members of the public in New South Wales think about
the role of damages in defamation cases. In particular, we do not know if they perceive that
vindication is only possible through the medium of an appropriately substantial damages award‖
(italics in original).
354
traditionally been used as a vindication mechanism, damages awards on their own do
not properly serve to vindicate a defamed person nor do they fulfil the full vindicatory
potential in a defamation action.
4.4 Remedies in the UDA
Remedies, per se, as spelt out in the UDA are primarily confined to damages.207
Other
remedies are not excluded, by virtue of section 6(2).208
Under the UDA there is only
one cause of action for the publication of defamatory matter, even if more than one
defamatory imputation is carried by the matter.209
A single award for separate and
distinct defamatory imputations, however, ―may not console the plaintiff, or repair the
plaintiff‘s reputation or vindicate the plaintiff‘s reputation to the public for the
publication of any particular imputation.‖210
As mentioned above, one of the most significant reforms introduced in the UDA
was the imposition of a ―cap‖ on damages for non-economic loss.211
Although the UDA
prohibits exemplary or punitive damages,212
it also permits a court to order the
defendant to pay ―aggravated damages‖ that exceed the cap.213
While the introduction
of a cap may have served to deflate concerns about staggering damages awards,214
defamation litigation continues to be a high-cost pursuit for both sides.215
The cap itself
may have introduced a potential imbalance. It is arguable that the cap may in some
circumstances be inimical to vindication on the basis that ―[i]f an award of damages in a
defamation action is to fulfil its social purpose, it must be high enough to assuage the
hurt, indignation and desire for retribution which the plaintiff feels‖.216
Furthermore, an
207 Sections 34 and 35.
208 It provides that the Act does not affect the operation of the general law.
209 Section 8.
210 George (2006), above fn 76, at 406.
211 Section 35(1) provides that the maximum amount of damages for non-economic loss is $250,000 or
any other amount adjusted in accordance with this section.
212 Section 37.
213 Section 35(2). The circumstances that may attract such damages include: (a) the falsity of the
defamatory imputations; (b) the manner and extent of the publication; (c) defendant‘s malice
towards the plaintiff; (d) the defendant‘s failure or refusal to apologise; and (e) the defendant‘s
conduct of the litigation: see George (2006), above fn 76, at 384-387.
214 The highest award in Australian defamation history was $2.5 million decided by a jury in Erskine v
John Fairfax Group Pty Ltd, 6 May 1998, NSW Supreme Court, Unreported. The award was subject
to an appeal and eventually settled for an undisclosed sum: see George (2006), above fn 76, at 406.
215 See discussion under heading 4 above.
216 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, McHugh J, at 105 (italics added). In the
same case Brennan J also noted the importance of a ―sufficient‖ award (at 69-70). New South Wales
Law Reform Commission (August 1993), Defamation, Discussion Paper No 32, Para 2.9 similarly
noted: ―The size of the verdict is important in determining the extent of vindication.‖
355
award of damages may even be considered inadequate, no matter how substantial the
size of the award.217
Weir usefully sums up the predicament posed by a reliance on
damages as a sole remedy in defamation:
The defects of the present law arise because it uses a single remedy, the action for damages,
in order to perform three distinct purposes; (a) to permit people to clear their reputation
from unfounded allegations; (b) to allow people to claim compensation for the harm they
suffer because others have abused their freedom of speech, and (c) to repress gratuitous
vituperation, scurrilous disparagement and malignant calumny. Only for (b) is damages the
appropriate remedy. For (a) we need a procedure for retraction or correction, and for (c)
we need the public stocks.218
To reaffirm the point in the present argument, the defect that needs to be
addressed is the over-reliance, in an action for defamation, on an award of damages to
clear reputations from unfounded allegations. This is discussed further in the next
section.
4.5 Inadequate attention to corrections
In keeping with the thrust of the present argument that insufficient heed has been paid
to vindicatory measures in the scheme of defamation remedies, this discussion now
turns to the role of the correction, retraction, apology or clarification. For convenience
these terms, although they bear distinctions,219
will be collectively referred to as
―corrections‖. Given the nature of news production220
it is a truism that media
publications are vulnerable to error. Demands for corrections are a concomitant of
media publication activity. The media, however, is not always responsive to correcting
217 See also O‘Donnell M (December 2003), ―Preposterous trickster: myth, news, the law and John
Marsden‖, Vol 8 No 1 Media and Arts Law Review 282, at 283, quoting John Marsden speaking
after a defamation verdict in his favour:
Although I have won, I have lost…No amount of money can compensate the anguish, the pain
and the humiliation of the past few years. No sum will restore me in any way to the position I
was in before these outrageous, false and homophobic allegations. I will remain forever tainted
by the false claim that I was a pederast.
218 Weir T (1992), A Casebook on Tort, 7th Edn, Sweet & Maxwell, London, at 511 (italics added,
punctuation errors in original). Note also NSWLRC Discussion Paper No 32, above fn 216, Para 2.9:
Damages are inappropriate to restore a damaged reputation, and are not even designed to do so.
They are awarded to compensate for damage to reputation, to console the plaintiff, and to
provide an official recognition that the imputation made was defamatory and indefensible. This
latter purpose is referred to as ―vindicating‖ the plaintiff‘s reputation.…However, true
vindication can only occur if the award is widely publicised. Otherwise the perception of the
plaintiff by the public remains unchanged (italics in original, underlining added).
219 As noted in the Australian Capital Territory Community Law Reform Committee (1995),
Defamation, Report No 10, at 57, corrections include retractions, apologies or replies. A ―retraction‖
may be defined as a ―good faith publication of facts, withdrawing and repudiating the prior
defamatory statement‖. If it is accompanied by an expression of contrition, it is called an ―apology‖
whereas a ―reply‖ is the publication of the plaintiff‘s position.
220 For example, see the discussion in Chapter 3 heading 5 and its sub-headings, especially heading
5.3.2.
356
their mistakes. Kirby J, writing extracurially, stated the point strongly when he observed
that although the noose has tightened on unmeritorious defamation proceedings, ―a
cohort remains where people have been wronged by false and unfair defamation but are
kept out of redress by the pig-headedness of sections of the media refusing to redress
clear wrongs‖.221
Corrections have an important role to play in defamation actions and
this is reflected in the emphasis in the UDA on the offer of amends process.222
This is
especially so given the incidence of error223
and a general public distrust of the media.
224 There is also a perception that the media is averse to corrections.
225
221 See Kirby M (April 2007), ―Defamation – Comparative Law and Practice, Book Review,
Melbourne University Law Review‖ (Speech). Retrieved 6 February 2008, from
<http://www.hcourt.gov.au/publications_05.html#MichaelKirby>
222 Part 3, Division 1. Overseas jurisdictions have actively promoted corrections: see NSWLRC
Discussion Paper No 32, above fn 216, Para 2.24-2.26. In the United States ―publishing a retraction
may effectively preclude a lawsuit in many instances‖: Overbeck W (2007), Major Principles of
Media Law, Thomson Wadsworth, Belmont, CA, at 153. See also NSWLRC Discussion Paper No
32, Paras 2.24-2.33. See also the observation in Pember DR (2003/2004), Mass Media Law,
McGraw-Hill, New York, at 131:
Three-fourths of all plaintiffs interviewed in the Iowa Libel Research Project said they would
never have filed a lawsuit if the news medium would have published or broadcast a correction,
retraction or apology. That solution sounds simple enough. But many editors and broadcasters
are reluctant to adopt a policy of routinely publishing corrections or retractions.
As a further illustration, journalist and academic Catherine Lumby wrote that after she had been
falsely accused, in a media publication, of spending ―very little time as a working journalist‖ she
considered that her professional reputation and the reputation of the degree she headed at the
University of Sydney was ―at stake‖. She said, however, that she ―had no interest in pursuing a
defamation action. All I wanted was an immediate correction‖: see Lumby C (2005), ―A model the
rest of the media would do well to adopt‖, Webdiary 9 September 2005. Retrieved 29 January 2008,
from <http://webdiary.com.au/cms/?q=node/788>
223 An Australian Centre for Independent Journalism survey for accuracy and correction policies reveals
that of the 300 prominent people interviewed, 77 per cent said there was an average of one or two
errors in each article published. According to this study, however, those who sought corrections
generally received them: see Conley and Lamble (2006), above fn 55, at 376.
224 It has been noted that ―the majority of Australians‖ do not trust newspaper journalists, talkback radio
hosts and television reporters to tell the truth: see Australian Press Council (October 2006), State of
the News Print Media in Australia, Report, Sydney, at 54. Australian Press Council complaints
statistics show further that in the 2006-2007 period one-fifth of the complaints received concerned
distortion, inaccuracy and misrepresentation: see ―Complaints Statistics 2006-2007‖. Retrieved 31
January 2008, from <http://www.presscouncil.org.au/pcsite/complaints/statistics/stats07.html#about>
225 A survey of senior US journalists has shown that nearly 40 per cent of respondents felt that ―many
factual errors were never corrected because reporters and editors were eager to hide their mistakes‖:
see Conley and Lamble (2006), above fn 55, at 375. An American Pew Research Centre study found
that in 2003, 62 per cent of Americans ―believed the press hid its mistakes instead of admitting
them‖: Conley and Lamble (2006), at 375. See further the observation cited in the same text, at 376
(reference omitted):
Although news organizations make their living pointing fingers and hurling accusations, they
are notoriously slow to fess up to their own mistakes. With varying degrees of stubbornness,
stupidity and arrogance, media executives often circle the wagons when their own actions
come under scrutiny.
See also Anderson DA (1992), ―Is Libel Law Worth Reforming?‖ in Soloski J and Bezanson RP
(eds) Reforming Libel Law, Guildford Press, New York, at 40:
For all the rhetoric about the adverse effects of libel law on speech, it is entirely possible that
media fear the chill of expensive litigation less than they fear the chill of more frequent
accountability. The former is a known evil, while the perils of the latter can only be guessed.
357
Correction orders offer a potentially powerful means of vindicating a plaintiff‘s reputation;
they involve the defendant being compelled to set right a statement defamatory of the
plaintiff, in a way that is calculated to reach the same audience as the original publication.
Such orders may also diminish the law‘s preoccupation with damages as the sole remedy
for defamation.226
Before the UDA was enacted ―a range of provisions aimed at encouraging
plaintiffs and defendants to take steps that would vindicate the reputation of plaintiffs,
where appropriate‖ were considered.227
These measures included a ―right of reply‖;228
―correction order‖;229
and ―apology‖.230
The States and Territories had proposed that on
finding that a defendant has defamed a plaintiff the court should have the power to
order the publication of a correction but that the defendant should have the option of
paying an appropriate sum by way of damages as an alternative to publishing the
correction.231
In the end, the UDA adopted the devices of the ―offer to make amends‖232
and the irrelevance to liability of ―apologies‖.233
These two mechanisms, however,
operate in the context of dispute resolution without litigation.234
In the context of
litigation, non-damages strategies in addressing defamation complaints under the UDA
arise only as ―factors in mitigation of damages‖. They are set out in section 38 and these
factors include: (a) that the defendant has apologised to the plaintiff;235
and (b) the
defendant has published a correction.236
The UDA does not specifically address the
problem of the defamation remaining ―uncontradicted in the public mind‖237
within the
litigation and remedies framework.
An Australian Senate inquiry has found ―substantial evidence to question the efficiency and
effectiveness of self-regulation and co-regulation in Australia‘s information and communications
industries‖: Senate Select Committee on Information Technologies (April 2000), In the Public
Interest: Monitoring Australia’s Media, Report, Para 6.1.
226 See the correction order proposal from the Commonwealth Attorney-General in the Revised Outline
of Possible National Defamation Law (July 2004). Retrieved 21 August 2007, from
<http://www.ag.gov.au/www/agd/agd.nsf/Page/Defamationlawreform_ReviewofDefamationLaw>, at 34.
227 See, for example, Revised Outline of Possible National Defamation Law, above fn 226, at 32.
228 In part such a provision would allow the plaintiff to request the offending medium to publish a reply
to the matter concerned, and the acceptance of such publication by the publication would be taken
into account when assessing damages: Revised Outline of Possible National Defamation Law, above
fn 226, at 32.
229 Revised Outline of Possible National Defamation Law, above fn 226, at 34.
230 One aspect of the proposal was that an apology would not constitute an admission of liability:
Revised Outline of Possible National Defamation Law, above fn 226, at 33.
231 Standing Committee of Attorneys-General (SCAG), ―Proposal for uniform defamation laws‖ (July
2004), SCAG Working Group of State and Territory Officers, Recommendation 19.
