INTRODUCTION
11.1 This chapter examines ways of protecting distributors and other persons innocently involved in the publication of defamatory matter.
11.2 The focus of this chapter is on whether a special defence should be available to innocent publishers. Several proposals on this issue involve procedural reforms which are similar to those explored in Chapter 2. That chapter discussed various reforms of defences, remedies and procedure designed to reduce the emphasis on damages in defamation cases.
Innocent publication at common law
11.3 At common law liability for defamation is imposed on all persons involved in the publication or distribution of defamatory matter. It is irrelevant whether they intended to defame or even refer to the plaintiff. The act of publication itself, however, must have been either intentional or negligent.1
11.4 A limited defence exists to protect innocent distributors, where:
- they do not know that the material distributed contained defamatory matter;
- they had no grounds to suppose it was likely to contain defamatory matter; and
- this lack of knowledge is not due to their own negligence.2
The offer of amends defence
11.5 Additional protection is given by Division 8 of Part 3 of the Defamation Act 1974 (NSW), which provides a defence when publication is “innocent”. This requires that the publisher and its servants and agents concerned with the matter in question or its publication:
- do not intend the matter to be defamatory of the plaintiff;
- do not know of circumstances by reason of which the matter is or may be defamatory of the plaintiff; and
- exercise reasonable care in relation to the matter in question and its publication.
11.6 This statutory defence requires the defendant to make an “offer of amends” to the plaintiff, which must include an offer to publish, or join in publishing, a reasonable “correction” and apology.
Problems with these defences
11.7 Both the common law and the statutory defences impose very strict tests on booksellers, libraries, news dealers and similar distributors. Avoiding negligence or exercising reasonable care may be interpreted as requiring them to check every publication they handle to assess whether it is defamatory. Publications known to be defamatory may be seen as too much of a risk to be worth handling. This imposes unfair burdens on persons not actually responsible for the harm done to the plaintiff, and may stifle freedom of expression by closing channels of distribution. Plaintiffs may threaten legal action against distributors, causing them to withdraw the publication from sale and so restrict free speech without any court order to that effect.3
11.8 The offer of amends defence suffers not only from very restricted availability, but from excessively cumbersome and technical requirements. The defendant must make the offer of amends promptly, but at the same time furnish to the plaintiff particulars of the facts which show the publication was innocent. Investigating these facts will inevitably delay making the offer.4
Relationship between the offer of amends defence and the correction defence discussed in Chapter 2
11.9 The rationale of the offer of amends defence is that plaintiffs are sufficiently vindicated by publication of a correction and apology - but only where the defamation is unintentional and not careless. Given this, if steps are taken to prevent dissemination of the defamatory matter and the costs and expenses of the plaintiff are paid, no damages - even for actual pecuniary loss - are available.5
11.10 The correction defence discussed in Chapter 2 would be available even where this strict test of innocent publication is not satisfied. However, at most the correction defence would only bar general damages. That defence is based on the premise that a rapid correction of defamatory statements is more effective to restore reputation than an award of general damages. Actual pecuniary loss caused by the defamatory matter should still be recoverable.
11.11 While the correction defence should protect many unintentional defamers, there are practical problems with making it available to distributors. Most distributors would not have continued access to the medium in which the defamatory matter was published, and so would find it more difficult to publish a correction than, for example, a newspaper proprietor. If these problems can be overcome, the importance to distributors of the offer of amends defence may decline.
The Defamation Bill 1992
11.12 The Defamation Bill 1992 (NSW) reproduced without change the offer of amends provisions of the Defamation Act 1974.
11.13 Submissions to the Legislation Committee on the Bill were highly critical of the fact that no effort was made to liberalise these provisions and make the defence more widely available.
11.14 The Committee recommended that an offer of amends defence be available in the case of innocent publication, and that the relevant provisions be reviewed to ensure that the defence is applicable to booksellers, libraries, news dealers and similar distributors.6
METHODS OF PROTECTING INNOCENT PUBLISHERS
11.15 The common law rule imposing liability on those who have no reason to believe they are publishing defamatory material can be unjust to innocent publishers. On the other hand, innocent plaintiffs need some way of protecting and restoring their reputation. Two alternatives for better reconciling these concerns will be explored. The first is a blanket protection for innocent distributors, where another defendant may afford a complete remedy to the plaintiff. The second is simplifying the offer of amends procedure and making it easier for defendants to use, subject to their being willing to pay damages to be assessed by a judge.
