Making The Truth Defence in Australian Defamation Law More ...

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



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



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



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



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


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



3. Defendant’s burden and standard of proof 334

3.1 Different standards of proof 334

3.2 A third standard of proof? 336



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



4.8 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

xxv

PART I –

PRELIMINARY

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).


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‖.

http://www.austlii.edu.au/cgi-bin/disp.pl/au/other/media/Australian%20Law%25reform/News%20limited%25submission%20Defamation



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:


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.



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:

http://www.uow.edu.au/arts/sts/bmartin/pubs/98il/il06.html

http://www.crikey.com.au/media/2002/06/09-hugodefo.html


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.


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:

http://www.abc.net/mediawatch/transcrip/s1677791.htm

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.


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.

http://news.bbc.co.uk/1/hi/uk/1448075.stm

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,

http://www.austlii.edu.au/au/other/nswlrc/reports/75/

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.

http://www.alrc.gov.au/submissions/ALRCsubs/2006/1603.htm

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.



JJ, at 131.


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).

http://www.onlineopinion.com.au/view.asp?article=4971

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).


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.


109 Ruehl P (2004), ―To tell the truth, these laws are screwy‖, Australian Financial Review, 30 March,

at 56.


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.

http://www.presscouncil.org.au/pcsite/apcnews/feb98/evan.html

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.


122 NSWLRC Report No 75, above fn 49 Para 2.35.


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.


JJ, at 134.


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‖.


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>

30

PART II –

THRESHOLD MATTERS

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


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).


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.


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.


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).


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.



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.


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.



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.


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.



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


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).


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


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).


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:


133 Chesterman (2000), above fn 17, at 308.




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.



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.


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



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.


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.


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

http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0250_0616_ZD.html

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.



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



169 WALRC Report No 93, above fn 69, at 21.



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).


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).


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)?



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


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).



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.


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).

http://www.comb.gov.au/commonwealth/publish.nsf/Content/research_speeches_2005

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.

http://static.townsvillebulletin.com.au/FreeSpeech/jointstatement.html

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.

http://www.presscouncil.org.au/pcsite/fop/fop_ar/ar05.html

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.


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.


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.


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.


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.



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.




75 Johnson (1992), above fn 4, at 40.

76 Johnson (1992), above fn 4, at 40 (italics in original).


78 Johnson (1992), above fn 4, at 40 (italics in original).


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



82 Schantz (2002), above fn 30, at 2 (italics added).


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.


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.



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).


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),


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.




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.


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).





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.


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).




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


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‖.

http://www.highcourt.gov.au/speeches/cj/cj_9feb07.pdf

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.



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.


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:


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).


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


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.


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.



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.


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.



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).



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.


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.


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.


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.


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.


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.



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.


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.


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>

http://www.smh.com.au/ethicscode/

http://www.spj.org/ethics_code.asp

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‖,

http://www.presscouncil.org.au/pcsite/about/members.html

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.


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>


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).


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).


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.


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


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.


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.


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.


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.


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.


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).


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.



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

http://www.newscorp.com/news_247.html

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.





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.


424 Kovach and Rosenstiel (2001), above fn 33, at 42:

136

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



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.


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).


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.


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.


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.


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.

http://www.innocenceproject.org/about/

http://www.innocencenetwork.org.uk/

http://www.griffith.edu.au/school/law/innocence/home.html

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,

http://media.guardian.co.uk/presspublishing/story/0,,1837578,00.html

http://www.crownoffice.gov.uk/News/Releases/2006/10/03113905

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.


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.


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.‖

146

PART III –

PROBLEMS AND SOLUTIONS

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.


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.


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.


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,


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.

http://www.presscouncil.org.au/pcsite/fop/fop_subs/def2001.html#defences

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).


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


JJ, at 128.


JJ, at 131


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.


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.


49 Weir (2000), above fn 48, at 520.


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


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.


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.


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.



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.


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.


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.


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.


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.


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).



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.


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.



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).


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.



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


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.



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.


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


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.





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


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.


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.

http://www.timesonline.co.uk/article/0,,28009-2398961,00.html


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


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.


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).


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.


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.

http://www.abc.net.au/rn/mediareport/stories/2008/2172534.htm

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.


The Model provisions here are set out in an order that corresponds with the


“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:




(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



(viii) whether the article contained the gist of the claimant‘s side of the

story;


(x) whether there was malice;




(xiv) whether the party adversely depicted by the publication was given an

opportunity to comment on the allegations prior to publication; and


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).


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.


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.


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


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.


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).


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).


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).


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.


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).


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


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


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.


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.


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


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.



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.


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.


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.


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.


JJ, at 124; Deanne J, at 179–180. See also Butler and Rodrick (2007), above fn 115, at 79.


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.


JJ, at 124.


JJ, at 124.


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.


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.


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.


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


156 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.‖


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.


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.


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.


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


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).


London, at 28.


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


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.



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>


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.


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

/cgi-bin/disp.pl/au/cases/nsw/supreme%5fct/2000/1139.html?query=%28truth+or+justification%29+and+defence+and+defamation+and+%28media+or+newspaper+or+radio+or+television%29


http://www.lawlinks.nsw.gov.au/sc/sc.nsf/pages/sp_310899

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.


37 Ackland R (1999), ―The law and freedom of the media‖, 1 UTS Law Review 58.


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.‖


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.


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.



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.


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.


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.


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.


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.

http://www.parliament.wa.gov.au/web/newwebparl.nsf/iframewebpages/Bills+-+All

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.



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,


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


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.


81 [1996] 4 All ER 1008, Neill LJ, at 1011-1013.


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


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.


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.

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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‖.



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.


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).


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).


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.


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‖.


146 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, Mason and Jacobs JJ, at 641.



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.


157 George (2006), above fn 18, at 152-153.


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.


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.


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


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.



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.


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


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.


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.


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.


The model provisions here are set out in an order that corresponds with the


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.


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.


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.





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.


(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‖.



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.


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).


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.


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



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


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.



57 See section 4 UDA.


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.


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


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”.


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.




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.

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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).


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.


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


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.


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

http://www.minterellison.com/public/connect/Internet/Home/Legal+Insights/News+Alerts/NA+-+New+uniform+defamation+laws


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


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.


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.


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.




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.


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.


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.


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.


168 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Brennan CJ and McHugh J, at 529.


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.


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).



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.


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.


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.


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).


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.



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.


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,


228 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).


234 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, Miles CJ, at 21; see text

accompanying fn 72 above.


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.


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),


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.



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


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.


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


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.


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


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.


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.


285 See, for instance, Levine J‘s observation in the text accompanying above fn 233.


287 See Chapter 9 heading 4.2.1.

288 See especially Chapter 5 heading 4.

289 See especially Chapter 5 heading 4.

318


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


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.


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.


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.


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.


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.‖


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.


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



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.


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.



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


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



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.




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.


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








(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;


(x) any other factor the court considers relevant.


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.


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


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].

http://www.artslaw.com.au/LegalInformation/Defamation/DefamationLawsBeforeJan06.asp

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.


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‖.


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


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).


and Gaudron JJ, at 450.


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


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.


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.


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),


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.


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.



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/>

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


(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.


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

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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.


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.


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.


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,


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.