232 Part 3, Division 1, sections 13-19.
233 Part 3, Division 2, section 20.
234 The relevant ―part‖ – Part 3 – of the Act is entitled ―Resolution of disputes without litigation‖.
235 Section 38(1)(a).
236 Section 38(1)(b).
237 NSWLRC Discussion Paper No 32, above fn 216, Para 2.8. That paper also notes, Para 2.7:
358
Reform literature is rich with discussion on alternative remedies, that is, remedies
other than an award of damages.238
It would be impracticable to fully examine these
discussions here.239
It may be noted, however, that while the NSW Law Reform
Commission briefly considered ―corrections‖ in the context of injunctions, it opted to
leave that to the equitable jurisdiction of the courts rather than propose a statutory
provision.240
On the other hand, the WA Law Reform Commission observed three
decades ago: ―In its (the Commission‘s) view, a correction order, as a supplementary
remedy, coupled with a more streamlined procedure, could more effectively reduce the
damaging impact of a defamatory publication.‖241
The point was reaffirmed in the same
jurisdiction more recently:
After weighing these competing arguments, on balance, consistent with our focus upon
vindication of reputation, we recommend that the court should be given power to direct
publication of a retraction and/or correction in terms to be settled by the court. The court
should be given the power to defer the award of damages until after such a correction and
apology has been published or the defendant has declined to publish such a retraction and
apology.242
4.5.1 Case for court-ordered corrections
This thesis broadly supports a stronger role for alternative non-damages remedies, but
focuses on corrections and, in particular, advocates a clear role for court-ordered
corrections as a defamation remedy. As seen above, vindication is a critical objective of
defamation and people ―resort to the law because they want a way to vindicate their
reputations‖ – only a minority of people suing for defamation are ―primarily interested
in getting money‖.243
The present remedies scheme, however, is primarily damages-
Defaming a plaintiff involves altering the perception of that person by others. Reputation can
only be restored if the perception of the plaintiff by others is altered again.
238 See, for example, NSWLRC Discussion Paper No 32, above fn 216, Chapter 2; NSWLRC Report
No 75, above fn 205, Chapter 6; Western Australia Law Reform Commission (1979), Report on
Defamation, Project No 8, Chapter 19; and ACT Community Law Reform Committee Report No 10,
above fn 219, at 57ff.
239 The NSW Law Reform Commission in a consideration of alternative remedies gave detailed
attention to the ―declaration of falsity‖ and, it also considered injunctions and accounts of profits.
The Commission made eleven recommendations on the declaration of falsity: NSWLRC Report No
75, above fn 205, Chapter 6, see especially Recommendations 10 to 20.
240 NSWLRC Discussion Paper No 32, above fn 216, Para 6.55.
241 WALRC Project No 8, above fn 238, Para 19.2 (italics added).
242 WA Defamation Law Committee report, above fn 135, Para 56; Recommendation 25 (italics added).
243 Solove DJ (2007), The Future of Reputation: Gossip, Rumour, and Privacy on the Internet, Yale
University Press, New Haven, at 122. The author cites a study, which shows that ―only 25 per cent‖
of people suing for defamation are interested in damages. Note also a High Court judge‘s
observation that the ―real reason why plaintiffs bring actions for defamation‖ is to ―hit back at their
defamers. They want to punish them for the wrong that they perceive they have suffered. Only an
award of damages satisfies the hurt and resentment that the publication has caused‖: see McHugh J
(2005), ―Dancing in the streets – the defamation tango‖ (Paper), Australian Bar Association
Conference, Dublin, 29 June-2 July, at 28. Retrieved 8 February 2005, from
<www.hcourt.gov.au/speeches/mchughj/mchughj_2july05.pdf>
359
based and it does not provide for court-ordered corrections. As noted during Western
Australian parliamentary debate on the Defamation Bill 2005: ―If a matter goes to trial
and an offer to make amends does not work and no apology is made, it is possible for a
publisher never to offer an apology under this legislation.‖244
This renders the outcome
of a defamation action unsatisfactory because, to borrow the expression used above, it
leaves the defamation ―uncontradicted in the public mind‖.245
As the Australian Law
Reform Commission noted long ago: ―If it is not true he (the defendant) should correct
and be liable for damages for any injury not remedied by the correction.‖246
On this
view, the correction is the first port of call. Furthermore, the imposition of a damages
―cap‖ in the UDA without simultaneously safeguarding defamation law‘s vindicatory
objective may unfairly tilt the balance against plaintiffs where a sufficiently high
damages award is required to attain a proper vindicatory outcome.
4.5.2 Answering objections to court-ordered corrections
One objection to court-ordered corrections is ―the offer of amends procedure already
encourages publishers to promptly publish corrections‖.247
This is indeed so but the
offer of amends procedure is confined to the ―resolution of disputes without litigation‖
process whereas the present reform proposal is aimed at addressing the corrections
vacuum in the litigation outcome.
A second objection is that the UDA provides that publication of a correction can
mitigate damages.248
True, but again such corrections are voluntary.
A third objection is that ―a prompt and voluntary correction is preferable to a
court-ordered correction because court-ordered corrections will necessarily be made a
244 Hon Sue Walker, Defamation Bill 2005 (WA), Consideration in Detail, State Legislative Assembly,
Hansard, 15 September 2005, at 5485. The WA Attorney-General conceded during the debate that
the correction order was not pursued in the legislation because this was one of the aspects of the
legislation the legislators decided ―not to push‖ hard (at 5486; see also fn 270 below).
245 See text accompanying fn 237 above.
246 Australian Law Reform Commission (1979), Unfair Publication: Defamation and Privacy, Report
No 11, Para 125. See further WALRC Project No 8, above fn 238, Para 19.4 (reference omitted,
italics added):
It is important to emphasise, however, that a compulsory correction order would not mean that
such a remedy would be granted in every case where a plaintiff succeeds. What it means is that
where a plaintiff seeks such a remedy, and where a court agrees that the case is suitable for
such a remedy, compliance by the defendant should be compulsory.
247 Hon Jim McGinty, Defamation Bill 2005 (WA), Second Reading, Debate, State Legislative
Assembly, Hansard, 17 August 2005, at 4131. For a further discussion of the objections, see Hon
Jim McGinty‘s remarks in the WA Parliament, Defamation Bill 2005, Consideration in Detail,
Debate, State Legislative Assembly, Hansard, 15 September 2005, at 5490-5491. Mr McGinty noted
there that ―[a]lmost every submission received by the States and Territories rejected court-ordered
corrections‖ (at 5490).
248 Hon Jim McGinty, Defamation Bill 2005 (WA), Second Reading, Debate, 17 August 2005, at 4131.
360
considerable time after the original publication of the defamatory material.‖249
This
objection does not answer the present contention, which is concerned with corrections
that failed to come about voluntarily but which are deemed appropriate in achieving full
vindication of the plaintiff. Indeed, this objection reinforces the argument for the court-
ordered correction because such a correction will be able to take into account the
duration of the plaintiff‘s hurt.
A fourth objection is that ―media organisations are opposed to such court orders,
for example, on the basis of free speech and because there may be cases when a court
orders the publication of a correction and the real truth emerges some time later.‖250
In
response, it may be said simply that freedom of speech does not trump the publication
of falsity251
and that the mere publication of a correction does not estop the media from
re-visiting the subject when better information is in hand. It is arguable that the court-
ordered correction rather than inhibiting speech would actually promote it because it
would ―allow access to the media and promote a truly free marketplace of ideas.‖252
A fifth objection is that court-ordered corrections are ―not a real solution‖ and that
such an approach ―would effectively result in a double trial, one to try the defamation
action and a second to decide the necessity, substance and prominence of any order.‖253
This objection, however, lacks merit. The very purpose of instituting the correction
order mechanism is to vest in the court the power to issue such an order as one of the
remedies available to a plaintiff. It is not a bargaining point and therefore no question of
a separate trial should arise. In any event, the existing self-regulatory approach
envisages a vindicatory remedy that is not dissimilar. The Australian Press Council, for
instance, already acknowledges a role for corrections. The Council‘s complaints
249 Hon Jim McGinty, Defamation Bill 2005 (WA), Second Reading, Debate, 17 August 2005, at 4131.
250 Hon Jim McGinty, Defamation Bill 2005 (WA), Second Reading, Debate, 17 August 2005, at 4131.
251 NSWLRC Discussion Paper No 32, above fn 216, Para 2.76 notes:
This deliberate act of causing damage to an innocent plaintiff would justify the view that
freedom of the press is voidable in that particular case.
252 NSWLRC Discussion Paper No 32, above fn 216, Para 2.77.
253 See McKinnon K (2005), ―Court-ordered corrections not the answer‖ (Letter to the Editor), The
Australian, 24 March, at 12. Professor McKinnon, however, appeared to base his objections on
conjecture and rhetoric as seen in the subsequent paragraphs of his letter:
Can you imagine this being done without senior counsel in abundance? Can you imagine it
being done without the delays of the present defamation list. It would make a mockery of the
whole ―reform‖ process.
Other objections include: (a) to compel a defendant to publish a correction, with contents as
determined by a court, would prevent him/her from maintaining his/her stand and facing the
consequences in damages as he/she is able to do under the law; and (b) that readers of such a
correction might conclude that it is not necessarily a correction, but a notice that the defendant has
not on this occasion succeeded with the truth defence: see WALRC Project No 8, above fn 238, Para
19.3.
361
mechanism can lead to ―adjudications‖ – a judgement arrived at through a process less
rigorous than that observed by the courts. The Council‘s rules provide as follows in
respect of adjudications: ―Where the Council issues an adjudication, the publication
concerned should prominently print the adjudication.‖254
In short, the proposal for the
court-ordered correction in effect ―would involve pretty much what the Press Council
does, but with the power to make orders.‖255
A publication should make amends for publishing information that is found to be harmfully
inaccurate by printing, promptly and with appropriate prominence, such retraction,
correction, explanation or apology as will neutralise the damage so far as possible.256
Any argument that correction orders intrude upon freedom of speech must meet
the argument that such orders are made only ―after the court had found for the
plaintiff‖.257
Furthermore, ―it is difficult to understand why correction orders should be
regarded as intruding upon freedom of speech when their role is limited to rectifying
defamatory matter that was published by the defendant in the first place.‖258
The
254 See Australian Press Council, Statement of Principles. Retrieved 11 June 2008, from
<http://www.presscouncil.org.au/pcsite/complaints/sop.html>, Clause 9 (italics added).
See also Butler and Rodrick (2007), above fn 43, at 626 on this point. The authors also note:
The adjudication does not have to be printed verbatim, but where it is edited the conclusion
and spirit should remain clear and unchanged…The Council reviews the response to
adjudications and may take appropriate action where an adjudication has not been published,
either at all or with appropriate prominence, or has been misrepresented (italics added).
These, adjudications are also available on the council‘s website. The Press Council notes further on
its website:
Self-regulation works because the newspaper and magazine publishing industry is committed
to it. Throughout the last ten years, every critical adjudication against a mainstream newspaper
or magazine by the Council has been printed with due prominence.
(Retrieved 1 February 2008, from http://www.presscouncil.org.au/pcsite/about/benefits.html).
255 This view was expressed more than a decade ago in McLeod C (1994), ―Defamation in
transition‖, Australian Press Council News Vol 6 No 2. Retrieved 7 February 2008, from
<http://www.presscouncil.org.au/pcsite/apcnews/may94/defo.html>
256 See Australian Press Council, Statement of Principles, above fn 254, Clause 2 (italics added).
See further McKinnon K and Herman J (August 2004), ―Uniform Defamation Law‖, Australian
Press Council News, Vol 16 No 3, at 6, where the Council appears to have been agreeable to court-
ordered corrections in particular circumstances:
In the Council‘s view, such corrections should only arise where the parties have agreed to
mediation by the court and have agreed to abide by the court‘s determination.
257 As noted in NSWLRC Discussion Paper No 32, above fn 216, Para 2.76, a correction ―would not be
ordered until a finding was made that the defendant had published indefensible defamatory
material.‖
258 Revised Outline of Possible National Defamation Law, above fn 226, at 34. See also McHugh
(2005), above fn 243, at 42:
It is however difficult to see how such orders [correction orders] unfairly impinge on freedom
of expression, given that they are designed solely to repair the damage that has been done to a
reputation by a defamatory publication. The aim of restoring a damaged reputation will not, in
practice, be achieved through providing the publisher with the option of making a further
monetary payment instead of being required to actually attempt to correct the wrongful
publication that occurred.
362
introduction of court-ordered corrections would also hardly be novel in that similar
powers exist in other contexts.259
In any event, court-ordered corrections are just that – a
correction ordered by the court. The New South Wales Law Reform Commission has
noted the objection in principle to correction orders260
and has noted the following
potential solution:
This concern can be allayed by providing, for example, that defendants may state that the
correction is being published pursuant to a court order, and that defendants not be required
to state that they adopt the court‘s finding of fact.261
It is not suggested here that defendants be entitled to say that they do not adopt
the court‘s finding of fact, or indeed anything more than that the publication of the
correction is being done pursuant to a court order. Any obligation upon the media to
indicate that they accept the court‘s finding of fact would be unreasonable in light of,
for example, earlier argument that the court‘s own truth-certifying process is not
flawless.262
The proposal here is that media defendants who are required to publish a
court-ordered correction be permitted to say, without exposing themselves to any
adverse legal repercussions, that the correction is being published pursuant to a court
order. Such an approach would also not be inconsistent with the ―truth objective‖
generally.
