WEEK 7 & 8 – Defamation PDF

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WEEK 7 – DEFAMATION     

Strict liability tort – interests protected are important Law assumes you have a legally protected interest in what others think of you – reputations can be completely unmerited, but this is irrelevant, it is always protected. Somewhat contentious, but historically it has been very well protected. Freedom of speech is the main policy concern – onus is on the defendant to prove a free speech argument Juries are still used in defamation trials – o Defamatory meaning:  Judge decides whether or not they think it is possible that an ordinary person might consider them defamatory.  If not, cases are stopped. They are the most expensive & longest running cases.  If so, the issue is passed onto the jury to assess, with the facts, as to whether or not the imputation was in fact defamatory.

Historically: o After 2006;  1. Common law (basic position)  2. Uniform legislation (and subsequent statutory modification) – statues that are uniform across jurisdictions – Defamation Act 2005 QLD  3. All rules have to respect requirements in the Australian Constitution – final constitutional limit o Forms of defamation:  Libel (written / permanent form) was actionable per se  Slander (spoken / impermanent form) had different rules, had to prove actual loss  Defamation Act 2005 QLD s.7 – all forms are actionable per se, without any proof of special damage  Liability Requirements: o 1. Defamatory Matter:  Some thing by which the defamatory statement is communicated  ‘Matter’: written publications, articles, all forms of electronic devices, any thing by which virtue of communication can take place – within the QLD Act o 2. Defamatory Meaning(s):  Specify in their pleadings, the actual meaning you say the words have of those words that are defamatory  Definition: Imputations of fact which tend to expose the plaintiff to [hatred, contempt, or ridicule] (Parmiter v Coupland 1840) or which tend to [lower him or her in the estimation of ordinary decent persons in some respect] (Sim v Stretch 1936 – updated by Radio 2 UE v Chesterton 2009) or which cause him or her to be [shunned or avoided] (Yousoupoff v MGM 1934) A WORKING TEST: 

- borrowing money from domestic servant (no) - being the victim of rape/seduction (yes) - bulimia (yes) - business reputation (yes)

- insults, understood as such - public ridicule/figure of fun ?

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Sim v Stretch [1936] 2 All ER 1237 Yousoupoff v MGM [1934] 50 TLR 581 John v MGN [1997] QB 586 Sungravure v ME Airlines (1975) 134 CLR 1 *Radio 2 UE v Chesterton [2009] HCA 16 [36][37]. [Thornton v Telgraph Media Gp [2010] EWHC 1414] Parkins v Scott (1862) 1 H&C 153 Boyd v Mirror News [1980] 2 NSWLR 449 Berkoff v Burchill [1996] 4 All ER 1008

Radio 2UE v Chesterton [2009] HCA 16 [36][37] o Facts:  John Laws radio show – someone previously employed (journalist Ray Chesterton) as “someone not to be taken seriously”, a “bombastic buffoon” and implied that he had been fired from the station, which was not true. On appeal, the station argued that it had done more damage to the business, than it had done to the plaintiff as a journalist. o Decision: Held. Defamatory imputations were made.  French, Gummow, Kiefel & Bell JJ:  Defamation Act 1974 (NSW), distinguishes these imputations as injurious falsehoods, rather that, the, “publication must have an effect upon the reputation of the plaintiff rather than upon the business, trade or profession of the plaintiff as such”  “A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect” [3] – Lord Atkin approach in Sim v Stretch o Might think of him as ‘less of a journalist’ and somewhat lowered in standard – imputation was stated in a context which could cast doubt on his credibility as a journalist: context here is important  Normally “bombastic buffoon” would just be an insult and would not be defamatory.  An aspect of spite of vindictiveness (especially in a heated context), it is unlikely that another person would think badly about the person being insulted.  Insults do not carry the same ‘future stain’ as defamatory statements Boyd v Mirror News [1980] 2 NSWLR 449 o Lack of professionalism (context). If it was not just that he was fat & slow & unpredictable, rather that he had not been professional in training (however, this was not pleaded). o Usually it would just be an insult and non-actionable. o Implied imputation, that he is not just fat, but he looked ridiculous, in respect of whom it is respectable to make fun of him – court left the three words “fat, slow & predictable”, in the context, to the jury.

