INTRODUCTION

10.1 The “public figure test” emerges from United States constitutional law, in particular the First Amendment to the United States Constitution (part of the “Bill of Rights”). That Amendment reads in part “Congress shall make no law...abridging the freedom of speech, or of the press”. The test was created by the United States Supreme Court in the 1964 case of New York Times Co v Sullivan,¹ which overturned the prevailing view that the First Amendment had no application to the common law of libel.² Elements of the test also have been applied to other torts recognised in United States law (such as intentional infliction of emotional distress).³ The public figure test has been developed and applied in a different legal and social context. However, it embodies policy issues which are equally relevant to Australia, prompting frequent calls for its introduction into our law, by those who advocate fewer restraints on a “free press”.

Elements of the Public Figure Test

10.2 The test has radically altered the tort of defamation in the United States. To succeed in a defamation claim, plaintiffs classed as “public officials” or “public figures” must prove that the defendant acted with “actual malice” - defined as actual knowledge of the falsity of the published material or reckless disregard as to its truth. This is far more stringent than the common law concept of malice required to defeat qualified privilege, which includes ill will, spite and improper motive.⁴ “Reckless disregard” exists only where the defendant consciously held doubts about the truth of the matters asserted; mere indifference to the truth and failure to investigate is insufficient.⁵ Furthermore, the plaintiff must prove actual malice with “convincing clarity”, an onus of proof which goes beyond the normal “balance of probabilities” used in civil cases.⁶

10.3 The constitutional guarantee of free speech also has altered the position of plaintiffs who are neither public officials nor public figures. Such “private figures” must prove that the defendant was at least negligent, even where the defendant knew the material was defamatory and intended to refer to the plaintiff (in such a case, the plaintiff must show negligence in failing to discover the truth).⁷ This means that all plaintiffs must prove some fault on the defendant’s part. Furthermore, all plaintiffs bear the onus of proving falsity, as this is an essential element of the tort - actual malice cannot exist if the matter is true, and negligent publication of truth is a logical inconsistency.⁸

10.4 Finally, all plaintiffs must prove actual malice to recover presumed and punitive damages, unless the plaintiff is a private figure and the defamation does not relate to a “matter of public concern”, in which case the plaintiff need only show negligence. In other cases, unless actual malice is shown, a private figure can recover only for actual proven loss.⁹

10.5 The policy rationale for the public figure doctrine is the promotion of free debate on issues of public importance. The First Amendment must go further than preventing attempts to prohibit free speech - it must ensure there is no “chilling” or deterrent effect on free speech. Erroneous statements are inevitable in a robust and free debate; the strict liability of common law libel rules deters the publication even of statements which may be accurate, stifling free debate. The public figure doctrine provides a constitutional privilege (overriding any inconsistent federal or state law) to publish false statements, provided they are made without actual malice.

The Commission’s provisional view

10.6 The Commission has concerns over the desirability of introducing a public figure test into New South Wales law. The reasons for this are:

• The context in which the test has been developed and applied is very different.
• The test does not effectively deter litigation by public figures, or promote free speech.
• The test causes undesirable side-effects.
• The policy objectives of the test can be achieved by other means.

THE AMERICAN CONTEXT OF THE PUBLIC FIGURE TEST

10.7 The social context in which the public figure test was developed, the constitutional position, and certain important features of the United States legal system are all very different to the situation in New South Wales. It is necessary to consider both how the test operates in the United States and how it would operate here if transplanted.

The birth and growth of the doctrine

10.8 The Sullivan case “was as much a civil rights case as a libel decision”.¹⁰ It concerned an inaccurate advertisement in the New York Times, which criticised persecution of African-American students and Dr Martin Luther King, and was held by an Alabama state court to have defamed the Montgomery County police commissioner, Mr Sullivan. The size of the award (US$500,000 in 1964) was clearly excessive considering that Sullivan was not named or referred to, the factual errors were trivial, and the Times’ distribution in Alabama very limited. Concerned that southern States would use libel law as a weapon to resist the civil rights movement and mandated integration in particular, the Supreme Court used the only means available to overturn the verdict - a novel interpretation of the First Amendment.¹¹

10.9 The public figure test was thus created at a crucial moment in United States political history. Different circumstances in New South Wales permit a considered assessment of whether the common law of defamation should be altered in a similar fashion.

10.10 In Sullivan the constitutional privilege was applied only to statements criticising the official conduct of public officials. Later cases were concerned with defining the extent of the privilege, and resulted in its expansion. “Public officials” came to include candidates for public office,¹² and also a broad range of government employees “who are in a position significantly to influence the resolution of [public] issues”.¹³ “Official conduct” came to include allegations concerning a person’s fitness for office.¹⁴

10.11 Even more significant was the expansion of the privilege to include “public figures”, on the grounds that many persons in non-governmental positions have as much if not more influence on public affairs as do government employees.¹⁵ Defining who is a public figure has proved notoriously difficult (see paragraphs 10.44-10.47). The Supreme Court at one stage favoured an alternative approach which would have conferred Sullivan protection on any statement concerning a matter of public interest, whether the plaintiff was a public figure or not.¹⁶ However, this approach was eventually rejected.¹⁷

The lack of a First Amendment in Australia

10.12 In the United States, the specific constitutional protection of free speech and a free press, without any corresponding protection of reputation, ensures that speech is given a priority it does not automatically have in New South Wales. Our defamation law represents an attempt to balance these competing interests; the balance must always favour free speech in the United States. The policy judgment there is that it is better that ten false stories (possibly ruining ten reputations) remain unpunished than one true story be repressed.¹⁸