A common, and old, criticism of defamation law is that ―the preoccupation with
damages as a remedy means that the purpose of restoring reputation is not achieved.‖263
The following concession reveals judicial helplessness, because it acknowledges that
were it not for the limited alternative remedies more appropriate vindicatory measures
might be pursued:
And it is necessary to have in mind that the plaintiff has no other way of achieving
vindication than by an award of damages. There is no power to force a defendant, by public
advertisement or letter or otherwise, to provide a vindication of the plaintiff. In the case of
defamation by a journalist or a newspaper, the common organs for vindication are within
their control. Damages, and the size of the award, are the only means which ordinarily are
259 WA Defamation Law Committee, above fn 135, Para 54. For instance, such powers enable the court
to order advertising to correct misleading or deceptive conduct under the Trade Practices Act 1974
(Commonwealth) and the Fair Trading Act 1987 (WA).
260 That is, that they ―intrude on the freedom of the press, the right not to publish being as important as
the right to publish‖ and that ―newspapers and broadcasters may be forced‖ to publish something
they do not believe to be true or which they do not agree with: NSWLRC Discussion Paper No 32,
above fn 216, Para 2.75 (italics in original).
261 NSWLRC Discussion Paper No 32, above fn 216, Para 2.75.
262 See Chapter 3, especially discussion under heading 4.
263 NSWLRC Discussion Paper No 32, above fn 216, Para 2.6; NSWLRC Report No 75, above fn 205,
Para 2.7.
363
available to attract the public or private attention involved in the vindication of the
plaintiff's position.264
Clearly, the availability of alternative remedies is a significant factor in
considering the quantum of damages.265
It has been observed that a legal system ―which
effectively promotes damages as the sole remedy in defamation is remedially crude.‖266
The inefficacy or inappropriateness of a damages award becomes more pronounced in
circumstances where the plaintiff is pursuing no more than a declaration that the
imputation is false or a setting straight of the record.
Nevertheless, in so far as one of the objects of a defamation action is to restore the
plaintiff‘s reputation, an award of damages is hardly the ideal remedy. An award, obtained
a long time after the initial publication – an award which may not itself receive publicity –
is unlikely, in practice, to restore a damaged reputation. Providing for alternative remedies,
such as a declaration of truth, right of reply or apology, would seem to be more adapted to
its purpose.267
On a final note, it may be that offers of corrections or published corrections may
not necessarily indicate falsity of the matter complained about ―when it is so often
difficult to determine the truth of defamatory statements.‖268
If this is the case it is likely
that the offending matter has not yet attained a defensible quality and in such a situation
the media should be free to re-visit the subject and present upon it after further
investigation.269
As noted above the UDA already recognises the important role of
corrections as a dispute resolution mechanism by encouraging voluntary corrections.
The main reason the legislators appear to have stopped short of court-ordered
corrections is one based, not on principle, but on expediency.270
As noted by the WA
264 John Fairfax and Sons Ltd v Carson (1991) 24 NSWLR 259, Mahoney JA, at 300. This passage was
cited with approval in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, Mason CJ, Deane,
Dawson and Gaudron JJ, at 69.
265 See John Fairfax and Sons Ltd v Carson (1991) 24 NSWLR 259, Mahoney JA, at 299.
What is necessary to vindicate a plaintiff depends, of course, upon the nature of the libel and
the circumstances in which it was published…I shall not attempt to analyse exhaustively what
is necessary to achieve vindication of a plaintiff. But three matters at least may be taken into
account by a tribunal in determining how large a sum is necessary for the purpose: the
allegation made; the respective positions of the plaintiff and the defendant; and the availability
of other remedies.
266 NSWLRC Report No 75, above fn 205, Para 2.20.
267 McHugh (2005), above fn 243, at 28-29.
268 Middleton KR and Lee WE (2007), The Law of Public Communication, Pearson Education Inc,
Boston, at 179.
269 The WA Law Reform Commission has noted that a defendant might believe in his/her sources but
may be unable to present sufficient admissible evidence to satisfy a court as to the truth: see
WALRC Project No 8, above fn 238, Para 19.3 fn 12.
270 The WA Attorney-General conceded during the debate that the correction order was not pursued in
the legislation because the ―view has been taken, in achieving national uniformity, not to push some
aspects hard in a particular direction; this was one of those aspects…I personally do not have a
problem with a court-mandated correction order, but it is one of those things…I guess we sacrificed
364
Law Reform Commission, however, to permit a defendant ―to choose whether to
publish a correction would amount to an offer to him to purchase, through payment of
damages, a licence to destroy another person‘s reputation.‖271
The reform proposed here
would take corrections to the next logical step by formally embracing them as part of
the remedial structure. A failure to publish such a correction in the face of a judicial
finding could be regarded as an aggravating feature in which case the existing UDA
provision on aggravated damages would be triggered.272
4.6 Reform recommendations
The reform recommendations under this heading are as follows:
Recommendation (a)
A court may order a defendant to publish a correction in a defamation action. Such an
order may be made as a sole remedy or a remedy in combination with other remedies.
Such an order may be made upon application by the plaintiff or in the court’s own
discretion without an application by the plaintiff.
Explanatory notes for Recommendation (a)
The foundations for this recommendation were laid above and in an earlier chapter.273
It
was noted that vindication is the ―chief purpose‖ in a defamation action;274
and that the
vindicatory function of damages has been undermined by the damages ―cap‖ imposed
under the UDA.275
It was further noted that it was ―arguable that true vindication can
only come about by ensuring that the defamatory material is neutralised by setting the
record straight.‖276
Other arguments for this recommendation included: (a) the
―inextricable confusion‖ that attends the assessment of damages;277
(b) the present
reliance on ―implication and presumption‖ to deliver the message that a publication is
some aspects a little as we proceeded with the attempt to achieve national uniformity on this issue‖:
see Hon Jim McGinty, Defamation Bill 2005 (WA), Consideration in Detail, State Legislative
Assembly, Hansard, 15 September 2005, at 5486.
271 WALRC Project No 8, above fn 238, Para 19.4.
272 See WA Defamation Law Committee report, above fn 135, Para 19.3 fn 9. Section 35(2) UDA
empowers the court to award aggravated damages.
273 See Chapter 1 (Introduction) heading 4.4.
274 See, for example, text accompanying above fn 179.
275 See text accompanying above fn 183 and above fn 216.
276 See discussion under heading 4.2.2 above.
277 See text accompanying fn 187 above.
365
false;278
(c) the recognition in theory that the appropriate remedy to permit people to
clear their reputation from unfounded allegations is ―a procedure for retraction or
correction‖;279
and (d) the present inadequate treatment of corrections.280
Further, the
case for court-ordered corrections was set out above.281
In short, the present
recommendation completes the range of remedies and entrenches it.
Recommendation (b)
In deciding whether to issue a correction order the court should consider relevant
factors including:
(i) the content of the proposed correction;
(ii) the nature of the complaint;
(iii) any previous offer of a correction by the defendant and the terms of that offer;
(iv) the prominence of the correction ordered to be published, including the location
of the correction within the publication concerned;
(v) the timing of the correction;
(vi) whether an audience substantially similar to the one to which the offending matter
was published would be reached; and
(vii) the reasonableness of the order in all the circumstances.
Explanatory notes for Recommendation (b)
Having established the justification for court-ordered corrections in recommendation (a)
above, recommendation (b) merely complements the former by setting out a range of
factors that the court may take into account in deciding whether to order a correction.
The factors set out here are not a closed list and they identify relevant – and obvious –
circumstances that may be taken into account. These factors, to some extent, reflect
those that operate in the pre-litigation stage.282
278 See discussion under heading 4.3 above.
279 See discussion under heading 4.4; see especially Weir‘s observation in the quotation accompanying
fn 218 above.
280 See discussion under heading 4.5.
281 See discussion under heading 4.5.1; and also discussion under heading 4.5.2.
282 See, for example, section 18 UDA.
366
Recommendation (c)
A refusal to comply with the court’s order to publish a correction may be viewed as a
grave breach and may therefore be treated as a contempt of court. It is recommended
further that recourse to a contempt action should not be taken lightly.
Explanatory notes for Recommendation (c)
Given that the nature of the remedy here is a court order the consequences of a failure to
comply – what is referred to as a ―disobedience contempt‖ – merely draws on the
conventional penalty.283
It also takes into account the view that such proceedings are to
be taken as a last resort measure.284
Recommendation (d)
The granting of a court-ordered correction should not prevent the defendant from re-
visiting the matter that was the subject of the complaint nor should it preclude further
publication on the subject matter complained of, if such publication is justified on the
basis of new evidence in relation to that subject matter. This, however, is not an open
invitation to the defendant to merely repeat the libel.
Explanatory notes for Recommendation (d)
This recommendation is aimed at acknowledging the media objection noted earlier that
court-ordered corrections undermine freedom of speech interests in circumstances
where ―the real truth emerges some time later‖.285
This recommendation accords
283 See Western Australian Law Reform Commission (June 2003), Review of the Law of Contempt,
Report No 93, Part IV, at 83:
A ―disobedience contempt‖ is contempt by disobedience to judgments and other orders of the
court including undertakings given by a party to the court, which at law have the same effect as
court orders.‖
The rationale for that penalty is that proceedings for criminal contempt vindicate judicial authority
and maintain the integrity of the judicial process in the public interest: see Butler and Rodrick
(2007), above fn 43, at 219; Attorney-General v Leveller Magazine Ltd [1979] AC 440, at 449.
Walker S (2000), Media Law Commentary and Case Materials, LBC Information Services,
Pyrmont, NSW, at 671, has stated:
A media organisation will be found guilty of a civil contempt of court for disobeying a court
order directed at the media organisation or for breaching an undertaking given to the court by
the media organisation.
284 See Australian Law Reform Commission (1987), Contempt, Report No 35, Part IV, Chapter 12, on
―disobedience contempt‖, Para 492:
There exists a wide range of enforcement procedures available to courts [to ensure compliance
with court orders], and among these is the age-old common law process of contempt.
Proceedings for contempt of court may be regarded as the ultimate enforcement mechanism
(italics added, reference omitted).
285 See discussion under heading 4.5.2 above, and especially the text accompanying above fn 250.
367
appropriate attention to the potential for ―new evidence‖ coming to hand after the
publication of a court-ordered correction that would justify the publication of the
defamatory material.286
Recommendation (e)
The defendant should be entitled to indicate, in the published court-ordered correction,
that they are publishing the order pursuant to a court order. In publishing such an
addendum to the correction order the defendant is not protected if the addendum in any
way casts doubt on the legitimacy of the order.
Explanatory notes for Recommendation (e)
This recommendation accommodates the plaintiff‘s interest in setting the record
straight, and it is consistent with the discussion above noting the inadequacies in the
vindicatory mechanisms of defamation law.287
This recommendation also makes clear
that the defendant is not at liberty to cast aspersions on the legitimacy of the order and
thereby eliminates the potential for a fresh defamation to occur where the media
defendant‘s accompanying response reiterates the defamatory material or constitutes a
contumelious disregard for the spirit of the court-ordered correction. In any event,
recommendation (d) above leaves open an avenue for the media defendant to more
properly re-visit the matter when it is better armed with evidence to support the
defamatory material concerned. Media defendants would be well advised to approach
the publication of a response accompanying a court-ordered correction with caution.
4.7 Model provisions
The model provisions here are set out in an order that corresponds with the
recommendations above.
286 Note also the observation in WALRC Project No 8 (see fn 238 above) where it was said that the
publication of a court-ordered correction might merely signify that it was not necessarily a correction
―but a notice that the defendant has not on this occasion succeeded with the truth defence‖ (italics
added).
Other objections include: (a) to compel a defendant to publish a correction, with contents as
determined by a court, would prevent him/her from maintaining his/her stand and facing the
consequences in damages as he/she is able to do under the law; and (b) that readers of such a
correction might conclude that it is not necessarily a correction, but a notice that the defendant has
not on this occasion succeeded with the truth defence: see WALRC Project No 8, above fn 238, Para
19.3
287 See, for example, discussion under headings 4.3 and 4.5 above.
368
Correction order
(a) A court may, whether upon application by the plaintiff or, if the plaintiff has not
made such an application, in its own discretion, order the defendant to publish a
correction either as a sole remedy or a remedy in combination with other remedies
in a defamation action.
Correction order factors
(b) In deciding whether to issue a correction order, and in what terms, the court may
consider any or all of the following non-exhaustive list of factors:
(i) the content of the correction to be published;
(ii) the nature of the complaint leading to the defamation action concerned;
(iii) any previous offer of a correction made by the defendant in relation to that
action, the terms of that offer and content of that correction;
(iv) the prominence of the correction to be published, including the location of
the correction within the publication concerned;
(v) the timing of the correction, including practical questions concerning
timing;288
(vi) whether an audience substantially similar to the one to which the offending
matter was published would be reached; and
(vii) the reasonableness of the order in all the circumstances.
Non-compliance with correction order
(c) A refusal to comply with the court‘s order to publish a correction may be treated
as a contempt of court.