Option One: Defence of innocent dissemination
11.16 The Australian Law Reform Commission proposed that certain disseminators be granted a defence for publishing defamatory matter solely in their capacity as disseminators. The protected categories included libraries, news-vendors, retailers, wholesalers and printers (or other reproducers). The defence was not available if the defendant determined, or was involved in the determination of, the contents of the matter, or imported it into Australia.7
11.17 Damages could then only be sought from the person primarily responsible for harm to reputation - such as the author or publisher of the defamatory matter. This primary defendant would be the importer where the author or publisher was located overseas.
11.18 An injunction would still be available to restrain distribution of the matter. This would ensure that plaintiffs could safeguard their reputations, but without forcing disseminators to check the contents of material through fear of liability in damages.
11.19 This defence, coupled with the correction defence discussed in Chapter 2, should sharply reduce the need for the offer of amends provisions.
Option Two: Liberalising the offer of amends defence
11.20 This would provide less extensive protection to distributors than the blanket defence discussed above. However, the offer of amends defence is not restricted to distributors; it can also protect other defendants such as newspaper publishers.
The proposals of the Neill Committee
11.21 In England, a Working Group of the Supreme Court Procedure Committee, chaired by Lord Justice Neill, issued a Report on Practice and Procedure in Defamation in July 1991. The Neill Committee examined the English ancestor of our offer of amends defence (in s 4 of the Defamation Act 1952 (UK)). The Committee recommended that a more streamlined defence of offer of amends be available, where the defendant has acted fairly and reasonably after publishing the defamatory matter.
11.22 Their proposals for liberalising the defence were as follows.8
11.23 Remove obligation on defendant, where not the author of the defamatory matter, to prove an absence of ill will on the part of the author. Under the current system, where the offer of amends is not accepted by the plaintiff, the defendant is protected from any damages award where certain conditions are satisfied. One of these is that the defendant, not being the author of the defamatory matter, proves that “the author was not actuated by ill will to the offeree”.9
11.24 This requirement is quite onerous for those who only provide a forum for others to express their opinions, such as editors who publish a letters page, or broadcasters who broadcast the words of independent program-makers. It is also quite difficult for defendants to prove a negative (no ill-will) on the part of the author in such circumstances. Accordingly, the Neill Committee recommended that this requirement be dropped.
11.25 Put the onus on the plaintiff to show that the defendant was not “innocent”. The Neill Committee recommended that defendants be permitted to rely on an offer of amends defence unless the plaintiff pleads and proves that the defendant knew or was reckless with respect to the following matters:
“Reckless” was defined as “having a genuine indifference to truth or falsity”.10
11.26 This would reconcile offer of amends to other defences (such as qualified privilege) where the plaintiff must prove a “guilty” state of mind (such as malice) to overcome the defence.
11.27 Relax time limit on making offer. The current requirement is that the offer be made “as soon as practicable” after the defendant becomes aware that the matter is or may be defamatory. The Neill Committee recommended allowing it to be made any time up to, or at the time of, serving the defence. This would give the defendant time to establish the facts which will be relied on to show the publication was innocent.
11.28 Require defendant to indicate willingness to pay damages. Perhaps to compensate plaintiffs for making the defence more readily available, the Neill Committee recommended that defendants indicate, as part of their offer of amends, a willingness to pay such general and / or special damages as might be fixed by a judge. The judge would sit in open court, decide the meaning of the defamatory matter (or in New South Wales, whether the pleaded imputations were conveyed), and listen to evidence on damages. The defendant’s willingness to make an offer of amends would be taken into account as a mitigating factor.
11.29 The Neill Committee noted that this would be an open-ended commitment for defendants. However, they argued that often defendants are willing to pay reasonable damages, but fear that the damages awarded at trial will be excessive and disproportionate.
