INTRODUCTION

Why do we have a law of defamation?

2.1 The primary purpose of current defamation law is to provide compensation for injury to reputation and feelings. The main issue discussed in this chapter is whether the purpose ought to be - or at least to include - the actual restoration of reputation. This is rarely accomplished under the current law.

2.2 The availability of an action for defamation achieves the related purpose of deterring unjustified attacks on reputation, and so regulating the conduct of the media. The defamation action is not confined to the media context, of course; the tort is designed to resolve private disputes between two parties, and is hardly an ideal instrument to regulate the communications industry. However, in practice the majority of defendants are media outlets,¹ since they are the ones most likely to injure public reputations in their daily activities.

2.3 The defamation action has served different purposes in the past. When heard by ecclesiastical courts in England, slander was regarded as a religious offence closely related to blasphemy. The purpose of bringing a charge was to protect the soul of the slanderer. As these courts declined, tort actions for libel and slander were heard by common law courts. In the seventeenth century the crime of political libel was heard by the Court of Star Chamber, as a means of protecting governments from the power of the printing press.² Later still the awarding of damages for defamation was seen as a means of restoring private honour, substituting for duels which had been prohibited by law.³

2.4 None of these can now be regarded as proper purposes for defamation law. Some modern cases may be characterised as actions to restore a private sense of honour, but these appear very rare, and the possibility of the return of the duel is, we feel confident, remote.⁴

Why don’t defamation actions actually restore reputation?

2.5 A successful plaintiff in a defamation suit usually receives an award of monetary damages. When actions for libel and slander were heard in the medieval common law courts, damages were the only remedy available. Injunctions may now be granted to restrain publication, but this is done very rarely; declarations stating the legal rights of the parties are also available, but do not appear to be used at all.

2.6 A common criticism of the law of defamation is that the preoccupation with damages as a remedy means that the purpose of restoring reputation is not achieved. This is hardly a recent criticism, and proposals for alternative remedies have been extensively discussed in the past. However, criticism of the size of recent awards of damages was one of the prime concerns expressed in the current reform process, beginning with the Discussion Papers issued by the Attorneys General of Queensland, New South Wales and Victoria. The Commission expresses no view on the merits of particular cases, but the level of public concern over very large awards makes this an opportune time to explore once again whether alternative remedies could better serve the interests of plaintiffs, defendants, and the public.

The problems of the emphasis on damages

Inappropriate remedy for wrong suffered

2.7 Reputation is a social concept. A plaintiff’s reputation exists solely in the minds of others. Defaming a plaintiff involves altering the perception of that person by others. Reputation can only be restored if the perception of the plaintiff by others is altered again.

2.8 An award of damages is often not publicised at all, and is usually made long after the publication of the defamatory material. This means that the defamation remains uncontradicted in the public mind. Defamation suits are often settled for a monetary sum, and such settlements are given even less publicity - in fact a confidential deed is often used, which prohibits the public release or discussion of the terms of settlement. Genuine plaintiffs who are not seeking a fortune but merely a public correction of the defamatory slur are forced to ask for damages anyway; if the case cannot be settled, damages are all they will get if successful at trial. Empirical research in the United States, involving interviews with defamation plaintiffs after suit, has shown that immediately after the publication of the defamatory matter, most plaintiffs are primarily interested in restoring their reputation. Once the action has begun, they become more interested in money - possibly to ensure that the time and expense of a long action will be covered; possibly also to inflict punishment on the defendant (the hostile reaction of media defendants to the plaintiff’s initial approach is often a major factor in convincing the plaintiff to sue).⁵

2.9 Damages are inappropriate to restore a damaged reputation, and are not even designed to do so. They are awarded to compensate for damage to reputation, to console the plaintiff, and to provide an official recognition that the imputation made was defamatory and indefensible.⁶ This latter purpose is referred to as “vindicating” the plaintiff’s reputation. The size of the verdict is important in determining the extent of the vindication. However, true vindication can only occur if the award is widely publicised. Otherwise the perception of the plaintiff by the public remains unchanged.

2.10 In this situation, it may be preferable to use other remedies which directly affect the public’s view of the plaintiff. The Commission wishes to explore whether other remedies may achieve the aims of consoling the plaintiff and recognising the indefensibility of the published statements, while serving the important purpose of restoring reputation. Damages are all that can be given as compensation for personal injuries; but they need not be the only available remedy for a defamed plaintiff. An injured reputation actually can be restored, although perhaps not completely; this is not usually the case with a lost limb.

Chilling effect on free speech

2.11 The prospect of large awards causes self-censorship of speech and writing, both by individuals and media proprietors. Defamation law is designed to inhibit the publication of indefensible material; but damages unlimited in amount can be used as a form of punishment for unpopular views. Punitive damages have been abolished in New South Wales, but juries (under the guise of giving aggravated damages) may still award sums which reflect their primary desire to censure the defendant, rather than to compensate the plaintiff.

Inadequate protection for plaintiffs

2.12 Where the common law recognised that speech was entitled to protection, its only response was to evolve defences which bar damages and so completely deny the plaintiff any remedy. This means that a plaintiff gets damages or nothing.⁷

Reducing the emphasis on damages

2.13 Recent writing has focussed on three possible alternatives to an award of damages in defamation actions. These are voluntary corrections, court-ordered corrections, and declaratory judgments. Voluntary corrections are essentially defences available to the defendant, rather than remedies awarded by the court.