Defendant not precluded
(d) Where a court orders that a correction be published, the granting of such an order
does not preclude the defendant from re-visiting the matter that was subject to the
complaint nor does it preclude further publication on the subject matter
complained of, if such publication is justified on the basis of new evidence in
relation to that subject matter. Where the defendant is found to have done no more
than repeat the earlier defamation in respect of which the defendant was found
288 To accommodate, for instance, exigencies concerning frequency of publication of the media outlet
concerned.
369
liable the court may take this into account in determining the award of damages in
the event of a fresh defamation action by the plaintiff.
Addendum to correction order
(e) Where the court issues an order for a correction the media defendant is permitted
to add the following words to the published correction order: ―This correction is
published pursuant to a court order.‖ In so doing the defendant is not protected if
the order contains other words that question the legitimacy of the order, its terms
or its contents.
4.8 Higher risk of failure
A further risk factor for the defendant lies in the reverberating consequences of a failure
of the defence. A defendant who relies on the truth defence and fails to prove the truth
of the matter loses the case and exposes themselves to the risk of higher damages.289
Failure inflates the damages ―on the basis that the defendant is not merely a defamer,
but a defamer who has persisted in the injury to the last.‖290
Levine J encapsulated the
proposition succinctly: ―The defendant always litigates that issue [the defence of
justification] at its peril.‖291
As noted further in Bell v Kingsbay Pty Ltd (No 2):292
A defendant never pleads justification without careful consideration. He should not do so,
unless he believes that he will have sufficient evidence at trial to prove the defence. One
factor which ensures careful consideration is that if the plea of justification fails, the
plaintiff is entitled to rely upon that fact in aggravation of damages.293
Tactically it might be unwise to advance a defence of truth because ―there is always the
risk‖ that the judge or jury will find opposing evidence more plausible ―and a failed
plea of justification could not only aggravate the damages, but could also be seen as
evidence of malice, thus destroying other defences such as fair comment or qualified
289 Armstrong et al (1995), above fn 18, at 31.
290 Robertson and Nicol (2002), above fn 8, at 115.
291 Marquard v Littlemore & Anor [1997], NSWSC, Unreported, 29 August, Levine J, at 11.
292 [2001] VSC 498.
293 Bell v Kingsbay Pty Ltd (No 2) [2001] VSC 498, Gillard J, Para 49 (authorities omitted).
See also Held v McGregor (1929) 41 CLR 254 and Broome v Cassell [1972] AC 1027, at 1125. See
further, Weir T (1992), above fn 218, at 508:
…if one tries to justify and fails, any facts proved may be relied on by way of mitigation;
counsel are therefore on their honour not to seek to justify unless they think they can succeed.
See further Robertson and Nicol (2002), above fn 8, at 166:
Placing a defence of justification on the record is a serious step: the media defendant takes
upon itself the task of proving that its allegations are true, thereby adding insult to the original
injury. A failed plea will mean heavier damages and much heavier costs.
370
privilege.‖294
The rationale for the law‘s discriminatory attitude towards defendants
contemplating the truth defence is unsustainable because it assumes a sinister motive in
the defendant‘s persistence. Defendants should not be penalised for deploying what they
consider to be their best defence. Whether that belief is justified is a matter for the trial
process and should not be forestalled by placing a prior handicap – the prospect of a
heavier penalty for failure – only because they chose to plead the truth defence. The
present inhibition on such a choice is also unjustified given the flaws in the courts‘ own
truth certification processes, discussed in an earlier chapter.295
It is inimical to the very
essence of the defamation action – an action that is not grounded in protecting
undeserved reputation – that a defendant should be discouraged from seeking to rely on
the truth defence.
4.9 Reform recommendation
The reform recommendation under this heading is as follows:
Recommendation (a)
Defamation defendants should not be discouraged from relying upon the truth defence.
Those who plead the truth defence should not be subject to any added risk of damages
resulting only from the fact that they failed to establish the defence of truth.
Explanatory notes for Recommendation (a)
The basis for this recommendation was discussed above.296
One argument was that
there is no justification for placing such a handicap on media defendants contemplating
the truth defence especially when, as established in an earlier chapter,297
the courts‘ own
truth-certifying process is flawed. The view that a defendant relying on the truth
defence is ―a defamer who has persisted in the injury to the last‖298
and should therefore
be subjected to stricter liability for failing in the defence is not sustainable and is ripe
for review.
294 Mitchell (2005), above fn 22, at 95. See further Sutcliffe v Pressdram Ltd [1991] 1 QB 153, Russell
LJ, at 193.
295 See Chapter 3 especially heading 4 and its sub-headings.
296 See discussion under heading 4.8.
297 Chapter 3 especially heading 4 and its sub-headings.
298 See text accompanying above fn 290.
371
4.10 Model provision
The model provision in respect of the above reform recommendation follows.
No added penalty for failing in truth defence
(a) Defamation defendants who plead the truth defence, and fail to establish the
defence, should not be subject to a higher damages award, by reason only of the
fact that they failed to establish the defence.
373
CHAPTER 10
The way forward
And once said it cannot be recalled.1
Laws frequently continue in force
Long after the circumstances which first gave occasion to them,
And which could alone render them reasonable,
Are no more.2
1. Introduction
The thesis set out to argue for reform of the truth defence in Australian defamation law.
This enterprise was driven primarily by the view that the Australian truth defence has
failed media defendants because of the strict demands that it imposes upon them.3 The
thirty recommendations made in this thesis are aimed at tempering that strictness.
Arguably the most significant of the reform recommendations is the one concerning
―burden reversal‖ made in Chapter 5. Under that recommendation, where a public
figure plaintiff sues a media defendant on a publication that constitutes a matter of
public concern, the plaintiff would shoulder the burden of the proving falsity of the
matter complained about rather than the defendant shouldering the burden of presumed
falsity.4 In advocating this approach, the ―cause‖ of truth is more firmly entrenched
given that the ―very conception of defamation involves the idea of falsity‖.5 The burden
reversal proposal in this thesis was modelled roughly along the lines of the Sullivan
decision in the United States of America, later judicial refinements and the work of the
New South Wales Law Reform Commission.6 In arguing for reform of the truth defence
this thesis has gone much further than merely drawing upon Sullivan. This thesis has
considered a broad range of issues confronting the truth defence and which unduly
1 (Et semel emissum volat irrevocabile verbum). Horatii Flacci (65–8 BC), Epistle XVIII, line 71, in
Long G and Rev Macleane AJ (eds) (1853), Bibliotheca Classica – Vol III Quinti Horatii Flacci
Opera Omnia, Whittaker & Co; George Bell, London, at 637 and 641.
2 Adam Smith (1723–1790), in The Wisdom of Adam Smith/Selected by John Haggarty, Liberty Fund,
Indianapolis, Indiana, 1976, at 108.
3 See Chapter 1 heading 1 (Introduction).
4 See Chapter 5 heading 4.1 and heading 4.2 Recommendation (a).
5 TA Street, Foundations of Legal Liability (1906), Vol 1, at 300, cited in Howden v “Truth” and
“Sportsman” Ltd (1937) 58 CLR 416, Evatt J, at 431; see Chapter 1 text accompanying fn 86.
6 On the last count see especially New South Wales Law Reform Commission (October 1995),
Defamation, Report No 75 and New South Wales Law Reform Commission (August 1993),
Defamation, Discussion Paper No 32.
374
discourage reliance on this defence.7 The very instrument that seeks to protect personal
esteem has itself been a victim of low esteem over the ages.8 One commentator, as
noted earlier, proposed that if we ―can do no better, honesty and efficiency demand that
we abolish the law of libel.‖9 And although defamation law has countenanced potential
demise,10
the approach taken in this thesis is that defamation law is not without utility or
any redeeming quality. Stewart J in the United States eloquently captured the
desideratum that this thesis acknowledges:
The right of a man to the protection of his own reputation from unjustified invasion and
wrongful hurt reflects no more than our basic concept of the essential dignity and worth of
every human being – a concept at the root of any decent system of ordered liberty.11
However, there is much to be said for resetting the equilibrium on the protection
of reputation/freedom of speech scale in recognition of the current burdens imposed by
the truth defence and the need to alleviate defamation law‘s unintended consequences:
The point of libel law is to protect the right to reputation…[However in] the first place,
without doubt it encourages, or compels, the media to be careful in its reporting…Put
shortly, libel law imposes a degree of discipline on the media. Secondly, it may be argued
that libel law civilises the standards of public discourse…Few would claim, however, that
the point of libel law is to discipline the media or to civilise the standards of public
discourse, let alone argue that these ends justify the complex body of law that has
developed over the last two hundred years.12
2. The truth defence and the reformer’s challenge
The outlook manifested in the following observation in Cory J‘s judgment in a
Canadian case illustrates one of the major challenges confronting the reformer:
I simply cannot see that the law of defamation is unduly restrictive or inhibiting. Surely it is
not requiring too much of individuals that they ascertain the truth of the allegations they
publish.13
We may leave to one side the inexorably dismissive response expressed there to
the view that defamation law is ―unduly restrictive or inhibiting‖. More to the point, for
7 See Chapters 7, 8 and 9 above.
8 See, for example, the discussion in Chapter 4 under heading 5.
9 See Chapter 4 text accompanying fn 57 citing Anderson DA (1992), ―Is Libel Law Worth
Reforming?‖ in Soloski J and Bezanson RP (eds) Reforming Libel Law, Guildford Press, New York,
at 2.
10 See Chapter 4 fn 64 citing the US Supreme Court decision in Rosenbloom v Metromedia (403 US
29) ―that almost abolished defamation law‖.
11 This observation from Rosenblatt v Baer, 383 US 75 (1966), at 92, was referred to in Chapter 4 text
accompanying fn 65.
12 Barendt E (1999), ―What is the point of libel law?‖, Vol 52 Current Legal Problems 110, at 112-
113.
13 Manning v Hill (A-G for Ontario & Ors, interveners) (1995) 126 DLR (4th) 129, at 169 (italics
added).
375
present purposes, is that the validity of the first of those statements is entirely
contingent on the validity of the second. The first statement is only valid if it were true
that requiring the ascertainment of truth before publication was not too much to ask of
individuals. The term ―ascertain‖ in its everyday meaning is ―to find out definitely‖.14
The meeting of such a requirement would be ideal. Practical reality, however, shows
that for as long as the meaning of truth itself remains amenable to conflicting
permutations, truth can hardly be ascertainable or definitive. The ―ascertainment of
truth‖ was the subject of examination in Chapter 3 and it entailed an inquiry into the
meaning of the term ―truth‖ itself. Among the main propositions emerging from that
examination were: (a) the fraught nature of the term ―truth‖ – analysed from the
standpoints of philosophy, the courts and journalism;15
(b) the judicial ambivalence
towards truth – it was not entirely clear that the search for the truth was a central
objective for the courts themselves to begin with;16
and (c) legal truth is beset by a
paradox, that is, legal inquiry is amenable to at least two potentially different (or
conflicting) truths – substantive truth (or ―actual truth‖) on the one hand and, on the
other, formal legal truth (which is created by the fact-finder).17
Indeed, it was argued
further that journalistic truth was more amenable to actual truth.18
As was argued
earlier, the former reflects the correspondence theory, which is ―at base simply the
proposition that when this or that happens, it really is so and that the statement
concerning it is true‖.19
The latter, however, reflects the coherence theory, which
measures truths by their ―fit‖ within a given system.20
It was never a plank of this thesis
that the truth defence should be unshackled to the extent that untruths are accepted as
truths. On the other hand, this thesis has demonstrated the unduly restrictive and
inhibiting nature of the truth defence.21
And importantly, it has proposed measures
14 Webster’s Everyday Dictionary (2002), Random House, New York.
15 Discussion under headings 2 to 6 and their sub-headings.
16 See, for example, discussion under heading 4.3 where ―several weaknesses that render truth a
casualty‖ in the judicial process was noted: see text accompanying fns 190 and 191.
17 See Chapter 3 text accompanying fn 449 and Chapter 8 text accompanying fn 20.
18 See the following statement in Chapter 3 text accompanying fn 454:
[J]ournalistic truth is more amenable to the correspondence theory than legal truth. This is
because, unlike legal truth which comes to rest at a fixed point in the trial process, journalistic
truth is open to review indefinitely and competing notions of the truth coexist until the
―ultimate truth‖ emerges.
19 Bankowski Z (1988), ―The Jury and Reality‖ (Chapter), in Findlay M and Duff P, The Jury Under
Attack, Butterworths: North Ryde, Sydney, at 8; see also Chapter 3 text accompanying fn 62.
20 Bankowski (1988), above fn 19, at 9 and 16. See also Chapter 3 text accompanying fn 86.
21 See, for example, Chapter 1 headings 1.1 and 1.2; Chapter 2 heading 4.
376
aimed at facilitating the discovery of truth while alleviating the chill on media
publication on matters of public concern.