10.13 American courts have taken the same policy approach in the criminal law area, carefully scrutinising penal law provisions relating, for example, to offensive language, obscenity, and racial vilification, in order to determine whether such provisions run foul of the constitutional protection of free speech. Some restraints are permitted, but only where there is a clear and compelling justification and the criminal law is drafted as narrowly as possible. In Terminiello v City of Chicago, the United States Supreme Court noted that it was improper to prohibit speech merely because it “invites dispute...induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”¹⁹

Implied guarantee of freedom of communication

10.14 The Australian and New South Wales Constitutions contain no explicit protection of freedom of speech (or of the press). However, in two recent cases the High Court has held that freedom of communication is implied by the doctrine of representative government embodied in the Australian Constitution. These cases are Australian Capital Television Pty Ltd v Commonwealth (No 2)²⁰ and Nationwide News Pty Ltd v Wills.²¹ The precise scope of this implied guarantee is yet to be worked out; it was extended (in terms) to freedom of communication on political matters, although Mason CJ included “public affairs”, and Brennan J extended it to economic matters.²² However, this implied guarantee was held to be restricted by the kind of regulation that is consistent with freedom of political discourse - including the law of defamation.²³

10.15 The effect of the implied guarantee on the common law of defamation and the balance described above is thus unclear. However, this issue may soon be decided by the High Court, which recently granted an application for removal of cause by the defendant in Stephens v West Australian Newspapers Ltd. The issue to be decided by a full bench of the High Court was whether a proposed defence based on the implied freedom of communication in the Constitution was available. The proposed defence was a qualified privilege for matter criticising Members of Parliament in relation to their performance as such, where the criticism is reasonable.²⁴

10.16 The two free speech cases are a long way from introducing a public figure test. Some of the judges discussed and relied on American cases (including Sullivan), but Mason CJ stated that the First Amendment is “broader in scope than the implied guarantee in the Australian Constitution”.²⁵ An attempt by an enterprising defendant in the New South Wales Supreme Court to claim that the law of defamation imposes unacceptable restrictions on the implied guarantee has been rejected.²⁶ However, these cases recognise that freedom of communication is necessary to enhance the political process and stimulate performance in public office - the same policy values relied on by the United States Supreme Court in the line of cases beginning with Sullivan. The question is whether those policy values would be best served by the introduction of a public figure test.

International law

10.17 In 1980, Australia ratified the International Covenant on Civil and Political Rights 1966, Article 19 of which provides a right to freedom of expression. This right is very similar to the implied guarantee identified by the High Court, in that it recognises that the right provided may be subject to restrictions which are lawful and necessary “for respect of the rights or reputations of others” or for protection of national security, public order, public health or morals.

Features of United States law balancing the operation of the public figure test

10.18 Certain aspects of American tort law and costs rules help to restore the balance between protection of reputation and free speech. These must be considered when assessing the positions of the media and individuals affected by media activities in the United States.

Tort of privacy

10.19 United States law recognises a comprehensive tort of invasion of privacy. In many cases this has been used to sanction intrusive practices which are controlled only imperfectly by the tort of defamation in New South Wales. Invasion of privacy is actually a complex of four related torts:²⁷

(1) appropriation for the defendant’s benefit of the plaintiff’s name or likeness;

(2) unreasonable and highly offensive intrusions into the plaintiff’s seclusion;

(3) highly objectionable publicity of private information (even if true); and

(4) putting the plaintiff in a false light in the public eye.

Additionally, the United States Supreme Court has recognised a constitutional right to privacy which can found a tort action (though this is normally aimed at public officials or State agencies, not the media).

10.20 The defendant’s conduct usually must be found to be offensive to a reasonable person. However, there are very few affirmative defences to the privacy action.

10.21 The intrusion tort in particular ((2) above) has been used as a sanction against investigative newsgathering by the media. The First Amendment gives no special protection to newsgathering; it may provide some protection where the injury is caused by publication, but damages can be recovered for intrusion even without publication. (If publication does take place, it may aggravate the damages). Significantly, even the public figure doctrine is not clearly applicable to the intrusion tort. The uncertainty surrounding the tort has had a “chilling” effect on the media, causing some self-censorship (even though libel suits are far more common).²⁸

10.22 The existence of this tort gives some protection to plaintiffs who may be affected by media activities, even though the constitutional privileges embodied in the public figure test would deny relief in a defamation suit. The introduction of a public figure test in New South Wales, where it would not be balanced by a tort of privacy, may leave individuals without adequate protection.

Tort of intentional infliction of emotional distress

10.23 Similarly, United States media (and other) defendants may be sued for intentional infliction of emotional distress. The public figure doctrine also applies to this tort, but it is at least available to a range of plaintiffs.²⁹ No such action is recognised in New South Wales.

United States costs and fees rules

10.24 Empirical studies have shown that most libel plaintiffs in the United States - even public figures - are represented on a contingency fee basis.³⁰ This ensures that a defamation action will cost a plaintiff very little, even where the chance of victory is small.

10.25 In addition, plaintiffs rarely if ever have to pay the defendant’s legal costs in United States civil litigation; the “American rule” provides that “attorneys’ fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor”.³¹

10.26 The prevalence of contingency fees may be thought to disadvantage plaintiffs who are successful, as they will lose a large part of their award. However, the plaintiff’s attorney fees can effectively be “shifted” to the defendant if the jury imposes a large punitive damages award.³² Punitive damages were abolished in New South Wales by s 46(3)(a) of the Defamation Act 1974.