Terminology

2.14 “Correction” is a collective term for retractions, apologies, and replies. Use of this term recognises that the purpose of all three forms of expression is to correct public misconceptions as to the plaintiff’s reputation, and as to the true facts, which result from the defendant’s publication of defamatory material.

2.15 A “retraction” may be defined as “a good faith publication of facts, withdrawing and repudiating the prior defamatory statements”.⁸ If this is accompanied by some expression of contrition, it may be called an “apology”.

2.16 A “reply” is “the publication of the plaintiff’s statement of the facts”. It involves the defendant granting an opportunity to the plaintiff to put his or her own views forward, without the defendant admitting anything.

2.17 Voluntary corrections may be made available to defendants as a “correction defence”. They are to be distinguished from “correction orders”, which are compulsory remedies awarded by the court.

VOLUNTARY CORRECTIONS

The position in New South Wales

Effect of published corrections in New South Wales

2.18 A published retraction or even an apology does not affect the substance of a plaintiff’s claim, but may be effective in reducing damages.⁹ On the other hand failure to apologise - or publication of an inadequate apology - can justify an award of aggravated damages. An apology may be inadequate if belated, obscurely placed, half-hearted, mean-spirited or contemptuous. Even where the plaintiff has not asked for an apology, failure to publish one may aggravate damages, if such failure is improper, unjustifiable, or in bad faith.¹⁰

Offer of amends defence when publication is “innocent”

2.19 Division 8 of Part 3 of the Defamation Act 1974 (NSW) creates a defence where the defendant offers to publish a reasonable correction or apology. This defence is only available in the circumstances of “innocent publication”, which is where the defendant does not intend the matter to be defamatory, does not know of circumstances by reason of which the matter is or may be defamatory, and exercises reasonable care in publishing. The requirements of the defence are quite rigid, and very difficult for defendants to satisfy (see Chapter 11).

The position in other Australian jurisdictions

Defence of apology under Lord Campbell’s Act

2.20 In all other Australian jurisdictions a defence based on s 2 of the Libel Act 1843 (“Lord Campbell’s Act”) is available. It requires the defendant to prove that the defamatory matter was published without ill-will or other improper motive, and without gross negligence; and that a “full apology” was published before the action was commenced or at the earliest opportunity afterwards. In Tasmania, Western Australia and Queensland the defendant must also pay a sum of money into court by way of amends; in the other jurisdictions, this payment is optional. If the defence is made out, the defendant’s maximum loss is limited to the amount paid into court.¹¹

2.21 The requirements of this defence are complex and cumbersome, and it has been little used.

Promoting the use of voluntary corrections

2.22 It is often suggested that defendants be permitted to rely on a prompt and adequate correction of defamatory imputations as a defence. Several overseas jurisdictions have enacted such voluntary correction statutes. They are designed to promote the use of corrections by giving incentives to the defendant to publish them - typically by barring general damages and limiting the plaintiff’s recovery to actual economic loss.

2.23 These statutes are based on the premise that a prompt and adequate correction should severely restrict any injury to the plaintiff’s reputation. The perceived benefits are that the public record will be swiftly corrected, or at least that the plaintiff’s views will be aired. The barring of general damages is a powerful incentive for defendants to publish the correction.

Voluntary corrections in overseas jurisdictions

Canada

2.24 Legislation in all Canadian provinces bars the plaintiff from receiving general damages where the defamatory matter was published in a newspaper or periodical, or broadcast, and the defendant has satisfied the following requirements:

(1) the publication of the defamatory matter was made in good faith;

(2) there was reasonable ground to believe it was for the public benefit;

(3) it did not impute to the plaintiff the commission of a criminal offence;

(4) the publication took place in mistake or misapprehension of the facts;

(5) a “full and fair” retraction and apology was published or broadcast in an equally conspicuous manner as the alleged defamation; and

(6) when the defamation is against a candidate for public office, the retraction and apology was published or broadcast at least five days before the election.¹²

United States

2.25 Most United States states have retraction statutes, which usually bar or limit general damages if the defendant complies with a request to retract, or if the plaintiff fails to make such a request. They usually require a specific retraction referring to the original publication, rather than an explanatory article giving the true facts.¹³

New Zealand

2.26 New Zealand has recently enacted a provision allowing plaintiffs to request a retraction or reply within five days of becoming aware of the publication of the matter complained of. If granted, the defendant is also to pay the plaintiff costs and compensation for any actual pecuniary loss. However, the only benefit for the defendant is that publication of a retraction or reply may be taken into account in mitigation of damages: Defamation Act 1992 (NZ), s 25, 29.

The Annenberg Proposal

2.27 Drawing on the various correction statutes already enacted, a detailed proposal for a national United States statute has been advanced by the Libel Reform Project of the Annenberg Washington Program in Communications Policies Studies of Northwestern University.¹⁴

2.28 The Annenberg Proposal provides that every potential plaintiff must seek a retraction or opportunity to reply before commencing a defamation action. If an adequate retraction or reply is published within 30 days, no action may be brought. The request must specify the statements claimed to be false and defamatory and set forth the plaintiff’s version of the facts. The defendant is thus insulated from litigation; if the plaintiff sues without requesting a correction the claim will be struck out. This goes beyond providing a defence by imposing an additional procedural step on the plaintiff.