3. Summary of the chapters
In pursuing the present enterprise this thesis identified certain goals. These were set out
in Chapter 1 and, briefly stated, the aim was to propose reforms to the Australian truth
defence so as to alleviate its strictness and thereby facilitate the media‘s ability to
publish on matters of public concern without being unduly constrained by the fear of
litigation.22
In pursuing the stated objectives this thesis considered the subject by
dividing the discussion into four parts. The meat of this thesis lies in Parts II and III and
it is convenient to recapitulate the contents of those two Parts.
Part II – A discussion of threshold issues
As a prelude to the discussion of matters going to the heart of this thesis two threshold
matters were identified in Chapters 2 and 3. The first threshold matter was the very idea
of freedom of speech and this was discussed in Chapter 2. The objective in that chapter
was to identify ―the conceptual locus of freedom of speech‖ in the context of this
thesis.23
Various justifications were set out there for the exposition on ―freedom of
speech‖ and it suffices to mention a couple – the centrality of freedom of speech in the
defamation discourse,24
and the close nexus between freedom of speech and the truth
theory in defamation law.25
An important point in Chapter 2 was the identification of
the ―discovery of truth‖ rationale for freedom of speech. That is, the argument that truth
can only be discovered if ideas are permitted to circulate freely regardless of the worth
of the ideas,26
or the famously cited ―marketplace of ideas‖ principle from Abrams v
United States.27
The approach taken in designing legal liability in this thesis has been
22 Heading 1 (Introduction).
23 See Chapter 2 heading 5.
24 See Chapter 2 text accompanying fn 3 citing Barendt E (1985), Freedom of Speech, Clarendon Press,
Oxford, at 314:
The treatment of libel actions is central to the application of the free speech principle (italics
added).
25 See Chapter 2 heading 1 (Introduction).
26 Chapter 2 text accompanying fn 156 citing Butler D and Rodrick S (2007), Australian Media Law,
3rd Edn, Lawbook Co, Pyrmont, NSW, at 7. That quotation from Butler is set out here in full for
convenience:
A second defence of free speech lies in the value of speech for the discovery of truth…The
argument is that speech should be protected because truth can only be discovered if there is a
circulation of all ideas, regardless of their perceived value at any given time.
27 Holmes J, dissenting (Brandeis J agreeing) in Abrams v United States 250 US 616 (1919), at 630.
For the full quotation see Chapter 2 fn 157.
377
more moderate. Rather than taking the view that truth can only be discovered if ideas
are permitted to circulate freely, the approach taken has been that truth can better be
discovered if ideas are permitted to circulate more freely in particular circumstances.
Those circumstances formed the basis of analysis and definition in Part III of this thesis.
Chapter 3 concerned another major threshold matter and its explication was
considerably more exacting. That chapter sought to examine the meaning of truth in
three discipline areas – philosophy, law and journalism. The meaning of truth in
philosophy was taken as the starting point given that discipline‘s ―illustrious tradition of
intellectual exercise‖28
in this area. Truth in the context of the latter two disciplines was
an obvious candidate for examination in the context of this thesis, given that the present
conflict revolves heavily around the differing approaches to truth taken in law and in
journalism. Among the main propositions emerging from that examination were: (a) the
term ―truth‖ defies a universal meaning that can be applied across the discourses,
disciplines and bodies of knowledge; and (b) neither the courts nor journalism can claim
a monopoly on being arbiters of the truth.29
This laid the groundwork for the arguments
set out Part III of this thesis for a reworking of the doctrinal calculus30
so that media
defendants in a defamation action were viewed more favourably in regards to the truth
defence.
Part III – A discussion of substantive issues
Chapters 4 to 9 examined a range of matters identified for reform attention and in that
sense these chapters went to the heart of this thesis. A summary of some of the key
concerns and recommendations in those chapters is set out here.
Chapter 4 set the stage for the ―ultimate objective‖ of this thesis – to recommend
specific measures aimed at re-positioning the fulcrum on the ―protection of
reputation/freedom of speech‖ scales. The aim was to attain a balance more
appropriately tuned to the public interest in freedom of speech, but to do so without
compromising the public interest in the protection of reputation against wrongful
damage, and the public interest in truth and accuracy in the media.31
28 See Chapter 3 heading 2.
29 See Chapter 3 heading 7.
30 This was the term used in Chapter 3 heading 7 (Conclusion) to refer to the notion of realigning the
boundaries between freedom of speech and the protection of reputation by relying on principles
recognised in defamation law.
31 Chapter 4 heading 7.
378
Chapters 5 and 6 were closely linked. The focus in the former was an argument
for arguably the most far-reaching of the reform proposals made in this thesis. That
argument, in a nutshell, was for a ―burden reversal‖ as between plaintiff and defendant.
More specifically, this burden reversal was to operate only where: (a) the complainant is
a ―public figure‖; (b) the matter complained about is a ―matter of public concern‖; and
(c) the action is against a media defendant.32
Whilst the meaning of ―media defendant‖
was dealt with in Chapter 5,33
it was left to Chapter 6 to explain the terms public figure
and matter of public concern and to define them.
Chapter 7 examined the difficulties surrounding the determination of the
defamatory meaning carried by the words complained of. The ascertainment of the
imputations conveyed by the defamatory material are, of course, a necessary
prerequisite to the establishment of the truth or falsity of that material, whether as part
of a cause of action or by way of defence. An examination of this ―fertile source of
dispute‖,34
locus of ―tactical skirmishing‖,35
and ―source of much complexity and
confusion‖36
resulted in a rudimentary housekeeping measure – a recommendation to
statutorily define the term ―defamatory imputation‖.37
While the discussion
acknowledged the great complexity that attends this aspect of the law, it was
recommended that the court‘s interventionist role in the determination of defamatory
meaning be more openly recognised.38
The most significant proposal in that chapter by
far was the argument advanced for a construction of defamatory meaning ―that
promotes freedom of speech rather than the protection of reputation.‖39
Chapter 8 examined the potpourri of truth defences available to a defamation
defendant but which were not fully captured in the UDA. The discussion included an
examination of various points of disagreement as to the content and scope of the
different truth defences, and even as to their availability.40
In respect of the defence of
substantial truth one major difficulty concerned the ambiguity afflicting the
32 Chapter 5 heading 1 (Introduction). See also heading 4.1 and heading 4.2 Recommendation (a).
33 See Chapter 5 heading 4.3 Recommendation (a) definition (iii).
34 Chapter 7 text accompanying fn 8 citing Gillooly M (1998), The Law of Defamation in Australia and
New Zealand, Federation Press, Sydney, at 34.
35 See Chapter 7 text accompanying fn 9 citing Robertson G and Nicol A (2002), Media Law 4th Edn,
Penguin, London, at 115.
36 See Chapter 7 text accompanying fn 23 citing George P (2006), Defamation Law in Australia,
LexisNexis Butterworths, Chatswood, NSW, at 241.
37 See Chapter 7 heading 3.2 Recommendation (a).
38 See Chapter 7 heading 4.4 Recommendation (a).
39 See Chapter 7 heading 4.4 Recommendation (b).
40 See, for example, the discussion concerning the Polly Peck and partial truth defences in Chapter 8
under headings 7 and 8, respectively.
379
determination of whether the element of substantiality is satisfied when a defence of
truth is pleaded.41
It was noted that a discretion for a strict or generous approach
operated where the distinction between what is and is not ―materially different‖ is
blurred.42
This ambiguity, of course, exposed the media to a disadvantage where the
court takes a clearly ―strict‖ approach.43
To address this difficulty it was recommended
that within defined circumstances this discretion be applied favourably towards the
media defendant.44
Another major difficulty identified in that chapter concerned the
failure of the UDA to fully reflect the other truth defences. As a result of that discussion
it was recommended that the contextual truth defence be widened so as to incorporate
the Polly Peck common sting principle.45
Chapter 9 considered three remaining problem areas for defendants pleading the
truth defence. The first concerned the difficulties defendants face as a result of strict
evidentiary rules.46
It was recommended that hearsay evidence be admissible within
certain confines.47
The second difficulty concerned the burden and standard of proof
defendants face. One difficulty concerned whether more than one standard of proof
applied.48
It was recommended that in a civil proceeding for defamation there should be
only one standard of proof.49
The third problem area concerned a combination of factors
that created serious financial ramifications for the defendant.50
It was noted there was an
over-reliance in the present defamation regime on the award of damages as a
vindicatory mechanism.51
It was noted further that it was not entirely clear that the
damages ―cap‖ introduced under the UDA produced the intended effect.52
A related
matter concerned the possible use of corrections as a vindicatory mechanism and the
unutilised potential for the reduction of damages by making a stronger vindicatory
mechanism available – the issuance of court-ordered corrections.53
It was recommended
41 See Chapter 8 text accompanying fn 43.
42 Chapter 8 text accompanying fn 46.
43 Chapter 8 heading 4.1.
44 See Chapter 8 heading 4.2 Recommendation (a).
45 See Chapter 8 heading 9 Recommendation (a).
46 Chapter 9 heading 2.1.
47 See Chapter 9 heading 2.4 Recommendation (b).
48 See Chapter 9 heading 3.2.
49 See Chapter 9 heading 3.3 Recommendation (a).
50 See Chapter 9 heading 4.
51 See, for instance, the discussion in Chapter 9 under heading 4.2.2.
52 See Chapter 9 heading 4. For example, it was noted that the tendency for multiple publications to
occur simultaneously on the same matter could result in the award of damages that far exceeded the
perceived damages cap: see text accompanying fn 130.
53 See Chapter 9 heading 4.5 and 4.5.1.
380
that a court be permitted to order a defendant to publish a correction as a sole or partial
remedy in a defamation action.54
4. Promoting UDA objectives
Australian defamation law reform has over the years attracted attention from law reform
commissions and similar entities.55
Where these reviews examined the truth defence
there was inadequate recognition of the onerousness of the truth defence and
consequently little or no attention was paid to alleviating the burdens imposed by this
defence. A golden opportunity for comprehensive reform was presented in the most
recent reform surge that produced the Uniform Defamation Acts. That reform exercise
was, however, tainted by considerations of ―pressure‖ on the States and Territories to
agree on reform under threat of Commonwealth intervention.56
4.1 The “freedom of speech” objective
The UDA declared a bold freedom of speech objective. The second of four stated
objectives in the statute provides:
The objects of this Act are…(b) to ensure that the law of defamation does not place
unreasonable limits on freedom of expression and, in particular, on the publication and
discussion of matters of public interest and importance…57
A preliminary discussion paper to the UDA provides some illumination of the
―freedom of speech‖ ideal as viewed by the Standing Committee of Attorneys-General
State and Territory officers working group. That document58
employs the expression
54 Chapter 9 heading 4.6 Recommendation (a).
55 Some such works were: (a) Western Australian Defamation Law Committee (September 2003),
Committee Report on Reform to the Law of Defamation in Western Australia; (b) NSWLRC Report
No 75, above fn 6; (c) NSWLRC Discussion Paper No 32, above fn 6; (d) Western Australia Law
Reform Commission (1979), Report on Defamation, Project No 8; (e) Australian Law Reform
Commission (1979), Unfair Publication: Defamation and Privacy, Report No 11; (f) Western
Australia Law Reform Commission (1972), Defamation: Privileged Reports, Project No 8(I); and (g)
New South Wales Law Reform Commission (April 1971), Defamation, Report No 11.
56 See, for example, the discussion in Chapter 1 under heading 6 where it was noted that ―considerable
pressure‖ afflicted the reforms, in particular the Federal Attorney-General‘s ultimatum to the States
and Territories to introduce uniform laws; that there were conflicts between interested parties; and
that ―sacrifices were made‖ in enacting the UDA. Also note the following concession in a Western
Australia Legislative Council standing committee report:
Members should be aware that this uniform defamation legislation is not an exhaustive or
exclusive legislative code on defamation law (see Standing Committee on Uniform Legislation
and Statutes Review, Defamation Bill 2005 (WA), Report No 4, 37th Parliament, October
2005, Item Appendix 4, at 29, italics added).
57 Section 3(b).
58 Standing Committee of Attorneys-General (SCAG), ―Proposal for uniform defamation laws‖ (July
2004), SCAG Working Group of State and Territory Officers.
381
freedom of expression (which for present purposes is the same as freedom of speech) on
seven occasions.59
It stated:
The law has long recognised, however, that the protection of reputation cannot be absolute.
Most importantly, it should not unreasonably limit freedom of expression, which is
essential for the proper functioning of democracy. This is why defamation laws allow
reputations to be impugned in certain privileged circumstances and each jurisdiction has
similar defences relating to truth, fair comment, absolute privilege and qualified privilege.60
The document identified the classic tension between freedom of speech and the
protection of reputation:
If the balance is tilted too far in favour of protecting personal reputation, the danger is that
the dissemination of information and public discourse will be stifled to an unhealthy
degree. Conversely, if it is tilted too far in favour of freedom of expression there will be
little to constrain people from lying, or exaggerating and distorting facts, and causing
irreparable harm to the reputations of individuals.61
This thesis has argued that the dissemination of information and public discourse
is being stifled to an unhealthy degree.62
In proposing reform, however, heed has been
paid to the danger of tilting the scale too far in favour of freedom of speech. It was
precisely in cognisance of this concern that it was recommended that in promoting
freedom of speech a distinction be made between public figures and matters of public
concern, on the one hand, and other types of plaintiffs and subject matter on the other.63
The same cognisance drove the recommendation for the ―no fault‖ defence64
and the
recommendation for court-ordered corrections.65
This thesis has spelt out some specific
ways in which the vaunted freedom of speech objective in the UDA may be better
achieved in respect of the truth defence.
