McNamara, Lawrence --- "Free Speech as a Limiting Concept: A Common on Gelber, Jones and Free Speech Discourse" [2003] UTSLawRw 1; (2003) 5 University of Technology Sydney Law Review 86
“REASONABLENESS” AND “MALICE”: AN ANALYSIS OF WHY DEFAMATION LAW REFUSES TO REFORM
Peter Manning[*]
Since the start of that legislation in 1974, no journalist has ever been able to convince a judge that the steps taken to ensure the accuracy of the publication were sufficient to allow a finding of reasonableness .... As a general rule, a serious allegation of fact (such as fraud) published in the mass media can really only be defended by a plea of truth under the existing law .... Should it be a defence for a journalist to say in these circumstances that he or she tried hard to find out the
facts, but ultimately got them wrong?
— Michael Sexton SC, Australian Financial Review, 9 September 2002[1]
Introduction
The deficiencies of defamation law, particularly in NSW, have been acknowledged for more than 30 years. Reports by the NSW and Aus
[2] discuss at length the cost, complexitytralian Law Reform Commissions
and protracted nature of proceedings, defences, adequacies of juries, rem- edies and many other matters in this specialist area of law. Many of the reports and much of the critique led to the NSW Defamation Act 1974, with high hopes at the time that many of these complaints would be resolved. This was not to be. In the last decade, the whole subject of free speech in Australia, and its connections to defamation in the mass media, have been a highly contested area, both within and without the courts.
The revolutionary impact of the High Court’s Theophanous and Stephens judgements of 1992 were followed by the counter-revolution of the Lange judgements fi ve years later. The fi ve years since Lange have now given us a clearer picture of the legal and media landscape 10 years on from the earthquake. My contention is that more than a quarter of a century after the NSW Defamation Act 1974, through a turbulent period of High Court and thus lower courts decisions, journalists’ ability get their highest body of work—particularly investigative stories—out to the public has barely changed. As a result, freedom of speech, freedom of information and the public’s right to know remain highly constrained.
Sydney has been referred to as “the defamation capital of the world” with more writs per capita in NSW than in any other country.[3] According to a study by the Communications Law Centre of NSW,[4] NSW has one writ per 79,000 of population compared, for instance, to England’s one per 121,000 or the USA’s one per 2.3 million. The defamation law is well used: 87 matters were dealt with by the NSW courts in 1999, 107 in 2000 and 102 in 2001. It is a lucrative practice. In the changing face of Sydney, lawyers are doing well. A recent UK-based study by Globalization and World Cities found Sydney was in the top 10 world cities for multinationals in law. The floor space occupied by the legal profession in Sydney as of last year exceeds retail space for the first time. One in three of Australia’s legal workforce works out of Sydney.[5] Reform of the law of defamation represents a threat to the practices of an influential professional sector of Sydney.
It is not surprising given the decades of debate about reform and the interests involved, that there is little optimism about change. This comes despite ACT and NSW government proposals for reform now on the table for public discussion. Nevertheless, former federal Labor Attorney-General Michael Lavarch said recently: “I wouldn’t be holding my breath”. Two years ago, in the midst of what he called a “veritable festival of seminars and meetings” on defamation law reform, the NSW defamation list judge David Levine drily quoted Lord Diplock as saying the subject was “beyond redemption” but adding that “hope need not be abandoned”. 6
Why is it so hard to get change? Why so much seeming agreement on the continuing need for reform and yet so little movement? I will posit four major reasons: (1) the history of the formulation of our laws has built in notions which have remained largely unexamined and are often inappropriate to modern Australian life; (2) a conservative ethos in Australia militates against change, especially given entrenched special interests in the defamation law “industry”; (3) misunderstanding and mistrust of journalistic practice militate against allowing practical defences in law; and
(4) notions of “reputation”, “community” and “ordinary meaning” have become increasingly contested in a changing Australian society, thereby fuelling a conservative reaction against change.