2.29 If a retraction is sought, the defendant can avoid suit only by publishing one, unless the plaintiff agrees to accept the defendant’s offer of a reply instead. If the plaintiff seeks a reply, publication of a retraction will suffice (because a reply is unnecessary if the defendant has withdrawn the defamatory statements).

The retraction or reply must be adequate

2.30 The timing, placement and format of the correction are governed by specified requirements. It must be “conspicuous”, that is, published in substantially the same place and manner as the original defamatory statement, and calculated to reach the same audience. An equivocal or hypothetical retraction will not suffice. If the plaintiff complains about innuendoes arising from the matter rather than the actual words used, the defendant’s retraction may simply state that it did not intend to state or imply the meaning suggested by the plaintiff. In the case of a broadcast, the defendant may insist that a reply does not exceed the length of the defamatory material, that it be concise and limited to rebuttal of the defamatory statements, and that its form reasonably accommodate the nature of the medium.

2.31 These requirements cannot prescribe what is fair and just in every case, and some of them are quite vague. However, they do give guidance to prospective litigants, and encourage early negotiations between the parties, even if these may be unsuccessful.

2.32 If the plaintiff is dissatisfied with the correction, the plaintiff may sue and allege inadequacy. This becomes the first issue decided by the court. If the correction is held to be adequate, the case ends and costs are awarded to the defendant.

2.33 The aim of the proposal is to avoid litigation and correct any false and defamatory statements as soon as possible. In this respect, it must be noted that the adequacy of the correction (if disputed) will not be decided until the matter reaches court. However, this issue could easily be decided by a judge on a summary basis, so delays would not be extensive; and if the correction is held adequate, the plaintiff must be satisfied with that (although the decision could be appealed) and with the extra publicity for the correction generated by the court case.

Could a correction defence work in New South Wales?

2.34 Proposals such as these are attractive in their aims and simplicity. Many details would have to be settled before a similar scheme could be introduced in New South Wales.

Must the plaintiff request a correction before commencing litigation?

2.35 A plaintiff could be precluded from filing a defamation claim at all unless a correction is requested, as in the Annenberg Proposal. The advantage of this is that the courts need not become involved at all, even to file documents.

2.36 This could be considered unjust to plaintiffs and a denial of access to justice through the courts. The alternative is to make a correction a defence if published within a specified time of any request by the plaintiff or the serving of a statement of claim, whichever occurs first.

Documentary requirements

2.37 The plaintiff should be required to identify the publication complained of, the imputations said to arise from it, the plaintiff’s version of the facts, and a proposed retraction or reply. This could precede or accompany a statement of claim.

When must the correction be printed?

2.38 The amount of time required to consider a correction request is obviously a compromise between two competing interests: the plaintiff’s desire to correct the defamatory imputation as soon as possible, and the defendant’s desire to investigate the process behind the publication of the material and decide whether a correction is warranted.

2.39 The Annenberg Proposal gives defendants 30 days to consider a request for a correction. This seems quite long. In the case of a daily newspaper or current affairs program, a retraction or reply published a month or more after the original defamatory material already may be too late, and serve only to remind those who have forgotten of the imputations made. There may be cases where the plaintiff does not seek a retraction or reply for several months; but it seems likely that this would only be where the plaintiff is unaware of the original defamation. Asking for a retraction or reply would cost little or nothing, so expense would not be a barrier. A Bill introduced by Congressman Charles Schumer into the United States Congress in 1985 proposed that defendants be allowed ten days to consider a correction request; this seems closer to a reasonable time period.¹⁵

2.40 Most Canadian provinces require a plaintiff to give notice in writing before suing newspapers or broadcasters for defamation. Daily newspapers must be given seven days’ notice; other newspapers and broadcasters must be given 14 days’ notice. This gives these defendants an opportunity to publish a correction, apology or explanation before suit.¹⁶

2.41 A time limit of one week should be sufficient to accommodate the competing interests. If a media defendant needs to investigate facts or ask questions of sources and so on, this time period should be sufficient, given that the relevant questions should have been asked and the facts properly investigated before the material was published at all. If there has been a simple error on the defendant’s part, this time period should be sufficient to establish that. The parties could agree on a longer time period if desired.

Would this time limit make it impossible for certain defendants to use the defence?

2.42 The issue which arises is over the position of publications which are made over a longer time span, such as monthly magazines. These could be required to purchase an advertisement in the daily media, which obviously makes the defence harder for them to use; or they could be allowed to rely on a correction in their next issue.¹⁷

2.43 In the case of books, one possibility is that a single sheet insert could be printed and sent out to the same people to whom the book was shipped, although how this would reach the attention of readers who buy anonymously from a retailer is unclear. The sheet could be inserted into the front of the book if the plaintiff complains of defamation before it is widely distributed.¹⁸ This sometimes happens now, with an erratum notice inserted into the book; also books are sometimes recalled from distributors and modified or pulped, but this would not affect copies of the publication which already are in private circulation.

