In Essay, Research Paper
Defamation Law is seen as balancing competiting interests: Reputation/Privacy vis a vis Freedoms of Speech and Communications.[1.1] The law of defamation in Australia has long sought to protect the competing interests of reputation and privacy, and the rights of freedom of speech and information. The law of defamation has also sought to provide a course of action for the individual and provide possible defences available to the press. However, with new technologies and the advancement of the information superhighway in Australia, the need to address inconsistencies within Australian defamation law is becoming more paramount. The need to reconcile past problems of the allocation of interests and the future impact technology will have on Australian defamation law must now be tackled. This paper will examine how Australian courts, law reform commissions and the government has handled Australia’s defamation laws and the future direction of defamation law in Australia.Defamation Law in Australia[2.1] There are eight different defamation laws in Australia, one for each state and territory. These present three different systems. The common law system as in Victoria and South Australia. The code system, which provides a complete repository of the principles of actionable defamation and goes further than a restatement of the common law, as in Queensland, Tasmania and Western Australia. And in the mixed situations in New South Wales, the Australian Capital Territory and Northern Territory where the law is either judge made or statutory in origin. In order to reach a thorough definition of defamation it is important to look at both systems1.[2.2] The common law defines defamation as existing as a means by which the law seeks to right the wrongful damage caused to a persons honour or reputation by a published statement or imputation about him2. Judicial definitions as in Sim v Stretch3 per Lord Aitkin regard a defamatory imputation as one that ‘tends to lower the plaintiff in the estimation of right-thinking members of society generally’4. To fall under this tort generally, there must be a publication of a derogatory and false statement respecting another person without lawful justification. The question for the judge is whether the words are reasonably capable of a defamatory meaning5.[2.3] The statutory definition of defamation can be found in the 1899 Defamation Law of Queensland as well as s366 of the old Queensland Criminal Code, which defines defamation as:’Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him, is called defamatory, and the matter of the imputation is called defamatory matter.’[2.4] Defamation consists of libel by means of writing, print or some permanent form or slander which takes the form of spoken words or gestures6. Unlike the common law, it also includes a tendency to injure the plaintiff in his profession or trade, the significance of which will be later discussed.Case Law on Defamation[3.1] The role of defamation formulated by Lord Diplock in Silkin v Beaverbrook7 is to maintain a balance between, …the right of the individual to his ‘unsullied’ reputation if he deserves it and the rights of the public…in matters of freedom of speech8. The courts strike this balance indirectly when they decide whether or not a publication constitutes an actionable defamation. They pronounce in favour of one value against the other namely deciding certain publications to be defamatory and then allowing defences. It is to be stressed that the law does not protect mere reputation, but only reputation if so well founded in the plaintiff’s character that the publication of false statements are to his/her discredit9. This can be identified as an effort to protect freedom of expression from unnecessary defamatory actions.[3.2] At common law, there is the presumption that defamatory imputations are false. The defendant bears the burden of proving its truth. It is neither necessary nor sufficient for the defendant to prove the literal truth of the words just the substance or ’sting’ of that complained of. As stated in Edwards v Bell10, “as much must be justified as meets the sting…and if anything…does not add to the sting of it, that need not be justified”11. This encourages freedom of expression based on two ideals. It is in the interests of society for an individual’s reputation to be consistent and a person can only reasonably expect protection from untruths that discredit him/her12. Why should it be otherwise? It would be a truly decadent society that would reward the speaking of a truth by punishment at law.[3.3] The Defamation Law of Queensland and s366 of the old Queensland Criminal Code mirrors the common law up until it includes defamation where an imputation is likely to injure one in his/her profession or trade. This is contended an effort by the Australian parliament to invade the territory of injurious falsehood13. In the Sungrave Pty Ltd v Middle East Airlines14 case, an article was published on the hijacking of a fleet of aircrafts’ belonging to a Lebanese company called ‘Middle East Airlines’ with an insignia of a green cedar tree. The plaintiff, a company operating under the same name and insignia sued the publisher for the imputation that its airlines faced a serious risk of being hijacked. The High Court found for the plaintiff, that a defamatory imputation within the statutory definition need not be disparaging. It is enough if it merely attributes an act or condition to a person likely to injure that person in his or her business or profession. However, such a decision raises questions of the ability of defamation law to cover other areas originally accepted as injurious falsehood where malice had to be proved by the plaintiff.