defamation in Australia

This page considers the Australian defamation regime.

It covers -

• introduction - the shape of Australian defamation law and practice
• libel and slander
• injurious falsehood
• print, broadcast and the net - blurred boundaries in the electronic era?
• history and status - the evolution of defamation law from the colonies to the age of the net and national broadcasting networks
• how much defamation
• legislation - key federal and state/territory enactments
• criminal liability - criminal versus civil offences
• SLAPP - strategic defamation and trade practices action against public comment
• hate speech - anti-vilification measures in Australia

Specific aspects are discussed in more detail in the following two pages.

    introduction

Defamation law differed from jurisdiction to jurisdiction in Australia and moves towards uniform practice were slow, with new uniform defamation legislation coming into force in the states and in the Australian Capital Territory on 1 January 2006.

In 2005 each state enacted uniform defamation legislation that repealed existing defamation Codes and sections 3A, 5, 5A, 6, 7, 8 and 12 of the Wrongs Act 1958 (Vic). The expectation was that uniform legislation would address past variations in the application of defamation law, which - as noted on the preceding page of this profile - resulted in forum shopping and considerable uncertainty for journalists, media organisations and other entities.

In Australia defamation action is essentially concerned with damage to reputation, rather than publication being untrue or an invasion of a plaintiff's privacy. There has been disagreement about the appropriate balance between free speech and protection of reputations.

The High Court thus identified three bases for granting damages in a claim of defamation -

• consolation for personal distress and hurt caused to a plaintiff by publication
• reparation for harm done to a plaintiff's personal and (if relevant) business reputation
• vindication of the appellant's reputation.

Theorists have identified an underlying objective of respect for the individual and, less abstractly, an encouragement of best practice by the media industry.

The overall shape of Australian defamation law is that a person who 'publishes' an assertion of fact or a comment that

• injures - or, importantly, is 'likely' to injure - the personal, professional, trade or business reputation of an individual or a company
• exposes them to ridicule or
• cause people to avoid them

is guilty of a tort, ie a civil offence. That publisher is liable for damages unless that person can positively justify or excuse the publication in the specific circumstances. In some instances, discussed on the following page, the publisher may instead face sanctions for criminal libel.

In practice the cost of litigation, which may include an opponent's legal expenses, can be considerable (in some instances outweighing any damages awarded by a court). Along with the complexity of defamation law and the time involved in litigation it is considered by some observers to substantially inhibit free speech.

Reflecting origins in UK law, the Australian regime has an adversarial basis, with

• courts considering arguments and evidence submitted by defendants and plaintiffs (generally through senior lawyers)
• an onus on a defendant to defend the particular statement.

Action is expensive, may involve several years and involves some risk because of uncertainty about interpretation of case law and the size of damages.

Law reform specialists have recurrently noted that plaintiffs may succeed in a defamation action without necessarily providing evidence to establish that the defamatory statement was false, that the defendant was motivated by malice, was guilty of negligence or was guilty of some other fault.

Proof of publication of a supposedly defamatory statement places on a defendant the burden of positively establishing some defence. Journalists and some law reform specialists have accordingly suggested that instead of requiring publishers to prove truth, the law of defamation should expect plaintiffs to prove falsehood.

Defences are discussed in the following pages of this profile.

    libel and slander

Defamation litigation in Australia can be characterised as comprising two categories -

• libel
• slander

Australian courts have traditionally used two tests to differentiate libel from slander.

The first is the 'permanency' or 'form' of of publication. Defamatory material published in a permanent form is libel. Non-permanent publication is slander.

The second is the mode of publication: with a rule of thumb that defamatory material published "to the eye" (in particular print) is libel and that "published to the ear" is slander.

    injurious falsehood

Businesses and other organisations are not perceived in Australian defamation law as being endowed with personal feelings. However they may take action over "injurious falsehood", which other jurisdictions has been referred to as "malicious falsehood" .

That encompasses statements disparaging a plaintiff's goods/services. The tort has three elements -

• the statement must be false (irrespective of whether it is defamatory of an individual plaintiff)
• the statement must be published maliciously
• it must have been intended to produce and resulted in actual damage, with the plaintiff having suffered direct economic loss because the falsehood deceived others about the organisation's activities.