2.44 The position of non-media defendants generally is even worse; there will be many cases where they cannot take advantage of a correction defence at all, such as where allegedly defamatory statements are made at a rally or printed on a pamphlet. Allowing a longer time period is unlikely to help here, however. One American proposal recognises that the defence can only be available to those with continued access to the medium in which the original defamatory statement was made. Attempts by other defendants to publish a correction can only be evidence in mitigation of damages.¹⁹

2.45 The Commission seeks ideas on how a correction can be made available to all defendants; or whether it is acceptable to make it available, in practical terms, only to the media (or really only the “mass” media, such as television, radio and daily newspapers). The mass media do have an important role to play in free society, and allowing them to rely on corrections may help them to expose corruption and so forth without being too “chilled” by the prospect of excessive awards. However, mass media publications do more damage to reputation than any other publications.

What incentive is there for the defendant to publish the correction?

2.46 Request for correction as a prerequisite to suit: If a correction must be sought before suit, publication of an adequate correction will insulate the defendant from litigation.

2.47 Publication of correction as a defence: If, instead, a correction is to be a defence, the question is what benefit it will bring to the defendant. The suggestion often made is that an adequate correction should prevent a plaintiff from recovering general damages; any specific pecuniary loss can still be recovered. Alternatively, printing a correction could limit general damages to a specified sum. Another suggestion is that a correction could protect the defendant by requiring proof of some additional element by the plaintiff before general damages can be recovered.

2.48 If any of these possibilities are adopted, it may be necessary for the defendant to also offer to pay the plaintiff’s costs to date.

2.49 The possible benefits which a published correction could bring to a defendant may thus be set out as follows:

(1) Barring of general damages.

(2) Limiting of general damages. The size of the “cap” to be placed on damages obviously requires consideration. A smaller cap provides more incentive for defendants to publish a correction; a larger cap allows a successful plaintiff to have some prospect of covering legal costs not payable by the defendant.

(3) Requiring the plaintiff to prove one of the following before general damages can be recovered.


(a) Actual malice on the defendant’s part. Defined as knowledge of falsity of the defamatory imputation or reckless disregard as to its truth. This is the standard applied in the United States under the “public figure test”, discussed in Chapter 10. It requires proof of a subjective and essentially criminal state of mind of the defendant. This test causes damages to be inflated; but it does make it harder for the plaintiff to recover damages in the first place, since the plaintiff may not always be able to find the evidence required.

(b) Common law malice on the defendant’s part. This includes ill will, spite and improper motive - see Chapter 10. Very little evidence of common law malice is required before the issue is left to the jury.²⁰ This test thus provides less protection to defendants than an actual malice standard.

(c) Some breach of ethical rules by the defendant. This would impose liability if any sort of malice is shown, but not if mere negligence is shown. This standard was originally suggested by members of this Commission in a submission to the Legislation Committee on the Defamation Bill 1992.²¹ It would require that the plaintiff prove that the actions of the publisher fell substantially short of accepted, proper standards of journalistic behaviour. The Code of Ethics and Practice for Journalists produced by the Media, Entertainment and Arts Alliance would be relevant for these purposes.²² This would catch any form of malice, but also extend to less purposive forms of behaviour, such as “allow[ing] personal interests to influence them in their professional duties”.²³ This approach would benefit potential plaintiffs by providing an extra incentive for the media to adopt methods of “good practice”. It also would benefit media defendants, in that they will be safe from general damages if they adopt good practice methods and print an adequate correction of any defamatory imputations.


Proving “bad practice” may occasionally require proof of the defendant’s state of mind, such as where the defendant is alleged not to have “report[ed] and interpret[ed] the news with scrupulous honesty”.²⁴ This could import some of the problems caused by the actual malice requirement in the United States: extensive discovery of material such as reporter’s notes, interference with productive journalistic work, inflation of damages. To varying degrees, these problems are likely to beset all of possibilities (3)(a), (b) and (c).

A further problem with possibility (3)(c) is that it would be difficult to apply to non-media defendants, emphasising the special treatment given to media defendants by making a correction defence available.


(d) Negligence on the defendant’s part.

(e) Falsity of the defamatory imputation. The problem with possibilities (3)(d) and (e) is that they may not provide sufficient incentive for a defendant to publish a correction. If a defendant can make a genuine mistake, publish a false statement, retract it, and still be sued for general damages because the plaintiff need only show carelessness (such as printing an incorrect name) or falsity, there would be little advantage in retracting in the first place.

When would defendants use a correction defence?

2.50 Corrections are likely to be used where the defamation was basically unintentional or due to carelessness which the defendant quickly identifies, such as the accidental printing of an incorrect name. They would also be extremely useful where a statement is capable of being interpreted in various ways, some of them defamatory, where the defendant did not intend to convey those meanings.

2.51 Corrections are currently often informally agreed between the parties anyway. Creating a voluntary correction defence will not disadvantage genuine plaintiffs (who seek a public correction of the record or the airing of their views), or genuine defendants (who wish to correct harm done to the plaintiff’s reputation and improve the flow of information to the public). Providing an incentive to the defendant to publish is likely to increase the use of corrections and save litigation.

2.52 The question is whether there should be some restrictions on the circumstances in which defendants may be permitted to use the defence. The current defence of “offer of amends” is only available where publication is “innocent”, as discussed above. The Canadian retraction statutes allow use of the defence only where the original publication was in good faith, reasonably believed to be for the public benefit, and so forth.