[3.4] Such an occasion is the issue of whether a company can be defamed through disparaging its’ products? This depends on whether a company can possess a reputation or whether it merely has economically measurable goodwill? Goodwill is the benefit a business has from its reputation and trade connections15. In Lewis v Daily Telegraph16, Lord Reid affirmed the latter. “A company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured but that injury must sound in money. The injury need not necessarily be confined to loss of income. Its goodwill may be injured”17. Although this decision was somewhat true, today it seems completely valid, a restoration of reputation not via economic means but by public apology can in fact restore some reputation which would have been lost and does not have terms18.[3.5] As if to further facilitate the needs of the individual, the common law in Australia has expanded defamatory action to include ridicule. In the Boyd19 case, It was found that an imputation which exposed a person to ridicule, without any suggestion of fault on his part was capable of being defamatory. Similarly, in the Ettingshausen20 case, where photos of the plaintiff nude were published in a magazine. Hunt J upheld the principle of an American authority where it was said that material which adversely affects his estimation in the minds of others so that he becomes associated in their minds with absurdity may be defamatory. Ettingshausen was awarded $350,000 compensation21. However, as discussed earlier, a better approach of the court today may not be so much to award damages, but rather make an order of a correction of statements as proposed by the Attorney Generals of New South Wales and Queensland22.[3.6] The scope for the law of defamation has been given a wide interpretation. To combat such restrictions journalists have access to a number of defences. Truth, public benefit, public interest, fair comment, and qualified and absolute privileges23.[3.6] The defence of Truth is intertwined with public benefit or in a mixed system such as in NSW, public interest. Although public benefit acts as a defence, it has been criticised by publishers for its drawbacks to the freedom of the press. “When newspapers can not defend their printing of the truth in reports of such public activities as horse racing because of the uncertainty of its benefits to the public, the law is an ass”24. However in more recent cases, the courts have sought to aid the press in areas of political discussion, however they are quick to remark its limited application to non political discussions25.[3.7] The most used defence is fair comment because of the limits placed on the others. The test for fair comment as formulated by Lord Esher in Merivale v Carson26 is whether the fair man, however prejudiced, exaggerated or obstinate his views, have criticised as the publication has? This test is argued to be by ordinary standards unfair, as the defendant might succeed even if the comment is prejudiced or unreasonable because defining and allocating the fair man is a feat in itself27.[3.8] The defences of absolute and qualified privilege have shown signs of development in England, American and recently Australia28. In the English case of Derbyshire29 case, the issue was raised as to whether a local authority was entitled to sue in libel for words that reflected on its governmental function? The House of Lords negatived this by stating that the same rights available to private citizens did not apply to the government unless they could show it was in the public interest. There was no public interest in allowing the action as it would work against the prized value of the freedom of speech for the public30. This view has been echoed in Australia in many recent decisions by the High Court.[3.9] Absolute privilege exists in theory where the law ignores completely the individual’s interest in the protection of his/her reputation. It applies to situations such as parliamentary or court proceedings however, it attaches to the institution itself and not to re-publishers like the media31. To break this rule could result in actions such as contempt of court32. Qualified privilege at common law exists where a person has an interest or a duty (legal, social or moral) to communicate a message to another who has a reciprocal duty or interest to receive it33. Problems of over publication by the press could lead to an abuse of the privilege and the efforts to establish a duty would cause delays in a tort that needs immediate resolution. However, qualified privilege is justified when there are allegations concerning the safety of the public for instance, an infected line of products. This has the effect of freedom of the press34.[3.10] Remedies in defamation suits both compensate the plaintiff for the harm committed to their reputation and encourage a reluctance to publish material. Damages are available as a vindication of the plaintiff to the public and to console him/her for the injury caused by defamation. Interlocutory injunctions also exist so as to act as a restraint to publication until a case can be heard before the court. However, such injunctions are only granted in exceptional circumstances, usually where the plaintiff has formulated his/her case on a cause of action other than defamation eg. injurious falsehood. The reason being, that it acts as a fetter on freedom of speech and usurps the courts function as to whether the matter is defamatory. A permanent injunction is capable of restraining the defendant from future publications of defamatory matter. However, this is rarely exhausted as it is unusual that someone would want to publish defamatory matter for public benefit at their own expense35. Thus some leeway is made for the freedom of the press.The Changing face of Defamation[4.1] In early cases of defamation under statute it has been clear that the protection of reputation and privacy has been given greater weight than the interests of freedom of speech and information. In the 1910 case of Hall-Gibbs Mercantile Agency v Dun36 the High Court was required for the first time to determine the statutory scope of the definition of defamation. The Court took the view that regardless of whether a notice produced by the defendants was disparaging or not, it was in fact capable of bearing a defamatory meaning under the statute and was likely to injure business. So to in the case of Mirror Newspapers v World Hosts Pty Ltd37 the High Court found a defamatory meaning from the headline of a newspaper article even though the article was factually correct. Whilst, under common law such actions would not be seen as defamatory.