Defamation 2: Defences and Freedom of Speech

Question 1

Why is Free speech important?

Answer 1

The argument for Human Rights - Individualistic view.
Individuals are beings with opinions and who live an autonomous life.
Without the capacity to speak, we might be less than who we might be. Freedom of speech is hence recognised under several international conventions

Argument from Truth - The more speech we have in society (even if defamatory and false), the more likely it is that truth will come to the fore in particular societies.
Not saying that every defamatory statement contributes to truth, but the idea that we had free speech, it allows people to speak and overtime, squeeze out from the recesses of society truths and expose untruths.

Argument from Democracy - Who we choose to govern us in a democracy depends on individual reputation (good and bad( and we don’t want the wrong people getting into government. The more speech we have, the more likely it is we choose someone right to govern us. So without freedom of speech, we won’t have good government.

But why protect it? Because it’s difficult for press to know on short notice whether what they’ve said is true of false. So if you could never defend yourself against defamatory speech, you might be deterred ever from publishing on the basis of uncertainty whether you say is true or not.

Question 2

What are the limitations on the right to sue?

Political parties

Answer 2

Goldsmith v Boryhul is authority that political parties have no right to sue, view from freedom of political speech. So we can say anything about the political parties.

Question 3

What are the limitations on the right to sue?

Public Bodies

Answer 3

Derbyshire Council v Time Newspapers - public bodies have no standing to sue

Question 4

What are the limitations on the right to sue?

Public Bodies

Answer 4

Ballina Shire Council v Ringland
D was an environmental activist part of the Green Seas project.
D published statements to the effect that Ballina had been secretly pumping human sewage out into sea under cover of darkness. Allegations were untrue.
HC held that the council itself had no standing to sue the individual. Had no capacity in Defamation law.
HC refered to Derbyshire case.

Question 5

What are the limitations on the right to sue?

Defamation Act and Corporations

Answer 5

s9 is the key section here. It bars most corporations from suing.
Also bars large private corporations from suing. Exception under (2) is that the corporation is small and has fewer than 10 employees and not for profit organisation.

Question 6

What are the three defences to Defamation?

Answer 6

1. Justification (truth)
2. “Fair” comment or “Honest opinion”
3. Qualified Privilege

Question 7

Defence: Justification. What are the types of Justification?

Answer 7

1. Substantial Truth
2. Partial Truth
3. Contextual Truth

Question 8

Defence: Justification - Substantial Truth

Answer 8

s25 of the Defamation Act says that D doesn’t have to prove real truth, but that it’s substantially true.
Edward v Bell: a “sting” of imputation was justified.

Habib v Nationwide News - Mr Habib was detained in Guantanomo bay on account of being involved in terrorists activities. He made various claims about the way he was treated.
Newspaper accused him of having made “knowingly false claims” about it. It was found out of the 7 claims, 3 of the claims he had made knowing they were false. That left 4 that couldn’t be shown to be knowingly false.
Newspaper succeeded on defence of substantial truth. This is because it promotes freedom of speech. Only been a defence since 2006.

Question 9

Defence: Justification - Partial Truth

Answer 9

Is not technically a defence.

The partial truth of a single imputation can reduce damages, but it’s not a defence as such.

Question 10

Defence: Justification - Contextual Truth

Answer 10

s26 of the Defamation Act. This section, where in the publication you have another imputation which is substantially true, then you can’t sue on the other ones if the effect of the true one is effectively to swarm the first one.
You can’t sue on that false imputation unless it does further harm over and above the harm that is done by the true imputation.

Channel 7 v Mahommed - Today tonight featured a story about a respondent described as a financial advisor and a mortgage. The store had three imputations:
1. P charged his elderly client (who had dementia) ‘outrageous fees’ (false imputation)
2. P took advantage, swindled and stole from his client (false)
3. P was dishonest (true)
Defence or statement of truth was on the third basis. Courts said it wasn’t a defence because imputation 3 was less serious than imputations 1 or 2 and the false imputation did further harm over and above the truth about him being dishonest.

Question 11

What are the elements of the “fair” comment/honest opinion Defence?