10.27 These features of United States law afford some consolation to plaintiffs attempting to prove actual malice on the defendant’s part. None of them applies in New South Wales.

WEIGHING THE EFFECTIVENESS OF THE PUBLIC FIGURE TEST

10.28 Although the public figure test is often touted by free speech advocates as an effective and progressive (and unproblematic) mechanism for ensuring vigorous debate in a democratic society, the reality of American law suggests this is not so clear-cut. The features of United States law described above, and the practical operation of the public figure test itself, combine to raise doubts about whether libel law in America properly serves the interests of society. Public figures in particular are unable to vindicate their reputations, but are able to inflict huge costs on defendants, ensuring that free debate remains “chilled”. According to one commentator:

What the [United States Supreme] Court could not have foreseen was that it might have created the worst of all possible worlds....A quarter-century of litigation since New York Times has led to the ironic situation where the law of libel protects neither the press nor the individual. Libel has become a lose-lose proposition.³³

The practical operation of United States libel law

10.29 The public figure test ensures that the central issue in any libel suit in the United States is whether the defendant was malicious or negligent - not the truth or falsity of the imputations, or the extent of damage to the plaintiff’s reputation. In effect, when a public figure sues, the test requires that a criminal onus of proof be satisfied to determine civil liability. This focus on the defendant’s state of mind damages the defendant’s reputation without restoring the plaintiff’s, and ensures that the judgment of truth or falsity (if it occurs at all) is delayed so much that the plaintiff’s name cannot be cleared.³⁴

10.30 Most libel plaintiffs in the United States lose. The Iowa Libel Research Program found that plaintiffs won 13% of all the cases studied. Private figure plaintiffs won 18% of their cases; the success rate for public officials and public figures was 10%.³⁵ Yet public figures are not deterred; they believe that they can benefit simply by suing for libel. If they lose, they can blame the requirement of proving actual malice. The costs and fees rules discussed above mean there is usually no great financial loss. In addition, the focus on malice means there is no risk that the truth of defamatory statements will be confirmed, or even much discussed. Since initiating suit is a public statement of falsity, defamation plaintiffs have nothing to lose.³⁶

10.31 Plaintiffs are able to inflict significant harm on defendants, however. The focus on malice causes extensive scrutiny of the defendant’s thought processes (and editorial processes, in the case of media defendants). Material such as reporter’s notes is made centrally relevant to the issues in libel trials (ie malice or negligence), and may be ordered to be produced in pre-trial discovery; journalists and editors may be required to make lengthy depositions even before the trial starts. Protection of sources is reduced, because information provided by a source may be centrally relevant to the defendant’s state of mind.³⁷ Proving actual malice is extremely difficult (which is why most plaintiffs lose); without access to this sort of information, it would be impossible.³⁸ All of this inflates the defendant’s legal costs (which the plaintiff need not pay), and causes even greater loss through diverting media defendants from their productive work as journalists.

10.32 Because plaintiffs rarely win, damages are rarely incurred; they are estimated to constitute only 20% all costs incurred in defending libel suits (the remaining 80% goes on attorney’s fees - since media lawyers operate on hourly fee arrangements).³⁹ An example of the public figure test in action is provided by Sharon v Time, Inc.⁴⁰ The case subjected Time Magazine to extensive and intrusive pre-trial disclosure, cost US$1.5 million in legal fees (and an uncalculated amount in time lost by journalists), and resulted in a verdict that Time had published false and defamatory material (the jury adding a rebuke to Time for its gross carelessness). Yet the plaintiff received no remedy, because actual malice was not proved. Both sides claimed victory, but the real winners appear to be the media lawyers.

10.33 However, should a plaintiff succeed in getting damages, the concentration on the defendant’s malice causes them to be inflated astronomically. The highest damages award at trial is US$58 million (approximately A$80 million), although the highest amount upheld on appeal is a “mere” US$3 million.⁴¹ These figures may be compared to the largest award to a single plaintiff in New South Wales (and Australia) of A$600,000 (since overturned by the High Court).⁴² United States juries spend much of the trial listening to evidence of the defendant’s allegedly “malicious” state of mind, which apparently causes them to ignore the Sullivan requirements to some extent and decide on the merits - and their opinion of the merits of journalists and media organisations tends not to be high.⁴³ Most awards are reduced or thrown out on appeal, suggesting that juries are not correctly applying the relevant legal standards. However, a flow of massive verdicts seems likely to affect an appellate court’s assessment of what is excessive.⁴⁴

10.34 The size of jury awards causes libel insurance premiums to rise, imposing a heavy burden on defendants even if the awards are eventually thrown out.⁴⁵

10.35 The constitutional privileges embodied by the public figure test are thus mainly responsible for the view that neither plaintiffs nor defendants benefit from libel law in the United States:

Ironically, the constitutional privileges, intended to protect freedom of the press, may actually threaten it. By making fault an issue, journalistic performance is what is adjudicated in most libel suits....a libel suit is, in effect, an attack on the journalistic integrity of the news media...The constitutional privileges, intended to protect the media from large damages awards, actually make libel a serious economic threat to the media.⁴⁶

WHAT EFFECT WOULD A PUBLIC FIGURE TEST HAVE IN NEW SOUTH WALES?

10.36 The Commission must attempt to predict what would happen if a form of public figure test was introduced into New South Wales defamation law. Since our fees and costs rules are so different, it seems likely that plaintiffs without a strong claim would be unable, without significant risk, to harass defendants and inflict harm through extensive pre-trial discovery and other procedures. It seems likely that the “chilling” effect on free speech would be reduced to that extent. However, reputation would be left almost totally unprotected. If a public figure test was introduced here, the balance between reputation and free speech would not be as it is in the United States - it would be tilted even further away from defamed individuals.

