Defamation defences (Wk 2) PDF

Preview

Summary

defences to defamation summary...

Description

DEFAMATION DEFENCES (WEEK TWO) To avoid liability for damages in defamation, a defendant can accept that the matter contains a defamatory imputation but can try to raise a defence to the publication. ‘These laws recognise that there are legitimate countervailing interests which require the imposition of limitations upon freedom of expression’: Eatock v Bolt Defences that may be raised by the defendant: -

triviality (motive irrelevant – a complete defence) truth/justification (motive irrelevant – a complete defence) absolute privilege (motive irrelevant – a complete defence) protected reports and documents (motive relevant – malice will defeat defence) qualified privilege (motive relevant – must be published honestly for the information of the public or the advancement of education) fair comment/honest opinion (motive relevant – must be published honestly for the information of the public or the advancement of education)

DEFAMATION ACT 2005 (SA) S22: SCOPE OF DEFENCES UNDER GENERAL LAW AND OTHER LAW NOT LIMITED (1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability. Statutory defences sit alongside and not in the abrogation of the common law. A defendant may plead alternate and inconsistent defences: Casey v ABC [1981] (1) TRIVIALITY DEFAMATION ACT 2005 (SA) S31: DEFENCE OF TRIVIALITY It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. The defendant must prove that the circumstances of publication were such that the plaintiff was unlikely to suffer “any” harm: Szanto v Melville [2011] Relevant circumstances may include: the nature of the defamatory matter; the manner and time of its publication; and the nature, knowledge and size of the audience to whom it was published: Morosi v Mirror Newspaper Ltd [1977] Eg small scale or broadcasted, when the matter occurred eg heat of moment, larger audience, reputable publisher??

(2) TRUTH/JUSTIFICATION DEFAMATION ACT 2005 (SA) S 23: DEFENCE OF JUSTIFICATION It is a defence, if the defamatory imputations complained of are substantially true. For the defence to succeed, the matter complained of must be true, both in substance and in effect. The substance of the ‘defamatory sting’ must be true: Sutherland v Stopes Howden v ‘Truth’ & ‘Sportsman’ Ltd (1937): Herald & Weekly Times Ltd v Popovic (2003): Sutherland v Stopes (1925): The belief of the defendant that the imputation is true is irrelevant to the defence: E Hulton & Co v Jones [1910] ‘CONTEXTUAL TRUTH’ DEFAMATION ACT 2005 (SA) S 24: DEFENCE OF CONTEXTUAL TRUTH It is a defence if the defendant proves that (a) the matter carried, in addition to the defamatory imputations complained of, 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. It is an attempt to justify imputations not found to be substantially true by arguing that by reason of truth of the other imputations, not further harm has been caused to P’s reputation: Fawcett v John Fairfax Publications [2008] (3) ABSOLUTE PRIVILEGE DEFAMATION ACT 2005 (SA) S 25: DEFENCE OF ABSOLUTE PRIVILEGE 1) It is a defence if the defendant proves that it was published on an occasion of absolute privilege. 2) Occasions of privilege are (a) proceedings of a parliamentary body, or (b) an Australian court or tribunal ‘no proceedings, either in civil or criminal, may be taken against a member of Parliament for anything said or done by him in Parliament’: Holding v Jennings [1979] Judicial proceedings are completely protected from suits of defamation: Cabassi v Vila (1940) It does not extend to letters commenting on court proceedings: Mann v O’Neill (1997)

(4) QUALIFIED PRIVILEGE Seeks to balance reputation and freedom of speech: Stephens v West Australian Newspapers There are three different forms of qualified privilege: (1) Common Law Interest/Duty (2) Lange Political Communication (3) Statutory Qualified Privilege

COMMON LAW DUTY/INTEREST (WATT V LONGSDON) a) A duty to communicate information believed to be true to a person who has a material interest in receiving the information, or b) An interest in the speaker to be protected by communicating the information, if true, relevant to that interest, to a person honestly believed to have a duty to protect that interest, or c) A common interest in and reciprocal duty in respect of the subject matter of the communication between speaker and recipient The duty may arise where the publisher has: - a legal, social or moral interest or duty to communicate: Adam v Ward - a legitimate interest of their own to protect: Horrocks v Lowe - information on a subject of legitimate public interest: ABC v Comalco Boston v W S Bagshaw & Sons: Auctioneer was selling pigs and the highest bidder was a man with the fake name Boston. He took the pigs and didn’t pay. D notified police and other auctioneers. There was a real Mr Boston who was a farmer and sued for defamation. Court said it was a public duty to warn. ‘It was a matter in which the auctioneers had a common interest fit to be protected’. When someone responds to a prior defamatory statement, it can be a defence: Loveday v Sun Newspapers Ltd (1938) ‘A privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential’: Adam v Ward A moral duty to communicate and receive information is enough: ABC v Comalco Interest is not the same with curiosity: Stephens v West Australian Newspapers

