cases 3 (1998 to 2007)
This page highlights further offline defamation cases in Australia,
the UK and other jurisdictions.
It covers -
- the costs of justice in Australia
Haider, Singapore, Thailand and Turkey - 'talking truth
to power' or defaming the state?
Stephens and Lange - politics and free speech
Costello and Abbott - bounding comment on the public and
private lives of celebrities
- "perverse" jury decisions in the UK
and Bolt - defaming magistrates
and Veliu - action over publication in another jurisdiction
v ABC and Davie
of this site should conduct appropriate research before making
their own judgements about circumstances, claims and counter-claims.
High profile NSW barrister John Marsden (a president of the
Law Society of NSW and member of the Legal Aid Review Committee,
the Justice Act Review Committee, the NSW Police Board and
the Anti-Discrimination Board of NSW) was accused on commercial
television in 1995 and 1996 of paedophilia. The claims followed
allegations made under parliamentary privilege in 1994.
The resultant litigation was described by law journalist Richard
Ackland as "without doubt the largest, longest and most
comprehensive defamation case in the history of Australia",
with some 113 witnesses, 229 hearing days, a judgment of more
than 2,000 pages and millions in legal costs.
Justice David Levine awarded Marsden a total of $525,000 damages,
finding that broadcaster Channel 7 failed to prove both its
defences - truth and qualified privilege - and commenting
that "the plaintiff proved that channel 7 was actuated
by malice". Channel 7 appealed, with the NSW Court of
Appeal ruling in 2002 that the damages payout should have
included consideration for hurt feelings. It characterised
one witness as "was and is a liar ... totally without
honesty and reliability". It ordered a new trial; the
case was eventually settled on terms that appear to have included
the broadcaster paying Marsden's legal costs (estimated at
over $6 million) while carrying its own costs that may have
reached $10 million.
Ackland commented that
gravity of the accusation required unimpeachable research
and solid sources. But the courts found the journalism reckless,
irresponsible, fudged and contaminated by misinformation
between journalists. The nature of the allegation and the
cast of characters upon which it depended was always going
to make this a fraught exercise.
Following Marsden's death in 2006 columnist Paul Sheehan claimed
was a serial liar, a proven perjurer, a flagrant illegal
drug-user and drug provider, a professional who had sex
with his own clients, a wealthy man who boasted about sodomising
young men he picked up on the streets, a standover man who
was vexatious and constantly at war, a bully who used the
law as a weapon.
Australia it is not possible to defame the dead.
Berlusconi, Haider, Singapore, Thailand and Turkey
Italian media magnate and Prime Minister Silvio Berlusconi
sued UK business publication The Economist over a
2001 article alleging that he had paid 23 billion lire into
offshore bank accounts of former PM Bettino Craxi, presumably
in connection with Craxi's 'Berlusconi Decree' that overturned
restrictions on expansion of Berlusconi's broadcasting empire.
The allegation reflected judicial findings in Italy.
Berlusconi's action elicited an Open
Letter from the Economist and criticisms that
the PM was chilling legitimate inquiry. Disagreement about
responsible journalism, ethics and the significance of the
media in 'talking truth to power' as a foundation for a strong
civil society is apparent in controversy over defamation cases
involving some heads of state.
Works such as Chris Lydgate's Lee's Law: How Singapore
Crushes Dissent (Melbourne: Scribe 2003), for example,
suggest that former Singapore Prime Minister Lee Kuan Yew
and the ruling People's Action Party have successfully used
defamation action against political opponents
and to stifle critical reporting by foreign media organisations
such as the Far Eastern Economic Review, Asian
Wall Street Journal, Time, Asiaweek
and International Herald Tribune.
Legal codes in some states feature prohibitions on defaming
national (rather than personal) honour, often embodied in
the person of the head of state.
Turkey's admission to the European Union is for example being
complicated by prosecution of satirists who are incautious
enough to depict Prime Minister Erdogan as an animal. Picturing
him as a cat, for example, resulted in a US$3,500 fine for
the cartoonist). Some of the wilder specimens of antisemitism
such as the Anadoluda Vakit newspaper have, however,
not faced prosecution.