10.37 Indeed, adoption of fee-shifting rules similar to ours has been proposed in the United States as a way of avoiding the problems of libel litigation and promoting First Amendment values. Such proposals have received little support:

Litigation may harm the press, but false reporting harms both reputations and public debate. Fee shifting blocks some potential plaintiffs’ already limited access to redress; it would overprotect the press by functionally eliminating even meritorious litigation. It is a backdoor method of ending libel litigation, and it is hardly surprising that no one takes it seriously except the true believers in a 100 percent perfect press.⁴⁷

On this view, the introduction of a public figure test into New South Wales would effectively abolish all defamation suits by public figures. The Commission does not support such a move at this stage.

10.38 Apart from denying a remedy to plaintiffs to an even greater extent than in the United States, it seems likely that a public figure test would carry into New South Wales many of the problems experienced by defendants in the United States. Where a plaintiff had a reasonably strong claim and could afford to prosecute to trial, the defendant would suffer intrusive discovery procedures as the plaintiff attempts to prove malice; protection of sources would be undermined; damages are likely to be inflated; as are costs; as are insurance premiums (where available). Litigation would be protracted - apart from more extensive discovery, interlocutory applications for summary judgment (and appeals from these) are common in the United States once a constitutional privilege is claimed; this seems likely to happen in New South Wales if a similar privilege was available. Appeals from trials would also increase, if juries behave as they do in the United States and misapply or ignore the legal standards imposed by the public figure test, or impose increasingly higher damages.⁴⁸

Effect on journalism and reporting of issues by the mass media

10.39 The public figure test removes the “chilling” effect on the media by removing liability for even gross negligence, where stories about public figures are concerned. The test encourages publication and contribution to the flow of information available to the public. However, it places little or no value on truth or care, and in fact encourages the dissemination of totally false information, which the media need not even investigate. The test thus encourages careless and irresponsible journalism and does not satisfy the public interest in fairness and accuracy.

10.40 This is arguably balanced by the increased freedom of the media to report on issues of vital importance to the public, including corruption and abuse of power. While the public figure test purports to remove the “chill” of defamation law, there are other factors which affect the free flow of information to the public. Commercial imperatives - the requirements of advertisers and the cost of allocating people and resources to lengthy investigations - are likely to affect the media’s ability to report corruption just as much as legal requirements. (In the defamation context, of course, the pressure imposed on the media is commercial - the threat of large damages).⁴⁹

Would other justifications of the public figure test be persuasive in New South Wales?

Access to channels of communication

10.41 Apart from the promotion of free debate, other justifications have been advanced for the public figure test. One is that public figures have access to the media (including competitors of the defendant) to publicise their reply to the imputations advanced. This should ensure that any damage to their reputations should be contained, and the test will thus further promote the free flow of alternative views.⁵⁰

10.42 However, the United States Supreme Court has acknowledged that a reply rarely has the force of the original defamation, and thus access to channels of communication is a relevant but hardly sufficient justification.⁵¹ Furthermore, the extension of the test to a broad and somewhat undefined category of “public figures” means that some plaintiffs without the opportunity and skills for effective communication are left with inadequate protection for reputation.⁵²

10.43 In the New South Wales context, this justification is beset with other problems - chiefly the excessive concentration of ownership of the Australian media.⁵³ The argument is that the small number of media conglomerates are prepared to publish only a limited range of views, severely constraining the power of individuals to present alternative views. The effects of concentration of media ownership on the free flow of ideas are not for the Commission to determine, but this is another way in which the New South Wales context differs from that of the United States, where there is far greater diversity of ownership.

Consent to risk of defamatory statements

10.44 A more persuasive justification is that public figures seek out the approval and attention of the public, and should therefore accept the risk of public scrutiny and criticism. Although public figures may place great value on their reputations as their chief asset, and could not be held to consent to gratuitous destruction of it, they must be regarded as accepting the risk of a high degree of scrutiny and thus of defamatory statements being made about them. This principle as it relates to politicians also has been recognised in Europe;⁵⁴ and there are statements in Australian and English case law that politicians must expect harsh criticism.⁵⁵ Indeed, in assessing what is defamatory in respect of a politician, the ordinary person is taken to recognise that criticism of them is expected and commonplace and therefore has less impact.⁵⁶

10.45 This justification in particular was relied on by the United States Supreme Court in Sullivan, when it originally formulated the “actual malice” requirement and applied it only to “public officials”. Since then the test has been expanded to include an amorphous category of “public figures”. The difficulties of defining who fits within this category are often advanced as a strong reason why the public figure test should not be adopted. The Supreme Court has recently tried to focus and restrict the concept of “public figures”. The key principles seem to be that plaintiffs must have voluntarily injected themselves into the resolution of an issue or controversy; which must be a public controversy (in that it can appreciably affect the general public or some substantial segment of it); and the defamation must have grown out of or be related to such an issue.⁵⁷

10.46 Despite these principles, much litigation still occurs on who is to be regarded as a public figure, and whether they should be so defined for all purposes or only in relation to a specific controversy. Even Ronald Dworkin, a keen supporter of free speech who believes the Sullivan test has been ineffective because it has not gone far enough, describes the difficulties of deciding who is subject to the Sullivan requirements, calling this a “hopeless task”.⁵⁸ In relation to the “consent” argument, he states:

