Barker, David --- "Foreword" [1999] UTSLawRw 1; (1999) 1 University of Technology Sydney Law Review 5

The Law and Freedom of the Media

"Media Watch", ABC Television and Principal, Law Press of Australia.

Let me share with you some thoughts that were expressed twelve years ago by someone we know and revere. Here they are:

Much can be said for the view that it is now reasonable to publish allegations concerning the official conduct of public officials if an ordinary person considering all the circumstances would think that the allegations were probably true and needed to be investigated.

If this proposition becomes accepted by the NSW courts, the difference between First Amendment protection and the protection given by section 22 will be marginal in both cases...

If the conduct of public institutions and officials is to be properly scrutinised, it is only to be expected that erroneous, hurtful and defamatory statements will be made...

...[T]he public interest in robust, wide ranging debate on matters of public concern requires that the interests of individuals in their reputations must give way to the right to make good faith statements.

Moreover, public officials undoubtedly have greater access to the media than other citizens. They are usually in a position to correct untrue statements.

What absolutely fabulous sentiments.

The message was that a modern interpretation of journalistic reasonableness will lead to a bright new dawn for the statutory qualified privilege defence and thereafter the Australian media need no longer look enviously at the protections afforded in the United States.

And who delivered that positive message, a message that put so much hope into our hearts at the time?

Why, it was Justice Michael McHugh, then of the New South Wales Court of Appeal, writing, dare I say it, in the Gazette of Law and Journalism in October 1986.

Justice McHugh's elevation to the High Court is a reminder that you can never predict the outlook of an appointee to high office based on the colour of public utterances made prior to securing the elevation.

Less than three years after its birth, Justice McHugh led the High Court's move to strangle Theophanous,[1] the constitutional defence of free speech in matters of political and governmental affairs. He led the charge to replace this murdered child with the so-called expanded common law defence of qualified, qualified privilege--with lashings more reasonableness required by journalists... At least a lot more reasonableness than is ever required on the part of most trial and appeal judges.

Apparently, Justice McHugh's beloved section 22 worked so brilliantly that its reasonableness requirements just had to be imported into the High Court's expanded ambit of common law qualified privilege.

Indeed the reasonableness requirements must have been making our American media cousins so jealous of us that the court thought it better to give the requirements another couple of twists of complexity, just to even things up a bit.

The standard cliche when discussing "The Law and Freedom of the Media" is to look to Watergate when comparing the First Amendment's public figure defence with our own impressive armoury of statutory qualified privilege, common law qualified privilege and High Court qualified, qualified privilege.

As Justice McHugh said in 1986:

Vietnam, Watergate and the apparent reluctance of Western governments of all political persuasions to investigate allegations concerning their administration have all contributed to a loss of confidence in the integrity of governmental authority.

You can see that his Honour and his colleagues on the High Court have since dedicated themselves to the cause of helping to repair that lost confidence in the integrity of government. For instance, they devised the requirement that, if common law qualified privilege is to suceed for the mass media, then journalists and publishers have to have beautiful manners.

What the High Court of Australia would have expected Woodward and Bernstein to have done was to only publish what on reasonable grounds they believed to be true, and to have taken proper steps to authenticate whatever was told to them by Deep Throat, or any other source.

They would have also expected to have telephoned President Nixon, or Attorney-General Mitchell or Messrs Dean, Erlichman or Halderman and checked each day's story with them, and published their responses as soon as practicable.

Not only that. If any of the characters in the Watergate drama sued The Washington Post for defamation, the publisher and the journalists would be required, should the standards of the Australian High Court be applied, not to have formed a belief that any of the meanings the plaintiffs read into the stories were untrue.

In other words, they would have to show that they believed in the truth of the meaning that the enemy placed on the story.

The intrepid reporters would be in trouble in Australia if they wanted to establish they acted reasonably and at the same time wanted to protect the identity of their main sources.

Given the scale and scope of the damaging material in the Watergate scandal, it might be fair to say that if the United States were saddled with the marvellous, exciting new Lange[2] defence as a way forward for the media into the new dawn, the lawyers would have advised against publishing considerable slabs of the story.

Of course, we don't have a public figure defence in this country. The nearest we got to it was the Theophanous[3] constitutional defence.

The replacement is a nightmare for a modern media that has to respond quickly and at the same time rely on sources and documents that don't necessarily want to be exposed.

But what we prided ourselves on in this country was that at least we live in a parliamentary democracy, which is of great benefit to the media. The government could be pressed and held accountable on each day the Parliament sat, commissions of inquiry conducted as part of the executive government could search for the truth, and the courts could determine disputes between parties openly.

All this openness could be reported fairly and those fair reports would be protected by the law from actions in defamation. It was not quite the robustness of the American jurisprudence where journalistic investigations would be protected more securely by the Constitution--but it was something at least.

After the recent excursion of the High Court in Chakravarti v The Adelaide Advertiser, we will have to review our faith in that something.

This was a case where the High Court went to elaborate lengths to cause disruption to the defence of fair protected report upon which great reliance has traditionally been placed in the laudable enterprise, as Justice McHugh would have it, of publishing allegations concerning the official conduct of public officials.