1. The Burden of History
Both the NSW Law Reform Commission Working Paper (No. 1) in 19687 and Gillooly[8] make it clear that much of the thinking behind the NSW defamation law, but particularly the codified law of 1958 and, later, the
1974 Act, is based on that prepared by Queensland’s Sir Samuel Griffi th in the late 19th century. Griffith was Australia’s first Chief Justice, had much to do with the establishment of the High Court, with the Constitution and with the thinking behind many early decisions of the Court. He made an enormous contribution. He was, nevertheless, a man of his time. The son of a Welsh minister, he became an Ipswich Congregational Minister himself, later a Freemason Grand Master, leader of the Queensland Liberal Party, Attorney-General, Premier, Chief Justice of the Queensland Supreme Court and later Chief Justice of the High Court. On the one hand he championed free, compulsory and secular education for all and was more humanitarian than most on Aboriginal questions but on the other he extended the Pacific Island slave trade, enforced anti-Chinese regulations and thought Aborigines were a dying race.[9]
It is in this context that the Queensland law on defamation was composed—a law that was to be the basis for much of the NSW Defamation Act 1958 (the predecessor to that of 1974)—and, along with it, Tasmania’s. And it is not just a contextual matter. The concepts of reputation, harm, justification, defamation and so on are informed by Sir Samuel’s concept of proper community values. So, Sir Samuel’s legacy concerned imputations on “a man or his family which are likely to injure him professionally”, that a plaintiff may get compensation not just for the financial harm but for
“the pain of mind he suffers from the affront”; and the law was designed to be a “moral disciplinary” force protecting “injured family pride”.[10] The conception is of a gentleman of business injured in his trade or profession. Where did such ideas come from, apart from Sir Samuel’s own experience? The most direct source is the Indian Penal Code 1860 from which he drew most of his thinking about defences to defamation.[11] That source, again, concerned another class: the English colonial establishment then at the height of its rule over a restive India.
But defamation was not always the preserve of the ruling class in its characterization. Its origins are in the tort law of damages for all sorts of misdemeanours in English villages of the 13th century[12] and are dealt with by church courts. Defamation as a separate tort is still a church matter in Shakespeare’s time,[13] up to and including being dealt with by the dreaded Star Chamber. It is with the English Reformation that the law begins to take on a new seriousness, changing from a church matter about fault, usually based in community arguments, to a civil matter about injustice, reputation, compensation and, thus, defences. The changes come at a crucial time, just as Britain is undergoing massive social (mainly rural) changes in the 18th century and then industrialization in the 19th. The changes can be seen in the new ways of considering the “nature” of defamation.
In an important article, Marion Slaughter (one of the few to consider a history of defamation) points to the notion of qualified privilege as a reaction to the development of a capitalist, market-oriented society in the late 18th century in England.[14] Reputation, she says, became a commodity. The law changed from being about practical recompense for one’s upset
“honour” (a medieval concept) to financial recompense for harm to one’s reputation seen as “an asset”. And in such a change, as the 19th century progressed, those who had the assets became those most likely to complain about injury. Slaughter’s surveys of cases show:
The overwhelming number of cases of private privilege involve property interests. The defamed person is a creditor, trader, servant, local offi cer, minister, employee, or public beneficiary. He claims he has suffered injury to his property, pocketbook, credit or calling...[15]
This sociolegal approach underlines the development of monetary damages as an integral part of the “solution” to defamation cases. As Chesterman comments (on Slaughter):
In becoming increasingly concerned to furnish monetary compensation for that injury [to reputation], defamation law abandoned its requirement that the plaintiff prove fault, in the form of malice, on the defendant’s part.[16]
Slaughter makes it clear that by the middle of the 19th century the law had become a contest between highly advantaged plaintiffs and highly disadvantaged defendants whose interests in society were substantial. A gentleman’s “reputation” was now really worth something. This is precisely when the Indian Penal Code picks up English defamation law. Lord Macauley, a secure member of the English aristocracy, is its progenitor and Queensland’s Sir Samuel Griffith (and the NSW Defamation Act 1974) its intellectual descendant.
But there is another stream running into defamation thinking in NSW. It is our colonial inheritance. The Legislative Council in 1847 passed the Injuries to Character Act to bring some forms of defamation into statutory mode. It was to apply in NSW until the 1958 statute. In it, the Council went further than English law, setting the bar higher for media publishers. From 1847, truth was not a sufficient defence. “It shall be necessary,” it said, “for the defendant in his plea of justification to allege that it was for the public benefit that the said matters charged should be published.”[17]
Clearly, for 111 years of NSW history, the public needed to be protected against truths that were not for its benefi t.[18]
Finally, the history of defamation law reflects not just a perspective on class relations but also on sexual and social relations. An early example is the allegation that someone suffered from a venereal disease (the colony had a long history of such problems, which wiped out swathes of the Aboriginal population) and it was given special status in the law until 1974. Another concerns “unchastity” among women—a term that includes adultery, promiscuity and lesbianism. Since women are supposed, in Victorian values, to remain chaste, an accusation of “unchastity” is presumed actionable per se. Gillooly records the Victorian and South Australian Wrongs Acts 1958 (still in force) providing: “Words spoken and published of any woman imputing to her a want of chastity shall be and shall be deemed to be slander...”.[19] The recent Costello and Abbott case against Random House turned in part on the same rubric of “unchastity”. One wonders when a similar provision will be inserted for men!
