offline cases 3 (1998 to 2007)

This page highlights further offline defamation cases in Australia, the UK and other jurisdictions.

It covers -

• Marsden - the costs of justice in Australia
• Berlusconi, Haider, Singapore, Thailand and Turkey - 'talking truth to power' or defaming the state?
• Theophanous, Stephens and Lange - politics and free speech
• Ellis, Costello and Abbott - bounding comment on the public and private lives of celebrities
• Grobbelaar - "perverse" jury decisions in the UK
• O'Shane and Bolt - defaming magistrates
• Polanski and Veliu - action over publication in another jurisdiction
• Hodge
• Thomas v Page
• O'Neill v ABC and Davie
• Roberts v JST
• Fawcett and Habib

Readers of this site should conduct appropriate research before making their own judgements about circumstances, claims and counter-claims.

     Marsden

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

The 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 that

Marsden 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.

In Australia it is not possible to defame the dead.

     Berlusconi, Haider, Singapore, Thailand and Turkey

Italian media magnate and Prime Minister Silvio Berlusconi (profiled here) 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 - continues.

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 a fine.

Two years later Pelinka commented during a tv interview that

In 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.

He 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 (here) 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.

The decision 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 stupidity.

The decision 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 their Federalcounterparts.

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 communication.

The Court considered whether the NSW Defamation Act 1974 and common law

are 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

It 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

As 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 dealers.

     Grobbelaar

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

The 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

Although 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.

The 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 commenting

One 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 her.

In the aftermath of the judgement O'Shane said she felt vindicated.

I 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.

Albrechtsen 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

She 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, commented

I find it amazing that a man who lives in France can sue a magazine that is published in America in a British courtroom

The 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

There 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.

     Hodge

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 Olympic swimmers.

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 stated".

     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

In 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.

It 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 defence.

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 true.

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 benefit.

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