198 See also discussion under heading 4.2.2 above.


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.

http://ThomsonNXT4/links/Handler.aspx?tag=db451d784932eae50edeeafa1d897967&product=nswlr

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.


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.

http://www.presscouncil.org.au/pcsite/complaints/statistics/stats07.html#about

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.


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:

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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.


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).



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



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.


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.

http://www.presscouncil.org.au/pcsite/about/benefits.html

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).


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.


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



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.


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.


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.


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


279 See discussion under heading 4.4; see especially Weir‘s observation in the quotation accompanying

fn 218 above.


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.


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.


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.




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


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.


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.


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.


297 Chapter 3 especially heading 4 and its sub-headings.


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.

372

PART IV –

CONCLUSION AND

MODEL PROVISIONS

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.


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).


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).


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



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).


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.



45 See Chapter 8 heading 9 Recommendation (a).


47 See Chapter 9 heading 2.4 Recommendation (b).




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).


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


above fn 58, Part 2 (Preamble), at 6 (italics added).


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.


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


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).


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.


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


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


102 See, for example, Chapter 2 discussion under heading 3.5.


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.

http://www.alp.org.au/platform/chapter_12.php#12privacy_and_free_speech

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


(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:




(iv) any unreasonable obstacles to the flow of relevant information to the

―media defendant‖;

(v) the status of the information;



(viii) whether the article contained the gist of the claimant‘s side of the story;


(x) whether there was malice;




(xiv) whether the party adversely depicted by the publication was given an

opportunity to comment on the allegations prior to publication; and


(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


(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.


(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


(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.


(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


(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





398




(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;


(x) any other factor the court considers relevant.


(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.


(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


(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.


(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

BIBLIOGRAPHY

This bibliography is divided into three parts: Monographs; Articles, Speeches, Papers,

Submissions, Media Releases, Reports; and Law Reform Publications

MONOGRAPHS

Alexander L (2005), Is there a right of freedom of expression?, Cambridge University

Press: Cambridge

Anderson DA (1992), ―Is Libel Law Worth Reforming?‖ (Chapter), in Soloski J and

Bezanson RP (eds) Reforming Libel Law, Guildford Press, New York

Armstrong M, Lindsay D and Watterson R (1995), Media Law in Australia 3rd

Edn,

Oxford University Press, Melbourne

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

Australian Legal Dictionary (1997), Butterworths, Melbourne, Victoria

Australian Reference Dictionary (1991), Oxford University Press Australia, Melbourne,

Victoria

Author Unknown (2004), ―States propose libel law shake-up‖, The Weekend Australian

(AAP Report), 6-7 November, at 6

Author Unknown (2003), ―Hefty payout over under-age sex slur‖, The West Australian,

4 September, at 5

Bailey FG (1991), The prevalence of deceit, Cornell University Press, Ithaca

Baker B (2002), Newsthinking: The secret of making your facts fall into place, Allyn &

Bacon, Boston

Bankowski Z (1988), ―The Jury and Reality‖ (Chapter), in Findlay M and Duff P, The

Jury Under Attack, Butterworths: North Ryde, Sydney

Barendt E (2007), Freedom of Speech, Oxford University Press, Oxford

Barendt E (1999), ―What is the Point of Libel Law?‖, Vol 52 Current Legal Problems

110

Barendt E (1985), Freedom of Speech, Clarendon Press, Oxford

Barendt E, Lustgarten L, Norrie, K and Stephenson H (1997), Libel and the Media: The

Chilling Effect, Oxford University Press, Oxford

Belsey C (2002), Poststructuralism: A Very Short Introduction, Oxford University

Press, Oxford

401

Blackburn S and Simmons K (1999), Truth, Oxford University Press, Oxford

Blanshard B (1939), The Nature of Thought, Vol II, Allen & Unwin, London

Bollinger L (1986), The Tolerant Society: Freedom of Speech and Extremist Speech in

America, Oxford University Press, London

Borquez J (1993), ―Newsmaking and Policymaking: Steps toward a Dialogue‖, in

Media and Public Policy, Praeger, Westport, Connecticut

Bower GS (1923), A Code of the Law of Actionable Defamation, 2nd ed, Butterworth &

Co, London (also cited as Spencer Bower (1990), A Code of the Law of

Actionable Defamation with a Continuous Commentary and Appendices, 2nd

Edn,

Legal Books, Redfern, NSW)

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

Breit R (2007), Law and Ethics For Professional Communicators, LexisNexis

Butterworths, Chatswood, NSW

Bullock A, Stallybrass O and Trombley S (1988), Fontana Dictionary of Modern

Thought, 2nd Edn, Fontana Press, London

Burns LS (2002), Understanding Journalism, Sage, London

Burrows J and Cheer U (2005), Media Law in New Zealand, 5th

Edn, Oxford University

Press, Melbourne

Burton B (2007), Inside Spin: The Dark Underbelly of the PR Industry, Allen & Unwin,

Crows Nest, NSW

Butler D and Rodrick S (2007), Australian Media Law, 3rd

Edn, Lawbook Co, Pyrmont,

NSW

Butler D and Rodrick S (2004), Australian Media Law, 2nd Edn, Lawbook Co,

Pyrmont, NSW

Butler D and Rodrick S (1999), Australian Media Law, LBC Information Services,

Pyrmont, NSW

Campbell T (1994), ―Rationales for freedom of communication‖ (Chapter 2), in

Campbell T and Sadurski W (eds) Freedom of Communication, Dartmouth,

Sydney

Chesterman M (2000), Freedom of Speech in Australian Law, Ashgate, Hants, England

Chisolm R and Nettheim G (1992), Understanding Law, 4th

Edn, Sydney, Butterworths

Christians C, Fackler M, Rotzoll K and McKee K (2001), Media Ethics: Cases and

Moral Reasoning, 6th

Edn, Longman, Sydney

402

Commercial Television Industry, Code of Practice (July 2004), Free TV Australia,

Mosman, NSW

Conley D and Lamble S (2006), The Daily Miracle: An Introduction to Journalism, 3rd

Edn, Oxford University Press, South Melbourne, Victoria

Conley D (2002), The Daily Miracle: An Introduction to Journalism, 2nd

Edn, Oxford

University Press, South Melbourne, Victoria

Cook C, Creyke R, Geddes R and Hamer D (2005), Laying Down the Law, 6th Edn,

LexisNexis Butterworths, Chatswood, NSW

Crawford J and Opeskin B (2004), Australian Courts of Law, 4th

Edn, Oxford

University Press, South Melbourne

Crawford J (1993), Australian Courts of Law, 3rd

Edn, Oxford University Press, Sth

Melbourne

Davies N (2008), Flat Earth News, Chatto & Windus, London

de Beer AS and Merrill JC (2004), Global Journalism: Topical Issues and Media

Systems, 4th

Edn, Pearson, Boston

Devitt M (2002), ―The metaphysics of deflationary truth‖ (Chapter), in Schantz R (Ed),

What is Truth, Vol 1, De Gruyter, Berlin

Dixon O (1965), Jesting Pilate, and Other Papers and Addresses, Law Book Co,

Sydney

Eldridge J (1993), Getting the Message: News, truth and power, Routledge, London

Ethics Review Committee Report (1997), Ethics in Journalism, Media, Entertainment

and Arts Alliance/Australian Journalists‘ Association Section, Melbourne

University Press, Carlton South, Victoria

Fleming JG (1992), The Law of Torts, 8th

Edn, Law Book Co, Sydney

Friedlander EJ and Lee J (2004), Feature Writing for Newspapers and Magazines, 5th