It is sometimes said that public figures have chosen to enter the kitchen and must not complain of its heat. But that argument has grown progressively weaker as the Court has expanded the range of plaintiffs who fall under the Sullivan rule, from public officials to public figures who are defined in some other way. In any case, the argument begs the question: public officials have consented to a greater risk of being libeled only if there is some other reason why people in that position should have less protection than more private people.⁵⁹

10.47 His proposed solution is to require all plaintiffs to prove falsity and actual malice, so that all plaintiffs are treated equally. However, he notes that this would magnify the problems of the public figure test discussed above, because those problems would now beset all plaintiffs and defendants. This, he argues, would provide greater incentive for the radical reform of United States libel law. He endorses proposals for remedial and procedural reforms which are similar to those being explored by the Commission.⁶⁰ From the New South Wales perspective (which Dworkin, of course, was not discussing), it makes no sense to adopt a public figure test in order to provide an incentive to abandon it subsequently.

10.48 Statutory limitation of the public figure test. One proposal is that a public figure test could be tightly defined by limiting it to Federal, State and Territory politicians.⁶¹ In the United States context, it has been suggested that the “assumption of risk” argument carries a special weight with respect to politicians. This is due to the style of American politics, which concentrates more on the personal characteristics of candidates than generally has been the rule in Britain, where the focus is on policies, rather than the qualifications of those who will implement them:

By entering the world of politics in the United States, a world in which personalities and personal attacks are the rule rather than the exception, a person puts his reputation “at risk”, and he accepts the risk of inaccuracy that inevitably exists. It is true that even in America some may wish to enter public life solely on the basis of their ideas, their policies, and their public activities. Such individuals are left without an effective remedy for defamatory statements going to the more private aspects of their life. But this is not the prevailing style of American politics, and these people are in a sense sacrificed to the more dominant openness.⁶²

Opinions may differ over whether this very broad analysis of political styles is accurate, and if so whether Australian politics is (or should be) conducted more along “British” or “American” lines. The analysis does, however, illustrate the particular social context in which the public figure test has been applied, emphasising the need for careful analysis before proposing its introduction into New South Wales.

10.49 An empirical study of defamation litigation in New South Wales concluded that, contrary to popular perceptions, politicians here do not sue excessively considering the amount of media attention devoted to them, and they tend not to be successful when they do.⁶³ In the United States, it has been argued that a public figure test limited to politicians would be unnecessary given their low rates of suit, and the real significance of the American approach is its extension beyond “public officials” to entrepreneurs and television personalities. Those who argue that defamation law is a weapon of the famous and elite to stifle criticism would agree that many public figures are more quick-writted than politicians. The problem then is finding a rationale for treating such people differently to others in the community - it is not sufficient to rely on theories of official accountability or capacity to influence public policy, since such individuals may not have any such capacity.⁶⁴

10.50 Indeed, the theory that the public figure test strengthens political democracy by improving performance in public office can be countered by the theory that reduced protection for personal reputation deters otherwise competent people from seeking public office, thus weakening political democracy. This would apply to a public figure test limited to politicians.

10.51 One suggested justification for applying a public figure test to politicians is that they are protected by absolute privilege for statements made in Parliament, and so it is only fair that others should have a similar freedom to express ideas. A public figure test would thus bring defamation suits by politicians into parity with defamation suits against politicians. The immunity from defamation granted to high public officials for statements made in connection with their official duties reinforces the protection available to (some) politicians, and increases the inequity between them and others where defamation is concerned. (The immunity granted to high public officials in the United States appears to be broader than that available in Australia).⁶⁵ However, parliamentary privilege does not provide a personal benefit to politicians, but is designed to serve the public interest in free debate of issues in Parliament. It is extended to politicians as representatives of the people, and is subject to the control of Parliament and the ultimate sanction of the ballot box.

10.52 Furthermore, parliamentary privilege has a vital role to play in allowing allegations of corruption or malpractice to be publicly aired. Any statements made in Parliament may be repeated in the media, and protected if a fair report. The same protection is available for reports of official investigative agencies, such as the Independent Commission Against Corruption. These bodies perform some of the functions which the media has taken on in the United States. It has not been shown that it would be more effective for the media to be the primary investigative mechanism, rather than an essential adjunct to the work of such bodies.⁶⁶

10.53 Thus, while limiting the test to politicians would avoid the definitional uncertainties applying in the United States, other problems of the public figure test would remain.

Other justifications for the public figure test

10.54 The public figure test does help to reconcile defamation with other torts. In the United States, there is no strict liability for defamation, as all plaintiffs must prove some fault on the part of the defendant. Furthermore, presumed damages cannot be recovered simply by proving the fact of publication. The application of the First Amendment has removed the historical oddity of tort law which allows recovery of damages in defamation without proof of fault or actual loss.

10.55 The proposals for alternative remedies discussed in Chapter 2 do suggest that plaintiffs bear the onus of proving falsity if they wish to recover damages. This will make defamation more like other torts, with the onus on the plaintiff for most vital elements. The problems of the public figure test spring mainly from the requirement of probing the defendant’s mental state, which must be done to show actual malice, rather than the requirement of proving the falsity of the publication in question.

10.56 Although the removal of strict liability in defamation does remove a legal oddity, the public figure test arguably flouts another legal principle - equality before the law. However, supporters of the test argue that public figures have special characteristics which justify special treatment - such as consent to risk of defamation and access to channels of communication (as discussed above).

IS THE PUBLIC FIGURE TEST NECESSARY?