The history of our defamation law is riven with values from an earlier age, much of it dating from the 18th and 19th centuries. The last major
“reform” was not a break with the past so much as an update on values deemed consistent in Sir Samuel Griffith’s era. Part of the reason for the difficulty in reform is the structural irrelevance of so many of the notions inhabiting the legislation.
2. Conservatism, Change and Special Interests in
Australia
Defamation reform requires major legislative effort. The NSW Defamation Act 1974, in effect, took five years or more of consistent political effort to change. Further reforms to that Act in 1994 took similar levels of commitment. They were helped along by the badgering of a feisty Independent from the NSW South Coast, John Hatton, whose concern was to have more freedom of discussion and information and more transparency in government. Significantly, they only happened as a bargain deal because Hatton held the balance of power in the Parliament.
Attempts at uniform defamation law across the nation are clearly even more protracted. Michael Lavarch, federal Attorney-General 1993–96, said recently that his attempts at uniform law failed because:
Underlying our discussions in the mid-1990s was a general concern about the standard of journalism—the idea of liberalising the laws didn’t fi ll people with much enthusiasm.[20]
So attempts at reform by the legislature come few and far between and, seemingly, run out of steam with reasonable ease. What is behind this political reluctance?
Defamation law reform holds no “pull” for Attorneys-General as politicians. It affects no one’s interests apart from the legal profession, media proprietors and a series of plaintiffs. Many of the plaintiffs are themselves politicians, as Deane J. noted in Theophanous: “[Defamation suits in NSW] are seen as tax-free profit for the holders of high public offi ce”.[21] In addition, the public shows no sign of any more interest in this issue than in prison law reform.
In a largely middle-class society, such seemingly “legalistic” change goes into the “if it ain’t broke, don’t fix it” mode, and the criteria for “ain’t broke” involves lack of direct involvement with the law. It sits alongside Australians’ notorious reluctance to vote for constitutional change. We are a conservative lot (as writers like Donald Horne have noted), happy to occupy the political middle ground, resistant to change.
Behind this public indifference, though, lies a cornered market. A relatively small circle of practitioners possessing an arcane knowledge of “sterile technicalities” (as Levine J called them)[22] waits for a media
“mistake” (real or imagined) and an unhappy client (real or imagined) to enter the joust knowing that the media corporation has the money for a long contest. Defamation lawyers, says Levine J, earn breathtaking amounts of money from both sides. All you need is someone like the current NSW Minister for Fisheries, Eddie Obeid, to feel aggrieved (see his promises of action for defamation against The Sydney Morning Herald in August 2003) and lawyers across town are set for months.
With a senior silk, a second barrister and solicitors, $12,000 a day is a minimum.[23] In addition, the effect of the 1994 changes to the NSW law
(downgrading the role of juries) has been to prolong trials, according to
Fairfax in-house lawyer Richard Coleman. He says that, whereas prior to
1994 perhaps two per cent of cases ended up before a full jury trial, now
“virtually every case commenced will go before a jury for the preliminary trial about meaning”. He says:
The result has been, as you would expect, a major blow-out in the cost of defending defamation actions. The beneficiaries of this blow-out have been the relatively small group of lawyers who specialise in defamation.[24]
In this situation, there is no economic incentive for the legal or political professions to want change. And with no legal aid for defamation actions, the market remains tied up.
3. Journalists as the Enemy
Investigative journalist Chris Masters estimates that the litigation involved in defending his 1980’s Four Corners programme about Queensland police corruption (called “The Moonlight State”), of which I was executive producer, cost him two years’ worth of work time. He has written of his disillusion with the process. In his latest book, Not For Publication, he writes:
When journalists see a strong investigative piece dragged by the tail through a decade of nasty litigation they get the message. We know there is no such thing as a win in a defamation court. Whatever the judgement, it comes at such a high price you don’t want to go through it again.[25]
In the chapter “Guilty Buildings”, he speaks of a whistleblower in a major company telling him astounding allegations about the company and its industry. Then:
There is your problem of establishing enough corroboration. There is the further matter of him trusting you to stand up to the legal onslaught ...