Edn, Pearson Education, New York

Fromm E (1968), The Revolution of Hope: Toward a Humanized Technology, Harper &

Row, New York

Fuller J (1996), News Values: Ideas for an Information Age, University of Chicago

Press, Chicago

Gatley on Libel and Slander, 8th Edn (1981), Sweet & Maxwell, London

George P (2006), Defamation Law in Australia, LexisNexis Butterworths, Chatswood,

NSW

Gillooly M (2004), The Third Man: Reform of the Australasian Defamation Defences,

Federation Press: Sydney

403

Gillooly M (1998), The Law of Defamation in Australia and New Zealand, Federation

Press, Sydney

Gilmore G and Root R (1971), Modern Newspaper Editing, Glendassary Press,

Berkeley, California

Gupta A (1999), ―A critique of deflationism‖ (Chapter), in Blackburn S and Simmons

K, Truth, Oxford University Press, Oxford

Halsbury’s Laws of Australia, Service 112, Butterworths, Chatswood, NSW

Hartley J (1989), Understanding News, Routledge, London

Henningham J (1992), Issues in Australian Journalism, Longman Cheshire, Melbourne

Hintikka J (2002), ―What is truth? Stay for an answer‖ (Chapter), in Schantz R (Ed),

What is Truth?, Vol 1, De Gruyter, Berlin

Hocking J (1997), Lionel Murphy – A Political Biography, Cambridge University Press,

Cambridge

Holsinger R and Dilts JP (1997), Media Law, 4th

Edn, McGraw-Hill, New York

Horwich P (1990), Truth, Basil Blackwell, Oxford

Hunt D (1984) in Fricke G, Libels, Lampoons and Litigants, Hutchinson Publishing,

Hawthorn, Vic

James W (1999), ―Pragmatism‘s conception of truth‖ (Chapter), in Blackburn S and

Simmons K, Truth, Oxford University Press, Oxford

James W (1909), Pragmatism: A new name for some old ways of thinking, Longmans,

Green & Co, New York

Jean-Francois Lyotard (1984), The Postmodern Condition: A Report on Knowledge

(Translation by Bennington G and Massumi B), University of Minnesota Press,

Minneapolis

Johnson LE (1992), Focusing on Truth, Routledge, London

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

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

Kenyon AT (2006), Defamation – Comparative Law and Practice, UCL Press, Oxon

Kolbel M (2002), Truth without objectivity, Routledge, London

Kovach B and Rosenstiel T (2001), The Elements of Journalism, Three Rivers Press,

New York

404

Lawrence J (1992), ―The defamation industry‖ (Chapter), in Issues in Australian

Journalism, Longman, Cheshire, Melbourne

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

Lidsky LB and Wright RG (2004), Freedom of the Press: A Reference Guide to the

United States Constitution, Praeger, Westport, Conn

Ligertwood A (2004), Australian Evidence, 4th

Edn, Butterworths, Sydney

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>

Lynch MP (1998), Truth in context: An Essay on Pluralism and Objectivity, MIT Press,

Massachusetts

MacDougall CD (1968), Interpretative Reporting, 5th

Edn, Macmillan Co, New York

Macquarie Dictionary (2005), 4th

Edn, Macquarie University, NSW

Marsden J (2004), I Am What I Am, Penguin, Camberwell, Victoria

Martin B (1998), Information Liberation, Freedom Press, London

Masters M (2002), Not for Publication, ABC Books, Sydney, NSW

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

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

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

Mencher M (2000), News Reporting and Writing, 8th

Edn, McGraw-Hill, Boston

Merrill JC and Odell SJ (1983), Philosophy and Journalism, Longman Inc, New York

Merrill JC (1974), The Imperative of Freedom: A Philosophy of Journalistic Autonomy,

Hastings House, New York

Middleton KR and Lee WE (2007), The Law of Public Communication, Pearson

Education Inc, Boston

Millerson G (1964), The Qualifying Associations: A Study in Professionalism,

Routledge & Kegan Paul, London

405

Milmo P and Rogers WVH (2004), Gatley on Libel and Slander, 10th

Edn, Sweet &

Maxwell, London

Milo D (2008), Defamation and Freedom of Speech, Oxford University Press, Oxford

Mitchell P (2005), The Making of the Modern Law of Defamation, Hart Publishing,

Oxford

Morgan F (1998), ―What is Journalism?‖ (Chapter), in Journalism: Theory and

Practice, Breen M (ed), Macleay Press, Paddington, NSW

Newman J (1989), The Journalist in Plato’s Cave, Associated University Presses,

Cranbury, New Jersey

O‘Sullivan T, Hartley J, Saunders D and Fiske J (1992), Key Concepts in

Communication, Routledge, London

Overbeck W (2007), Major Principles of Media Law, Thomson Wadsworth, Belmont,

CA

Partridge E (1958), Origins: A Short Etymological Dictionary of Modern English,

Routledge & Kegan Paul, London

Patterson D (1996), Law and truth, Oxford University Press, Oxford

Patterson P and Wilkins L (2002), Media Ethics: Issues and Cases, 4th

Edn, McGraw

Hill, New York

Pearce DC and Geddes R (2006), Statutory Interpretation in Australia, 6th

Edn,

LexisNexis Butterworths, Chatswood, NSW

Pearson M (2007), The Journalist’s Guide to Media Law, 3rd

Edn, Allen & Unwin,

Crow‘s Nest, NSW

Pearson M (2004), The Journalist’s Guide to Media Law, 2nd

Edn, Allen & Unwin,

Crows Nest, NSW

Pember DR (2003/2004), Mass Media Law, McGraw-Hill, New York

Pierce JL (2006) Inside the Mason Court Revolution: The High Court of Australia

Transformed, Carolina Academic Press, Durham, NC

Pivcevic E (1997), What is Truth?, Ashgate, Hants, England

Robertson G and Nicol A (2002), Media Law 4th

Edn, Penguin, London

Ross S and MacFarlane P (1997), Lawyers’ Responsibility and Accountability: Cases,

Problems and Commentary, Butterworths, North Ryde, Sydney

Russell B (1999), ―William James‘s conception of truth‖ (Chapter), in Blackburn S and

Simmons K, Truth, Oxford University Press, Oxford

Russell B (1963), An inquiry into meaning and truth, Pelican, Middlesex, UK

Sadurski W (1999), Freedom of Speech and Its Limits, Kluwer Academic, London

406

Sanders A and Young R (1994), Criminal Justice, Butterworths, London

Schauer F (1982), Free Speech: A philosophical inquiry, Cambridge University Press,

Cambridge

Schultz J (1994), ―The paradox of professionalism‖ (Chapter), in Schultz J (ed), Not

Just Another Business: Journalists, Citizens and the Media, Pluto Press, Sydney

Sheehan P, (2003), The Electronic Whorehouse, Pan Macmillan, Sydney

Simone Weil (1978), The Need for Roots: Prelude to a Declaration of Duties Towards

