Lange v ABC PDF

Preview

Summary

assessment for lange v abc...

Description

In the case of Lange v Australian Broadcasting Corporation (1997), the High Court of Australia established a new defence, the defence of qualified privilege, to defamation. The defence of qualified privilege arises in circumstances where the law recognises that an identifiable public interest should override the plaintiff’s interest in protecting their own reputation.1 Qualified privilege also allows free communication in certain relationships without the risk of an action for defamation. This often applies when the person communicating the statement has a duty to make the comment, and the recipient has an interest in receiving it. 2 There are three main issues in relation to Lange’s defence; these issues include the requirements in which must be met before qualified privilege may be used as a defence, the comparison between the defences to defamation, and the protection of our implied right to freedom of political communication.

Requirements for Qualified Privilege Qualified privilege was introduced during the case of Lange v Australian Broadcasting Corporation. It exists under both common law and the Defamation Act 2005 (Vic) s 30.3 The requirements for qualified privilege are stated under s 30 of Defamation Act 2005 (Vic); There is a defence of qualified privilege for the publication of defamatory matter to a person if the defendant 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 to the recipient information on that subject, and c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.4

1 Dictionary 2 Legal service commission 3 act 4 act

However, qualified privilege is defeated if the Plaintiff proves that the publication of the defamatory matter was actuated by malice.5

Qualified Privilege Compared to Other Defences Privilege is a form of defence that allows defamatory statements to be made in the knowledge that you are legally protected to do so. 6 A statement is said to be privileged if the person making it is protected from legal action.7 There are two forms of privilege, absolute privilege and qualified privilege. Qualified privilege is distinguishable from absolute privilege which renders a person absolutely immune from defamation liability irrespective of the motive, meaning qualified privilege is defeated by proof of malice.8 An example of absolute privilege is Members of Parliament, as they’re able to speak freely during parliamentary proceedings, safe from legal action being taken against them for slander. Whereas having qualified privilege allows for defamatory statements to be published, provided they are not

malicious.9

Another

defence

to

defamation is that statements are justified and truthful. The requirements of this defence are that the defendant proves that all defamatory imputations arising from the published matter are substantially true – they must all be based on admissible evidence. Qualified privilege does not require statements to be honest, they can be backed by opinion. Another defence is fair report and fair comment. These two differ as a fair report must consist only of facts, it must be accurate and balanced, and it must only be published for the advancement of education, or to provide the public with and honest report. Whereas, a fair comment can be a statement of opinion. Its only requirements are that it is fair and it must concern a matter of public interest.

5 act 6 absolute and qualified 26 letter word 7 aph gov 8 dictionary 9 absolute and qualified

Protection of Freedom of Speech The use of qualified privilege in this case was so widely recognised, that the High Court of Australia outlined a test to determine the validity of a law: a) Does the law effectively burden freedom of communication about government or political matters? b) if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?10 Under this test, a law is invalid only if the first question is answered yes and the second is answered no.11. This test demonstrates that the implied freedom is not absolute, that it is subject to limitations and the law infringes on the implied right of political communication. 12 A decision made by the High Court also confirmed that qualified privilege is a robust defence of great utility for defendant’s other than the mass media.13 The High Court re-affirmed that federal legislation, state and Territory legislation, and common law must conform to the freedom of political communication which is an “indispensable incident” of the system of government created by the Federal Constitution.14 The defence of qualified privilege does protect our implied right to freedom of political communication, granted that statements being made or published are not malicious. Statements made with malice do not qualify for privilege.

The High Court of Australia’s new defence of qualified privilege allows for individuals to be protected by their implied right to freedom of political communication. Through use of the case of

Lange v

Australian

10 leanne griffiths 11 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (‘the Lange test’). 12 LEANNE 13 malice, qualified privilege and lange Glen Sauer 14 lange v ABC Sally Walker

Broadcasting Corporation (1997), comparison between the defences to defamation provide an insight to the extent in which we are guarded by the implied right.

Bibliography

A Articles/Books/Reports Concise Australian Legal Dictionary (LexisNexis Butterworths, 5th ed, 2015) Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters) Glen Sauer, ‘Malice, Qualified Privilege and Lange’ (2003) Vol 22 no.1 Communications Law Bulletin Leanne Griffiths, ‘The Implied Freedom of Political Communication: the State of the Law Post Coleman and Mulholland’ (2005) Vol 12 James Cook University Law Review Raponi, Kathleen and Catherine O’Sullivan, Foundations of Law in Australia (LexisNexis, 2nd ed)

Sally

Walker,

‘Lange

v

ABC:

the

High

Court

Rethinks

‘Constitutionalisation’ of Defamation Law’ (1998) Vol 5, no.1 E Law

B Cases

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

C Legislation

the

Defamation Act 2005 (Vic) s 30 E Other

Christina Luke, Absolute and Qualified Privilege (2 December 2012) Twenty-Six Letter Word < https://twentysixletterworld.wordpress.com/ >

Qualified Privilege (13 February 2018) Legal Services Commission of South Australia < https://lawhandbook.sa.gov.au/ >

The Lange Test (26 February 2016) Rule of Law Institute of Australia < https://www.ruleoflaw.org.au/ > The Privilege of Freedom of Speech, Parliament of Australia < https://www.aph.gov.au/ >...