The very big end of town may be able to devote limitless time and money to defending their practices, but who else can or would wish such a course for themselves?[26]
The “Moonlight State” programme kicked off the Fitzgerald Inquiry in Queensland, which resulted in the charging and gaoling of the then Police Commissioner, Terry Lewis, for corruption. It was of unarguable public benefi t.
The 1980s were Australia’s golden period of investigative journalism. The Age, The Sydney Morning Herald, The National Times and Four Corners all broke stories of major public interest and all were involved in major litigation. In my view, the social changes that resulted from this explosion set the scene for the 1992 decision in the High Court which recognized the role of investigative journalism. McHugh J, though a dissenter to Theophanous and Stephens, speculated in a judgement two years later on a form of “special knowledge” which might attract an extension of common law privilege. An example might be, he said, “the investigative journalist who finds that grants of public money have been distributed contrary to the public interest”.[27]As Chesterman points out,[28] he inches the same argument forward towards a protection of “reasonableness” in Levy v Victoria.
But the fact is that the effect of the unanimous decision of the High Court in Lange v Australian Broadcasting Corporation in 1997 has been to reverse any judicial discretion towards journalism of the highest order. The Lange case severely narrowed the implied rights asserted in Theophanous and instead created a whole new order of protection in a new qualifi ed privilege defence. But the “reasonableness” test of Lange fails in practice. The test was:
a defendant’s conduct in publishing material giving rise to a defamatory im- putation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was 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.[29]
Furthermore, the publisher needs to seek a response from the defamed and publish that response. However, as Chesterman clearly sees:
This [proving reasonable grounds warranted belief in the truth of the impu- tations] may not be feasible, particularly where in preparing the material for publication a media defendant relied on confidential sources whose identity it is unwilling to disclose, or where it is reporting an attributed statement
for which it has no independent substantiation. It seemingly gives no leeway for honest and reasonable, albeit high mistaken, belief that reasonable grounds existed.
(emphasis added)[30]
The effect in the five years since Lange has been predictable. As Bruce
Donald, General Manager of ABC Legal 1986–93, says:
The principle in the Lange case after years of legal argument and hopeful anticipation ... does not provide much help at all to people seeking free debate on public issues ... The reasonableness test is very strict ... I venture to suggest that in virtually no case of an ordinary presentation of published material, will these preconditons be able to be satisfi ed.[31]
With this mismatch of law and journalism in place, the defamation landscape, post-the “Prague Spring” of Theophanous, has been desolate.
Much of this “chilling effect” (as Sullivan v New York Times would have it) stems from the Court’s highly conservative conception of democracy and the “proper” way in which “information” should serve it. Having decided that the more participatory model of the Theophanous Court should not stand, the Lange justices decided unanimously on a top-down model. Citizens should get information about their governmental and political affairs so as to make informed choices at elections. The result was to exclude media discussion of commercial affairs, entertainment and purely state affairs from the protections afforded more directly “political” matters[32]. Hence one “chill” came precisely in the area of entertainment. The tendency of a publication to hold someone up to ridicule has long been
a test of identifying defamatory material. But the same tendency is the stock-in-trade of satire. In the case of the ABC’s Triple J running its Pauline Pantsdown skit, Pauline Hanson successfully applied to the Queensland Supreme Court in 1998 for an injunction under the Defamation Act. The High Court refused to hear an ABC case, the Queensland Court of Appeal backed up its lower court and the judges agreed to hear the case on the patently absurd grounds of the song’s literal meanings (for example, that she was a “potato”). Says Magnussen:
The reasonableness requirement in Lange is poorly suited to the reality of satire. Satire does not aspire to be “reasonable”. On the contrary. It exagger- ates and distorts perspectives in order to make its point.[33]
Equally disturbing, Eisenberg quotes a question put to the Queensland
Court of Appeal by Hanson’s counsel, seeming to invite what she calls
“official nonchalance about the suppression of offensive speech”. The question was: “What’s the harm in the ABC not being able to broadcast this song?”[34] The status of satire in Australia remains under a cloud.