10.57 The Commission believes there are other ways of achieving the aspirations of the public figure test: promoting free debate on issues in the public interest, improving performance in public office, removing the excess “chilling” effect of defamation law on free speech, promoting the ability of the media to investigate and convey information. While New South Wales retains a defamation law, however, it must be remembered that such a law is designed to inhibit the publication of indefensible material, in order to protect reputation.

How are “public figures” treated by the current law?

10.58 Apart from the suggestions in the case law that politicians must expect criticism (see paragraph 10.44 above), no special substantive rules currently apply to public figures. Plaintiffs in the Supreme Court may request a jury of 12 rather than the usual four used in civil cases, and the public prominence of the plaintiff is a highly relevant (though neither necessary nor sufficient) factor in deciding such a request. Other factors include the extent of the public interest raised by the issues of fact, the divisiveness of the issue, and the likelihood of prejudice to the prominent figure because she or he has identified with one side of the issue.⁶⁷ However, this does not give public figures any unfair advantages - empirical studies have shown that public figures (especially politicians) actually seem to do worse before juries than other plaintiffs.⁶⁸ It is arguable that politicians in New South Wales do not appear to sue very frequently, even considering their relatively small numbers, given the extensive media attention they receive; and they tend not to be particularly successful when they do sue. In addition, media defendants do significantly better at trial than most other defendants, and this is not due to a willingness to settle strong claims - in fact media defendants appear less likely to settle, because the outcome of the suit not only has financial consequences but also amounts to a comment on the quality of their work and their professional ethics.⁶⁹

10.59 It appears that a de facto public figure test may apply in the practical operation of the current law: politicians do not succeed very often, perhaps indicating public belief that they should accept criticism; media defendants do often prevail, perhaps indicating public recognition of the value of free speech.

Defences available under the current law

10.60 The concept of “public interest” is an element of most defences, making them more easily available for most statements concerning public figures. Two examples are:

• Comment. Expressions of opinion concerning the behaviour of prominent figures will usually be in the public interest, and so protected as comment if based on facts which can be proved substantially true (though such proof is not required if the facts are contained in a protected report).⁷⁰
• Qualified Privilege. While common law qualified privilege usually will not be available to the mass media, statutory qualified privilege under s 22 of the Defamation Act 1974 may be. The defence has been successfully pleaded by the media on occasion, although it is quite difficult to satisfy. The prominence of the plaintiff and the strength of the public interest in the story are relevant factors in assessing whether publication is “reasonable” under s 22(1)(c).

Alternatives to the public figure test

10.61 The preliminary view of the Commission is that a formal public figure test, requiring a focus on the defendant’s mental state, is undesirable. The major problem with defamation litigation is the emphasis on damages, and the length and cost of proceedings. The public figure test appears only to exacerbate these problems. To some extent, of course, these problems affect all civil litigation; however, it may be possible to simplify and hasten the resolution of disputes involving such important interests as free speech, individual reputation, and the public’s right to know.

10.62 A better way of promoting free speech is to remove the chilling prospect of large awards, while providing remedies which ensure that reputation is sufficiently protected and false material can be corrected. The Commission has proposed a number of possible measures in this Discussion Paper. All involve shifting the emphasis in defamation actions away from providing monetary compensation for injury to feelings and reputation.

ISSUES ARISING IN CHAPTER 10 - THE PUBLIC FIGURE TEST

1. Should New South Wales society and law adopt the same values as those prevailing in the United States of America - giving an automatic priority to free speech over protection of reputation?
2. Would introducing a public figure test into New South Wales defamation law be the best way of implementing the implied guarantee of freedom of communication in the Australian Constitution?
3. Would the introduction of a public figure test into New South Wales law place individuals affected by media activities in too vulnerable a position?
4. Are there more effective ways of promoting free speech than introducing a formal public figure test?

1. 376 US 254 (1964).

2. Beauharnais v Illinois 343 US 250 (1952); Near v Minnesota 283 US 697 (1931).

3. Hustler Magazine v Falwell 485 US 46 (1988).

4. Horrocks v Lowe [1975] AC 135; McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42.

5. St Amant v Thompson 390 US 727 (1968); Beckley Newspapers Corp v Hanks 389 US 81 (1967) at 84.

6. New York Times Co v Sullivan 376 US 254 (1964), at 385-386.

7. Gertz v Robert Welch, Inc 418 US 323 (1974).

8. Philadelphia Newspapers, Inc v Hepps 475 US 767 (1986).

9. Gertz v Robert Welch; Dun & Bradstreet, Inc v Greenmoss Builders, Inc 472 US 749 (1985).

10. J A Hemphill “Libel-proof plaintiffs and the question of injury” (1992) 71 Texas Law Review 401 at 413.

11. F Schauer “Social foundations of the law of defamation: a comparative analysis” (1980) 1 Journal of Media Law and Practice 3 at 5, 20; L Davies “The ‘public figures’ defence - a subversion of democracy” (1991) 65 Law Institute Journal 1195 at 1196; T E F Hughes “Defaming public figures” (1985) 59 Australian Law Journal 482 at 483.

12. Monitor Patriot Co v Roy 401 US 265 (1971).

13. Rosenblatt v Baer 383 US 75 (1966).

14. Monitor Patriot Co v Roy.

15. Curtis Publishing Co v Butts 388 US 130 (1967).

16. Time Inc v Hill 385 US 374 (1967); Rosenbloom v Metromedia Inc 403 US 29 (1971).

17. Gertz v Robert Welch.

18. Schauer (1980) at 12-13.

19. 337 US 1, at 4 (1949). See D Brown, D Farrier, D Neal and D Weisbrot Criminal Laws (Federation Press, Sydney, 1990) at 1046-1048.