The test for injurious falsehood is thus considered higher than that for personal defamation. Malice may exist without an actual intention to injure. Malice may not be inferred merely from the fact of publication; it will be inferred where the false publication was made with an intent to injure without just cause, knowledge of falsity or reckless indifference to its truth or falsity. An honest belief in the truth of the statement will rebut any inference of malice.

Injurious falsehood has been used in action against at least one blogger (2005 Kaplan v Go Daddy Group & 2 Ors here) and against offline publication by individuals, community groups and business competitors. In September 2007 action was launched by a software developer against high-profile Australian site Whirlpool.net.au but did not proceed to fruition, with media attention arguably damaging the developer more than the Whirlpool forum's operator.

The power to grant an interlocutory injunction to prevent initial or continuing publication of an injurious falsehood is discretionary. An injunction may be granted where the publication was plainly false. In seeking an injunction the plaintiff is required to show "that a subsequent finding by a court that the matter was not false would be set aside as unreasonable or perverse".

    print, broadcasting and the net

Australian courts initially held that defamatory speech in a radio or television broadcast (even when read from a script) was slander. There has since been acceptance - with explicit recognition in section 206 of the federal Broadcasting Services Act 1992 - that broadcasting is publication of matter in a permanent form.

In practice the major difference is that the plaintiff in a libel action in some states does not need to show financial loss, whereas in an action for slander the plaintiff must suffer pecuniary damage (with the exception of statements concerning unfitness for a profession, unchastity, adultery, some criminal offences or contagious diseases).

Australian courts, building on case and statute law regarding defamation using telegraphy, have recognised that defamation can occur online. The landmark Rindos decision of 1993, discussed later in this profile, for example confirmed that publication includes a news item on an electronic bulletin board. The plaintiff was awarded substantial damages. The net is thus not a zone that is exempt from defamation action.

The 1992 federal Broadcasting Services Act (BSA) provides a statutory defence for an ISP or ICH that carries or hosts internet content in Australia and is was not aware of carrying/hosting a defamatory publication. Schedule 5 to the BSA provides that a state/territory enactment and of common law has no effect to the extent to which it

(i) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host/internet service provider to liability (whether criminal or civil) in respect of hosting/carrying particular internet content in a case where the host/provider was not aware of the nature of the internet content; or

(ii) requires, or would have the effect (whether direct or indirect) of requiring, an internet content host/internet service provider to monitor, make inquiries about, or keep records of, internet content hosted/carried by the host/provider.

It is important to note that the definition of "internet content" in the BSA excludes "ordinary electronic mail", information that is transmitted in the form of a broadcasting service and information that is not "kept on a data storage device" (although ISPs and ICHs may be able to rely on the defence of innocent dissemination discussed later in this profile).

In 2002 the High Court of Australia, in Gutnick v Dow Jones (discussed later in this profile), established that offshore internet publications defaming an Australian in Australia - potentially with only a handful of readers - could be held accountable under Australian law.

It commented that

If people wish to do business in, or indeed travel to, or live in, or utilize the infrastructure of different countries, they can hardly expect to be absolved from compliance with the laws of those countries. The fact that publication might occur everywhere does not mean that it occurs nowhere

The case has been widely criticised overseas - albeit sometimes with little understanding - and has received less attention than decisions such as the 2003 award by the WA Supreme Court of substantial damages in Cullen v White.

    history

Australia inherited defamation law with UK statute and common law at the time of colonisation.

Variation between the colonies - and their successors the states and territories - reflected the shape and pace of law reform since the 1830s. It reflected the involvement of particular dignitaries, media organisations and professional groups (eg the NSW Bar), seeking to exploit or circumscribe opportunities for personal and corporate advantage. It also reflected developments in the UK and Canada.

It has resulted in three basic schemes -

• two Criminal Code jurisdictions (Queensland and Tasmania) with defamation law based on Sir Samuel Griffith's reworking of the 1860 Indian Penal Code
• three Common Law jurisdictions (Victoria, South Australia and Western Australia)
• three Common Law with Statutory Modifications jurisdictions (NSW, the Australian Capital Territory and the Northern Territory) with common law modified by discrete Defamation Acts.

Codification of the defamation regime in Tasmania and Queensland means that action in those states is now essentially governed by legislation rather than common law. In NSW and the ACT the causes of action are largely governed by common law, with enactments about legislative defences. Defamation law in the other jurisdictions is primarily governed by common law; only minor features are addressed through legislation.

