Australian practice

This page considers the operation of defamation law in Australia.

It covers -

• introduction
• questions - what is involved in defamation litigation
• publication and republication
• is the statement defamatory - the starting point for any action
• is the plaintiff identified
• is there malice?
• defences - legal justifications for defamation
• absolute privilege - protection for statements in parliament, courts and similar venues
• qualified privilege - reporting and statements made in the course of official/professional duty
• justification
• fair comment - journalism, scholarship, criticism and other comment
• innocent distribution - protection for distributors such as newsagents, book wholesalers and libraries
• unintentional publication
• apology
• the new regime

    introduction

As the preceding page noted, until passage of the uniform legislation (effective 1 January 2006) there was substantial variation between different Australian jurisdictions (and between overseas jurisdictions) regarding common and statute law.

Analysis of reports of individual cases in Australia suggests that the scale of damages awarded - and more fundamentally whether damages are awarded - has reflected factors such as -

• the particular jurisdiction
• the nature of allegations
• the particular personality (eg a popular sports figure is more likely to 'score' in claims for damages from a commercial publisher than a used car dealer or politician)

Readers should note the site use pages. This page is provided as part of a broader discussion of internet regulation and publishing; it is not intended as a substitute for legal advice regarding specific incidents or questions.

    questions

Defamation action may be broadly divided into three 'elements', each of which must be proved for the action to be successful.

Those elements are that -

• the defendant 'published' material
• the material is 'defamatory'
• the material was published 'of and concerning' the plaintiff.

If these elements are all established, the court considers any defences raised.

Those defences may be defeated by the plaintiff establishing other matters, notably 'malice' (the legal concept encompassing any dishonest or improper motive rather than merely spite) with for example a demonstration that the person who published the material did not have an honest belief in the truth of the statement.

    publication and republication

Has publication occurred?

The threshhold element that must be established in a defamation trial is publication, ie communication from person or persons other than the individual or entity that claims to have been defamed.

Publication is not restricted to mass media such as books, newspapers, magazines, radio and television. In the past it has been taken to encompass dictation of a defamatory letter or receipt of a telegram by a post office clerk. The landmark Rindos decision thus identified that publication included a news item on an electronic bulletin board. If someone other than the plaintiff is involved publication can also encompass web pages, CD-ROMs, files placed in a filesharing facility and email messages.

Any person (an individual or corporate entity) that takes part in or authorises publication of defamatory material is said to have published it and is thus liable. Co-publishers are jointly and severably liable: each publisher is separately liable to pay damages to a defamed person, although a publisher can force other co-publishers to join in defending an action.

The publication element is important in establishing who is liable.

Questions of authorisation are important in the online environment. In a moderated news group the operator will be liable for defamatory contents unless that content is removed. In principle the operators of corporate networks are similarly liable for defamatory statements made by agents/employees via the network in the course of employment, whether as employers or as providers of a facility.

It is thus common to see recommendations that organisations should explicitly prohibit employees from making defamatory publications by email, newsgroups or web pages. That recommendation is founded on an expectation that articulation of such a policy - and timely followup - will release the employer from liability by demonstrating that an employee was acting beyond his/her authority.

What of republication, whether by the author or by another entity?

In principle republication of a defamatory statement is itself a libel.

It is no defence to say that what is published is merely a repetition of a statement that was previously published and that did not incur prosecution. In principle every person who repeats or republishes a defamatory statement faces the same liability.

However, as discussed below, there is a defence if the defendant

• had no actual knowledge of defamation
• no reason to believe the material was defamatory
• that lack of knowledge was not attributable to negligence.

If a print publication has a reputation for featuring defamatory material the distributor must check the publication to demonstrate no negligence.

Once a distributor is put on notice that a particular publication is defamatory, they also need to check the publication which in practice generally means immediate removal of an item from distribution.

    is it defamatory?

Is the statement defamatory?

A statement is defamatory if -

• it is likely to injure the reputation of another, by exposing that person to hatred, contempt or ridicule
• the words tend to lower the plaintiff in the estimation of "right thinking members of society" generally
• it tends to cause the plaintiff to be shunned and avoided without any moral discredit on his or her part.

Statute law in Tasmania and Queensland defines what is defamatory. That definition includes any imputation concerning any person (or any family member) living or dead by which

• the reputation of that person is likely to be injured
• the person is likely to be injured in that individual's profession or trade
• other persons are likely to be induced to shun or avoid that person.

Defamation is not restricted to statements that are presented as factual and that are demonstrably false. Australian jurisdictions recognise notions of false innuendo - a defamatory statement that has an inferential meaning - and contextual or legal innuendo (a statement that is defamatory when viewed together with extrinsic circumstances by a reasonable person).

    is the plaintiff identified?