2.53 It may be preferable to allow defendants to use the defence in any circumstances where they are prepared to do so, provided the published correction is adequate.

Using a published correction as evidence in subsequent litigation

2.54 Currently, publication of apologies or retractions is discouraged by the fact that they may increase damages or deny certain defences (for example, comment) to the defendant. These problems will not arise under a correction defence which bars or limits general damages. It may be necessary to provide specifically that a correction is not admissible as evidence against the defendant; but if the correction is inadequate, damages will be assessed as if no correction was printed.

Effect on the credibility of journalists

2.55 One media concern with retractions is that expressed by individual journalists: the lure of avoiding damages payouts may tempt media proprietors to print retractions and so harm the journalist’s credibility.²⁵ This displays the same concern for individual reputation which defamation law seeks to encourage.

Effect on other possible remedies

2.56 Retraction statutes in overseas jurisdictions, and the Annenberg Proposal, continue to rely on damages as a possible final remedy, in order to provide an incentive for the defendant to publish a correction. As Professor Fleming puts it, this means “retraction cannot very well stand on its own two feet”; it “needs the crutch of a continuing threat of damages to be effective”.²⁶ This may hamper efforts to shift away from damages as the primary form of final relief. If the primary remedy for defamation is to be a court-ordered correction anyway, a defendant may prefer not to voluntarily publish a retraction and simply delay the correction of the public record until the court has heard the case.

The special position of replies

2.57 The Annenberg Proposal provides that in some circumstances a defendant may allow the plaintiff to publish his or her own version of the facts, rather than withdraw and repudiate the defamatory imputations. A reply may be more appropriate where the defamation takes the form of a statement of opinion, possibly defensible as comment. In such cases the public interest is in the continued flow of ideas, rather than having the defendant withdraw its own statement, which effectively stops debate. A reply may be less satisfying to the plaintiff than the defendant’s own retraction of its defamatory imputations; but it is arguably more effective to restore reputation than a money payment.

2.58 The benefits of replies are that they provide access to the media for defamed individuals to restore their reputations; they do not force the media to admit wrongdoing or withdraw its views; they air both sides of the case and allow the public to decide; and they reduce the chilling prospect of excessive damages.

2.59 In several overseas jurisdictions a “right of reply” has been given to plaintiffs. This is not a voluntary correction defence along the lines discussed above, but guarantees access to the media for persons unhappy with the way they are portrayed in it. These rights will be briefly discussed, and then proposals for linking replies to certain other defences (rather then being part of a separate voluntary correction defence) will be briefly examined.

The right of reply in Europe

2.60 Several European countries provide a statutory right for persons “named” in or “affected” by (not necessarily defamed by) media publications to have a reply published. These are essentially quite draconian intrusions on freedom of the press. For example, French law respects the “official truth”, and provides a right for public officials to correct descriptions of their activities which the public official claims are inaccurate (even if the media disagrees). The German model allows replies to be used as a weapon against critics and reviewers, and may fill publications with dull and unreadable material. The Swiss model allows publication of articles to be restrained if the reply statute is not complied with.²⁷

2.61 Proposals for a single, uniform right of reply statute in Europe have generally been hedged with so many qualifications as to make them useless. The Commission does not currently support the introduction of a statutory right of reply along these lines, but welcomes any submissions on this issue.

Replies as an element in certain defences

2.62 Replies may be very effective to balance the interests of plaintiffs and defendants, and promote the flow of accurate information to the public, in certain cases. One example is where the parties agree that a reply is more appropriate than a retraction under a voluntary correction defence, as discussed above.

2.63 Another possibility is making the availability of certain other defences depend on the granting of a reply to the plaintiff. This avoids the “damages or nothing” problem of current defamation law, providing some redress to the plaintiff while reducing the threat of large damages posed to the defendant.

2.64 In particular, if the proposed qualified privilege defence for the media (based on s 17(e) of the Defamation Act 1958 (NSW)) is accepted (see Chapter 9), the ease with which this defence should be made out may make it appropriate for it to be linked to a reply.

2.65 The media could be required to offer a reply within a set time period after publication in order for the defence to succeed. Alternatively, offering a reply could be not a mandatory requirement but only evidence of lack of malice (and vice versa). A third alternative would be to make the defence a “partial” one, so that if it succeeds, no damages are available, but the plaintiff is awarded a reply as a form of remedy. Both of the latter two alternatives were used in the defence created by cl 25 of the Defamation Bill 1992 (NSW). Linking replies to the proposed media qualified privilege defence is discussed further in Chapter 9.

Promoting the use of a correction defence: allowing courts to recommend corrections

2.66 Corrections may be more widely used if the plaintiff can seek a recommendation from the court that the defendant publish one. If the defendant complies, this would bring it the benefits of the correction defence discussed above.