59 The term used in the UDA objects clause above is freedom of expression but it means the same thing
for present purposes: see Chapter 2 heading 2.1
60 SCAG Working Group of State and Territory Officers, ―Proposal for Uniform Defamation Laws‖,
above fn 58, Part 2 (Preamble), at 6 (italics added).
61 SCAG Working Group of State and Territory Officers, ―Proposal for Uniform Defamation Laws‖,
above fn 58, Part 2 (Preamble), at 6.
62 See, for example, Chapter 2 heading 4.
63 Hence, for example, the ―tilt‖ is being confined to public figures and matters of public concern: see
Chapters 5 and 6.
64 See Chapter 5 heading 5.
65 See Chapter 9 heading 4.5 and its various sub-headings.
382
4.2 The truth defence reform “touchstone”
The SCAG Working Group of State and Territory Officers claimed that ―[t]he defence
of truth has been the touchstone of reform focus.‖66
Yet, save for the introduction of a
uniform truth and contextual truth defence, the UDA had little to offer by way of
reform. As noted in Chapter 4, the UDA introduced no new significant feature into the
truth defence apart from substituting the truth alone defence for the truth plus defence
in those jurisdictions, where only the latter had been available.67
The truth defence –
―the principal defence to defamation actions‖68
– has consistently failed to attract deeper
reform scrutiny. This is unfortunate especially given the need for the law to keep
abreast of changing conditions. As the Full Court of the High Court acknowledged in
Lange:
Since 1901, the common law — now the common law of Australia — has had to be
developed in response to changing conditions. The expansion of the franchise, the increase
in literacy, the growth of modern political structures operating at both federal and State
levels and the modern development in mass communications, especially the electronic
media, now demand the striking of a different balance from that which was struck in
1901.69
One explanation for why the truth defence has slipped under the reformers‘ radar
may be found in the view taken by the States and Territories Attorneys-General
working group that ―the reality is that truth is not in issue in the vast preponderance of
matters that are litigated. In practice, the issue is hardly ever relevant.‖70
That view, as
noted earlier, was roundly contradicted by a prominent bar association.71
Another
explanation for the absence of attention to substantive reform of the truth defence may
lie in the duress that accompanied the UDA‘s introduction.72
Thus, the opportunity for
66 SCAG Working Group of State and Territory Officers, ―Proposal for Uniform Defamation Laws‖,
above fn 58, Item 4.9.4, at 23, in the discussion preceding Recommendation 14 (italics added). This
was also referred to in Chapter 4 under text accompanying fn 15.
67 See heading 3.
68 ALRC Report No 11, above fn 55, Para 120 citing Gatley, 7th Edition.
69 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, Brennan CJ, Dawson, Toohey,
Gaudron, McHugh, Gummow and Kirby JJ, at 565 (italics added).
70 SCAG Working Group of State and Territory Officers, ―Proposal for Uniform Defamation Laws‖,
above fn 58, Item 4.9.4, at 23, in the discussion preceding Recommendation 14 (italics added). This
point was discussed in Chapter 5 under heading 2.
71 See Chapter 5 under heading 2 where the New South Wales Bar Association in its Submissions to
the Standing Committee of Attorneys-General Working Group of State and Territory Officers, July
2004 Proposal for Uniform Defamation Laws, stated: ―Truth is on very many occasions highly
relevant‖ (see full quotation accompanying fn 47).
72 On this point see especially the discussion in Chapter 1 discussion under heading 6 (Conclusion)
where it was noted, among other things, that the UDA was introduced amidst ―considerable
pressure‖, that it was ―probably defective‖, that it was a ―hodge-podge‖ that ―appears to have been
cobbled together in the east‖, and that it was based on ―the lowest common denominator‖.
383
achieving a truly ―historic milestone‖73
in the development of defamation law as
claimed by the States and Territories Attorneys-General, was missed.
5. Protecting freedom of speech
The cause of freedom of speech has been a recurrent premise for the arguments in this
thesis for a loosening of the shackles on the truth defence in defamation law. The
increased regard in which it is held among the governed in democratic society is driven
by utilitarian rather than hedonistic considerations:
Reputation, the cousin of respectability, is now regarded as less important than it was, since
one is not supposed to care what other people think. Freedom of speech, on the other hand,
is now regarded as more important than it was: to the utilitarian view that its effects are
good (―the truth shall make you free‖) is added the more modern hedonistic view that self-
expression is fun.74
Notwithstanding the ―freedom of expression‖ avowal in the UDA‘s objects
section, and for that matter, other freedom of expression avowals made from time to
time by legislators and the courts, the Australian free speech ideal lacks commitment,
much less formal recognition. It is said that the failure of the framers of the Constitution
to incorporate stronger individual rights protection in the Australian Constitution is a
stumbling block to a stronger recognition of freedom of speech.75
The absence of an
express freedom of speech provision in the Constitution is invoked as a basis upon
which to resist, for example, the robust freedom of speech protection found in the
United States. In particular, the difference in the ―conceptual foundation‖ for the US
and Australian approaches is cited as a justification for the Australian handicap.76
It is
73 See Chapter 4 fn 72 quoting Hon Jim McGinty, Defamation Bill 2005 (WA), Introduction and First
Reading, State Legislative Assembly, Hansard, 17 August 2005, at 4129.
74 Weir T (2000), A Casebook on Tort, 9th Edn, Sweet & Maxwell, London, at 520 (italics added).
See further Cusson v Quan [2007] ONCA 771, Sharpe JA (Weiler and Blair JJA agreeing), Para 122:
While evolution of the law of defamation has produced a variety of solutions in different
jurisdictions, the evolution away from the common law‘s traditional bias in favour of the
protection of reputation is strikingly uniform (italics added).
75 See, for instance, Williams G (2000), A Bill of Rights for Australia, UNSW Press, Sydney, at 12-13,
where the author notes:
Three things are clear. First, the basic rights and freedoms of Australians are not adequately
protected by the law. The lack of an Australian Bill of Rights reflects the views of the framers
of the Australian Constitution expressed in the 1890s that Australian did not need a Bill of
Rights because basic freedoms were adequately protected by the common law and by our
elected representatives. It is likely, nearly one hundred years after the Australian Constitution
came into force, that a Bill of Rights, either constitutional or statutory, would make a positive
contribution to modern Australia. It would enhance Australian democracy by expressing the
core rights of the Australian people, such as the right to vote and freedom of expression, as
well as promoting a sense of community involvement in these issues (italics added).
76 See the view expressed by Kirby J in Levy v The State of Victoria & Ors (1997) 189 CLR 579, at
637. That view noted in Chapter 5 fn 134, and reproduced here for convenience, is:
384
on that basis, for instance, that the ―public figure test‖ is argued to be inappropriate for
adoption in Australia – it is a creature of American defamation law.77
Turning to the
UK, the impact of the European Convention on Human Rights and the UK Human
Rights Act on the development of freedom of expression rights in the UK was noted in
an earlier chapter.78
However, the argument that such influences, because they originate
from foreign jurisdictions and against a backdrop of different historical, social and legal
conditions, should not be brought to bear upon the development of freedom of
expression rights in Australia soon runs into difficulty.
Among the common grounds cited for the reticence in borrowing from the
American approach is that American defamation law is set against a unique backcloth
of the American constitutional protection for free speech79
and the American civil rights
history.80
These arguments are, however, outweighed by the acknowledgement that
Australia has already accepted ―the same policy values relied on by the United States
Supreme Court in the line of cases beginning with Sullivan.‖81
It has been conceded that
despite differences between the Australian and American landscapes, the public figure
test ―embodies policy issues which are equally relevant to Australia‖.82
Likewise, any
similar objection to the adoption of advances in England runs into the difficulty that the
Article 10 freedom of expression provision in the European Convention83
virtually
mirrors Article 19(2) of the International Covenant on Civil and Political Rights, to
The conceptual foundation for the constitutional freedom of communication in Australia is
different from that derived from the First Amendment to the United States Constitution, as it
has been interpreted (italics added).
See also the view of Kirby J in Australian Broadcasting Corporation v O’Neill (2006) 229 ALR
457, at 489:
The uniform defamation law that came into force in Australia…like the Australian law before
it, rejects the extreme and semi-absolute protection of free speech and the free press that
prevails, for constitutional reasons, in the United States (references omitted).
Curiously Kirby J goes on to say, in the context of the issue at hand in the case:
None of this is to say that defence of freedom of speech and of a free press are not important
values of Australian law. They are. But they are not absolute (ibid, italics added).
To which might be added the observation that freedom of speech is not absolute in the United States
either. Furthermore Kirby J, at 490, distinguishes the Australian imperative by reference to a case
that recognised the legitimacy of a tort of privacy – Australian Broadcasting Corporation v Lenah
Game Meats Pty Ltd (2001) 208 CLR 199.
77 See above fn 76.
78 See Chapter 2 fn 32.
79 NSWLRC Discussion Paper No 32, above fn 6, Para 10.12. See also fn 76 above citing Kirby J‘s
view in Levy v The State of Victoria & Ors (1997) 189 CLR 579, at 637.
80 NSWLRC Discussion Paper No 32, above fn 6, Para 10.8.
81 NSWLRC Discussion Paper No 32, above fn 6, Para 10.16 (italics added).
82 NSWLRC Discussion Paper No 32, above fn 6, Para 10.1 (italics added).
83 The Article 10 ―freedom of expression‖ provision in the European Convention on Human Rights is
incorporated into English law by section 12, Human Rights Act 1998 (UK).
385
which Australia is a signatory. International law has been held to be ―a legitimate and
powerful influence on the development of the common law, especially when
international law declares the existence of universal human rights.‖84
In the writer‘s submission, the justification based upon the framers‘ omission of a
stronger free speech provision in the Constitution,85
or for that matter other common
justifications to resist special protection for freedom of speech, are no longer tenable.
Great strides have since been made in efforts to recognise basic rights, including
freedom of speech rights, through the common law86
and through a variety of
international instruments.87
As the Australian Law Reform Commission noted recently
in the context of privacy law reform: ―In the ALRC‘s view, the freedom of expression is
a fundamental tenet of a liberal democracy.‖88
The march towards introducing a Bill of
Rights or equivalent instrument, along with their freedom of speech protections,
continues steadily.89
And while it is ―understandable that many thoughtful people
consider that there is no need for a Charter [of Rights]‖ and that ―it is enough to rely
upon the common law‖, it is indisputable that ―[t]he common law has a patchy civil
84 Mabo v Queensland (No 2) (1992) 175 CLR 1, Brennan J, at 42.
85 See, for instance, Wilcox M (1993), ―An Australian Charter of Rights?‖, Law Book Co, Sydney, at
209-211. Wilcox, a former Federal Court judge, identifies the following as some of the reasons the
framers failed to adopt the American model: (a) the lack of a struggle against tyranny; (b) the
Australian attachment to the ideology of utilitarianism; (c) the decision to adopt a parliamentary
system of government with its tradition of parliamentary sovereignty; and (d) a fear that the
inclusion of a guarantee of equal protection could lead to the invalidation of colonial legislation that
denied various rights to non-Europeans (references omitted).
86 See, for instance, the seven major ―free speech‖ cases referred to in Chapter 2 fn 31. It may be noted
also that the courts not infrequently, in a miscellany of contexts, invoke freedom of speech as an
important ideal: see the contempt case, R v Armstrong [2007] WASCA 204, Martin CJ, Para 9:
Freedom of speech is one of the hallmarks of a democratic society. Its importance and the
public interest which requires the courts to minimise interference with freedom of speech has
been recognised in many cases (authorities omitted).
See also the ―privacy‖ case, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
(2001) 208 CLR 199, Kirby J, at 284:
For many years Australian courts, asked to grant an interlocutory injunction to restrain the
broadcast of discussion likely to be damaging to a plaintiff, have observed certain rules of
restraint. They have usually declined to provide such relief except in clear cases. They have
then done so with care, balancing protection of the individual against the public interest in
freedom of speech (italics added, references omitted).
87 See Chapter 2 fns 5 and 32.
88 Australian Law Reform Commission (September 2007), Review of Australian Privacy Law,
Discussion Paper No 72, Para 38.105.
89 For a discussion of failed attempts to bring about recognition of basic rights at federal level see
Williams (2000), above fn 75, at 27-34. The enactment of instruments akin to a Bill of Rights is
gaining momentum, however, at State and Territory level in Australia. Already the Australian
Capital Territory and Victoria have introduced such instruments while other jurisdictions are
planning similar moves. High Court judge Justice Michael Kirby has said that ―it seems unlikely that
the Australian legal system will be able to avoid this development for too much longer‖: (2007),
―ALJ@ 80: past, present and future‖ (Paper), 80th Anniversary of the Australian Law Journal,
Conference, 16 March, Sydney, at 29-30.