11.30 An offer of amends would thus no longer provide a complete defence to damages. If the defence succeeds, damages will be assessed by a judge. If not (for example, because the plaintiff proves the guilty state of mind discussed at para 11.25 above), the case will go to trial as normal, where the jury (if any) will assess damages.
Assessment of these changes
11.31 The changes recommended by the Neill Committee would promote the use of the offer of amends procedure and the rapid publication of corrections. They would also give plaintiffs damages as well, although these would be expected to be modest. Costs and delays would be reduced for both parties.
11.32 The changes would also erode the jury’s role in defamation litigation by allowing the judge to decide whether the pleaded imputations were conveyed and were defamatory, and to assess damages. These measures would achieve most of the benefits sought by Justice Hoffman’s summary procedure for defamation claims (see Chapter 2).
Acceptance of the Neill Committee’s recommendations
11.33 In England, the Lord Chancellor proposed several reforms of defamation law in December 1992, drawing on the Neill Committee’s recommendations. These include the new procedure for offer of amends discussed above.
11.34 Reaction to the proposals has been varied. Some commentators have noted that both parties should be able to avoid exorbitant legal costs. Others have criticised the heavy burden placed on plaintiffs of proving what the defendant’s state of mind was when committing the tort.11 However, plaintiffs need only prove this where they do not accept the offer and want to go to a full jury trial.
ISSUES ARISING IN CHAPTER 11 - INNOCENT PUBLICATION
The common law and statutory defences impose very strict tests on book sellers, libraries, news dealers and similar distributors.
1. Should innocent distributors receive greater protection?
2. If so, is this best achieved by:
- providing blanket protection for innocent distributors in cases where another defendant may afford a complete remedy to the plaintiff; or
- liberalising the offer of amends defence by:
(a) removing the obligation on the defendant (where not the author of the defamatory matter) to prove an absence of ill will on the part of the author;
(b) placing the onus on the plaintiff to show that the defendant was not “innocent”;
(c) relaxing the time limit on making the offer; and
(d) requiring the defendant to indicate a willingness to pay damages.
FOOTNOTES
1. J G Fleming The Law of Torts (8th edition, LBC, Sydney 1992) at 543.
2. Emmens v Pottle (1885) 16 QBD 354.
3. These problems are discussed in Australia. Law Reform Commission Unfair Publication: Defamation and Privacy (Report 11, 1979) at paras 182-189. Actual examples of such cases are discussed at paras 183-184. The most famous example is Goldsmith v Sperrings Ltd [1977] 1 WLR 478. A more recent example is a case involving a book alleging corruption in a NSW statutory body: see “Removed book is libellous, says NPWS”, Sydney Morning Herald, 16 June 1993, at 2.
4. ALRC Report 11 at paras 85-88.
5. New South Wales. Law Reform Commission Defamation (Report 11, 1971) at 115 (para 212).
6. Legislation Committee on the Defamation Bill 1992, Report on the Defamation Bill 1992 (Legislative Assembly, Parliament of New South Wales, October 1992) at 113-116.
7. ALRC Report 11 at paras 186-189; Draft Bill cl 17. Note that legislation in Tasmania, Queensland and Western Australia provides varying degrees of protection for vendors, which is defeasible if the defendant has some knowledge that the publication is defamatory: see T K Tobin and M G Sexton Australian Defamation Law and Practice (looseleaf, Butterworths, Sydney 1991) at para [16,040].
8. England and Wales. Supreme Court Procedure Committee Report on Practice and Procedure in Defamation (July 1991) at 62-80.
9. Defamation Act 1974 (NSW) s 43(1)(d)). The English provision requires the defendant to prove that “the words were written by the author without malice”: Defamation Act 1952, s 4(6).
10. Following Lord Diplock in Horrocks v Lowe [1975] AC 135.
11. J McLeod “Proposals could close down ‘libel Las Vegas’”, Guardian Gazette, 6 January 1993, at 6; R Ackland “Confusion reigns in defamation law”, Australian Financial Review, 7 January 1993, P Gorman “Lord Chancellor’s defamation reforms”, Solicitor’s Journal, 22 January 1993, at 48.