Is the plaintiff identified?

The material must be shown to have been published "of and concerning" the plaintiff.

As noted earlier in this profile, defamation law in Australia is concerned with identifiable individuals rather than ethnic groups, commercial institutions, government agencies or other entities. Successful prosecutions are predicated on the audience for the defamatory statement reasonably making an association between a particular individual and the character featured in that statement.

Defamation can thus occur without specifically supplying the surname and given names of a person. Inclusion in the statement of information that is sufficient to allow identification - for example that allows a reader to infer identity on the basis of a references to a person's occupation and history - may result in defamation action.

    Does the publication involve malice?

Malice involves having an "improper motive" for publication or publishing without an honest belief in the truth of the statement. Where a statement is held to be made with malice, a number of defences no longer apply.

    Defences

There are several recognised defences to defamation. Their application and content vary from jurisdiction to jurisdiction.

Defences include -

• absolute privilege
• qualified privilege
• justification
• fair comment
• innocent distribution
• unintentional defamation
• apology and payment.

    Absolute Privilege

Absolute privilege protects the making of statements in the course of parliamentary and judicial proceedings and in the official reporting of those proceedings. It thus covers statements in Hansard, judicial rulings and parliamentary papers.

Absolute privilege is enshrined by the federal Parliamentary Privileges Act 1987 (PPA) and equivalent State and Territory legislation.

It does not cover statements made by members of parliament outside the legislature and a feature of Australian politics has thus been calls for MP to repeat claims outside the safety of "coward's castle". For the Australian regime see in particular Enid Campbell's Parliamentary Privilege (Leichhardt: Federation Press 2003).

The law permits "fair and accurate" reporting of court proceedings -

• statements made in open court proceedings (not in chambers, in closed court or where suppression rules apply) by judges, legal counsel, witnesses and jurors, or witnesses
• the outcome of proceedings.

The emphasis on absence of malice in reporting requires an even-handed approach, eg not selectively quoting testimony that is disputed and differentiating between 'allegations' and facts. Quoting sworn statements such as statutory declarations that are not admitted as evidence are not necessarily protected.

    Qualified Privilege

The defence of qualified privilege varies significantly across Australian jurisdictions. In essence it involves the claim that publication was without malice and -

• was to protect the public interest or is of public benefit
• involved fair reporting of parliamentary or legal proceedings
• involved fair reporting based on publishing extracts from official or other documents
• was in the performance of a duty (eg a report by a health inspector) and often involves an audience that has some reciprocal duty (eg officials responsible for maintaining public safety by acting on an adverse health report).

It is accordingly a defence used by journalists and publishers, who have for example noted the importance of ensuring wide access through republication of statements made in parliament and the courts.

    Justification

Recognition of truth as a defence in defamation varies across the Australian jurisdictions.

In New South Wales, the ACT, Queensland and Tasmania the defendant must show that the material was published for the 'public benefit' or in the 'public interest'.

In the other jurisdictions truth is a complete defence regardless of the intent of the publisher, although that truth concerns the imputations of the statement.

In practice truth is a problematical defence, given disagreement about what people would reasonably imputate from a statement and and the difficulty of establishing truth in court. A survey by the National Defamation Research Project in 2004 for example indicated significant variation between what individuals think and what they apparently assume 'ordinary reasonable people' think.

Only 18% of people said they would think less of a man for being gay. But 71% said they thought the 'ordinary reasonable person' would think less of him. 30% said they would think less of someone for having a criminal parent, while 77% thought the 'ordinary reasonable person' would judge such a person badly. Assuming our interviewees reflect ordinary reasonable people, then this shows how as a society we overestimate levels of intolerance.

That overestimation is complicated by respect for courts - many people apparently assume that a defamation charge against an individual (although not the mass media) signals guilt. It is further complicated by the legal presumption that defamatory material is false, with the the defendant having to establish the truth of the statement. Defendants have on occasion relied on imputations not presented by the plaintiff and established the truth of those imputations.

    Fair comment

A comment, as distinct from what is presented as a statement of fact, may attract the defence of fair comment. That defence reflects acceptance of the importance of the exchange of information. It also reflects an assumption that audiences can differentiate between fact and opinion.

It is a defence if the comment is -

• fair
• on a matter of public interest
• based on facts that are stated or indicated in the material
• and based on facts that are true or absolutely privileged.

Specific provisions vary from jurisdiction to jurisdiction.

For material to be a comment it must be an opinion, deduction, conclusion or inference. An unsupported allegation is generally more likely to be treated as factual.