Mankind, Routledge and Kegan Paul, London

Sim S (2005), The Routledge Companion to Postmodernism, 2nd

Edn, Routledge,

London

Sir William Blackstone (1783), Commentaries on the Laws of England, 9th ed., Book 4

Solove DJ (2007), The Future of Reputation: Gossip, Rumour, and Privacy on the

Internet, Yale University Press, New Haven

Stein A (2005), Foundations of Evidence Law, Oxford University Press, Oxford

Stephens M (2007), A History of News, 3rd

Edn, Oxford University Press, New York

Stovall JG (2005), Journalism: Who, What, When, Where, Why and How, Pearson,

Boston

Tapper C (2007), Cross & Tapper on Evidence, 11th

Edn, Oxford University Press,

Oxford

The Laws of Australia (1 July 2001), ―The Australian Press Council‖ Vol 6, Lawbook

Co, Pyrmont, NSW

The New Jerusalem Bible (1985), Doubleday, New York

The Oxford English Dictionary (1989), 2nd

Edn, Vol XVIII, Clarendon Press, Oxford

Thwaites T, Davis L, and Mules W (1996), Tools for Cultural Studies: An Introduction,

MacMillan Education, Melbourne

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

Tiffen R (1989), News and Power, Allen & Unwin, North Sydney, NSW

Tobin and Sexton (1990), Australian Defamation Law and Practice Bulletin, No 39,

September 2006

Tobin TK and Sexton MG (1999, Service 24), Australian Defamation Law and

Practice, Butterworths, Sydney

Tobin TK and Sexton MG (1999, Service 8), Australian Defamation Law and Practice,

Butterworths, Sydney

407

Tobin TK and Sexton MG (1999, Service 0), Butterworths, Sydney

Tobin TK and Sexton MG (1990), Australian Defamation Law and Practice,

Butterworths, Sydney (LexisNexis Online)

Twain M (1973) Mark Twain in Australia and New Zealand, Penguin, Blackburn,

Victoria

Twining W (1990), Rethinking Evidence: Exploratory Essays, Basil Blackwell, Oxford

Van Dijk TA (1988), News as Discourse, Lawrence Erlbaum Associates, Inc, New

Jersey

Vardy P (1997), What is truth?, UNSW Press, Sydney

Vines P (2005), Law and Justice in Australia, Oxford University Press, South

Melbourne, Victoria

Waight PK and Williams CR (1995), Evidence – Commentary and Materials, 4th

Edn,

LBC Information Services, North Ryde

Walker RCS (2002), ―A problem about truth‖ (Chapter), in Schantz R (Ed), What is

Truth, Vol 1, De Gruyter, Berlin

Walker S (2000), Media Law Commentary and Case Materials, LBC Information

Services, Pyrmont, NSW

Walters B (2003), Slapping on the Writs, UNSW Press, Sydney

Weaver RL, Kenyon AT, Partlett DF and Walker CP (2006), The Right to Speak Ill,

Carolina Academic Press, Durham, North Carolina

Webster‘s Everyday Dictionary (2002), Random House, London

Webster’s Third New International Dictionary (Unabridged) (1986), Vol III,

Encyclopaedia Britannica, Inc., Chicago

Weir T (2000), A Casebook on Tort, 9th






White S (2000), Reporting in Australia, 2nd

Edn, MacMillan, South Yarra

Whitton E (1998), The Cartel: Lawyers and Their Nine Magic Tricks, Herwick, Glebe,

NSW

Wilcox M (1993), ―An Australian Charter of Rights?‖, Law Book Co, Sydney

Williams G (2000), A Bill of Rights for Australia, UNSW Press, Sydney

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

408

ARTICLES, SPEECHES, PAPERS, SUBMISSIONS, MEDIA RELEASES,

REPORTS

―ABC Enterprises: Jonestown Book‖ (2006), Media Release, 29 June. Retrieved 5

March 2008, from <http://www.abc.net.au/corp/pubs/media/s1674993.htm>

Ackland R (2005), ―Correction not cash‖, The Walkley Magazine, Issue 32 April/May,

at 37

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>

Adshead G (2008), ―Bob‘s hands on Bible say Premier lifted shirt‖, The West

Australian, at 2

Albrechtsen J (2007), ―Judicial hubris makes messy meal of our rights‖, The Australian,

20 June, at 12

Anon, (1969), ―The Chilling Effect in Constitutional Law‖ 69 Columbia Law Review

808

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/DefamationLawsBefo

reJan06.asp>

Attard M (2007), Media Watch, ABC Television, ―Radio without rules‖, 4 June

(transcript)

Attard M (2006), Media Watch, ABC Television, ―Front page – Truth, defamation and

privacy‖, April 10 (transcript)

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>

Australian Association of National Advertisers Code of Ethics (n.d.). Retrieved 20

March 2007, from

<http://www.aana.com.au/3_self_regulation/3_1_self_reg.html>

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>

Australian Labor Party National Platform and Constitution 2007, Chapter Twelve –

Ensuring Community Security and Access to Justice No 61 (Retrieved 19 June



409

2008, from

<http://www.alp.org.au/platform/chapter_12.php#12privacy_and_free_speech>

Australian Law Reform Commission (2006), ―‗Sedition‘ should go, focus on urging

violence: ALRC‖, Media Release, Australian Law Reform Commission, 29 May

Australian Press Council, Adjudication No 1187 (January 2003)

Australian Press Council (n.d.), ―Complaints Statistics 2005-2006‖. Retrieved 15 June

2007, from <http://www.presscouncil.org.au>

Australian Press Council (n.d.), Privacy Standards. Retrieved 7 February 2008, from

<http://www.presscouncil.org.au/pcsite/complaints/priv_stand.html>

Australian Press Council (n.d.), Statement of Principles. Retrieved 7 February 2008,

from <http://www.presscouncil.org.au/pcsite/complaints/sop.html>

Australian Press Council (October 2007), ―State of the News Print Media in Australia:

A Supplement to the 2006 Report‖ (Report), Sydney

Australian Press Council (October 2006), State of the News Print Media in Australia

Report, Sydney

Australian Press Council (2006), Annual Report No 30, 30 June

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>

Australian Press Council (2005), Annual Report No 29, 30 June

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>

Australian Press Council (1997), Annual Report No 21

Australian Press Council News (May 2008), ―Raid on Sunday Times‖, Vol 20 No 2, at 6

Australian Press Council News (May 2005), ―MEAA‖, Vol 17 No 2, at 3

Australian Press Council New (February 2005), ―Defamation‖, Vol 17 No 1 February

2005, at 4

Australian Press Council News (November 1996), ―The old statement of principles‖,

Vol 8 No 4

Australian Press Council (1998), ―Submission of the Australian Press Council to the

Federal, State and Territory Attorneys-General‖, 13 October

Australian Press Council, ―Submission of the Australian Press Council to the Act

Legislative Assembly Standing Committee on Justice and Community Safety on

http://www.alp.org.au/platform/chapter_12.php#12privacy_and_free_speech

http://www.presscouncil.org.au/pcsite/fop/fop_ar/ar05.html


410

the Defamation Bill 1999‖. Retrieved 13 February 2008, from:

<http://www.presscouncil.org.au/pcsite/fop/fop_subs/actdef.html>

Australia‘s Right to Know Coalition (2007), ―Irene Moss releases national audit of free

speech‖, Media Release, 5 November

Australia‘s Right to Know Coalition (n.d.), ―Joint Statement – Australia‘s Right to