Again, in commercial affairs, the Lange effect holds, but with an added twist. In John Fairfax & Sons Ltd v Vilo the NSW Court of Appeal last year refused to accept not only the defendant’s arguments that articles published in The Sun-Herald and Business Review Weekly on a fleeing company director were “political” under the Lange rubric but also their attempt to import the more liberal judgements in England on qualified privilege in Reynolds.[35]
And in another case in Victoria this year, even though the jury found the publication by The Herald Sun of an inaccurate report on a magistrate “reasonable in the circumstances” (following Lange) and not
“actuated by malice”, it was overturned by the judge in that he alleged the journalist “didn’t care” about its defamatory imputation and didn’t seek a response.[36]
Even more disturbing is the case in January this year of the protestors of the Hindmarsh Bridge development in South Australia being personally and successfully sued ($30,000 damages, with $50,000 costs) by the developers, Tom and Wendy Chapman. The Chapmans claimed the protestors’ “malice”[37] defeated their defences. In making his judgement, Williams J relied on the Lange tests on malice to consider his decision. His wide-ranging consideration of the defendants’ lives and background saw him agree wholeheartedly with the plaintiff developers. The judge went well beyond the circumstances in which each of the imputations was published. The decision has important implications for all protestors nationwide against development and planning consents. An appeal has been lodged. If upheld, the traditional “resident action groups” around Australia are under threat.
These continuing “chilling effects” on public discussion follow from the Lange decision as lower courts around the nation interpret the unanimous decision of 1997. And, of course, we have also seen a veritable circus of cases in defamation: Costello and Abbott on alleged student sex romps; radio jock Steve Price suing an e-newsletter publisher for a temporary error; 60 Minutes reporter Richard Carleton suing the ABC over a slight that he might have lazily borrowed material from the BBC; Nick Whitlam sooling the NRMA lawyers on to Fairfax journalists to disclose their sources; and, more seriously, the Anglican primate, Dr Peter Carnley, threatening a child abuse group in Perth with a defamation suit if it didn’t retract an alleged statement he made in a meeting. Post-Lange, the defamation market is thriving.
More disturbingly, in 1999, Bruce Donald listed six examples of major companies, developers, public authorities and publishers suing small residents groups, SBS and protestors to silence dissent.[38] Most prominent and vociferous user of the defamation law, not surprisingly, was the developer of Hinchinbrook in Queensland, Keith Williams. His regular forays into the media threatening “all of these people, be they just plain greenies or obstructionists or scientists or pseudo-scientists” includes the following: “I have had a writ out against Senator Kernot for about
12 months. There are others, too, but I might save them up as Christmas presents.”[39]
The five-year period since Lange is both seriously undermining our freedoms and encouraging a new round of the old defamation game. It is ironic, because so much intellectual effort was put in to widening the important defence of qualified privilege for publishers. But its effect, instead, has been to encourage this kind of judicial spleen:
I must say that, in any event, I have a healthy scepticism about the applicability of such glib cliches as “freedom of speech”, which are so often relied on to justify the dissemination of material which the powerful control- lers of the mass media choose to place before the public.[40]
Publication and journalism are surely on the back foot when the bench issues such missives. Incidentally, the case has recently been won by the ABC in the High Court but, until that Court’s decision, the rights of news camera operators to film near commercial premises were at risk.
Where did the misunderstanding and mistrust between the bench and journalism stem from? I suspect much of it emanates from a judicial abhorrence of the tabloid media, backed up by a steady diet of Media Watch tracking down errant journalists and editors and, before it, “Mike Moore’s” antics on Frontline. Whereas the 1980s saw a boom in investigative journalism, the 1990s saw a series of public lessons in appalling practice by journalists and media personalities. The decade has managed to achieve a substantial disconnection between image and reality on both sides of the law/journalism divide. Judges and silks may be sick of hearing catchphrases from journalists about “freedom of the press” and “the public interest” but journalists and editors are equally appalled at endless raised eyebrows, sarcasm and barbs from on high.
From my experience, the most common myth concerns the levels and style of research and corroboration conducted by journalists. Most mass media journalists fall into three categories. (1) Most are news hounds: their daily practice is concerned with following a story, usually set, or
“framed”, by a chief-of-staff or news editor, and writing it to a deadline in a manner most likely to appeal to the audience of their media. (2) Some senior journalists find “feature journalism” or specialist rounds (political, financial, industrial, foreign, environment, police, etc.) of interest and follow it as a career option. (3) A very small group take on “investigative journalism”. Category 1 tends to be the bread and butter of “Media Watch” revelations, though the antics of some reporters in television current affairs programmes like Today Tonight and A Current Affair are also a staple diet. Category 2 fits most directly with the concepts sitting behind Lange: they report the decisions of the powerful and are most affected by notions of
“fair report” and qualified privilege as outlined by the Court and statutory Acts. Category 3, however, is largely my concern in this paper because it sits most uneasily with Lange, has been excluded from “reform” of the law despite various attempts and is under threat despite its obvious benefi ts to society.