[4.2] However, with decisions in more recent cases it can be shown that the court has shifted the balance to community interests and the right to freedom of speech and communication from reputation and privacy.[4.3] In the 1992 case of Australian Capital Television38, a majority of the court found that the doctrines of representative democracy and responsible government, integral to the Commonwealth Constitution necessarily gave rise to an implied constitutional freedom of communication. The implied freedom of communication was variously described by the members of the court, but essentially comprised a limited freedom for citizens to communicate between themselves with respect to political matters39.[4.4] Following on from Australian Capital Television came the cases of Theophanous v Herald & Weekly Times Ltd40 and Stephens v West Australian Newspapers Ltd41 which have probed the nature and scope of the implied freedom of communication. A majority in Theophanous held that the “chilling effect” of defamation law infringed the implied freedom of communication, which necessitated changes to the common law of defamation. In cases in which the defendant publishes “political discussion”, the majority formulated a new defence to defamation actions and modified the common law defence of qualified privilege. Stephens followed on from Theophanous and applied such principles to the State statutory law of defamation42.
Criticisms of Recent Cases[5.1] There has been a variety of responses to the decision in Theophanous. Some academics take the view that the Theopanous case has come about because of a failure of politicians to reform defamation laws. Such a decision is not seen as good law making, as judges are merely an undemocratically appointed body which is effectively making a political decision. Although the decision in Theophanous is justified, the way in which it was achieved has to be questioned43.[5.2] Others seem to question whether this new implied right Australian courts have recognised will mean the demise of a right to protect ones reputation and privacy. Although this seems valid, the High Court has made it clear that defamatory statements void of political speech shall not be covered in the implied right of freedom of communication44.Law Reform Commissions and Governmental Reports[6.1] There is general agreement that the law of defamation in Australia is in need of reform. The Australian Law Reform Commission recommended in 1979 that a separate tort of invasion of privacy be created. However, this was rejected by a Senate Standing Committee. In 1983, a Draft Bill for a uniform defamation law attempted to add some privacy element by disallowing the defence of justification. The exception of which were if the matter was the subject of government or judicial record available for public inspection, the publication was made for the reasonable purpose of preserving the personal safety or protecting the property of any person, or the matter in the public interest45.[6.2] The Attorney-Generals of NSW, QLD and VIC in a 1990 report discussed the convergence of public interest in freedom of the press and access to information, balanced against the individual right of reputation and privacy46. However it can be argued that this privacy notion is a fallacy, as the law of defamation was never intended to protect these interests. A breach of privacy differs from defamation as it might not affect a person’s reputation as in libel and slander, and it might not be a statement. For instance, staring into the window of a woman’s private house. Therefore, privacy leads to difficulty when enacting defamation laws which ‘while effective to restrain improper invasion of privacy, would not interfere with the proper reporting of matters which are in the public interest. As a consequence, in 1993 the NSW Law Reform Commission declined the Attorney-General’s position by refuting privacy protection as part of defamation law. In addition they argued that truth alone should be the only justification in defamation actions47.[6.3] In light of numerous reports and discussion upon Australian defamation law, the need for the government to properly legislate in the area is becoming more evident. The courts can not always pick up where the law does not, and the law should correct real problems which afflict Australian society not in the future, but now. Australia’s segmented defamation laws are proving a serious problem. Various issues are impacting on Australian defamation laws, such as their jurisdictional scope, the awarding of damages and the failure to acknowledge the implied right of freedom of communication and speech contained in the Australian Constitution. Although a uniform Commonwealth law seems to be a great solution, it can only alienate the states more as their power in the Federation will dwindle like so many other powers they once had. Hence no real solution can be found which will satisfy all parties involved. With further input from the community and proper research, an adequate solution to meet the interests of all may one day be forthcoming.Impact of New Technology in Balancing Interests[7.1] At the forefront of the new technology stakes is the Internet, or what is commonly referred to as the Information Superhighway. Millions of individuals and groups of people are exploring computer networks and online systems today. The Internet is more than having fun with computers and modems, it is the start of a social revolution in a lot of homes and offices. People are now starting to live parts of their lives online, in discussion groups, clubs, trade organisations, virtual corporations and so on48.