Know‖ (Media Statement‖. Retrieved 12 June 2008, from

<http://static.townsvillebulletin.com.au/FreeSpeech/jointstatement.html>

Australia‘s Right to Know Coalition (n.d.), ―The State of Free Speech In Australia‖

(Media Statement). Retrieved 12 June 2008, from

<http://static.townsvillebulletin.com.au/FreeSpeech/stateoffreespeech.html>

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>

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 R (2003), ―Third person singular? Instructing the defamation jury‖ (Paper), Jury

Research Conference, 17 October, Communications Law Centre

Baker R (June 2002), ―Extending Common Law Qualified Privilege to the Media‖,

Media and Arts Law Review Vol 7 No 2

Bakewell CM (November 1908), ―On the meaning of truth‖ Vol 17 No 6 The

Philosophical Review 579

Banks A (2008), ―McGinty black-bans The West‘s reporters‖, The West Australian, 15

February, at 1

Banks A (2007), ―Spinning out of control‖, The West Australian, 13 August, at 1

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>

Bollinger LC (January 1983), ―Free speech and intellectual values‖, Vol 92 No 3 Yale

Law Journal 438

Brennan DJ (1994), ―The defence of truth and defamation law reform‖, Vol 20 No 1,

Monash University Law Review 151

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>

http://www.crf.dcita.gov.au/papers03/bakerpaperdefamation18final.pdf

http://news.bbc.co.uk/1/hi/uk/1448075.stm

http://www.onlineopinion.com.au/view.asp?article=4971

411

Butler D (2005), ―A Tort of Invasion of Privacy in Australia?‖ Vol 29 Melbourne

University Law Review 339

Butler D (December 2000), ―Is Polly Peck at risk of losing its sting?‖ Vol 5 No 4 Media

and Arts Law Review 259

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

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>

Campbell K (2008), ―Opposition renews push for press shield laws‖, The West

Australian, 3 July, at 4

Campbell K (2008), ―Premier‘s man gives secret raid evidence‖, The West Australian,

10 June, at 1

Canadian Newspaper Association (2007), ―Ontario Court of Appeal recognises a ‗public

interest responsible journalism‘ defence in libel actions in Ontario‖, Media

Release, 15 November

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>

Chapman V (2005), Defamation Bill 2005 (SA), Second Reading, Debate, Hansard, 13

September 2005

Cheer U (2005), ―Myths and realities about the chilling effect: The New Zealand

media‘s experience of defamation law‖, 13 Torts Law Journal 259

Colman E (2005), ―Minister firm on Alvarez‖, The Australian, 7 October, at 2

Commission on Freedom of the Press (1947), A Free and Responsible Press (Report),

University of Chicago Press, Chicago

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_ReviewofDefam

ationLaw>

Cooke J (2006), ―Twilight of the libel jury?‖ Vol 14 Tort L Rev 64

Commonwealth Attorney-General‘s Department, Outline of Possible National

Defamation Law (March 2004), at 5. Retrieved 20 February 2008, from:

412

<http://www.offi.gov.au/www/agd/agd.nsf/Page/Defamationlawreform_Outlineofpossib

lenationaldefamationlaw-March2004>

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

Cowan S (2008), ―Rayney threatens to sue police over murder case‖, The West

Australian, 17 May, at 1

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>

Damaska M (1973), ―Evidentiary Barriers to Conviction and Two Models of Criminal

Procedure: A Comparative Study‖, 121 University of Pennsylvania Law Review

506

Davidson D (1996), ―The folly of trying to define truth‖, Vol 93 No 6 Journal of

Philosophy 263

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>

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>

Day M (2007), ―Paddling up the creek in a glass-bottomed canoe‖, The Australian

(Media), 15 February 2007, at 18

Day M (2006), ―Freedom of speech undefined‖, The Australian, 12 April, at 12

Day M (2005), ―Hopeful signs on the road to defamation reform‖, The Australian, 17

March, at 22

Dayton L (2006), ―Media management spins out of control‖, The Australian (Higher

Education), 3 May, at 26

Debus B (2004) ―Ruddock‘s ninth law‖, Letter to the Editor, The Australian, 5 August,

at 10

Defamation Bill 2005 (WA), Explanatory Memorandum, notes to Part 2 ―General

Principles‖, Division 1. Retrieved 20 December 2007, from

http://www.crownoffice.gov.uk/News/Releases/2006/10/03113905

http://media.guardian.co.uk/presspublishing/story/0,,1837578,00.html

413

<http://www.parliament.wa.gov.au/web/newwebparl.nsf/iframewebpages/Bills+-

+All>

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

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

Egan C (2008), ―Raid a scary sign of the times‖, The Sunday Times, 4 May, at 87

Electronic Frontiers Australia (electronic publishers‘ association), Defamation Laws

and the Internet. Retrieved 4 March 2008, from

<http://www.efa.org.au/Issues/Censor/defamation.html>

Ellery S, Defamation Bill 2005 (WA), Receipt and First Reading, State Legislative

Council, Hansard, 20 September 2005

Ester H (2007) ―Fear and loathing in Canberra‖, Walkley, Issue 44 Apr/May, 21, at 22

Fernandez JM (2006), ―Free speech and journalism: Australia Joins the Race to Tighten

Up‖, Vol XXXV No 1, Insaf (Malaysian Bar Journal) 15

Fife-Yeomans J (1998), ―Judges defend maligned courts‖, The Australian, 7 September,

at 2

Findlay M (Winter 2007), ―Juries reborn‖, Issue 90 Reform 9

Freedom House (2006), ―Freedom House Statement on Freedom of expression and the

Danish Cartoons‖ (Press Release), Washington DC, 9 March. Retrieved 27 April

2006, from <http:www.freedomhouse.org/template.cfm?page=70&release=340>

Fuller LL (1978), ―The forms and limits of adjudication‖, 92 Harvard Law Review 353

Geddes RS (2005), ―Purpose and context in statutory interpretation‖, Vol 2 University

of New England Law Journal 5

Gibbons T (1996), ―Defamation Reconsidered‖ Vol 16 No 4 Oxford Journal of Legal

Studies 587, at 589

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>

Gleeson M (2007), ―Public confidence in the courts‖ (Speech), National Judicial

College of Australia, 9 February, Canberra, ACT. Retrieved 28 March 2007, from

<http://www.highcourt.gov.au/speeches/cj/cj_9feb07.pdf>

Greenwalt K (1989), ―Free speech justifications‖ 89 Columbia Law Review 119



http://www.highcourt.gov.au/speeches/cj/cj_9feb07.pdf

414

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/0/9CBFF339

A14621C5CA256ECF0008C206>

Guest D (2008), ―McGinty lifts ban on The West but defends blackout decision‖, The

West Australian, 5 May

Hackett R (1984), ―Decline of Paradigm? Bias and Objectivity in News Media Studies‖