The Defamation Bill 1992

2.67 This Bill contained a new provision (cl 44) designed to promote the use of corrections as an alternative to damages. The concept and drafting of this provision attracted much criticism. As proposed, a correction or apology could be recommended by the court, but was neither a defence nor a remedy. However, it would become almost automatic for the plaintiff to seek a correction, because any damages would otherwise be reduced. Failure to seek an apology, or publish one when requested, is already relevant when assessing damages; the Bill made no changes to this situation except to provide that court time could be pointlessly consumed in the process.²⁸

The New Zealand Defamation Act 1992

2.68 A procedure similar in some ways to that in the Bill has been introduced in New Zealand. A plaintiff may seek a recommendation from the court that the defendant publish a correction (s 26(1)). The court may include recommendations as to its content, prominence and time of publication, having regard to context and circumstances of the defamatory publication and the interest of the defendant in maintaining the style and character of its periodical or program (s 27). The defendant is not bound to publish a correction in accordance with the court’s recommendation, but there is a powerful incentive to do so - it ends the proceedings and bars any damages claim (s 26(2)).²⁹ The defendant must then pay the plaintiff’s costs on a solicitor and client basis. The “carrot” of barring damages is accompanied by a “stick”: if the defendant refuses to comply with the court’s recommendation, and the plaintiff later wins damages, that refusal is considered when assessing damages, and the defendant (subject to the court’s discretion) will have to pay solicitor and client costs to the plaintiff (s 26(3)).

Problems with a court-recommended correction procedure

2.69 The first problem with giving courts power to recommend corrections is that the decision is made at an early stage when evidence may be incomplete. Against this, it may be argued that defendants should not publish at all unless they have adequate evidence to support the defamatory imputations; and that the whole aim of any procedural and remedial structure in defamation law should be to ensure that, where appropriate, reputation is restored and the public record is corrected quickly.

2.70 Another problem is that applications for corrections will clog the courts, without providing a final resolution of the dispute (because the correction is only recommended). In addition, the court’s prestige and standing may be lowered if a correction is recommended (and possibly published), but the defendant then wins at trial, perhaps because additional evidence is then available. Alternatively, the court may decline to recommend a correction, a result which may in many cases be widely reported in the media, discouraging worthy plaintiffs and possibly affecting the jury’s decision at trial.

Alternative dispute resolution

2.71 If corrections are to be only recommended, not ordered, it would be preferable for this to be done by a mediator outside the court system, as discussed in Chapter 3. This has the advantages of not forcing both parties to reveal their evidence in open court. If a correction is recommended, this will be known only to the parties and the mediator, and thus the prestige and standing of the court will not be harmed. The courts will be saved the potential embarrassment of awarding a remedy which is no more than a recommendation and does not resolve the dispute.

2.72 However, allowing a mediator to recommend a correction would require an expansion of the mediator’s function of assisting the parties to reach their own solution, as discussed in Chapter 3.

COURT-ORDERED CORRECTIONS

2.73 Apart from being a possible defence, corrections could be a remedy ordered by the court.

Rapid correction orders: the best way to satisfy plaintiffs

2.74 The aim of moving away from damages in defamation actions would ideally be achieved by providing a rapid procedure for achieving correction of the public record. Corrections are unlikely to satisfy plaintiffs (because they are unlikely to restore reputation) unless published soon after the defamatory material. A system whereby an application for a correction could be heard and resolved quickly within days or weeks of publication would adequately protect reputation and render damages unnecessary.

Would such a system intrude on freedom of speech and the press?

2.75 The objection in principle to correction orders is that they intrude on freedom of the press, the right not to publish being as important as the right to publish. In particular, newspapers and broadcasters may be forced to print something they do not believe to be true or print statements they do not agree with. This concern can be allayed by providing, for example, that defendants may state that the correction is being published pursuant to a court order, and that defendants need not be required to state that they adopt the court’s findings of fact.

2.76 In any case, it can be argued that a correction would not be ordered until a finding was made that the defendant had published indefensible defamatory material. This deliberate act causing damage to an innocent plaintiff would justify the view that freedom of the press is voidable in that particular case.

2.77 It also must be considered whether court-ordered corrections intrude on freedom of speech to a greater extent than the prospect of large damages. They would certainly be more appropriate to restore reputation.³⁰ It may also be argued that compulsory correction orders are necessary to allow access to the media and promote a truly free marketplace of ideas.³¹

Issues to be resolved with a rapid correction order system

2.78 There are some practical problems with such a system. First, court time, priority and resources would have to be devoted to hearing these cases quickly.

2.79 Secondly, the evidence available to the court at an early stage may be insufficient to allow a confident decision as to the facts. Discovery and answer of interrogatories is unlikely to have occurred. Will only affidavit evidence be admitted, and if so, can deponents be cross-examined? Or must all witnesses be assembled within a short time of publication? Will hearsay evidence be heard, or must all tests as to admissibility at trial be satisfied?

2.80 Thirdly, what must the plaintiff establish - a prima facie case only, or proof of all elements on the balance of probabilities? Must the defendant show only a prima facie defence, and if so what happens where the correction order is refused but the defence subsequently fails at a later full trial? ³²

2.81 The Legislation Committee which examined the Bill was unable to offer solutions to these practical problems.³³ They must be solved before the desirable goal of providing a quick remedy which restores reputation can be achieved.

Correction orders as a remedy at trial

2.82 A correction order may be a viable alternative to damages at the final trial of the action. Because such an order would be made a long time after the defamatory publication, it may not be effective to restore reputation. Still, some plaintiffs may feel that a correction would restore reputation rather than further injure it in their particular case, and so may seek a correction order. If granted, it should reduce the damages payable.