Some of that legislation now appears archaic. The Western Australian Criminal Code for example includes a provision regarding "Defamation of foreign princes", providing that

Any person who, without such justification or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or any sign or visible representation, tending to expose to hatred or contempt in the estimation of the people of any foreign state any prince or person exercising sovereign authority over that state, is guilty of a misdemeanour, and is liable to imprisonment for 2 years

As of 2004 there is no overarching Commonwealth enactment, although defamation is bounded by recent federal telecommunications legislation.

That has meant that at various times Sydney, Melbourne and Brisbane have been tagged as the "payout capital", with large scale damages payments or settlements - in some instances for problematical claims - and action by public figures or organisations that appears to have been designed to stifle public discussion of matters of community concern rather than seek redress for substantial, undeserved damage to reputation.

Major cases have thus involved state premiers, federal members of parliament (some apparently seeking money from the "defamation lottery" rather than truly concerned about meaningful damage to reputation) and what newspapers disingenuously characterise as "colourful entrepreneurs". Prime Minister Bob Hawke supposedly boasted about his 'Truth Memorial Swimming Pool', financed with with a settlement from the trashy Melbourne tabloid Truth.

In 2002 Sydney was claimed as "the world capital for defamation cases" on the basis that it had more than double the number of suits per capita than the UK and over 10 times the number per capita than in the US.

There is disagreement about the impact of defamation law in chilling free speech and potential remedies, for example giving aggrieved individuals and organisations an effective right of reply in publications.

Defamation law reflects the shape of justice. In practice there is a bias towards major figures and major media/other organisations, given the cost of justice and community expectations. Victims of some current affairs broadcasts and tabloids have thus tended to gain less satisfaction than particular celebrities. Author John Birmingham griped in 2001 that

Defamation laws in Australia were written to protect the interests of 19th century gentlemen hypocrites, and they are very, very good at protecting the interests of new millennium gentlemen hypocrites. And so whenever I ended up writing about somebody who was still alive, what happened was that unfortunately because of these laws we had to cut it. There was thousands and thousands, I think about 30-thousand words cut from the manuscript. People blame the publishers for wimping out, but you know the publishers are not a sort of font of capital to be handed over to these villains, and they are villains, I mean don't get it wrong. I interviewed people who’d been held as slaves in Sydney, people from third world countries who'd been brought in and imprisoned, locked up in the basements of houses for years. I couldn’t tell those stories because despite the fact that it happened, and despite the fact that it was the truth, the truth was not a defence.

Differences between the states and concerns about practice within individual jurisdictions have been reflected in a succession of reports by advocacy groups and law reform bodies. The 1979 Unfair Publication: Defamation & Privacy report from the Australian Law Reform Commission, a landmark study, argued that across the nation defamation law was "inefficient in vindicating reputation" and unduly impeded the flow of information within the community.

It noted that

The laws are complex and conflict from one part of the country to another. It is not reasonable to expect editors, producers and journalists to know and apply eight separate defamation laws in publishing newspapers and magazines circulating throughout Australia and in selecting material for transmission on national broadcasting and television programs. In most jurisdictions the content of the law has been substantially unrevised this century. The law takes little account of changed social conditions, technological advances and the growth of national consciousness and national communication.

The ALRC accordingly recommending a uniform regime centred on a single enactment "without the necessity to resort to earlier decided caselaw".

It commented that

Ideally, from a legal point of view, there ought to be a reference of power by each State to enable the Commonwealth to enact a single law covering all cases of unfair publication. In default of such references there are two alternatives. The first is reliance by the Commonwealth upon its existing constitutional powers. ... The second alternative is uniform legislation enacted by each State and Territory.

Slow progress by the various Attorneys General in addressing the ALRC recommendations during the 1980s was followed by independent reports in some jurisdictions, notably the 1996 ACT Community Law Reform Committee Defamation report criticising existing regimes as "obscure, contradictory and fragmented" and the 1995 Defamation report by the NSW Law Reform Commission.
    
In 2004 the federal Attorney General released a Outline of possible national defamation law discussion paper (PDF). He indicated that the states and territories must unanimously agree to amend key aspects of their defamation law or the Commonwealth would develop legislation to override their regimes. That legislation would be based on the Commonwealth's constitutional powers regarding "postal, telegraphic, telephonic and like services", corporations and interstate commerce.