'Fair' means the opinion could be honestly held and was honestly held by the author/publisher of the statement. In Queensland and Tasmania it need only be fair and published in good faith, rather than necessarily honestly held. In other jurisdictions malice on the part of the publisher has on occasion been held to entirely remove the defence.

Observers have noted that 'honesty' is not necessarily equivalent to sensible: a Fairfax lawyer reportedly sniffed that the comment has to be your own honestly held view - it doesn't have to be rational, it can be stubborn or prejudiced or grossly exaggerated, as long as you honestly hold that opinion.

The subject of the opinion must be of public interest. Australian courts have interpreted that interest broadly but sometimes confusingly, encompassing

• reviews of literary, artistic or dramatic works and performances (in particular works that are available to the public and seek to provoke a public reaction)
• reviews of restaurants
• scholarly criticism
• comment regarding the performance of public office, including activity as a member of parliament.

The ABC comments somewhat drily that

Australians are well known for robust debate, strenuous criticism and hard-edged satire. Politicians, for example, are under no illusion as to what they can expect from the media in public life.

However, courts have typically differentiated between the performance of public office (eg fair game for satirists) and the private life of a member of parliament.

    Innocent distribution

A 'distributor' is innocent if -

• that person/organisation did not know that the publication contained the allegedly defamatory material
• that entity was unaware that the publication was of a character likely to contain defamatory material
• and such want of knowledge was not due to negligence on the part of the distributor.

The defence is thus available to distributors such as print wholesalers, newsagents, bookshops and libraries.

As noted on the preceding page of this profile, federal telecommunications legislation broadly excludes internet service providers and hosts from liability, on the principle that they - like telephone companies - are unaware of the content transmitted over their networks and have not explicitly authorised that content, in contrast to the publisher of a newspaper or a television/radio broadcaster.

There is disagreement about whether bulletin board and newsgroup moderators can successfully use the defence of 'innocent distribution'.

    Unintentional publication

A newspaper/magazine printer, book printer, copyshop or other entity involved in reproduction of a work (eg a print or audio item) is generally not liable unless that entity has intentionally or negligently taken part in or authorised the publication of the defamatory material. A perspective on Australian practice is provided by Canadian cases, such as Menear v Miguna regarding a printer's responsibility for manufacturing copies of a book that the printer did not read. The Canadian court held, under common law, that the printer could successfully claim unintentional publication and innocent dissemination, ruling that that 'publication' requires some knowledge of contents.

Publishers are implicitly held to a higher standard of care than authors and ordinary citizens, reflecting what is assumed to be their greater experience, skills and access to resources. It is thus not a defence that the publisher considered the material was true or acted in good faith.

    Apology

It is a defence to publish a 'full' apology, although that defence will be unsuccessful in cases of malice or gross negligence. It is thus not feasible to knowingly publish a defamatory statement with the expectation of avoiding prosecution/conviction by thereafter publishing an apology.

A full apology is one that "effectively counteracts the mischief the statement was supposed to have caused". If a case has gone to court a defendant will generally be required to substantiate the apology through a payment that makes some amends for the injury done by the defamation.

That payment may be substantial or may instead be a token, with plaintiffs sometimes specifying that a sum be 'donated' to a worthy cause - thereby seeking to demonstrate that they are concerned with principle rather than cashing in on the 'defamation lottery'.

In some circumstances a full and timely apology published by the defendant may serve as a complete statutory defence, if there was no malice or gross negligence in the publication and the words (and placement) of the apology are appropriate for the damage. In most jurisdictions it is restricted to content in a newspaper or periodical. In South Australia it applies to any libel.

The placement of apologies is a point of contention, with plaintiffs who have received an apology from a newspaper or other print publication sometimes complaining that the wording is buried midway through the publication in small print. Publishers have responded that size/placement reflects the significance of the apology.

Observers in Australia and elsewhere have commented that apologies are a function of power relationships: those with sufficient resources (and who have been significantly defamed) can secure a full-page retraction whereas an ordinary citizen who has been traduced may be fobbed off with a three line 'correction' nestled among the used-car advertisements.

In the online environment that correction may be an issue where messages or web pages and other documents have been cached on a number of sites and continue to be available without a clear indication that an apology was subsequently made. In practice some concerns about the lack of such an indication are overstated: it is common for people to access archival newspaper or magazine holdings without recognising that a particular statement was found to be false or was otherwise retracted.

Other observers have noted that an apology calls into question an author's credibility and may enable a plaintiff to hold up a default judgment that supposedly clears that individual's 'good name' (and may be used to place pressure on other authors).



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