Vol 1 No 3, Critical Studies in Mass Communication 229

Hampson K (2008), ―Government ‗making a mockery‘ of FOI‖, The West Australian,

23 May, at 5

Harkess J (1998), ―A Linguistic Inspection of the Law of Defamation‖, 8 Auckland

University Law Review 653

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

Hartigan J (2007), Andrew Olle Lecture, 19 October. Retrieved 25 October, from

<http://www.news.com.au/?from=ni_story>

Hartigan J (2007), ―Loosen curbs on our liberty‖, The Weekend Australian 8–9

September, at 27

Hartigan J (2006), ―High Court rules against Freedom of Information case‖, Media

Release, News Limited Corporate Affairs, 6 September

Hartigan J (February 2004), ―Press freedom under attack‖, Australian Press Council

News, Vol 16 No 1, at 3

Heaton G (2004), ―Privacy – boldly going where defamation hasn‘t gone before‖ Vol 9

No 4, Media and Arts Law Review 295

Herman J (May 2007), ―Facts and opinions – A Press Council Case Note‖, Australian

Press Council News, Vol 19 No 2, at 8

Herman J (ed), (February 2007), ―Privacy Issues‖, Australian Press Council News, Vol

19 No 1, at 1

Herman J (2005), ―Ruddock‘s role overplayed‖ (Letter to Editor), The Weekend

Australian, 17-18 December, at 16

Herman JR (ed) (1996), ―Australian Press Council Survey of Complainants [and Survey

of Editors]‖, Twentieth Anniversary Papers – Vol 4

Higgins T (2004), ―Australia‘s First Bill of Rights – Testing Judicial Independence and

the Human Rights Imperative‖ (Speech), National Press Club, 3 March

415

Hirst M (February/March 2008), ―Blackboards, keyboards and motherboards‖, Issue 49

The Walkley Magazine 19

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

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

International Federation of Journalists (2008), ―IFJ says Western Australia Government

must stop campaign of harassment‖, Media Release, 9 July

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>

Ipp DA (January 1998), ―Lawyers‘ Duties to the Court‖, Vol 114 Law Quarterly Review

63

Ipp DA, ―Reforms to the Adversarial Process in Civil Litigation – Part I‖ (1995) 69 ALJ

705

Jackson S (2008), ―PR handouts make the news‖, The Australian (Media), 5 June, at 33

Jacobs GG, Defamation Bill 2005 (WA), Second Reading, State Legislative Assembly,

Hansard, 13 September 2005

Jones M (1997), ―Free speech revisited: The implications of Lange and Levy‖, Vol 4(1),

Australian Journal of Human Rights 188

Kearney S (2007), ―Jonestown journalist fires back‖, The Australian, 9 May, at 19

Kearney S (2007), ―Airport whistleblower guilty‖, The Australian, 28 March, at 3

Kearney S, 2006, ―Lawyers gave ABC go-ahead on Jones‖, The Australian, 4 July, at 4

Kieran M (Spring 1997), ―News reporting and the Ideological Presumption‖, Vol 47(2)

Journal of Communication 79

King D (2006), ―Fairfax to pay $1m for Obeid defamation‖, The Australian, 13

October, at 6

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>

Kirby M (1997), ―Judicial Activism‖, Vol 27(1) UWA Law Review 1

Kirkman D (2008), ―Getting the Balance Right‖, Vol 20 No 1 Australian Press Council

News 1, at 1

Lalor P and King D (2007), ―Jones book rakes in $600k‖, The Weekend Australian, 4-5

November, at 3

416

Lang M (2006), ―Common sense cuts through logjam of defamation reform‖, The West

Australian, 23 January

Law Society of NSW (2004), ―Proposal for Uniform Defamation Laws: Standing

Committee of Attorneys General Working Group‖ (Submission), 2 September

Levine D (1999), ―Courts and the media‖ (Speech) 31 August, Para 12. Retrieved 9

February 2004, from

<http://www.lawlinks.nsw.gov.au/sc/sc.nsf/pages/sp_310899>

Macfarlane D (2002), ―Defamation laws are undemocratic: editor‖, The Australian, 5

July 2002, at 3

Mackay H (2005), ―Truth is we‘re just more open to lying‖ (Column – The Moral

Maze), The West Australian, 10 September, at 18

MacLean S (2004), ―Schools turning out ‗ideologues, not newshounds‘‖, The Australian

(Media), 18 November

MacLean S (2004), ―Defamation cases take a social reality check‖, The Australian

(Media), 21 October, at 15

Magnusson RS (2001), ―Freedom of speech in Australian defamation law: Ridicule,

satire and other challenges‖, 9 Torts Law Journal 269

Maher LW (June 2001), ―Free Speech and its Postmodern Adversaries‖, Vol 8 No 2,

Murdoch University Electronic Journal of Law 12

Maher LW (1993) ‖Defamatory meaning and the defence of truth: Polly Peck in

Australia‖ 1 Torts Law Journal 219

Malpas J (2005), ―Truth, lies and democracy: Ethical practice in contemporary

Australia‖ (Lecture), 5 October, Curtin Annual Ethics Lecture

Malpas J (May 1996), ―Speaking the Truth‖, Vol 25 Economy and Society No 2 156

Marjoribanks T and Kenyon AT, ―Negotiating news: Journalistic practice and

defamation law in Australia and the US‖ (December 2003) Australian Journalism

Review 31

Martin B (2006), ―UN papers show Downer blocked Iraq wheat probe‖, The West

Australian, 24 March, at 4

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

Martin W (2007), ―Access to justice – the media, the courts and the public record‖

(Speech), Australian Press Council Address, 22 March, Perth, Western Australia

http://www.lawlinks.nsw.gov.au/sc/sc.nsf/pages/sp_310899

417

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

McGinty J, Defamation Bill 2005 (WA), Consideration in Detail, State Legislative

Assembly, Hansard, 15 September 2005

McGinty J, Defamation Bill 2005 (WA) Second Reading, Assembly, Hansard, 17

August 2005

McGinty J, Defamation Bill 2005 (WA), Introduction and First Reading, State

Legislative Assembly, Hansard, 17 August 2005

McHugh J (2005), ―Dancing in the streets – the defamation tango‖ (Paper), Australian

Bar Association Conference, Dublin, 29 June-2 July

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

McIlveen L (2007), ―Freedom fighters‖, The Sunday Times, 13 May

McKillop B (2006), ―Review of Convictions After Jury Trials: The New French Jury

Court of Appeal, 28(2) Sydney Law Review 343

McKillop B (1997), ―The ALRC‘s Issues Paper on the Federal Civil Litigation System:

Contesting the Adversarial‖, Vol 8 Public Law Review 139

McKinnon K (May 2006), ―Press Freedom in Australia in 2006‖, Australian Press

Council General Press Release No 271

McKinnon K (2005), ―Court-ordered corrections not the answer‖ (Letter to the Editor),

The Australian, 24 March, at 12

McKinnon K and Herman JR (August 2004), ―Uniform defamation law‖, Australian

Press Council News Vol 16 No 3, at 7

McLeod C (May 2000), ―ACT Defamation Reform‖, Australian Press Council News

Vol 12 No 2, at 1

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>

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>

http://www.comb.gov.au/commonwealth/publish.nsf/Content/research_speeches_2005

418

Meade A (2008), ―Fallout yet to hit from show‘s $5 million blunder‖, The Australian

(Media), 5 June, at 40

Media, Entertainment and Arts Alliance (n.d.), Code of Ethics. Retrieved 1 June 2008,

from <http://www.alliance.org.au/resources/media/>

Media, Entertainment and Arts Alliance Registered Rules, Version of 24 August

Media, Entertainment and Arts Alliance (2007), Official Spin: Censorship and Control

of the Australian Press 2007, Report, Redfern, NSW

Media, Entertainment and Arts Alliance (2006), The Media Muzzled: Australia’s 2006

Press Freedom Report, Redfern, NSW.