Answer 11

1. The comment is an opinion about facts, not a statement of fact.
2. It must be based on proper material
3. There must be a public interest in hearing the material
4. It must be honest held.

Question 12

Defence: Fair Comment - Opinion, not imputation of fact

Answer 12

Channel 8 Adelaid v Manock-
D forensic pathologist called upon t ogive evidence on a notorious individual.
Program ran a series of trailer before actual program as sort of advertising. During trailer, they made imputations that “the fact they kept to themselves and the inference that D had failed to reveal evidence that might have been prejudicial.
Was that headline actionable?
Held: not a statement of opinion, it was one of fact. Defence could not be made out. They were so far removed from the program that they couldn’t say it was an opinion about the facts.

Question 13

Defence: Fair Comment - based on proper material

Answer 13

It’s a requirement that the facts about which the opinion is stated must be proven to be true. The opinion MUST be based on true facts. s31(5) of the Defamation act, proper material is defined.
Meaning of ‘based’?: Macquaric Radio v Arthur Dent
Arthur dent had changed his name. Press drew attention after he starting drawing from his disability pension. Dent had managed to do 10,000 parachute jumps.
Newspaper published saying Dent was a person who just sat around claiming money and he had obtained disability pension by fraud (making up his disability when he could clear jump parachute jumps). He sued in defamation.
The statements were based on true facts that yes he had completed 10,000 parachute jumps, he also did draw from his disability pension.
Courts held that the first statement that he sat around claiming money was adequately based on the material that was true. It was a conclusion that could logically been drawn.
But the fraudster comment did not attract the defence. This opinion, even though it was honestly held, was not logical to draw from the facts.
This is because he had done the 10,000 jumps after he had originally applied for the disability pension. The imputation was that he had secured the disability pension before the 10,000 jumps.

Question 14

Defence Fair Comment: Honestly Held

Answer 14

The defence can only works if you had an honest opinion. You’re protected against defamatory statements unless you know that the statement is false or unless you appreciate that there’s a risk that it is false.

Question 15

Defence: Fair Comment: Public interest

Answer 15

London Artists v Littler -
“whenever a matter is such as to affect people at large, so that they may legitimately be interested 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.

Question 16

Defence: Fair Comment - Scope of protection

Answer 16

Opinions of employees s31(2)DA 2005

Opinions of third party commentators s31(3) DA 2005

Question 17

What are the different types of Qualified Privilege?

It is open to the D to plead all three of the qualified privilege defences

Answer 17

1. The Common law Qualified Privilege Defence
2. Traditional Common law Defence
3. Extended Common Law Defence: The ‘Lange Defence’

Question 18

What are the elements of the Common Law Qualified Privilege Defence?

Answer 18

Now it is provided by way of the Statute under s30 DA 2005.

Features of the defence:

1. Doesn’t just apply to governmental and political speech.
2. Like the Lange defence, defence is available to commercial publishers. Not barred simply because when you publish, you publish for money.
3. Like the Lange defence, has a requirement that the defence prove reasonable publication.

This defence is however, harder to make out for the Press.
They can rely on s33(e) which says considerations in taking into account reasonable publication is whether it’s in the public interest for the matter to be published expeditiously. Where there is a great deal or urgency, this may be taken into account. Also nature of business environment in which the business operates.

Question 19

What are the elements of the Traditional Common Law defence?

Answer 19

“an occasion [is privileged] where the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. An element of reciprocity is therefore essential” (Adam v Ward : Lord Atkinson).
Therefore two elements:
1. Duty and Interest
2. Malice

Question 20

What are the elements of the Traditional Common Law defence?
Duty and Interest

Answer 20

Stuart v Bell - invovle statements made under a moral or social duty to another person who had interest in receiving it.
P was a servant of African Explorer named Stanley. P accompanied him from place to place. One night Stanley was told by the mayor (D) (who was told by someone else) that P was suspected of stealing in the previous household.
Mayor passed the info to Stanley who then sacked the servant on the spot.
P brought action saying it was false.
Held: D had qualified privilege. He had good faith and provided information under what a reasonable person would regard as a moral/social duty to provide info and the recipient *P’s employer) had an interest in receiving information of that kind.
If the Mayor had told the media, then qualified privilege defence wouldn’t apply.