386
liberties record.‖90
That record also reveals occasional clumsiness.91
Furthermore,
particularly in light of the legislative responses globally towards the so-called ―threat of
terrorism‖, many encroachments, not all justified, have been made into individual rights
and liberties.92
Freedom of speech has been a notable casualty of such encroachments.93
As has been noted, with reference to the New Zealand Bill of Rights Act 1990 which
affirms a range of rights and freedoms, including a right of freedom of expression, in
the defamation context, a Bill of Rights may stimulate the development of the law in
two major ways: in the interpretation of the provisions of the relevant defamation
legislation; and in the evolution of the common law. 94
90 See Wilcox (1993), above fn 85, at 219.
91 Williams (2000), above fn 75, at 18, notes how Murphy J ―was not afraid to venture beyond the
accepted understandings of the Constitution‖ to find that ours is ―a Constitution for a free society‖ in
R v Director-General of Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369, at 388. This
approach drew ―stinging rebukes from other members of the Court‖, including from Sir Anthony
Mason, who nevertheless went on to join the ranks of High Court judges who found in the
Constitution an implied freedom of political communication. What this also revealed is the capacity
for what has been referred to in another context as ―a changed attitude within the High Court‖: see
Wilcox (1993), above fn 85, at 223.
92 Chief Justice Terrence Higgins (2004), ―Australia‘s First Bill of Rights – Testing Judicial
Independence and the Human Rights Imperative‖ (Speech), National Press Club, 3 March, at 6 noted
in clearly forceful terms:
In the fight against terrorism, truly draconian legislation has been passed which allows anyone
to be detained on the mere suspicion, held by the Attorney-General, that such detention will
―substantially assist the collection of intelligence‖ (italics added).
Justice Higgins noted further, at 13-14:
Various legislatures have passed enactments protecting various rights…But these measures,
even taken together, provide no protection of even some of the most basic human rights.
Political communication, for example, is strictly limited to political discussion – it does not
protect any wider freedom of speech, thought or communication…It is ludicrous to suggest
that our system provides for anything like a comprehensive scheme of rights protection
(references omitted).
See also Pearson M (July 2007), ―A review of Australia‘s defamation reforms after a year of
operation‖, Vol 29(1) Australian Journalism Review 41, at 50 where the author refers to the present
era as ―a time‖ when anti-terrorism laws, Freedom of Information exemptions and suppression
orders ―are all impacting on the reportage of important public issues‖.
93 See, for instance, the sweeping amendments to the country‘s sedition laws effected through Schedule
7 of the Anti-Terrorism Act (No 2) 2005 (Cth). In a subsequent review, the Australian Law Reform
Commission recommended that the term ―sedition‖ should be removed from the federal statute book,
and offences urging force or violence against the government or community groups should be
redrafted: see Australian Law Reform Commission (2006), ―‗Sedition‘ should go, focus on urging
violence: ALRC‖, Media Release, , 29 May. See further ALRC (May 2006), Review of Sedition
Laws, Discussion Paper No 71; and Fernandez JM (2005) ―Free speech and journalism: Australia
Joins the Race to Tighten Up‖, Vol XXXV No 1, Insaf, Malaysian Bar Journal 15.
94 Gillooly (1998), above fn 34, at 349. For the New Zealand freedom of expression provision see
section 14:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and
impart information and opinions of any kind in any form.
For similar moves in New South Wales, Victoria, Western Australia and at the Australian
Commonwealth level see Chapter 1 fn 39 and fn 40.
387
The closest Australia comes to a constitutional basis for freedom of speech is that
derived from the ―free speech cases‖.95
While the latitude available to Australia‘s High
Court is more limited than that which was available to the US Supreme Court, in both
jurisdictions the courts have engaged in varying degrees of interpretation of the relevant
constitutional provisions96
and have done so in the face of initial reservations.97
In
Australia, those reservations were overcome and the High Court has since resoundingly
endorsed the constitutional protection of freedom of political communication.98
The
perceived handicap posed by our constitutional history is no longer a legitimate excuse
for not taking a more resolute approach in reviewing the present doctrinal calculus,99
which places excessive burdens on the defamation defendant especially in respect of
true statements. Sadurski has summed up the argument:
If a legal system only protects true statements of fact, then it risks under-protecting true
statements (because some true statements will not find their way through to public
discourse if they are difficult to prove in courts, and consequently the speakers will exercise
‗self-censorship‘). The error that the system risks, is the error of under-protection for truth.
But in a system of relative protection for false statements (supported, as it is, by the
‗breathing space‘ argument), the risk is of providing over-protection for statements of fact,
as a result of which some false statements will receive protection. The decision to choose
the former legal regime over the latter must therefore rest upon a calculation that the error
of under-protection for truth is more damaging to the dominance of truth than a regime of
over-protection, reaching into the protection of falsity.100
95 See Chapter 2 fn 31.
96 See, for instance, Kirby J‘s view in Levy v The State of Victoria & Ors (1997) 189 CLR 579
extracted in fn 76 above.
97 See, for instance, the dissenting view of Douglas J in Gertz v Robert Welch Inc, 418 US 323 (1974),
at 356, where his Honour said no ―accommodation‖ between the law of defamation and the freedoms
of speech and press protected by the First Amendment can be ―proper‖ except those made by the
Framers [of the Constitution] themselves (italics added).
In Australia dissenting members of the High Court expressed a similar reservation in Theophanous v
Herald and Weekly Times Ltd (1994) 182 CLR 104. Dawson, Brennan and McHugh JJ disagreed
with the breadth of the principle advanced by the majority that freedom of political communication
was a necessary concomitant of a general principle of representative democracy or representative
government which permeated, or was ―enshrined in‖, the Constitution: see Chesterman M (2000),
Freedom of Speech in Australian Law: A Delicate Plant, Ashgate Dartmouth, Hants, England, at 17-
18. In Theophanous, McHugh J, at 195, said:
[T]he proposition that the institution of representative government is a part of the Constitution,
independently of its text and structure, giving citizens certain immunities from laws enacted by
the Commonwealth, the States and the Territories and the common law, is incorrect. At best
the proposition ―confuses the unexpressed assumptions upon which the framers of the
instrument supposedly proceeded‖ with the meaning to be derived from the text and structure
of the Constitution itself (references omitted).
McHugh J expressed a similar view in McGinty v Western Australia (1996) 186 CLR, at 140.
98 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Levy v The State of Victoria &
Ors (1997) 189 CLR 579.
99 A term borrowed from Magnusson RS (2001), ―Freedom of speech in Australian defamation law:
Ridicule, satire and other challenges‖ (2001) 9 Torts Law Journal 269 and first used in this thesis in
Chapter 3 under heading 7. The term ―doctrinal calculus‖ is explained in Chapter 4 fn 67.
100 Sadurski W (1999), Freedom of Speech and Its Limits, Kluwer Academic Publishers, London, at 11-
12.
388
While Sadurski notes that error, one way or other, is inevitable, he also asks ―why
is it necessarily better for the pursuit of truth to err on the side of protection of falsity in
the design of legal liability?‖101
The justifications for such a design of legal liability
have been canvassed earlier.102
For present purposes, we may simply note: (a) the
presence of false propositions and errors facilitate rather than obstruct the attainment of
truth thanks to their collisions with each other; and (b) democratic polity needs free,
undeterred public criticism and perceptive, investigative media, and democracy is better
off with some falsehoods in the context of speech about public figures in connection
with their role in governance.103
Without freedom of speech for the media, freedom of
speech ―would be a hollow concept.‖104
As usefully summed up by eminent freedom of
speech scholar Professor Eric Barendt:
Historically the most durable argument for a free speech principle has been based on the
importance of open discussion to the discovery of truth. If restrictions on speech are
tolerated, society prevents the ascertainment and publication of accurate facts and valuable
opinion.105
6. Relevant ongoing developments
A modicum of optimism about what the future holds in regards to freedom of speech is
palpable even in media circles.106
With a change of government at Commonwealth level
in late 2007, the push for stronger protections for freedom of speech and the
introduction of a bill of rights have gained greater prominence in the national discourse.
This has partly been fomented by the new Commonwealth government‘s stated policy
101 Sadurski (1999), above fn 100, at 12.
102 See, for example, Chapter 2 discussion under heading 3.5.
103 Sadurski (1999), above fn 100, at 12.
104 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 622, cited with
approval in the Canadian case Cusson v Quan [2007] ONCA 771, Sharpe JA (Weiler and Blair JJA
agreeing), Para 86.
105 Barendt E (2007), Freedom of Speech, Oxford University Press, Oxford, at 7. See also Chapter 2 text
accompanying fn 154.
106 The Federal Secretary of the peak national organisation for journalists, the Media, Entertainment and
Arts Alliance (MEAA) Chris Warren has stated whimsically that if the organisation‘s 2008 press
freedom report were a school report card it would read:
Could do better…Some positive signs started to appear before the end of last term…we hope
for a marked improvement next year (see Warren C (2008), ―Breaking The Shackles: The
Continuing Fight Against Censorship And Spin‖, Media, Entertainment and Arts Alliance
Report into the State of Press Freedom in Australia, Printcraft, Queensland, at 3).
The association representing the nation‘s newspaper publishers, the Australian Press Council, has
stated that the MEAA report is ―one of the best ways of gaining an overview of the current state of
press freedom‖: see Ryan I (May 2008), ―The fight goes on‖, Australian Press Council News, Vol
20 No 2, at 2.
389
in this area.107
One example of heightened national discussion in this area is the holding
of the Australia 2020 Summit in Canberra in April 2008 at which ―open and accountable
government‖ was accepted as one of the five ―priority themes‖108
by the ―the future of
Australian governance‖ stream.109
Among the proposals received as ―top ideas‖ from
this stream were that a statutory charter or Bill of Rights be introduced;110
that a Charter
of Free Speech be introduced;111
and that Freedom of Information laws be reformed.112
Of special relevance for present purposes is the acceptance as one of the ―top ideas‖ of a
suggestion for the burden reversal akin to the kind proposed in Chapter 5 of this thesis.
That idea, suggested by the author of this thesis,113
is phrased as follows in the summit‘s
final report:
Defamation laws should be reformed ―to shift the burden of proof‖. A public figure
alleging defamation would bear the burden of proving falsity.114
107 Australian Labor Party National Platform and Constitution 2007, Chapter Twelve – Ensuring
Community Security and Access to Justice No 61 (Retrieved 19 June 2008, from
<http://www.alp.org.au/platform/chapter_12.php#12privacy_and_free_speech>
All Australians enjoy the right to freedom of speech. However, this freedom must be exercised
in a manner that respects the individual and collective rights enjoyed by other Australians and
allows others to live free from violence, the fear of violence or the threat of violence. In
particular, Labor will:
* legislate for proper freedom of information laws that enable Australians to access
appropriate information about government activities;
* move to implement the ALRC recommendations on sedition laws;
* provide shield laws for protecting confidential sources and whistleblowers; and
* review laws that criminalise reporting of matters of public interest.
108 The five ―priority themes‖ are identified in the Australia 2020 Summit – Final Report (May 2008),
Department of Prime Minister and Cabinet, Barton, ACT, at 307. Retrieved 23 June 2008, from
<http://www.australia2020.gov.au/final_report/index.cfm>
109 That stream called the ―Future of Australian Governance‖ was one of ten. A total of 1000
individuals participated in the Summit with 100 individuals in each stream. The author of this thesis
was among the Summit participants.
110 Australia 2020 Summit – Final Report (May 2008), above fn 108, at 308.
111 Australia 2020 Summit – Final Report (May 2008), above fn 108, Item 9.18, at 310. That Charter
would ensure that: (a) no journalist would face criminal proceedings for publishing information they
receive from their sources in the official conduct of their duties (Item 9.18.1); the journalists‘ code of
ethics would be strengthened (Item 9.18.2); effective shield laws would be established to protect
journalists‘ confidential sources (Item 9.18.3); whistleblower protection would be respected and
strengthened (Item 9.18.4); and there would be a national commitment to protecting journalists and
media producers (Item 9.18.5).
112 Australia 2020 Summit – Final Report (May 2008), above fn 108, Item 9.17, at 310. It was
suggested that those reforms include: (a) abolishing conclusive certificates that enabled the blocking
of information from release (Item 9.17.2); and (b) the release of public service documents free of
charge if they should be released in the public interest (Item 9.17.6).
113 That is, the author of this thesis placed this idea before the Summit participants and it was debated
before being accepted for inclusion in the final report as a ―top idea‖. As with all ideas tendered at
the Summit individual proposers were not credited as sources of the idea.
114 Australia 2020 Summit – Final Report (May 2008), above fn 108, Item 9.40, at 312. The author‘s
original suggestion that this burden reversal be confined to matters of public concern did not gain
traction with the stream participants and was modified to matters of public interest but that
qualification is missing in the final report.