Novelist Orhan Pamuk was charged in 2005 under Article 301
of the penal code over the criminal offence of "denigrating
Turkey's national identity" and insulting long-dead dictator
Kemal Ataturk by commenting that "thirty thousand Kurds
and one million Armenians were killed in these lands"
over the past 120 years. That case was dropped in 2006, after
widespread criticism across the EU. Prosecution of less prominent
figures for offences against the national honour - explored
later in this profile
In 2000 distinguished academics Anton Pelinka and Wolfgang
Neugebauer were acquitted by a Austrian court over alleged
criminal defamation of controversial politician Jorg Haider,
who has gained attention for what critics characterise as
chilling litigation to silence opponents.
In 1997 Gerhard Oberschlick for example reproduced a Haider
speech that apparently argued that all soldiers in World War
Two (including German troops) fought for peace and freedom
and suggested that only those who had risked their lives in
the war were entitled to exercise freedom of speech. Oberschlick
commented that although Haider was not a Nazi he was an idiot.
Haider took action for criminal defamation and for insult.
The court, which had previously faced criticisms from Oberschlick
and associates, held that 'idiot' was always disparaging and
could never be used for objective criticism. Oberschlick was
found guilty of having insulted Haider and ordered to pay
Two years later Pelinka commented during a tv interview that
his career, Haider has repeatedly made statements which
amount to trivializing National Socialism. Once he described
death camps as penal camps. On the whole, Haider is responsible
for making certain National Socialist positions and certain
National Socialist remarks more politically acceptable.
was subsequently convicted of having defamed Haider's character
and fined 60,000 Schillings plus court costs or lawyers' fees.
Pelinka, like Oberschlick, appealed to the European Court
of Human Rights in Strasbourg.
Shin Corp, the Thai media conglomerate controlled by the family
of then Prime Minister Thaksin Shinawatra, filed a criminal
libel suit against Supinya Klangnarong of the Campaign for
Popular Media Reform, seeking compensation for alleged US$10M
loss of earnings attributed to criticisms by Supinya. Use
of criminal libel has been attacked as an attempt to silence
general criticism of the Thai Berlusconi.
Theophanous, Stephens and Lange
The Australian High Court's judgements in Nationwide News
v Wills (here)
and in Australian Capital Television v Commonwealth
found that the federal constitution
provided an implied freedom of political communication. In
1994 in Theophanous v Herald & Weekly Times Ltd
and in Stephens v West Australian Newspapers Ltd
the High Court considered the relationship between that freedom
and state defamation law.
in Theophanous created a new defence to defamation
on the grounds of political discussion, allowing fair comment
about politicians regarding their performance as MPs and comment
on their suitability as parliamentary candidates for Parliament.
The defence relates to statements regarding the public life
of the politician and does not excuse defamatory statements
that are malicious or is known to be false at the time of
publication. Federal MP Andrew Theophanous was thus not exempt
from criticisms, in a letter by opponent Bruce Ruxton that
appeared in a Melbourne tabloid, regarding alleged bias or
in Stephens concerned criticisms of WA politician Tom Stephens
and colleagues on a committee of the WA Legislative Council,
with for example an overseas trip being slammed as "a
mammoth junket". The High Court confirmed that the defense
applied to state/territory politicians - rather than just
In 1997 the High Court handed down its decision
in Lange v ABC, action by former New Zealand Prime
Minister David Lange against national broadcaster the ABC
over allegations on the Four Corners current affairs
program. The decision has had a mixed reception but arguably
consolidates the implied constitutional freedom of political
The Court considered whether the NSW Defamation Act 1974
and common law
reasonably appropriate and adapted to serving the legitimate
end of protecting personal reputation without unnecessarily
or unreasonably impairing the freedom of communication about
government and political matters protected by the Constitution
concluded that the community has a fundamental interest in
receiving and discussing information on 'government and political
matters' which - consistent with the Stephens judgement -
should not be narrowly defined. In what has been criticised
by some as "winding back the freedom" the Court
indicated that there will be adequate protection for the reputation
of those defamed in major publications "by requiring
the publisher to prove reasonableness of conduct". The
publication must not be "actuated by malice".