Media, Entertainment and Arts Alliance (2005) Turning Up The Heat: The Decline of

Press Freedom in Australia 2001-2005 (Report), Redfern, NSW

Merritt C (2007), ―Nation‘s activist judiciary revealed‖, The Weekend Australian 14-15

July, at 1

Merritt C (2007), ―States reject journos‘ sources law‖, The Australian, 13 April, at 23

Merritt C (2007), ―Privacy law to hit press freedom‖, The Australian (Media) 22 March,

13

Merritt C (2006), ―Evidence denied to Marsden hearing‖, The Australian, 6 June, at 3

Merritt C (2006), ―Complete picture about a little matter of privacy‖, The Australian, 20

April, at 16

Merritt C (2005), ―Ruddock drove states to accord on defamation‖, The Australian, 15

December, at 14

Merritt C (2005), ―States offer compromise on defamation‖, The Australian, 19 May, at

17

Merritt C (2005), ―Push for court-ordered corrections‖, The Australian (Media), 24

March, at 21

Milligan L (2002), ―Wedding video costs Nine $1.7m‖, The Weekend Australian, 21-22

December, at 9

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/Ne

ws+Alerts/NA+-+New+uniform+defamation+laws>

Mistilis E (2005/2006), ―The dangers of Queensland‘s jails‖, The Walkley Magazine,

Issue 36 December /January, at 5

Morfesse L (2008), ―Journo lecturers teach the arts of hypocrisy and waffle‖, The West

Australian, 21 February, at 2




419

Moss I (2007), ―Report of the Independent Audit into the State of Free Speech in

Australia‖, 31 October

Murphy P (1991), ―Post-modern perspectives on justice‖, 30 Thesis Eleven 117

Murray P (2003), ―When the truth can be costly‖, The West Australian, 11 October, at

21

Neighbour S (2007), Four Corners, ABC Television, ―Ghost Prisoners‖, 11 June

(transcript)

New South Wales Attorney-General‘s Task Force on Defamation Law Reform (2002),

―Defamation Law – Proposals for Reform in NSW‖

New York Times (n.d.), Ethical Journalism Guidebook. Retrieved 19 January 2006,

from <http://www.nytco.com/company-properties-times-coe.html>

News Limited Submission: Defamation Amendment Bill 1995. Retrieved January 14,

2004, from <http://www.austlii.edu.au/cgi-

bin/disp.pl/au/other/media/Australian%20Law%reform/News%20limited%submis

sion%20Defamation%20>

Norington B (2007), ―Threats have ABC cowering: Masters‖, The Australian, 10

September, at 3

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

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

Overington C (2006), ―Cole‘s dirty dozen face jail‖, The Australian, 28 November

Pearson M (July 2007), ―A review of Australia‘s defamation reforms after a year of

operation‖, Vol 29(1) Australian Journalism Review 41

Pearson M (2005), ―Press body and union reunite‖, The Australian, 25 August, at 17

Pelly M and Wilson A (2008), ―Give jury a payouts role, says Littlemore‖, The

Australian (Legal Affairs), 6 June

Pelly M (2007), ―Labor to push on with new charter‖, The Australian, 7 December, at

29

Pelly M (2007), ―Internet age reopens defamation bonanza‖, The Australian (Legal

Affairs), 20 July, at 33-34

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>





420

Post RC (May 1986), ―The social foundations of defamation law: reputation and the

Constitution‖, Vol 74 California Law Review 691

Potter R (1997), ―Constitutional Defamation Defence Disappears as Theophanous

Effectively Overruled‖, Vol 16 No 3, Communications Law Bulletin 1

Probyn A (2007), ―Strip club visit may help Rudd, says WA Senator‖, The West

Australian, 21 August, at 5

Resnik J (986), ―Failing faith: Adjudicatory Procedure in Decline‖ 53 University of

Chicago Law Review 494

Richards DA (1988), ―Toleration and free speech‖, Vol 17 No 4 Journal of Philosophy

323

Rolph D (2005), ―The Third Man: Reform of the Australasian Defamation Defences by

Michael Gillooly‖ (Book Review) Vol 27 Sydney Law Review 761

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 2007, from < http://www.roymorgan.com/news/polls/2007/4200/>

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/>

Ruddock P (2004), ―State defamation paper falls short of mark‖, Media Release

135/2004, 30 July

Ruddock P (2003), ―Australian government pushes for uniform defamation laws‖,

Media Release R026/2003, 14 November

Ruehl P (2004), ―To tell the truth, these laws are screwy‖, Australian Financial Review,

30 March, at 56.

Ryan I (May 2008), ―The fight goes on‖, Australian Press Council News, Vol 20 No 2,

at 2

Ryan I (October 2007), ―Press Freedom 2007‖ (Chapter 7), State of the News Print

Media in Australia: A Supplement to the 2006 Report, Sydney

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

Ryan I (February 2006), ―New Defamation Laws: A Guide‖, Australian Press Council

News, Vol 18 No 1, at 1

Ryan S (2007), ―Public servants shielded‖, The Australian, 13 December, at 5

http://www.roymorgan.com/news/polls/2007/4200/

421

Sallmann PA (1992), ―Managing the business of the Australian Higher Courts‖ Vol 2

Journal of Judicial Administration 80

Saunders M and Morris S (2004), ―Ruddock lays down libel law deadline‖, The

Australian, 17 March, at 2

Scanlon T (1972), ―A theory of freedom of expression‖, Vol 1 No 2 Philosophy and

Public Affairs 204

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

Schlag P (1986), ―Freedom of speech as Therapy (Book Review)‖, 34 UCLA Law

Review 265 Schlick M (July 1936), ―Meaning and Verification‖, Vol 45 No 4 The

Philosophical Review 339

Schultz J (December 2005/January 2006), ―Beyond the searchlight‖, The Walkley

Magazine, Issue 36

Senate Legal and Constitutional Committee Report (November 2005), ―Provisions of

the Anti-Terrorism Bill (No 2) 2005‖

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

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

Shanahan D (2007), ―Rudd opens up crushing lead‖, The Australian, 4 September, at 1

Simper E and Ong T (2006), ―ABC accused of surrender over book on Jones‖, The

Weekend Australian, 1-2 July, at 8

Sinclair L (2006), ―Coalition ‗masking‘ millions spent on PR‖, The Australian, 24

January, at 2

Sinclair-Jones M (2008), ―New shield laws needed to protect public right to know‖,

Media Release, Media, Entertainment and Arts Alliance (WA), 10 March

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

1519Society of Professional Journalists, United States, SPJ Code of Ethics (n.d.).