2.83 In 1979, the Australian Law Reform Commission (ALRC) proposed that correction orders could be gradually employed to reduce the emphasis on damages. Despite the claim that this idea had “received overwhelming support” and had “been accepted as fair and workable by all of the major media interests in Australia”,³⁴ it proved to be one of the most contentious issues discussed in the drafting of the 1983 and 1984 Uniform Bills.

2.84 The ALRC proposed that judges make correction orders, but that juries should continue to assess damages in those jurisdictions where they do so now. This could mean that a judge could make a correction order and instruct the jury to consider it when assessing damages; but the jury could be unimpressed and award massive damages anyway. This problem will not arise if judges make all decisions as to remedies, as the Commission proposes.³⁵

2.85 One problem is that the efficacy of other reforms (such as a correction defence) may require that damages be retained as the primary final remedy. These reforms should reduce the emphasis on damages, but will not replace damages entirely.

2.86 Media groups have previously suggested that, in some cases, a defendant would prefer to pay damages rather than obey a correction order.³⁶ If this was allowed, the judge would have to give the correction order a monetary value expressed as a sum of damages. Alternatively (or additionally), the plaintiff could be awarded indemnity costs, in addition to whatever sum of damages the court proposed to award with the correction order.

A summary judgment procedure for correction orders ?

2.87 In England, Justice Hoffman prepared a Defamation Bill in 1988 which was designed to introduce a summary procedure in defamation claims. The Bill has not been enacted and was heavily criticised by a Working Group of the Supreme Court Procedure Committee, chaired by Lord Justice Neill, which issued a Report on Practice and Procedure in Defamation in July 1991. However, in December 1992 the Lord Chancellor, Lord Mackay, proposed several reforms of defamation law which were based principally on the Neill Report - but included a summary procedure along the lines suggested by Justice Hoffman. In New South Wales, the Legislation Committee on the Defamation Bill 1992 also recommended the “introduction of a form of summary procedure, similar to that introduced [sic] in the United Kingdom.”³⁷

2.88 The Hoffman proposal was that plaintiffs could elect to have their claim heard summarily, that is, by a judge alone and on affidavit evidence. The remedies available were damages (limited to £5000) and an order for a correction or apology. Defendants could also apply to have a claim heard summarily, and this would be granted where the judge believed that summary relief would adequately compensate the plaintiff. A claim for summary relief would not be heard if there was a good arguable defence of justification or fair comment (which would require witnesses to be heard), or if there was some other reason why the action should go to a full trial. The aim was to resolve defamation actions as quickly and cheaply as possible.

2.89 The Neill Report objected to judges having the power to compel the publication of anything, as an unjustifiable intrusion upon free speech. It criticised the idea that judges would be empowered to decide whether statements actually were defamatory (rather than merely having the capacity to defame), saying this was a proper function for a jury of ordinary people; in some cases, the Bill would deprive a party of the right to trial by jury without their consent. Judges would have to decide what libels were trivial and deserving only of summary relief; this would be likely to increase the incidence of appeals. (Many of these concerns expressed by the Neill Report would have no force if defamation trials were heard by judges alone, as the Commission proposes - see Chapter 4). Any trivial cases which would fit the proposed criteria are probably settled anyway. The Neill Report preferred a relaxation of the procedure for the offer of amends defence.³⁸

2.90 It must also be questioned whether it is appropriate for money damages to be made available to plaintiffs on the basis of affidavit evidence alone; although some provision for covering the plaintiff’s costs should be made.

2.91 The Commission would welcome submissions on this procedure. It may be possible to adopt the basic thrust of the proposal in some form: that defamatory publications should be remedied by rapid publication of a correction, rather than an indeterminate amount of damages awarded months or years later.

DECLARATORY JUDGMENTS

2.92 Courts already have the power to declare what the legal position is between two parties.³⁹ The ALRC proposed specific statutory recognition of a plaintiff’s right to sue for a declaration alone, and proposed that the terms of any declaratory order actually made (or which would have been made if sought) be considered when assessing damages.⁴⁰

United States proposals for declaratory judgments

2.93 The use of declarations has been supported in the United States in recent years as a way of avoiding the problems in defamation cases caused by the public figure test. That test causes a concentration on the defendant’s malice, which has prejudiced plaintiffs, defendants, and the public interest in knowing the truth.⁴¹

The Annenberg Proposal

2.94 A second aspect of the Annenberg Proposal is that, if a retraction or reply is not granted, a plaintiff may elect to sue for a declaration that the defamatory statement is false. Truth or falsity is the only issue to be litigated; the defendant’s malice is irrelevant. No damages are available, but the loser pays the winner’s costs (which is unusual in United States law). This avoids the necessity of probing the issue of the defendant’s state of mind (as required by the public figure test), which makes it difficult for a plaintiff to recover damages and inflates them when they are awarded. The action will be resolved far more quickly, which benefits all involved.⁴²

2.95 This should vindicate reputation more effectively, reduce the chilling effect of excessive damages, further the flow of accurate information to the public, give United States plaintiffs some hope of correcting the public record (they have very little chance under current United States law), and discourage harassment of defendants by unmeritorious plaintiffs (which can occur when the public figure test is combined with United States costs rules). These benefits are enough to commend declaratory judgments as a possible alternative to damages in New South Wales, although we do not have the problems generated by the public figure test.