Reasonableness is dependent on the facts in each case, with
the Court commenting that
a general rule, a defendant's conduct in publishing material
giving rise to a defamatory imputation will not be reasonable
unless the defendant had reasonable grounds for believing
the imputation to be true, took proper steps, so far as
they were reasonably open, to verify the accuracy of the
material and did not believe the imputation to be untrue.
Furthermore, the defendant's conduct will not be reasonable
unless the defendant has 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 it was unnecessary to give the plaintiff
an opportunity to respond.
The Court found that the NSW legislation did not unreasonably
restrict communication on federal issues and that common law
qualified privilege extended to matters concerning the United
Nations, other countries and politics/government at the state/territory
level and local government levels.
Ellis, Costello, Abbott
Prominent federal politicians Peter Costello & Tony Abbott
subsequently sued publisher Random House over Bob Ellis's
memoir Goodbye Jerusalem, which featured gossip falsely
claiming that they had been 'lured to the Liberal Party' by
a sexual liaison. Negotiations about damages and an apology
were apparently unsuccessful, with the dispute proceeding
to a judgement by ACT Supreme Court Justice Higgins.
The Court, reflecting the differentiation between public and
private lives, awarded
the two politicians and their wives some $277,000. The publisher
pulped copies retrieved from retailers, although many copies
had been sold by that time and remain accessible through second-hand
Liverpool footballer Bruce Grobbelaar was covertly filmed
by the London Sun receiving large sums of cash from
a businessman, with allegations that he had taken money to
throw matches. Grobbelaar sued the Sun and initially
won, with the Sun's lawyers responding that the decision
was 'perverse'. The appeal court agreed and overturned the
decision. In 2002 the House of Lords overturned
the appeal court's ruling but reduced Grobbelaar's damages
from £85,000 to £1. It commented that the jury
acted reasonably in reaching their verdict, however surprising
their decision may have seemed at the time.
O'Shane and Bolt
NSW magistrate Pat O'Shane was awarded $220,000 in damages
in 2003 after being defamed in a Sydney Morning Herald
article by lawyer Janet Albrechtsen that implied she was biased,
incompetent and unfit for office because she allowed extreme
views to affect her judgment.
NSW Supreme Court Justice Rex Smart commented that
plaintiff's reputation was and is a very important part
of her life. So also were her campaigns to improve the lot
of Aborigines, to fight against police harassment of Aborigines
and the misuse of police powers, to stop violence against
women in all its forms and to redress the balance in what
she regarded as a male-dominated society.
She was passionate and outspoken about the causes in which
she believed. The advancement and success of the causes
in which she believed were just as important to her as her
reputation. Her reputation was important in the advancement
of those causes
he did not accept that Ms O'Shane's hurt and injury was as
great as she suggested (or that she could really fear being
sacked as a result of the article)
I am of the view that [the] article did occasion hurt and
injury to her feelings. The imputations of bias, knowingly
acting contrary to law, incompetency, undermining the judicial
system and allowing her extreme views to affect her judgment,
have a major sting.
SMH defended the article as fair comment on a matter
of public interest, noting that it featured what might be
characterised as a "sympathetic view" from University
of NSW academic David Dixon, with Richard Ackland subsequently
might have thought this was classically balanced behaviour
from a newspaper. Here were two people writing about a controversial
judicial figure, each expressing different opinions about
the aftermath of the judgement O'Shane said she felt vindicated.
hope it sends a message to the media generally to be responsible
in the way that they comment or report. As far as I am aware
there are no institutions of accountability to ensure that
the media as a whole behaves in a responsible manner.
was appointed to the board of the ABC in 2005. On appeal the
damages were reduced by 20%.