390
The Prime Minister has undertaken to provide a response by the end of 2008 to
recommendations made at the summit.115
For the time being those ideas remain just that
– ideas. The media for its part continues its crusade for the breaking of the shackles on
press freedom. The latest media report into the state of Australian press freedom notes
that apart from ―the scale and all-pervasive nature of legislative restrictions in both
private and public sectors‖ the ―ubiquitous spin also makes it increasingly difficult for
journalists to get through to the truth.‖116
This thesis offers a modest and realistic way
forward. The proposed path promises to dramatically enliven the Australian freedom of
speech landscape if it is adopted.
115 See Australia 2020 Summit – Final Report (May 2008), above fn 108, Introduction, at 2
116 Media, Entertainment and Arts Alliance (2008), above fn 106, at 3 (italics added). For a discussion
of the term ―spin‖ see Chapter 2 text accompanying fn 226.
391
APPENDIX
Model Provisions
The Model Provisions proposed in this thesis are set out here for convenience. For
the purposes of this Appendix these provisions are also numbered. These numbers
are located at the start of the heading for each Model Provision. Otherwise, the
numbering as they appeared within each chapter is retained so as to facilitate
reference to the respective chapters in which these provisions were suggested.
CHAPTER 5
Chapter 5 Heading 4.3
(1) Cause of action for public figure plaintiffs suing on matters of public concern
(a) Where the person suing for defamation is a ―public figure‖ and the matter
complained about is a ―matter of public concern‖ and the defendant is a ―media
defendant‖, the plaintiff – in addition to proving publication, identification and the
existence of defamatory matter – bears the onus of proving the falsity of the
defamatory matter as an essential ingredient of the cause of action.
Definitions:
(i) the term ―public figure‖ has the definition prescribed below;
(ii) the term ―matter of public concern‖ has the definition prescribed below; and
(iii) the term ―media defendant‖ means a defendant being either an individual or
corporate entity who is engaged in the publication of news and information.
(2) Matter not capable of being proved false
(b) Where the plaintiff is a ―public figure‖ who is seeking damages against a ―media
defendant‖ for speech on ―a matter of public concern‖ and the defamatory matter
concerned is not capable of being proved false by the plaintiff, the plaintiff does
not have a cause of action.
392
Chapter 5 Heading 5.2
(3) “No fault” defence
(a) It is a defence to the publication of defamatory matter involving a ―public figure‖
plaintiff and a ―matter of public concern‖ if it is proved that the ―media
defendant‖ was not at fault in respect of the defamatory publication.
(4) Fault factors
(b) In assessing the existence or otherwise of the media defendant‘s fault, the court
may take the following non-exhaustive list of factors into consideration:
(i) the seriousness of the allegation;
(ii) the source of the information;
(iii) the steps taken to verify the information;
(iv) any unreasonable obstacles to the flow of relevant information to the
―media defendant‖;
(v) the status of the information;
(vi) the urgency of the matter;
(vii) whether comment was sought from the claimant;
(viii) whether the article contained the gist of the claimant‘s side of the story;
(ix) the tone of the article;
(x) whether there was malice;
(xi) the timing of the publication;
(xii) whether the article was presented in a fair and balanced way;
(xiii) the quality of the sources relied upon;
(xiv) whether the party adversely depicted by the publication was given an
opportunity to comment on the allegations prior to publication; and
(xv) any applicable media professional practice codes.
(5) Flexible approach
(c) In considering the factors set out in clause (b) above the media defendant is not
required to meet all or most of the matters set out. The court should adopt a
qualitative rather than a quantitative approach, and apply a flexible test that also
takes into account the circumstances of news production in the particular case and
the broader interests of freedom of speech.
393
(6) Other defences available
(d) The ―no fault‖ defence does not preclude a ―media defendant‖ from relying on
any of the other available defences.
CHAPTER 6
Chapter 6 Heading 6
(7) Meaning of “public figure”
(a) Subject to model provision (b) a public figure refers to:
(i) any person holding ―public office‖ whether elected to that office or not;
(ii) any person who seeks a public profile;
(iii) any person who, while not actively seeking a public profile, is a willing
participant in the creation or promotion of that profile, or is a willing
participant in a public controversy or public debate; and
(iv) any person who by virtue of his or her office or calling exercises practical
power over the lives of people or influence in the formation of public
opinion or as role models.
For the purposes of this provision:
(1) the term ―public office‖ means any office whether in a government
department, agency or authority or any body over which a government
department, agency or authority exerts influence or control; and
(2) the term ―person who seeks a public profile‖ means a person who seeks or
fosters a media image, whether for profit or not, and does so by voluntarily
participating in events or engages in conduct that leads to media coverage
for that person.
(8) Factors relevant to “public figure” status
(b) In evaluating a person‘s public figure status the court shall have regard to the
following non-exhaustive list of factors:
(i) whether the plaintiff voluntarily participated in the public discussion of the
issue concerned. The plaintiff should not be considered a public figure by
reason only of the fact that he or she felt compelled to respond to
394
accusations against him or her or was otherwise involuntarily drawn into the
public discussion;
(ii) whether there was a genuine controversy involving people beyond the
immediate circle of participants;
(iii) whether the plaintiff‘s role in the controversy was real, and not merely
trivial or tangential;
(iv) whether the alleged defamation was relevant to the plaintiff‘s participation
in the controversy;
(v) whether the plaintiff benefited materially from public funds or goodwill in
the course of his or her involvement in the matter that is the subject of
public discussion; and
(vi) the effect of the passage of time on the person‘s public figure status.
(9) Meaning of “matter of public concern”
(c) A ―matter of public concern‖ refers to:
(i) matters of government and politics;
(ii) matters of ―public affairs‖ whether they concern matters or government and
politics or not;
(iii) matters that include discussion about the conduct, policies or fitness for
office of the public figure concerned;
(iv) matters that people may be legitimately interested in or concerned about;
and
(v) all speech relevant to the development of public opinion on the whole range
of issues which people should think about.
(10) Decision for judge
(d) Whether the requirements of the terms ―public figure‖ and ―matter of public
concern‖ are satisfied in a particular case should be decided by the judge.
(11) Broad reading
(e) The terms ―public figure‖ and ―matter of public concern‖ should be given a broad
reading that takes proper account of the importance of freedom of speech.
395
CHAPTER 7
Chapter 7 Heading 3.3
(12) Meaning of “defamatory”
(a) A publication is ―defamatory‖ which when considered against contemporary
community standards held by reasonable people taken in general:
(i) causes injury to a person‘s reputation by exposing that person to hatred,
contempt or ridicule; or,
(ii) is a false statement about a person to his or her discredit; or,
(iii) tends to make the plaintiff be shunned and avoided; or,
(iv) tends to lower the plaintiff in the estimation of right thinking members of
society generally; or,
(v) tends to cause others to think less of that person.
(13) Meaning of “defamatory imputation”
(b) The term ―defamatory imputation‖ refers to any act or condition asserted of or
attributed to a person that is capable of producing the effect or having the quality
or qualities identified in Recommendation (a) above.
Chapter 7 Heading 4.5
(14) Role of jury
(a) The court may order that defamation proceedings are not to be tried by jury where
it is clear that the matter can be resolved without reference to a jury‘s view of
community standards. Where the court deems that on the pleadings the words
concerned raise questions of community standards:
(i) a jury should be left to reflect those standards; and
(ii) the jury‘s findings should not be subject to appellate review except in a
demonstrable case of miscarriage of justice.
(15) Freedom of speech
(b) In construing defamatory meaning the court should prefer a construction that
promotes freedom of speech rather than the protection of reputation. For the
purposes of this clause the court may apply this rule flexibly so that the weight
396
accorded to freedom of speech interests is greater in the cases of ―public figures‖
and ―matters of public concern‖.
CHAPTER 8
Chapter 8 Heading 4.3
(16) Regard for efforts to establish truth
(a) Where a media defendant pleads the truth defence the court, in exercising its
discretion as to whether the defendant has established that the defamatory
imputations carried by the matter complained of are ―true in substance or
not materially different from the truth‖ may have regard to evidence of the
defendant‘s efforts to establish the truth of the matter complained about. For
this purpose the court may have regard to the factors identified in respect of
the ―no fault‖ defence.
(17) “Material difference” from the truth
(b) Where, on the facts, the distinction between what is or is not ―materially different
from the truth‖ is unclear and the action is against a media defendant, the courts
should prefer a construction that promotes freedom of speech rather than the
protection of reputation. For the purposes of this provision the court may apply
this rule flexibly so that the weight accorded to freedom of speech interests is
greater in the cases of ―public figures‖ and ―matters of public concern‖.
(18) Defence of substantial truth
(c) 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.
Chapter 8 Heading 9.1
(19) Defence of contextual truth
(a) It is a defence to the publication of defamatory matter if:
(i) the defendant proves that in addition to the defamatory imputations of which
the plaintiff complains, one or more other imputations (―contextual
397
imputations‖) are substantially true; and the contextual imputations do not
further harm the reputation of the plaintiff because of the substantial truth of
the contextual imputations; or
(ii) the plaintiff alleges several distinct defamatory imputations but there is a
common sting to them upon which the plaintiff does not expressly rely, then
the defendant may seek to justify the common sting and the plaintiff is not
entitled to restrict the defendant to justify the imputations selected by the
plaintiff.
(20) Partial truth a mitigating factor
(b) Evidence that the imputations complained of are partially true is admissible on
behalf of the defendant, in mitigation of damages for the publication of
defamatory matter.
(21) Public figure burden
(c) A ―public figure‖ plaintiff who is suing a ―media defendant‖ on a ―matter of
public concern‖ should bear the burden of proving the falsity of any contextual
imputations relied upon by the defendant
CHAPTER 9
Chapter 9 Heading 2.5
(22) Effect of defamatory matter on recipients
(a) Evidence that some recipients of the defamatory matter did not believe the matter
or that the matter did not cause them to think less of the plaintiff should be taken
into account at the point of consideration of whether the matter complained of was
defamatory rather than be left for consideration on the question of damages.
(23) Hearsay evidence
(b) In defamation proceedings hearsay evidence may be admitted and in considering
whether to admit that evidence the court may have regard to:
(i) the interests of justice;
(ii) the interests of freedom of speech;
(iii) the importance of the evidence in the proceeding;
398
(iv) the nature of the evidence;
(v) the purpose for which the evidence is tendered;
(vi) the probative value of the evidence;
(vii) the reason the evidence is not given by the person upon whose credibility
the probative value of such evidence depends, including the existence of
journalist-source confidentiality obligations and the potential of harm to the
confider if source-confidentiality was not upheld;
(viii) any prejudice to a party which the admission of such evidence might entail;
(ix) the nature and gravity of the defamatory publication concerned; and
(x) any other factor the court considers relevant.
Chapter 9 Heading 3.4
(24) Standard of proof
(a) The applicable standard of proof in a civil proceeding for defamation is proof on
the balance of probabilities and the court must find a media defendant‘s case
proved if it is satisfied that the case is proved on this standard.
Chapter 9 Heading 4.7
(25) Correction order
(a) A court may, whether upon application by the plaintiff or, if the plaintiff has not
made such an application, in its own discretion, order the defendant to publish a
correction either as a sole remedy or a remedy in combination with other remedies
in a defamation action.
(26) Correction order factors
(b) In deciding whether to issue a correction order, and in what terms, the court may
consider any or all of the following non-exhaustive list of factors:
(i) the content of the correction to be published;
(ii) the nature of the complaint leading to the defamation action concerned;
(iii) any previous offer of a correction made by the defendant in relation to that
action, the terms of that offer and content of that correction;
(iv) the prominence of the correction to be published, including the location of
the correction within the publication concerned;
399
(v) the timing of the correction, including practical questions concerning
timing;
(vi) whether an audience substantially similar to the one to which the offending
matter was published would be reached; and
(vii) the reasonableness of the order in all the circumstances.
(27) Non-compliance with correction order
(c) A refusal to comply with the court‘s order to publish a correction may be treated
as a contempt of court.
(28) Defendant not precluded
(d) Where a court orders that a correction be published, the granting of such an order
does not preclude the defendant from re-visiting the matter that was subject to the
complaint nor does it preclude further publication on the subject matter
complained of, if such publication is justified on the basis of new evidence in
relation to that subject matter. Where the defendant is found to have done no more
than repeat the earlier defamation in respect of which the defendant was found
liable the court may take this into account in determining the award of damages in
the event of a fresh defamation action by the plaintiff.
(29) Addendum to correction order
(e) Where the court issues an order for a correction the media defendant is permitted
to add the following words to the published correction order: ―This correction is
published pursuant to a court order.‖ In so doing the defendant is not protected if
the order contains other words that question the legitimacy of the order, its terms
or its contents.
Chapter 9 Heading 4.10
(30) No added penalty for failing in truth defence
(a) Defamation defendants who plead the truth defence, and fail to establish the
defence, should not be subject to a higher damages award, by reason only of the
fact that they failed to establish the defence.
400
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