OBJECTIVE STANDARD: ‘ORDINARY REASONABLE PERSONS GENERALLY’

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Tendency (or likely) of the statement to defame, not whether the person is ‘thought of less’ – not strictly relevant – if tendency is present, that is enough Religious or social groups are sub-sections of society – where is the limit for ‘ordinary, reasonable persons’ – pluralistic argument for reputable religious standards Intent is irrelevant - Cassidy v Daily Mirror [1929] 2 KB 331 o Were married, but written as Ms. on the headline – false imputation that her & her husband were not married. General community standards applied - Loukas v Young [1968] 3 NSWLR 549 o Plaintiff accused of witchcraft – prepared to accept that in that small Greek community in which she lived, people would think less of her. o She could not succeed, as the standards of society generally are what’s important – people generally, in Western society, would not have believed in witchcraft. o Also applied in Reader’s Digest Services Pty Ltd v Lamb (1982) CLR 500 (HCA)  Breached confidence in his friend to get a story – his wife had been abducted and he told the story – sued in defamation  Held. Gibbs CJ, Stephen, Wilson and Brennan JJ :  General standard in society approach, applying this would show that it would be defamatory, journalistic standards and personal trust had been breached. o Material error as to asking journalists on the stand if the statement was defamatory. This emphasised the overall community approach, rather than asking just a small, select group of individuals. o Sectional standards - Hepburn v TCN Channel Nine [1983] 2 NSWLR 682  Being called an ‘abortionist’ was defamatory, plaintiff alleged.  General community standard would not hold it to be  Decision: Held.  “Material complained of does alter, qualify or otherwise affect the sense of the matter held to be capable of a defamatory meaning, even though that be in small degree”  Significant section of society might consider this to be defamatory (not inconsistent with any High Court authority)  Sufficient to ‘appreciable & reputable’ section of the community  Interpreted, ^^ as, can’t take the views of a few journalists.

CONTEXT:

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Can be materially effected by its context – not simply the literal words The ordinary reasonable reader, reads the publication as a whole, not just picking out certain words or phrases - Charleston v News Group [1995] 2 WLR 450 o Actors, on Neighbours, were depicted under the title, ‘Porn Shocker for Neighbours Stars’. Under the title, explained that a 3rd party had photo shopped their faces onto porn actors bodies. o Misleading title / headline – not held. o Readers have to understand the whole publication, not just certain specific words. Nonetheless, it is accepted that the location and prominence of the headline can be taken into account, when working out how a reasonable reader would read the whole article. A small retraction on pg.2 would not be enough of an antidote to the gratuitous headline on pg.1 – subjectivity What is the whole publication? o Clear linking -> must be shown to be part of the same story o Hockey Case: Why were the tweets & poster not considered part of the actual story – not every reasonable person would have clicked through to the actual story. o Defence of qualified privilege & freedom of speech did not apply.

WHAT WERE THE ALLEGED DEFAMATORY IMPUTATIONS? Derive meanings (a) “Accepted bribes to influence decisions” (b) Prepared to accept bribes to influence decisions (c) Corruptly solicited payments to influence decisions (d) Is corrupt because prepared to accept payments to influence decisions (e) Corruptly sells privileged access in return for donations to Liberal Party; (f) Knowingly permitted Liberal Party fundraising forum to accept money from the corrupt Obeid family.  No reasonable persons would read that his actions were corrupt, or he was engaged in conduct not befitting of his job = no defamation WHICH PUBLICATIONS WERE HELD TO BE DEFAMATORY? * Written articles, tablet apps, website articles not conveying defamatory imputation, when considered as a whole:

[144], [147], [156], [181],[189],[192][194]. * Poster headlines capable of conveying defamatory imputations (c/d) * Tweet 1capable of conveying imputation (c/d): [209]. * Tweet 2 capable of conveying imputation (e): [211] * Tweet 3 not capable of conveying any imputation: [213].