[7.2] Just like in the physical world, people and businesses can hurt others on the Internet in a lot of ways, both accidentally and on purpose. They can tell hurtful lies about each other, steal or copy each others’ property or even break a promise or a deal on which someone else depends. There is great potential for defamation on online services, especially in group message and chat areas. Hundreds of people might read the postings in a single online service discussion area. The participants may know each other fairly well, and move in the same personal and business circles49.[7.3] Someone whose reputation is injured in a public discussion on an online service or network can find it has consequences in the “real world”50. This is no more strongly depicted in Australia’s own backyard in the unreported West Australian Supreme Court case of Rindos v Hardwick51. This was the case where a professor at the University of Western Australia was publicly defamed in front of his peers on a bulletin board contained on the Internet with a distribution to more than 23,000 users. The distributed electronic mail stated that Dr. Rindos engaged in ‘Puppy Parties focused… on a local boy… called Puppy’, that he had no genuine academic ability in his field and has not based his theories on appropriate research but has simply depended upon berating and bullying others, that he is “against Aboriginal land rights and Aboriginal people” and is a racist person, that the he is not a genuine anthropologist but a tool of mining corporations and finally that he drinks to excess and spends most of his time “in the local pub”. The Court in this case found that defamatory matter did exist and awarded $40,000 in damages to Dr. Rindos.[7.4] The Internet is rapidly gaining a stronger foothold on how humans communicate today. Hence, for competing interests to be effectively understood, both Australia’s legislators and courts must truly consider the impact the Internet and new technology will have on Australian society today and in the not to distant future.Conclusion[8.1] In conclusion, it is true to say defamation law in Australia today is under rapid change by the courts. As Australia’s legislators have lagged behind, the undemocratically elected courts have sought to fill a gap in Australian defamation law which has been left hanging. The courts have viewed an implied freedom of speech a constitutional right and have applied it to cases of defamation. Although the courts are quick to say such will only apply to political discussion, it seems almost inevitable that test cases will abound as to its applications to areas beyond political discussion. For Australia to properly balance competing interests in issues of defamation it must firstly sit down and re-evaluate how it perceives defamation law today, and how it hopes to apply defamation law in the future taking into account new technology and the evolution of Australia into the next millennia.Footnotes 1 Kirby, M. Federal Law Review. vol 8 1977. p122.2 Id. 115.3 Sim v Stretch (1936) 52 TLR 669.4 Id. 671.5 Rutherford, L. & Bone, S. Osbourne’s Concise Law Dictionary (8th ed., London: Sweet & Maxwell, 1993) 110.6 Fleming, J. The Law of Torts (17th ed., Sydney: Law Book Co., 1987) 520-521.7 Silkin v Beaverbrook  1 WLR 743.8 Id. 745-6.9 Brennan, D. Monash University Law Review. vol 20, no 1 1994. p153.10 Edwards v Bell (1824) Bing 403.11 Id. 409.12 Watterson, R. Australian Law Journal. vol 67, no 11 1993. p811-813.13 Id. 814.14 Sungrave Pty Ltd v Middle East Airlines (1975) 134 CLR 1.15 Rutherford, L. & Bone, S. loc.cit. 158.16 Lewis v Daily Telegraph  AC 234.17 Id. 262.18 Walker, S. Torts Law Journal. vol 2, 1994. p69-79.19 Boyd v Mirror Newspapers Ltd  2 NSWLR 449 at 456.20 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443.21 Id. 448.22 Walker, S. op.cit. 69.23 Fleming, J. loc.cit. 530-561.24 Brennan, D. op.cit. 158.25 O’Meara, S. Torts Law Journal vol 3, 1995. p105-11.26 Merivale v Carson (1887) 20 QBD 275.27 Id. 281.28 Fleming, S. loc.cit. p531-547.29 Derbyshire County Council v Times Newspapers Ltd  2 WLR 449.30 Id. 451.31 Hogben, B. Law Institute Journal vol 58, no 4 1984. p383-385.32 Kirby, M. op.cit. 173.33 Kidner, R. Journal of Business Law 1992. p578.34 Id. 580.35 Fleming, J. loc.cit. 530-547.36 Hall-Gibbs Mercantile Agency v Dun 91910) 12 CLR 84.37 Mirror Newspapers v World Hosts Pty Ltd (1979) 141 CLR 632.38 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.39 O’Meara, S. op.cit. 105.40 Theophanous v Herald & Weekly Times Ltd (1994) 124 ALR 1.41 Stephens v West Australian Newspapers Ltd (1994) 124 ALR 80.42 O’Meara, S. op.cit. 105-115.43 Bartlett, P. Australian Lawyer vol 28, no 11 1994. p22-24.44 O’Meara, S. op.cit. 106-111.45 Hogben, B. op.cit. 383-385.46 Brennan, D. op.cit. 153.47 Williamson, S. Law Institute Journal vol 67, no 3 1993. p131-133.48 Randall, N. Teach Yourself the Internet: Around the World in 21 days (Indianapolis: Sams Publishing, 1994) 5-9.49 Rose, L. Netlaw: Your right in the Online World (Berkeley: Osborne McGraw-Hill, 1995) 15-17.50 Hughes, G. 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Law Institute Journal , vol. 67, no. 3, March 1993, pp. 131-133.————————————————————————Return to the Law Research Papers Index————————————————————————Copyright 1995 – All Rights Reserved