Like soldiers at Gallipoli, most investigative journalists I know shy away from the heroic status implied in the title. They are reluctant to talk about it or to put themselves on a pedestal. “It’s just good journalism,” they say. But I think it does have some key features. It: (1) “breaks” news rather than reports it; (2) usually involves substantial research; (3) reveals some deliberately concealed “truth” (fact, document, money trail, and so on);
(4) very often involves a major institution (church, trade union, public authority, corporation) or public figure; and (5) has a “moral” dimension to the extent that it finds a deficiency and implicitly or explicitly calls for change (a judicial inquiry or whatever). These are not, together, an exclusive category—a report about a local real estate agent, for example, can be “investigative”—but the set of features above describes much of the work of the “golden era” I mentioned previously.
The working methods are of interest to the current disconnection between law and journalism. A major investigative story, set and monitored closely by the editor (print) or executive producer (television or radio), will involve a team of journalists: primary reporter, back-up journalist and (in television) a researcher-journalist. The story may be months in the making—much to the chagrin of colleagues! Such journalists are acutely aware of the probable destination of the story after publication—the defamation courts—and have read in-house documents on the law (e.g. the ABC’s All-Media Law Handbook), consult their in-house legal advisers on a regular basis and amass evidence to prove their propositions to the greatest extent possible given time, cost and editorial constraints. Such constraints might include the availability of documentary evidence, the willingness of sources to go “on the record”, “off the record”, “background only” and/or to stand by the publisher in a later defence, and the need to consider the audience in telling the story. While on the one hand online sources have exploded in the past decade (e.g. ASIC for company searches), the failure of legislation to protect “whistleblowers”, the bureaucratic defeat of much freedom of information laws and the once bitten, twice shy attitude to talking to investigative journalists (e.g. from Four Corners) has made life more diffi cult.
Such journalists are coming at their trade from a different perspective to the law, even though both their end points is to “prove” a proposition. First, they start their training in as competitive a market as lawyers. Getting into a journalism course at a place like the University of Technology, Sydney, is as difficult as law and requires approximately equal UAIs in the Higher School Certificate. (The image of the knockabout, hard-drinking journo with a press card in his hat, often trained in-house after leaving school early, is about 50 years out of date.) Second, while the law might have a more purely forensic approach to evidence, journalists are concerned fi rst and foremost with how to create a “good story” for their audience. It ties them in a democratic sense to their public, but it also necessarily shapes their methodologies. If they forget their primary mission (“a good story”) their boss will quickly remind them. It is structured into the industry, whether the media is commercial or public. Third, there is almost always no question that they have to have a passion and belief in their story. The research is almost always hard slog, fact by fact collection, building and testing hypotheses, adjusting as the facts come in, hearing contrary evidence, giving “the other side” (if such develops) a “fair go”, keeping sources “on-side” and keeping editors happy. Few journalists would go through such a process for the fun and fewer still for some misplaced sense of glory.
Inevitably, sometimes, errors occur or hypotheses are inadequately backed up, only to see an alternative explanation later emerge. If such journalism is to be valued, can we as a society set the bar so high that no form of the genre can be protected apart from complete truth? It is unrealistic to expect that even the best journalists—including, incidentally, their senior in-house lawyers and consultant silks—will always be right.
“Reasonableness” needs to be reasonable. It should allow for mistakes. It should allow good investigative journalists to publish:
• knowing they have done the best possible research;
• knowing the story has major public benefit and interest;
• knowing they have sought the “other side” (but not necessarily got it);
• knowing they believe their story was correct; and
• as long as they do not have malicious motives for doing the story. This, however, is not happening. Journalists, editors and proprietors
have been unable to gain protection under such “reasonable” guidelines, very often defending “meanings” they never intended and accused of
“malice” that was never there (in the sense of carelessness as to the truth). But the aim of the law should not be to “reform” journalism. Magnussen points to the problem:
The factors considered relevant to whether a publisher has acted reasonably
[in the NSW Defamation Act 1974 qualified privilege defence] focus on the methods by which journalists “work their stories”, as contrasted with an inquiry into the occasion of publication ... “Reasonableness”, as interpreted by the courts, is difficult to satisfy.[41]
Nevertheless, the mindset is still whether journalism can reach the standards set by the courts rather than an appreciation of the real practice of journalism, its contribution to public discussion and freedom of information and the necessity for publication of good investigative journalism. Kenyon illustrates:
Questions about the reasonableness of publication under Lange and the illustrative factors listed by Lord Nicholls in Reynolds suggest that English and Australian defamation law will develop standards of appropriate journal- istic practice.[42]
“Reform” of the defamation law remains unlikely while the two professions seem so at odds in understanding. Only the public loses.