Retrieved 3 October 2005, from <http://www.spj.org/ethics_code.asp>

Soloski J (1985), ―The Study and the Libel Plaintiff: Who Sues for Libel?‖, 71 Iowa L

Rev 217


422

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>

Standing Committee of Attorneys General (2007), Summary of Decisions, 26-27 July,

Hobart

Standing Committee of Attorneys-General, ―Proposal for uniform defamation laws‖

(July 2004), SCAG Working Group of State and Territory Officers

Stapleton J (2005), ―Cornelia ‗treated like an animal‘‖, The Australian, 18 July, at 5

Stewart C (2005), ―Don‘t let facts get in the way‖, The Weekend Australian, 28-29 May,

at 29

Strutt J and Adshead G (2008), ―Logan in legal bid to muzzle sex claim‖, The West


Strutt J (2006), ―Labor chief gets $100,000 to run ‗propaganda‘ unit‖, The West


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>

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

Taylor & Francis Books: Instructions for authors (2001), Taylor & Francis, London

Teadgold T (2008), ―Sense lost along the way as business spin wins the day‖, The West

Australian (Business), 26 April

The Australian (2007), ―Reality Bites the Psychotic Left‖ (Editorial), 11 June, at 9

The Australian (2006), ―Free press makes society free‖, (Editorial), 28 March, at 16

The Australian (2006), ―A self-serving story‖ (Editorial), 28 February, at 13

The Australian (2005), ―Shining a light on the rough operators‖ (Editorial), 9 June, at 10

The Australian (2005), ―Free speech is the main game‖ (Editorial), 19 May, at 10

The Australian (2004), ―Free speech matters most‖ (Editorial), 18 March, at 12

The Weekend Australian (2008), ―The rise and rise of the secretive state‖ (Editorial), 3-

4 May, at 16

The Weekend Australian (2001), ―Defamation law‘s bad reputation‖ (Editorial), 30

June–1 July, at 18


423

The West Australian (2006), ――Free speech still hobbled under uniform defamation law‖

(Editorial), 23 January, at 16

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>

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>

The Media Report (2007), ABC Radio National, ―Australia‘s Right to Know‖, 31 May

2007

The Media Report, (2002), ABC Radio National, ―Press freedom in Australia‖,

November 21

The Sydney Morning Herald Code of Ethics (n.d.). Retrieved 19 January 2006, from

<http://www.smh.com.au/ethicscode/>

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

Titelius R (2005), ―Not all the Bible is gospel, say bishops‖, The West Australian, 6

October, at 3

Todd R (2006), ―Uniform Defamation Legislation: Lessons Learnt and Pivotal Reforms

and Implications‖, Paper, LexisNexis Defamation Sydney Conference, April 5-6

Tuchman G (1972), ―Objectivity as a Strategic Ritual: An Examination of Newsmen‘s

Notions of Objectivity‖, 77 American Journal of Sociology 660

Van Veeder V (December 1903), ―The History and Theory of the Law of Defamation‖

Vol 3 No 8 Columbia Law Review 546

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>

Walker S (2005), Defamation Bill 2005 (WA), Consideration in Detail, State

Legislative Assembly, Hansard, 15 September

Walker S (2005), Defamation Bill 2005 (WA) Second Reading, State Legislative

Assembly, Hansard, 13 September

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

http://www.abc.net.au/rn/mediareport/stories/2008/2172534.htm

http://www.smh.com.au/ethicscode/

http://www.timesonline.co.uk/article/0,,28009-2398961,00.html

424

Walker S (1994), ―Regulating the Media: Reputation, Truth and Privacy‖, 19 MULR

729

Ward I (2002), ―The Tampa, wedge politics, and a lesson for political journalism‖, Vol

24(1) Australian Journalism Review 21

Warrant 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

Warren C (2005), ―Freeing up the media‖ (Editorial), The Walkley Magazine, Issue 31

February/March, at 4

Weinstein J (1966), ―Some difficulties in Devising Rules for Determining Truth in

Judicial Trials‖, 66 Columbia Law Review 223

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>

Williams D (1999), ―The Courts and the Media: What Reforms are Needed and Why‖,

No 1 UTS Law Review 13

Williams D (July 1998), ―Judicial Independence and the High Court‖, Vol 27(2)

University of Western Australia Law Review 140

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>

Williams R (2004), ―Ruddock in clash with States over defamation‖, The West

Australian, 6 November, at 8

Williams RJ (April-June 1972), Vol 92 No 2 Journal of the American Oriental Society

214

Wilson A (2008), ―Seven in damages payout to Corby‖, The Weekend Australian, 31

May–2 June, at 5

Wilson P (2006), ―We lag the world on libel law‖, The Australian, 13 October, at 6

Winch SP (1997), Mapping the Cultural Space of Journalism, Praeger, Connecticut CT,

USA

Wood G (1991), ―Novel History‖, The New York Review of Books, 27 June

Wright S (2007), ―Strip trip fails to slow Rudd‘s rising support‖, The West Australian,

24 August, at 10

http://www.presscouncil.org.au/pcsite/apcnews/feb98/evan.html

425

LAW REFORM PUBLICATIONS

Australian Capital Territory Community Law Reform Committee (1995), Defamation,

Report No 10

Australian Law Reform Commission (May 2008), For Your Information: Australian

Privacy Law and Practice, Report No 108

Australian Law Reform Commission (September 2007), Review of Australian Privacy

Law, Discussion Paper No 72

Australian Law Reform Commission (2006), ―Submission to House of Representatives

Standing Committee on Legal and Constitutional Affairs Inquiry into

Harmonisation of Legal Systems (16 March)‖. Retrieved 14 February 2008, from

<www.alrc.gov.au/submissions/ALRCsubs/2006/1603.htm>

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

Australian Law Reform Commission (2000), Managing Justice: A Review of the

Federal Civil Justice System, Report No 89

Australian Law Reform Commission (1997), Review of the Adversarial System of

Litigation: Rethinking the Federal Civil Litigation System, Issues Paper No 20

Australian Law Reform Commission (1995), Open Government: A Review of the

Federal Freedom of Information Act 1982, Report No 77

Australian Law Reform Commission (1987), Contempt, Report No 35

Australian Law Reform Commission (1985), Evidence (Interim), Report No 26

Australian Law Reform Commission (1979), Unfair Publication: Defamation and

Privacy, Report No 11

New South Wales Law Reform Commission (1997), Partial Defences to Murder:

Provocation and Infanticide, Report No 83

New South Wales Law Reform Commission (October 1995), Defamation, Report No 75

New South Wales Law Reform Commission (August 1993), Defamation, Discussion

Paper No 32

New South Wales Law Reform Commission (1971), Defamation, Report No 11

New Zealand, Report of the Torts and General Law Reform Committee (1977),

―Professional Privilege in the Law of Evidence‖, New Zealand

Western Australia Defamation Law Reform Committee (September 2003), Report on

Reform to the Law of Defamation in Western Australia

http://www.alrc.gov.au/submissions/ALRCsubs/2006/1603.htm

426

Western Australia Law Reform Commission (June 2003), Review of the Law of

Contempt, Report No 93

Western Australia Law Reform Commission (1997-1999),―Review of the Criminal and

Civil Justice System‖, Report No 92

Western Australia Law Reform Commission (May 1993), Professional Privilege for

Confidential Communications, Report, Project 90

Western Australia Law Reform Commission (December 1991), Professional Privilege

for Confidential Communications, Discussion Paper, Project 90

Western Australia Law Reform Commission (1979), Report on Defamation, Project No

8

Western Australia Law Reform Commission (1972), Defamation: Privileged Reports,

Project No 8(I)

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