LANGE POLITICAL COMMUNICATION There is an implied constitutional right of political communication: Lange v ABC -

The material published must concern government or political matters, and The publication must be reasonable in all the circumstances. The defence will be defeated if the person defamed proves the publication was actuated by malice

-

‘actuated malice’ = ‘made not for the purpose of communicating government or political information or ideas, but for some improper purpose’ ‘as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue’

STATUTORY PROTECTION DEFAMATION ACT 2005 (SA) S 28: (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if D proves that – (a) the recipient has an interest or apparent interest in having information on some subject; and (b) the matter is published to the recipient in the course of giving the recipient information on that subject; and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances (2) A recipient has an apparent interest only if at the time of the publication the defendant believes on reasonable grounds that the recipient has interest The defence will be defeated if it is actuated by malice: Roberts v Bass Malice may be of two kinds: 1. D has published matter for a purpose other than that for which the privilege is given: Bellino v ABC 2. D did not have an honest belief in the truth of the matter: Barbaro v Amalgated Television Services (5) PROTECTED REPORTS AND DOCUMENTS The defence is only available where the report is ‘fair and accurate’. Protection is given to: 1. Reports of judicial proceedings: Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 2. Reports of proceedings in parliament: Jones v john Fairfax & Sons Ltd (1868) 3. Reports of other bodies where there is a public interest: Bruton v Estate Agents Licencing Authority [1996] DEFAMATION ACT 2005 (SA) S 26: DEFENCE - PUBLICATION OF DOCUMENTS (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in— (a) a public document or a fair copy of a public document; or (b) a fair summary of, or a fair extract from, a public document

DEFAMATION ACT 2005 (SA) S 27: FAIR REPORT OF PROCEEDINGS OF PUBLIC CONCERN (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern. (2) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and (b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and (c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair. (6) FAIR COMMENT/HONEST OPINION At common law, the defence requires that: (Channel Seven Adelaide v Manock) 1. 2. 3. 4. -

The imputation must be a comment The comment must be in a matter of public interest The comment must be based on true or privileged facts stated, referred to or notorious The comment must be fair the truth of the facts will affect the viability of the defence

‘The word “fair” refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts’: Manock

COMMENT V FACT The facts must be presented first with sufficient clarity to make it obvious that the comment is an opinion based on the facts: Prkye v Advertiser Newspapers ‘If an author writes a play or a book or a composer composes a musical work, he is submitting that work to the public and, thereby, inviting comment’: Kemsley v Foot

PUBLIC INTEREST ‘Whenever a matter is such as to affect people at large, so that they may be legitimately interest in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.’: London Artists Ltd v Littler [1969] Chappell v TCN Channel Nine Pty Ltd (1988) Gardiner v John Fairfax & Sons (1942) 42 SR(NSW) 171

FAIR COMMENT Comment will not be honest if D was motivated by malice: Thomas v Bradbury, Agnew and Co if P can show ‘the comment was affected by personal hostility, or some such irrelevant motive, in such a way that it does not represent a disinterested judgement upon the matter which is the subject of the comment, then the reply of malice succeeds’: Renouf v Federal Capital Press of Australia Pty Ltd (1977)

DEFAMATION ACT 2005 (SA) S 29: HONEST OPINION (1) It is a defence to the publication of defamatory matter if the defendant proves that (a) the matter was an expression of opinion of the defendant rather than a statement of fact; and (b) the opinion related to a matter of public interest; and (c) the opinion is based on proper material. REMEDIES Injunctions: are rare: ABC v O’Neill [2006] Where publication has already occurred, compensatory, exemplary and aggravated damaged are available DEFAMATION ACT 2005 (SA) SECTION 32 The court is to ensure there is an appropriate and rational relationship between the harm sustained and the amount of damages awarded DEFAMATION ACT 2005 (SA) SECTION 33 (1) The maximum amount of damages for non-economic loss is $250 000 (or any amount as adjusted by regulations) (2) A court can raise the damages, if it is satisfied that the circumstances warrant an award of aggravated damages (3) Minister is to declare in Gazette before 1 July each year, the maximum amount (8) The maximum amount is to apply from the specified date as declared **The current maximum amount is $398,500 as declared by Vickie Chapman, A-G, in the Government Gazette published Thursday 7 June 2018 DEFAMATION ACT 2005 (SA) SECTION 34 The court is to disregard malice of state of mind of D where awarding damages except to the extent that the malice etc affects the harm sustained by D DEFAMATION ACT 2005 (SA) SECTION 35 Exemplary or punitive damages cannot be awarded DEFAMATION ACT 2005 (SA) SECTION 36 (1) Evidence is admissible on behalf of D, in mitigation of damages for the publication of the defamatory matter (a) if D had made an apology to P about the publication (b) D had published a correction of the defamatory matter (c) P has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter (d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter

(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter DEFAMATION ACT 2005 (SA) SECTION 37 If the court in defamation proceedings finds for the plaintiff as to more than one cause of action, the judicial officer may assess damages in a single sum...