In 2002 Victorian Magistrate Jelena Popovic was awarded $246,000
plus costs in action against controversial journalist Andrew
Bolt and News group over an article in the Melbourne Herald
Sun. It alleged that she had "hugged two drug traffickers
she let walk free" (when she in fact shook hands to congratulate
them on completion of a rehabilitation program), had bullied
a police prosecutor and had pre-judged a case involving burning
of an Indonesian flag.
Popovic was reported as saying all she wanted was an apology.
Media law analyst Andrew Kenyon commented
couldn't get one from the media, she sued, and the law in
the end can't currently enforce an apology, it can't order
that, so the only remedy it has is damages. The damages
were aggravated through some of the conduct of the defendant,
and perhaps the interesting one that people are aware of
is after the jury verdict was returned, there were comments
by Andrew Bolt and report in the Herald-Sun that
this was a great victory and things, whereas in fact it
wasn't the end of the case.
Supreme Court judge Bernard Bongiorno indicated
that Bolt and the publisher thereby aggravated the harm caused
to Popovic, an aggravation reflected in the size of the aggravated
and exemplary damages. The Herald's appeal to the
High Court failed.
Polanski and Veliu
Questions about personal hurt, reputation and jurisdiction
were posed in a 2005 UK High court ruling that Paris-based
film director Roman Polanski was defamed by a 2002 item
in New York magazine Vanity Fair that he tried to
seduce a Swedish model days after his pregnant wife was butchered
by the 'Manson Family' in 1969.
Polanski was awarded £50,000 damages, with an interim
award of £175,000 costs; publisher Condé Nast
is reported to face legal costs of around £1.5 million.
Polanski gave evidence from Paris by videolink because he
feared extradition to the US over a 1978 conviction for unlawful
sex with a minor.
Lawyers for Condé Nast admitted that its chronology
was wrong and failed to call the model as a witness but maintained
that the story was essentially correct. They characterised
Polanski as not only a "fugitive from justice but a fugitive
from morality", with little or no reputation to defend.
Vanity Fair editor Graydon Carter, perhaps disingenuously,
find it amazing that a man who lives in France can sue a
magazine that is published in America in a British courtroom
US magazine is of course read in the UK and damage to Polanski's
reputation might occur in France, the US, UK and Australia.
In 2006 Justice Eady of the UK High Court awarded journalist
Muhamed Veliu £175,000 over claims in Zurich-based Kosovan
newspaper Bota Sot. The paper, sold in the UK, wrongly
accused Veliu of involvement in terrorist bombings in London
that killed 52 people. The article was attributed to a fictitious
person. The judge commented that
is no doubt that the allegation made against the claimant
in this article was one of the gravest imaginable ... It
should be made clear that the allegations were published
without any apparent investigation into them at all, or
any prior contact with [Veliu], who ... as one would expect,
suffered great distress and embarrassment and was indeed
anxious for his physical safety.
In 2006 former Australian Olympic swimming coach Greg Hodge
received damages of $320,000 after suing the Nine television
network in the NSW Supreme Court for defamation over statements
in the tabloid A Current Affair program during 2003.
In 2004 a jury found that the program contained three defamatory
imputations, including that Hodge was portrayed as "a
pervert who had preyed upon" a "child under his
care and protection", "had engaged in constant acts
of physical contact of a sexual nature" upon that child
and "had so misconducted himself in his sexual attentions
towards Emma Fuller that he was unfit" to train Australia's
The Nine Network unsuccessfully relied on the defence that
the claims were substantially true and in the public interest.
Acting Justice Smart indicated that "The defendants have
not established the substantial truth of many of the facts
Thomas v Page
In November 2006 a jury awarded Robert Thomas, chief justice
of the Illinois State Supreme Court, some US$7 million (US$5
million for damage to reputation, US$1 million for future
economic loss and US$1 million for humiliation) over an allegation
by columnist Bill Page that the judge had traded his vote
for a political favor and acted with malice. Jurors are reported
to have "wanted to send a message to the news media"
and to try to restore Thomas's reputation.