4. The Notion of “Community”
Social anthropologist F.G. Bailey has studied the connection between reputation and community in close European communities. He makes the point that:
Membership of a community does not depend upon having a good reputation; only upon having a reputation ... To have a reputation allows one to be a member of a community, even if the reputation is bad.[43]
In a challenge to “reputation” as a legal interest, Gibbons states:
The law assumes that reputations simply exist, that the media have an effect on them and that the outcome is negative. It does not recognize the media’s part in creating public images nor the relationship between those images and the social relationships of real people.[44]
He goes on to demonstrate how socially contingent “reputation” is and how, indeed, it can be “as precarious as the public whim”. Lleyton Hewitt might agree! Yet his point about the law’s static sense of reputation—and the normative conceptions about the nature of the community behind it—are well made.
This is particularly true in a period of rapid moral and social change. McNamara[45], in a superb recent examination of two cases dealing with the Australian law’s conception of “decency” and how it applies to homosexuality, shows the difficulty with which two senior judges—Levine J (Horner v Goulburn City Council)46 and Bell J (Rivkin v ATN Pty Ltd)[47]—adopted differing paths to what “ordinary members of the community” might say on the subject. Effectively, Levine J thought they would think less of a person if he or she were homosexual, Bell J did not. The cases highlight the moral assumptions and differing perceptions in a time of changing mores.
How many “communities” are there in world class, cosmopolitan cities like Sydney and Melbourne? How many meanings are taken in each of these communities, especially when almost a third speak a language other than English at home? How are meanings constructed? In an era of Big Brother on Network 10, what price notions of privacy—or, for that matter,
“unchastity” under the doona?
As Flahvin says, the judicial confusion around questions of how ordinary people “read” the media has been expressed since Lange in sharp disagreements on the High Court about whether it is appropriate to assume that people read all of an article or only the “juicy” headlines and first paragraphs. Both Rigby[48] and Chakravarti[49] brought out an interesting side of Kirby J:
Kirby J vents his distaste for the sensational excesses of the mass media. In Rigby, he suggests that a price should be extracted for a reporting of charges which exceeds the most sedate statement of the bare facts. In Chakravarti he suggests that ordinary readers are doing anything but reading—looking at the pictures more like it. Should alarm bells be ringing in newsrooms?[50]
Her answer is in the affi rmative.
One gets the feeling that the High Court is attempting to hold on to a set of standards against a tide of variously changing ones. In the middle, the media of necessity has to jump into the stream. The Court, or courts, qua bulwarks against change, cannot work because ultimately the language of
the Court and the languages of the community and the media will collide too many times. The ordinary meanings of words will not hold, to murder Yeats. Comprehensive reform is needed.
Conclusion
There have been so many attempts at reform of Australian, but particularly NSW, defamation laws, and so many discussions, papers and committees, that one could wonder both why so little progress has been made and why the discussion continues. It could be because publication of genres like investigative journalism has been made so difficult by the extraordinary complexity of the laws. But the painfully slow “progress”, if such exists at all, can be explained. Our laws resist change because they are fundamentally riven with out of date notions belonging to a Victorian class ethic and a colonial inheritance. They resist change because so many have an interest in the current system. They resist change because there is a radical misunderstanding of practices and procedures in journalism—and no acknowledgement of their structural validity. And they resist change because they invite a defence of homogenous standards that are fast disappearing. The Lange case largely returned defamation law to its pre- Theophanous state in terms of practical defences available for publishers. The effects of the decision, along with the restrictions on publication inherent in the NSW Defamation Act 1974, suggest radical reform is well overdue.
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* Adjunct Professor, University of Technology, Sydney; former head of News and Current Affairs, Australian Broacasting Commission.
The writer wishes to acknowledge the research assistance of Helena Janson in preparing this paper.