20. (1992) 108 ALR 577.

21. (1992) 108 ALR 681.

22. Australian Capital Television, at 594 per Mason CJ, 603 per Brennan J.

23. Australian Capital Television, at 597, 603, 618, 656, 669-671; Nationwide News, at 706, 726-727, 740-741.

24. Stephens v West Australian Newspapers Ltd (application for removal of cause, 30 April 1993, Sydney Registry, No S22 of 1993). The issue may also be examined soon by the NSW Court of Appeal. On 9 July 1993 Levine J referred two cases to that Court, pursuant to Part 12 of the Supreme Court Rules 1970 (NSW). In Council of the Shire of Ballina v Ringland (CLD 11565/93) the defendant claims that the plaintiff cannot bring a defamation claim because there is a right of free speech concerning government, including local government (relying on Derbyshire County Council v Times Newspapers Ltd (1993) 2 WLR 449). In Armitage v Double Bay Newspapers (CLD 13056/91) the plaintiff (an alderman) sought to have struck out a defence pleading that the Defamation Act 1974 (NSW) is ultra vires the Constitution of New South Wales in that it prevents free speech.

25. Australian Capital Television, at 598; see also Brennan J at 610. McHugh J (at 674) saw the First Amendment as a valid analogy, but he restricted the implied guarantee to freedom of communication “in relation to federal elections” (at 664).

26. Collins v Ryan (unreported) Supreme Court, NSW, 24 November 1992, Smart J, CLD 10959/88; see A Def R [50,055].

27. This summary of the tort(s) of privacy is taken from W P Keeton (ed) Prosser and Keeton on the Law of Torts (5th ed, West Publishing Co, St Paul, 1984) at 851-868.

28. L C Barnett “Intrusion and the investigative reporter” (1992) 71 Texas Law Review 433 at 435-437, 445-447.

29. Hemphill at 422.

30. The Iowa Libel Research Project, the largest empirical study conducted into US defamation law, found that 73% of plaintiffs have a contingency fee arrangement; an additional 12.7% have a partial contingency fee arrangement. R P Bezanson, G Cranberg and J Soloski Libel Law and the Press: Myth and Reality (Free Press, New York, 1987) at 69.

31. Summit Valley Industries, Inc v Local 112, United Brotherhood of Carpenters 456 US 717 (1982) at 721.

32. N Strossen “A defence of the aspirations - but not the achievements - of the US rules limiting defamation actions by public officials or public figures” (1986) 15 Melbourne University Law Review 419 at 436.

33. L A Powe The Fourth Estate and the Constitution: Freedom of the Press in America (University of California Press, Berkeley, 1991) at 120-121.

34. R L Wissler, R P Bezanson, G Cranberg and J Soloski “Resolving libel cases out of court” (1988) 71 Judicature 197 at 198-199; Masson v New Yorker Magazine, Inc 111 SCt 2419 (1991) at 2436; D A Barrett “Declaratory judgments for libel: a better alternative” (1986) 74 California Law Review 847 at 853-863.

35. Bezanson, Cranberg and Soloski (1987) at 119.

36. Strossen at 430-431; R P Bezanson “The libel suit in retrospect: what plaintiffs want and what plaintiffs get” (1986) 74 California Law Review 789 at 799-800.

37. See R Brown The Law of Defamation in Canada (Carswell, Toronto 1987), Vol 2 at 1163-1164.

38. Herbert v Lando 441 US 153 (1979); Strossen at 430; Powe at 118-119, 125-126; G G Ashdown “Of public figures and public interest - the libel law conundrum” (1984) 25 William and Mary Law Review 937 at 945.

39. Strossen at 428; Powe at 117; J Soloski and R L Wissler “The Libel Dispute Resolution Program: a way to resolve disputes out of court” in R T Kaplar (ed) Beyond the Courtroom: Alternatives for Resolving Press Disputes (The Media Institute, Washington, 1991) at 85.

40. 599 F Supp 538 (SDNY 1984); discussed in Wissler, Bezanson, Cranberg and Soloski (1988) at 197.

41. Hemphill at 401. A report by the US Libel Defence Resource Centre states that in the two-year period ending in December 1991, the average jury award against media defendants exceeded US$9 million: Minter Ellison Morris Fletcher, Media Law 1992: Defamation / Contempt: Case Reports (Sydney, 1992) at 2.

42. Carson v John Fairfax & Sons Ltd (1993) 67 ALJR 634.

43. Hemphill at 401; Hughes at 485; Strossen at 424, 429-430. Ironically, juries in the US were once regarded as the protectors of free speech, not as threats to the “correct” safeguards imposed by judges: F Schauer “The role of the people in First Amendment theory” (1986) 74 California Law Review 761 at 765-768.

44. Bezanson, Cranberg and Soloski (1987) at 142-143; G L Spence “The sale of the First Amendment” (March 1989) 75 American Bar Association Journal 52 at 58; Hughes at 485.

45. F Schauer “Uncoupling free speech” (1992) 92 Columbia Law Review 1321 at 1339-1340; Soloski and Wissler in Kaplar (ed) (1991) at 100.

46. Soloski and Wissler in Kaplar (ed) (1991) at 86. The additional social costs of the US system must also be noted: “Because truth has become almost irrelevant in libel actions, the press has lost credibility; political leaders and public figures have lost respect; and the legal system is viewed as having elevated technicality over principle.” Barrett at 861-862.