The newspaper's lawyers said that Page accurately reported
information from his unidentified sources and that the verdict
would have a chilling effect on coverage of public officials.
Sandra Baron of the Media Law Resource Center commented that
"in the long run, society will pay ... when the media
is reluctant to criticize those in high office in the wake
of lengthy, bitter, expensive trials".
In the same year the Supreme Court of Pennsylvania dismissed
action launched 1983 against The Philadelphia Inquirer
and reporter Daniel Biddle over criticism of the Court and
justice James McDermott. In 1990 a jury found that the paper
had not libeled McDermott but awarded him US$6 million after
deciding that a reprint based on the initial reporting false.
During later appeals McDermott died, as did his lawyer and
the lawyer representing The Inquirer. The case was finally
dismissed in 2006 at the request of both sides, wiping out
the US$6 million judgment.
O'Neill v ABC and Davie
2006 the High Court of Australia lifted an injunction on broadcast
by the ABC of The Fisherman, a documentary about
James O'Neill, a convicted child killer. O'Neill initiated
defamation action against the ABC, filmmaker Gordon Davie
and Roar Film. In 2005 he gained a temporary injunction from
a judge of the Tasmanian Supreme Court to prevent the documentary's
broadcast in that state, subsequently upheld on appeal by
the full court.
The High Court allowed
the ABC's appeal, with Gleeson CJ and Crennan J indicating
that the Tasmanian court had failed to give enough weight
to the significance of free speech.
is one thing for the law to impose consequences, civil or
criminal, in the case of an abuse of the right of free speech.
It is another matter for a court to interfere with the right
of free speech by prior restraint.
Roberts v Johannesburg Sunday Times
Ronald Suresh Roberts, author of a controversial biography
of Nadine Gordimer, unsuccessfully sued the Johannesburg
Sunday Times for, among other things, a headline characterising
him as "unlikeable".
Justice Leslie Weincove apparently concurred, dismissing the
suit in a judgement that described Roberts as "grandiose",
"venomous", "vindictive" and "haughty".
In awarding awarded costs against Roberts he found the newspaper
had published "without negligence or fault sufficient
to render it liable for damages for defamation".
Fawcett and Habib
In 2008 paparazzo Jamie Fawcett
lost a defamation action in the NSW Supreme Court against
Fairfax Media over an article in The Sun-Herald that
stated he was "Sydney's most inventive and most disliked
freelance photographer" and determined to "wreak
havoc" on Nicole Kidman's "private life". Fawcett
was ordered to pay the media company's costs, which a lawyer
for Fairfax said would be "a six-figure sum". In
2007 a jury found the article had defamed him, with the judge
in a subsequent hearing considering whether Fairfax had a
The publisher argued that the defamatory meanings in the case
- including that Fawcett had behaved in such "an intrusive
and threatening manner that he had scared" the actress
- were true, with Nicole Kidman testifying that she had been
"really, really scared" of Fawcett. The judge found
that Fawcett had placed a listening device on Kidman's property
and noted claims that Kidman had been pursued by the photographer
in Australia and overseas.
High profile former Guantanamo Bay detainee Mamdouh Habib
lost a defamation case against the publisher of the Sydney
Sunday Telegraph, for a 2005 article in which he
was accused of knowingly making false claims about his treatment
during detention. Nationwide News claimed a defence of justification,
challenging Habib's credibility. Justice McClelland of the
NSW Supreme Court found that publication of the article was
in "the public interest'' and that several allegations
to the effect that Habib knowingly made false claims had been
McClelland commented that
The plaintif is a person who was detained in various countries
and ultimately in Guantanamo Bay without charge. He has
made various well publicised claims about his treatment
by the authorities on various occasions. Discussion of his
general credibility and whether he had made false claims
were matters of considerable public interest and of public
(online defamation cases 1)