[1] Solicitor-General of NSW and co-author of Australian Defamation Law and Practice, Butterworths.
[2] NSW Law Reform Commision, 1968, Working Paper No. 1; NSW Law Reform Commission, 1971, Report No. 11; and Australian Law Reform Commission, 1979, Report No. 11, “Unfair Publication: Defamation and Privacy”
[3] Michael Chesterman, ABC Radio, TWT, 24.05.02.
[4]Sydney Morning Herald, 23.05.02, 3.
[5] Macken, D., Australian Financial Review Magazine, September 2002, 24–25.
[6] Levine, D., “Beyond Redemption: Defamation Law Reform”, (2000) 9 Reporter
(Australian Law Students’ Association), Winter, 53.
[7]Ibid., 58–65.
[8] Gillooly, M., The Law of Defamation in Australia and New Zealand, Federation Press, Sydney,
[1998], 14–15.
[9]Australian Dictionary of Biography, vol. 9, 1891–1939.
[10]Ibid., section 3.
[11]Ibid., section 19.
[12] Holdsworth, W., A History of English Law, Methuen, London, 1936, 364–366
[13]Ibid., 380–381.
[14] Slaughter, M.M., “The Development of Common Law Defamation Privileges: From
Communitarian Society to Market Society”, (1992) 14 Cardozo Law Review, 375.
[15]Ibid., 376.
[16] Chesterman, M., Freedom of Speech in Australian Law, Ashgate, Dartmouth, 2000, 88
[17] NSW Law Reform Commision, 1968, op. cit., section 62.
[18] See also Australian Law Reform Commission, 1979, op. cit., 64.
[19]Ibid., 99.
[20]Australian Financial Review, 12.07.02, 55.
[21] [1994] HCA 46; 182 CLR 104 at 187–188.
[22]Ibid., 51.
[23] Donald, “The ‘Defamations Actions’ Against ‘Public Interest’ Debate”, speech to the Free
Speech Committee of Victoria, 22.04.99, 10.
[24] Sydney Morning Herald, 15.07.02, 11.
[25] Masters, C., Not for Publication, ABC Books, Sydney, 2002, 6.
[26]Ibid., 59.
[27] [1994] HCA 45; 182 CLR 211 at 265.
[28]Ibid., 109.
[29] [1997] HCA 25; 189 CLR 520 at 574.
[30]Ibid., 101
[31]Ibid., 15.
[32]Ibid. See Chapter 2.
[33] Magnusson, R. S., “Freedom of Speech in Australian Defamation Law: Ridicule, Satire and Other Challenges”, (2001) 9 (3) Torts Law Journal, October, 2001, 289.
[34] Eisenberg, J., “Sex, Satire and ‘Middle-Class Morality’: Reflections on Some Recent Defamation Cases”, (1999) 92 Media International Australia, Incorporating Culture and Policy, August, 30.
[35] [2001] NSWCA 290; 52 NSWLR 373–381.
[36]Popovic v Herald and Weekly Times Ltd., 2002 VSC 55.
[37]Chapman v Conservation Council of SA, SASC4.
[38]Ibid., 2–6.
[39] Courier-Mail, 24.08.96, 24.
[40] Wright J in Lenah Game Meats PL v ABC, [1999] TASSC 114; 1999 ADefR 53-040 at 17.
[41]Ibid., 292.
[42] Kenyon, A.T., “Defamation and Critique: Political Speech and New York Times v Sullivan in
England and Australia”, (2001) Melbourne University Law Review 25 (2), August, 8.
[43] Bailey, F.G. (ed.), Gifts and Poison, Basil Blackwell, Oxford, 1971, 7.
[44]Ibid.
[45] McNamara, L, “Bigotry, Community and the (In)visibility of Moral Exclusion: Homosexuality and the Capacity to Defame”, (2001) 6 (4) Media and Arts Law Review, December, 2001.
[46]Horner v Goulburn City Council, Levine J, 05.12.97.
[47]Rivkin v Amalgamated Television Services Pty Ltd 2001 NSWSC 432.
[48]Rigby v John Fairfax Group Pty Ltd (unreported, Supreme Court of NSW Court of Appeal
[1996]).
[49]Chakravarti v Advertiser Newspapers Limited (High Court, 20.05.98).
[50] Flahvin, A., “First Impressions—Lessons from Chakravarti”, (1998) 17 (2) Communications
Law Bulletin, 9.