47. Powe at 128-129.

48. Comparison of empirical data in NSW and in the US reveals that appeals - both before and after trial - are much more prevalent in the US: M Newcity “The sociology of defamation in Australia and the United States” (1991) 26 Texas International Law Journal 1 at 59-61.

49. Australia. Law Reform Commission Unfair Publication: Defamation and Privacy (Report 11, 1979) at para 37; J McClelland “Libel law and liberty: Tax free benefits for the rich” (1989) 21 Australian Author 19 at 21-22; B Edgeworth and M Newcity “Politicians, defamation law and the ‘public figure’ defence” (1992) 10 Law in Context 39 at 61; J C Gibson (ed) Aspects of the Law of Defamation in NSW (Young Lawyers Section, Law Society of NSW, Sydney, 1990) at 143-144. Interestingly, the media themselves claim that financial pressure from advertisers does not affect the content of their stories, but the comparatively weak pressure of defamation damages is capable of completely paralysing their operations. “New York Times was premised on the media’s denial of one of its own central principles....the standard ‘chilling effect’ rhetoric is premised on an obeisance to financial pressures that in other contexts the press is in such pains to deny” (Schauer (1992) at 1335, 1329-1332).

50. Curtis Publishing Co v Butts 388 US 130 (1967) at 154-155.

51. Gertz v Robert Welch, Inc 418 US 323 (1974) at 344.

52. A more unfortunate example is a rape victim who testified at the trial of her alleged attackers. She was held to have “voluntarily thrust herself into the forefront of [a] public controversy”, because she “gave press interviews and actively promoted her version of the case outside of her actual courtroom testimony”. Forty years later she sued for libel over a television drama in which she was depicted as having consented to intercourse and perjured herself. She was held to always remain a “public figure” for the purposes of the “controversy” of her alleged rape: Street v National Broadcasting Co. 645 F 2d 1227 (1981).

53. Newcity at 24; J Fliece “Three men and a discussion paper: A new form of defamation law reform” (1990) 15 Legal Service Bulletin 257 at 259. A 1988 report of the UK-based free speech group Article 19 stated that “By far the greatest legal restriction on communication in Australia is private defamation law”, and was generally critical of the restrictiveness and complexity of that law. However, it went on to state:

“Despite the burden of defamation law, the current legal restrictions are not considered the greatest threat to free communication in Australia. Rather it is the concentration of ownership of mass media in the hands of a small number of large private corporations. There is only minimal suppression of any material advocating any viewpoints. The difficulty is rather that there are not many publishers with a motive to produce it.”

54. Lingens Case [European Court of Human Rights, Lingens judgment of 8 July, 1986 Series A No 163].

55. Australian Consolidated Press v Uren (1966) 117 CLR 185 at 210 per Windeyer J; Davies v Shepstone (1886) 11 AC 187 at 190 per Lord Herschell LC.

56. Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 at 189 per Fox J.

57. Keeton at 806; cf C Danziger “The right of reply in the United States and Europe” (1986) 19 New York University Journal of International Law and Politics 171 at 172-173. On the “voluntariness” requirement, see Street v NBC (note 52 above).

58. R Dworkin “The coming battles over free speech” New York Review of Books, 11 June 1992, at 63.

59. Dworkin at 63.

60. Dworkin at 63-65.

61. Law Institute of Victoria Submission to NSW Legislation Committee (14 February 1992 - first drafted 28 September 1990) at 46-52.

62. Schauer (1980) at 15-16.

63. Edgeworth and Newcity at 57. This conclusion does depend on interpretations of rough data concerning the amount of media attention received by politicians.

64. Schauer (1980) at 16-17; F Schauer “Public figures” (1984) 25 William and Mary Law Review 905 at 917-919, 929-931. Schauer concludes that there may be other rationales for extending less protection to public figures, but does not explore these in any detail. One possible justification is that the personal freedom to express ideas is vital to humans in a democracy and should be allowed free reign in the absence of compelling justifications to the contrary: D M Daniels “Public figures revisited” (1984) 25 William and Mary Law Review 957 at 965-966; Dworkin at 56-57. The issue, of course, is to decide what contrary justifications should be accepted as “compelling”, and whether a public figure test achieves this goal.

65. Strossen at 421; Keeton at 821-823; R Todd “In the shadows of defamation” (1990-91) 4 Directions in Government 28 at 29. See Chapter 7.

66. Edgeworth and Newcity at 57-59.

67. Jury Act 1977 (NSW), s 20(2); Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 (where an application for a jury of 12 by the Prime Minister of Australia was refused).

68. Edgeworth and Newcity at 57-60.

69. The Edgeworth and Newcity study found that politicians comprised 12.4% of all plaintiffs; public officials (many of whom are not prominent, eg police officers) 13.2%; business persons and corporations 13.7%; professionals 11.3%. (A similar study by Sourdin found that politicians were 14.8% of all plaintiffs). The media comprised 68.5% of all defendants (Sourdin 68.1%), but 88.2% of all defendants at trial - indicating more actions against non-media defendants were settled or discontinued. 60.3% of politicians got neither a settlement nor a trial; only one of eight politicians at trial won; all four politicians who appealed lost. Media defendants won in 40.5% of the cases against them which reached trial; the success rate for other defendants was 23.5%. Edgeworth and Newcity at 42-44, 51-56; Newcity at 55; T Sourdin Defamation Study: A study of defamation proceedings commenced in the New South Wales Supreme Court for the period 1/1/1987 to 31/12/1988 (unpublished paper, University of New South Wales, 1990) at 5-6, 15-16.

70. T K Tobin in Gibson (ed) at 77-78.