Although constitutional limitations would leave some aspects of defamation in non-federal hands (eg spreading defamatory leaflets), defamatory statements in television and radio broadcasts, the print media and the net would be covered by the new Commonwealth legislation.

     how much defamation?

Comprehensive data regarding the number of instances of defamation, the number of defamation suits and their progress is unavailable. The absence of that data impedes analysis about the extent of out of court settlements or the overall shape of costs and damages.

One reason is that settlements are apparently often reached out of court, with restrictions on disclosure of whether damages have been agreed and costs allocated.

     legislation

As noted above, defamation is a state/territory responsibility, except to the extent that the High Court has found implications in the Constitution which apply uniformly throughout the country.

Salient defamation enactments in Australia are -

• federal Parliamentary Privileges Act 1987 | here
• ACT Defamation (Criminal Proceedings) Act 2001 | here
• ACT Civil Law (Wrongs) Act 2002 | here
• NSW Defamation Act 1974 | here (amended by the Defamation Amendment Act 2002)
• NT Defamation Act | here
• Queensland Criminal Code 1899 | here
• Tasmania Defamation Act 2005 | here (extending the Criminal Code Act 1924 and replacing the Defamation Act 1957 here)
• Western Australia Criminal Code Act 1913 | here

The 1997 Broadcasting Services Act (building on the 1992 Broadcasting Services Act) is comparable to the US Telecommunications Act 1996 in providing some protection for ISPs and telcos.

    criminal offences

Although most litigation involves civil liability for defamation, the criminal codes of several states include provision for prosecution of defamatory statements as criminal offences.

Those provisions cover statements that had a malicious basis and, in particular, that were known by the publisher to be false. Penalties include punitive damages and imprisonment.

In South Australia, Victoria and the Northern Territory under common law any libel of sufficient seriousness can lead to criminal proceedings. Examples have been action in 1960 against Rohan Rivett, editor of Adelaide's The News, as part of the 'Stuart Affair' (three charges of seditious libel and three of malicious libel) and charges in 2005 against staff members of former SA speaker Peter Lewis over claims that politicians and police officers were paedophiles.

In Tasmania, Western Australia and Queensland the legal code provides for a misdemeanour (where there is no knowledge of the falsity of the statement) or a more serious penalty where the publisher knows that the defamation is false. Criminal defamation in the ACT involves malice and knowledge of falsity. The 1974 NSW legislation, in abolishing punitive damages for criminal defamation, identified a new offence involving "intent to cause serious harm" or knowledge that serious harm is probable.

     SLAPP

Some people have benefitted from media self censorship.

NSW Premier Robin Askin, for example, was widely rumoured to have a close involvement with police corruption and organised crime but was not exposed by the mainstream media, apparently because it was known he would take an aggressive approach in suing for defamation. He was exposed immediately after his death in 1981, as NSW law does not recognise legal action by the dead.

In 1988 national broadcaster the ABC exposed large scale corruption in the Queensland police force, subsequently substantiated by the Fitzgerald Royal Commission associated with the fall of the Queensland Premier and his government. Defamation action against the ABC and journalist Chris Masters was ultimately unsuccessful but lasted for almost a decade. Observers have commented that some peers would simply have settled.

Public debate and community activism in Australia has been chilled through what is sometimes characterised as strategic litigation against public participation (SLAPP) suits.

Suits have centred on alleged defamation of individuals - for example property developers, company directors and even some government officials - and claims that criticism in publications has breached sections 52, 53 and 55 of the federal Trade Practices Act through statements that are false, misleading or deceptive. Those sections are concerned with consumer protection.

Few suits have been successful, with plaintiff claims being rejected by the courts or - more commonly - defendants being cowed by the threat of litigation and accordingly reaching a settlement (arguably the goal of some plaintiffs).

In contrast to some US states, where anti-SLAPP enactments seek to minimise abusive suits, there are no constitutional protections of free speech and changes to Australian state/territory legislation and common law against such chilling litigation have been slow. The NSW Defamation Amendment Act 2002 for example provides that most corporations may no longer sue for defamation.

     hate speech

In contrast to the absence of formal anti-SLAPP measures, Australian jurisdictions have moved to enact and implement a range of measures concerning vilification of ethnic, religious or other groups.

Those measures, considered in the discussion elsewhere on this site regarding Hate Speech and Human Rights, are essentially concerned with defamation of groups rather than individuals or particular organisations.

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