Chakravarti's case concerned the reporting of proceedings of the Royal Commission into the affairs of the State Bank of South Australia. In those proceedings evidence emerged which claimed Chakravarti, an officer of a bank subsidiary, Beneficial Finance, had received an unauthorised loan which was in excess of agreed benefits. There was also evidence that the chairman of the bank agreed that the conduct of Chakravarti and others involved questions of either civil or criminal misconduct that should be looked at.

All of that was said in open hearings of the Royal Commission and on file notes tendered. Chakravarti sued, and the High Court took a narrow, highly technical view of the reporting by The Advertiser.

At one point in one of the articles sued upon, the last sentence of a paragraph was made into a new paragraph by the sub-editors, at another there was a graphic break-out on the page that highlighted the evidence that was adverse to Chakravarti. Great attention was given to those factors, to the detriment of the publisher.

I have read the relevant proceedings of the Royal Commission and the tendered document and the reports of The Advertiser. I cannot get a meaning from the newspaper report that is significantly different from that said at the Royal Commission.

After a fair amount of contortion, the High Court did.

This case also reveals some deeply disturbing ideas that lurk in the minds that compose our High Court. Justice McHugh thought that the Polly Peck defence was not available to defendants at common law. In other words, his Honour believes that where a publication contains a number of defamatory imputations which have a common sting and not all of the imputations can be proved separately, it is not sufficient to prove that the sting is true.

Gaudron and Gummow JJ found that accurate portions of an otherwise inaccurate report will not reduce the basis for damages.

And, Justice Kirby believes that publishers have to assume their readers are increasingly inattentive and that they are unlikely to read all of an article. Headlines, captions, photographs, pictures and, as Justice Kirby says, "their digital equivalents" should be the subject of special attention in the context of the actual article sued on.

What Chakravarti's case does is make extremely difficult the already difficult task of summarising a day's proceedings in a court, Royal Commission, Parliament, or other protected event.

If both the South Australian Full Court and the High Court of Australia can reach opposite conclusions about the meaning of an article, and for different reasons, what hope have the lawyers in giving pre-publication advice, let alone the journalists who cover these proceedings?

After initially having found that all Chakravarti's complaint was worth was $40,000, the Full Court in following the High Court's instructions has come up with a new verdict of $796,000.

Another instance of how technicality rules can be seen in a slightly different context in the Erskine case. This was the case which resulted in the highest defamation verdict in Australia, $2.5 million, in March 1998.

It concerned the reporting of an affidavit in a copyright dispute before the Federal Court. However, the judge in the copyright dispute had read the defamatory affidavit in chambers, not in open court. Consequently, it was not a protected document for the purposes of a fair report defence.

Strangely, if the document had been read by a judge in chambers in the New South Wales Supreme Court, which is just 50 metres to the left in the same building, Fairfax's prospects in the case would have been considerably improved because it would have been able to plead that the document was a fair protected report.

However, if the matter had gone to the High Court, who knows what absurdity would have been invented to thwart the defence.

In Victoria also, affidavits read in chambers have been freely reported in the media where a judge says, in open court, that they have been read.

The last matter of judicial grimness that impacts on the freedom of the media and should not pass without comment is the Queensland Court of Appeal's foray into the Pauline Pantsdown injunction. This really is one great judicial whopper.

The Queensland court decided that a satirical song about Pauline Hanson is so defamatory that it should be banned from the airwaves. The effect of this injunction is wider than Queensland because the defendant, the ABC, is a national creature.

The court had the temerity to say said if a jury didn't find the song defamatory, that finding would be overturned on appeal.

It is one thing for conservative Queensland judges to be horrified and appalled, but this decision denies a bit of satire in the lives of the rest of humanity.

Ironically the song, "I'm a Backdoor Man", is the creative output of Simon Hunt's alter ego, Pauline Pantsdown. Simon is the son of New South Wales's best known defamation law-maker, the former Justice Hunt.

The Backdoor Man song consists of Hanson's own voice from various speeches which have been digitally rearranged and set to a dance music beat.

I'm a backdoor man; I'm very proud of it

I'm a back door man; I'm homosexual

I'm a back door man--yes I am--I'm very proud of it

I'm a back door man; I'm homosexual...

I'm very proud that I'm not straight

I'm very proud that I'm not natural

I'm a back door man for the Klu Klux Klan with very horrendous plans

I'm a very caring potato, we will never have the chance...

Hanson is now suing the ABC and her pleadings are that the song, given its ordinary meaning, could be taken by ordinary people to mean:

that she is a paedophile, a homosexual, a prostitute, engages in unnatural sexual practices including anal sex, engages in unnatural sexual practices including anal sex with the Klu Klux Klan, she is a member of the Klu Klux Klan, is a potato--which means that she was `a receiver of anal sex'.

De Jersey CJ refused to lift the injunction, saying: "I consider there's no real room for debate that an ordinary listener, not avid for scandal, would find one of the imputations defamatory."

A pretty confident prediction, given that it involves suspending belief to the extent that one must understand Ms Hanson to be a male homosexual who indulges in anal sex and is a paedophile.

After the Court of Appeal decision, Ms Hanson said that: "freedom of speech does not extend [sic] by allowing people the right to defame others and tell lies."

Coming from a politician who has defamed whole races of people in an utterly crude fashion, this is pretty rich.

There is much about which the media should be legitimately concerned in view of the recent spate of restrictive, uncreative, unimaginative judicial determinations.

To that extent the judges reflect the mood of the country and the time. Nervous, and unexciting.

[2] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

[3] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104.