EXTENDED MEANINGS:  

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Has to reach the mind of a third party – some person other than the plaintiff Extended ‘Natural Meanings’: Favell v Qld Newspapers o Facts: Respondents published an allegedly defamatory newspaper article that reported the unexplained destruction of a multi-million dollar house by fire, against the background of a heavily contested application to develop the site into a five story residential complex. o Decision: Held. Glesson, McHugh, Gummow, Hayden JJ - trial judge erred in holding that the newspaper article went no further than recording that the fire was under investigation by the arson investigation unit and that its cause was an open question. On the contrary, the main thrust of the article was to link the fire with the contentious development proposal. Can be liable as the original publisher (person who writes the article) Wherever the material is downloaded, or present, is the jurisdiction is which it becomes actionable ISP provider is regarded as publishing the information on a website that it hosts o Normally, to be a publisher over matter, you have to have some control over its creation

PUBLICATION:  

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Anyone who publishes the statement can be liable Initial publication: o Failing to remove notices/graffiti (Byrne v Deane), (Urbanchich v Drummoyne Council) o Internet postings (Godrey v Demon Internet), (Dow Jones & Co v Gutnick) o Letters opened by unintended parties (Huth v Huth), (Theaker v Richardson) o Twitter postings (Hockey v Fairfax Media) Repetition: o Each repetition constitutes a separate actionable publication o Saying someone else said it (therefore reasonable reader would believe the defamatory issue) is not a defence

REFERENCE TO THE PLAINTIFF:  

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Defamatory material must have been published ‘of and concerning’ the plaintiff (Kasic v Australian Broadcasting Corp (1964)) An objective question – intention irrelevant o Unwitting use of another’s name (Hulton v Jones) o P only identifiable by innuendo (Steele v Mirror Group Newspapers) Defaming a class? o Not normally enough to defame a class (Knuppfler v Express News) o Exceptional cases  Bjelke-Peterson v Warburton & Burns  Facts: Warburton was the leader of the opposition. Burns was the deputy leader. Recorded on ABC news one night that

parliament had gotten very heated and statements were made that the ministers of government were corrupt (‘got their hands on the till’). Reference to former President Markos (corruption etc.) Politicians can say whatever they like in parliament; however, Mr Burns/Warburton walked outside and repeated them to news crews.  Decision: Held. Imputations were capable of bearing a meaning which was defamatory of any of the plaintiffs as they could have referred at least to the Ministers of the Government, and to say that some members of a narrow class were guilty of misconduct, without saying which, was to cast a slur on all of them.  Defaming ‘one of two’ (McCormick v John Fairfax) Strictness of Basic Liability Regime?  Some defamation is still a crime  P need not prove falsity  P need not prove damage in any case  D need not intend to defame, be malicious or careless  D need not intend to refer to P  Subsequent re-publishers are equally liable in principle o Even satire may be defamatory WEEK 8 – DEFAMATION II : DEFENCES & FREEDOM OF SPEECH 

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Why is Freedom of Speech Important? o As a human right (international conventions) o Integral to personal development as a human being – testing boundaries and ideas (less so for corporations & governments) o Tends to lead to the discovery of ‘truth’ – benefits society and functioning as a whole (Mill – competitive market theory) o Feeds into democratic decisions as to who will govern us – prioritisation of political freedom of speech Limiting the Rights to Sue (quite significant): o 1988 UK – political parties cannot bring a defamation suit  Goldsmith v Boryhul [1988] QB 459 o Government has no standing, nor do council’s as ‘entities’ in defamation  Derbyshire Council v Times Newspapers [1993] AC 534 (HL)  Ballina Shire Council v Ringland (1994) 22 NSWLR 680  Council responsible for dumping waste into the sea & deceiving voters  Criticisms of council bodies is essential to the functioning of modern democracy o Defamation Act 2005 (Qld), s 9, now extends this to ‘all corporations with 10 or more employees’ (as per the definition)  Can still sue if:  Not-for-profit  Have less than 10 employees & are not tied to a corporation of