Question 21

What are the elements of the Traditional Common Law defence?

Malice

Answer 21

Roberts v Bass

Question 22

Traditional Common Law Defence

Answer 22

Doesn’t apply where the speaker has a commercial interest in publishing of that information.
You wouldn’t be acting under a legal/moral/social duty when you publish, but a commercial motive.

Question 23

Where does the Lange Defence originate from?

Answer 23

Lange v Australian Broadcasting Corporation
Lange was former PM of NZ. ABC said he abused office. Not true, so they couldn’t use defence of truth. Couldn’t be an honest opinion because it was a statement of fact.
ABC could only rely on qualified privilege.
This defence extends to apply in respect of governmental and political speech where the speech is about government of political interest. Something the traditional defence couldn’t do.
HC said:
1. Malicious not an element; AND
2. Publication was reasonable (Traditional defence didn’t have this).
So to a smaller group of people, it’d be easier to get the traditional defence, but when you broadcast it to a large audience, it could damage the person’s reputation even more and hence the requirement for reasonable.

In this case HC determines that each and every member of the Australian Community has a legitimate interest in receiving info on gov and political matters.

Additional elements:

1. Must be political speech
2. Reasonable publication defined as:
   
   1. Reasonable grounds for belief in truth
   2. Reasonable steps to verify
   3. not believing to be untrue
   4. sought and published P’s response (unless impracticable)

Question 24

What counts as political speech?

Answer 24

Political or governmental discussion includes:

1. Anything that members of parliament do and anytime at all. But this does not include international members
2. Political parties
3. Functioning of government
4. Conduct of the executive.

Question 25

What is reasonable publication?

Answer 25

HC indicated it is only reasonable to publish defamatory material to a broad audience if the publisher:
1. Had reasonable grounds for believing that the defamatory imputation was true;

2. Took proper steps, so far as they were reasonably open, to verify the accuracy of the material
3. Did not believe the imputation to be untrue; and
4. Sought a response from the person defamed and published the response made (if any- except in cases where the seeking or publication of a response was not practicable or unnecessary to give the P an opportunity to respond). (if they don’t respond, you say you gave them an opportunity to respond in the article and they haven’t). Popovich which discuss this factor.

Question 26

Other Issues in Lange:

1. How does the defamation law intertwine with the constitution?

Answer 26

The Constitutional implied right of freedom of political communication is not a personal right. It is a restriction on parliament. Laws are invalidated, but somebody has to have said that this is breaching my right and challenges the law for review.
It must be stressed that the constitution itself provides no private defence. The constitution provides an immunity against any STate action which is inconsistent with the freedom, but no private law rights are given to individuals. Thus a publisher of a defamatory statement can’t raise the freedom of political communication implied in the constitution as a defence.

Question 27

Other issues in Lange:

1. How do we know whether a defamation law meets or breaches our implied freedom of political communication?

Answer 27

1. Does the defamation law impinge on or burden the right to political communication?
2. Is it reasonably and appropriate adapted to a legitimate end of allowing the function of a democratic government or compatible with the maintenance of a democratic gov?

Question 28

Limited group v larger group?

Answer 28

1. For a smaller group, you have to show Malice. However, for the larger group, you don’t have to show Malice (Lange).
2. However, for a limited group, you don’t need to show reasonableness.
   For a larger group, you must show reasonableness. (Lange)

Question 29

Relation of s30 DA Act to the Lange Defence?

Answer 29

Media defendants more likely to be attracted to s30:

1. No specific reference to any requirement of a reciprocal duty-interest relationship. Focus is more on whether the recipient of the information had an actual or apparent interest in the info and whether D’s publication was reasonable
2. Unlike traditional defence, an ‘apparent’ interest is sufficient.
3. Like both Traditional and Lange defence, the statutory defence can apply to publications made for reward, which makes it suitable for the Press.
4. Like Lange defence, this defence must be reasonably published. But the statutory defence may have an easier threshold. The new provisions expressly recognise the “business environment” in which a D operates as a factor that the court can take into account.
5. Basically difference between Lange defence and statutory defence is scope of ‘reasonableness’ which is much wider and hence likely to be relied on by Press.