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more than 10 employees  Have a significant capacity to rebut the power of a defamatory statement – power to remedy themselves is significant compared to private individuas o Judges as ‘judges’  O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 at [241], [263-4]  Troughton v McIntosh was authority for the proposition that a judicial officer is prevented from commencing and maintaining defamation proceedings when the imputations go directly to their behaviour in the performance of their judicial office.  Distinguishable from this precedent, as it was not an overall comment on the system at large, rather a personal attack, made through public radio broadcasts, criticising the plaintiff’s conduct as a judicial officer.  A private right of action is available to a judicial officer for defamatory comments made out of court. Caps on Damages: o S. 35 Defamation Act 2005 (Qld) - $280,500 is the maximum (purely for defamatory act, not consequential economic loss) o Impossible to get a pre-trial injunction to prevent individuals to stop making defamatory comments Defences: o 1. Justification:  Substantial truth (absolute defence - “true in substance, not materially different from the truth”):  S. 25 of Defamation Act 2005  Imputation made wasn’t true = no liability  Habib v Nationwide News [2008] Aust Torts Reps 81-938 o Newspaper wrote a report saying his accusations were “knowingly false” o Plaintiff sued for this defamatory statement o Newspaper pleaded & won: substantial truth – 3/7 claims he had made, were made knowing that they were knowingly false  Harbour Radio v Trad [2012] HCA 44 o Facts: After Cronulla riots, plaintiff made a speech, referencing ‘tabloid journalism’, especially 2GB, as having caused the riots. In response, a number of defamatory statements were made on air about plaintiff in response to public slurs against the radio station – being racist & acting illegally. o Decision: Held. (Gummow, Hayne, Kiefel and Bell JJ) Defence of qualified privilege was made good with respect to six of the eight imputations  As per the majority, qualified privilege = matter is sufficiently connected with the content of the attack or goes to the credibility of the attack or

to the credibility of the person who made the attack  “It was a relevant and reasonable response by 2GB to direct attention to the credibility of the attacker by imputing hypocrisy to Mr Trad as one who himself incited people to commit acts of violence and to have racist attitudes, and as one who at the peace rally had stirred up hatred against a 2GB reporter, causing him concern about his personal safety” [36] o 4 imputations were found to be ‘substantially true’ out of 8 total.  Partial Truth (not an absolute defence)  Not an absolute defence.  Can be a reduction in damages – Lord Denning  Contextual Truth  S. 26 of Defamation Act 2005  One or more other defamatory imputations in same publication substantially true (i.e. some falsities are true, but one or more are not), having regard to the truth, the untrue falsities do no further harm done by the true false imputations = no action, even on false statement  Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477 (old NSW Act) o No additional harm to his reputation (false imputations were less serious that the ones proven to be true)  (b) Incited violence (against Jews) – true [55]  (c) Incited racist attitudes (against Jews) – true [57]  (d) Dangerous individual – true [60]  (g) Disgraceful individual – true [63]  (h) Widely perceived as a pest – false, but no lesser an imputation than disgraceful, shown to be true  (k) Attacks those who gave him privileged position – false, but ‘understood in context’: by attacking the media, he attacks those who gave him ‘privileged position’ (i.e. airtime & medium to express his views). Either way, not capable of causing any further harm to reputation. o 2. Fair Comment / Honest Opinion  s. 31 of Defamation Act 2005 31 Defence of 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. S 31(4) – Defence defeated if P proves that the opinion was not honestly held at the time of publication. S31(5) – “Proper material” means material that is (a) is substantially true; or (b) privileged or (c) was published on an occasion attracting the protection of a defence under s 28, 29 or 31.

wouldn’t be able to distinguish an opinion from an assertion of fact, this defence cannot apply. State facts before opinion – removes ambiguity. o Only exception is where the facts are ‘so well known’, that the facts do not need to be restated  Statements of opinion, commentary about the world, are ‘of the essence’ of free speech (human rights & choose to be governed)  (a) Comment (opinion) about facts, not a statement of fact  Channel 7 Adelaide v Manock (2007)  (b) Based on proper material  Facts commented on must be substantially true; or publication of the facts otherwise protected  Comment must be rationally related to facts commented on (‘based on proper material’)  Macquarie Radio Network Ltd v Arthur Dent (2007)  (c) Public Interest  “everyone is entitled to make fair comment”, per Lord Denning [391], London Artists v Littler o 3. Qualified privilege  Absolute – not actionable, even if maliciously made  Statements made in parliament – protection of free speech -> see s. 27  Privilege falls away if the plaintiff can prove that the statement was made with malice  Used mostly my politicians in parliament – on the floor o 4. Common Law Qualified Privilege Defence  Traditional Common Law Defence:  Speakers may have moral, social, or legal duty statement (even where it may be false) & where they make that statement to a person with a reciprocal duty to receive said information, that person is said to be privileged, unless it can be proven that the statement is made maliciously. Adam v Ward 1917 AC 309, 334, per Lord Atkinson.  Stuart v Bell: Duty and interest o Plaintiff was domestic servant o Stanley was staying with the defendant, who falsely suggested that his servant, was suspected by the police in stealing a watch & thusly he fired his servant o Plaintiff sued for economic loss (of a c...