A proposal for consideration: two separate remedial regimes

2.96 Declarations are attractive as remedies which may restore reputation more effectively and reduce the current emphasis on damages. A court’s finding for the plaintiff in a defamation action actually helps to rectify the injury suffered - unlike in personal injury cases where the court’s decision alone does nothing to help the plaintiff.⁴³

2.97 The Commission is considering a proposal that plaintiffs be able to choose between two separate remedial regimes, for judicial declarations and for damages. The differences between them would chiefly involve different rules on (a) the onus of proof of truth/falsity of any defamatory imputations of fact, and (b) the availability of qualified privilege as a defence. On both of these issues the damages remedy would pose more difficult challenges to the plaintiff.

2.98 Strategically, an intended outcome of the proposal is that plaintiffs would be tempted in many cases to settle for a declaration. This outcome could be assisted if mediation or other alternative resolution or “fast-track” procedures were specifically linked to proceedings for a declaration, and if a declaration were always potentially available as fall-back relief in proceedings initially claiming damages. Costs rules could also be used to encourage plaintiffs to seek a declaration.

Onus of proof

2.99 Currently in New South Wales law there is no formal presumption of truth or falsity, but the defendant must prove truth if a defence of justification is pleaded. Either side can adduce evidence of truth or falsity when damages are assessed, even if justification is not pleaded.⁴⁴

2.100 The proposal under consideration suggests that plaintiffs bear the onus of proving falsity if they wish to recover damages. Alternatively, pending the creation of separate remedies for invasion of privacy (see Chapter 6), plaintiffs may recover damages if they prove that the imputation complained of is a statement of fact not made in the public interest.

2.101 On the other hand, if the plaintiff seeks a declaration alone, the onus will be on the defendant to prove truth (and satisfy the public interest or qualified privilege requirements of that defence). The terms of the declaration could be altered in appropriate cases. For example, a defendant may present material to the court showing the basis on which certain imputations were made. The court may then make a declaration, not that the imputations are false, but that the defendant has not been able to prove them; and (where appropriate) that the defendant’s conduct in publishing was not justifiable in the circumstances. This may suit some plaintiffs who wish for a defendant to be given adverse publicity. It would also go some way towards correcting the public record and restoring the plaintiff’s reputation.

2.102 There may be other cases where the truth cannot ultimately be known - for example, the litigation between General Westmoreland and CBS News, which amounted to a replay of the policy arguments surrounding the Vietnam War and an attempt to show why the American troops were unsuccessful.⁴⁵ In such a case, any declaratory order could reflect the impossibility of discovering the truth.

2.103 Where the plaintiff cannot prove the falsity of a defamatory imputation of fact, but the defendant cannot prove truth either - so that the status of the imputation is “not proven” - the plaintiff may be entitled to a judicial declaration to this effect (“the defendant has been unable to substantiate...”), but not to any damages. On the other hand, where (a) the plaintiff can prove the falsity of a factual imputation, and publication in circumstances likely to damage the plaintiff’s reputation, and (b) no other of the standard defences is established, the plaintiff would be entitled to damages and, if sought, a declaration as well. The granting and publicising of a declaration would suitably reduce the amount of damages awarded.

2.104 This would bring a damages claim in defamation closer than under present law to the normal specifications of a tort, with the onus on the plaintiff, as in other torts, to prove most vital elements (see Chapter 6). The declaration remedy remains available for unsubstantiated defamatory allegations of fact, or comments which are not honest, or defamatory matter in protected reports which are not published in good faith. But the onus on crucial matters is more evenly parcelled out between the parties.

Should truth be the only defence to a declaratory judgment action?

2.105 Under the Annenberg and similar United States proposals, truth or falsity is the only issue to be litigated in a declaratory judgment action. If truth is the only defence, this may offer a remedy (and costs, possibly on an indemnity basis - see paragraph 2.110) to a plaintiff where a defence such as qualified privilege would result in a verdict for the defendant in a damages action. Some commentators have argued that a declaratory judgment action should recognise other defences besides truth, especially absolute privilege. Others suggest that qualified privilege defences need not be recognised, since they protect less important social interests than absolute privilege, and plaintiffs should be given the opportunity to correct the record in a declaratory judgment action. The position of comment as a defence is interesting, because it is designed to protect speech which is essentially incapable of being true or false.⁴⁶

2.106 Absolute privilege would have to be recognised, because otherwise it would be possible to sue for a declaration that what was said by a Member of Parliament in the House or by a Royal Commissioner was false, and expose such persons to a costs order. This is considered an unacceptable intrusion on the workings of such important institutions.

2.107 The recognition of the defences of protected reports (Defamation Act 1974 (NSW), Part 3 Division 5) and official notices (Division 6) raises problems. If these defences are not recognised, it may result in one court declaring that what was said in proceedings before another court (and fairly reported) was false. Similarly, documents published under the authority of a parliamentary body could be declared to contain false statements. On the other hand, the more defences which are recognised, the less attractive a declaratory judgment remedy becomes to plaintiffs.

2.108 As stated above, the declaratory judgment remedy in the United States is designed to avoid the problems created by the focus on malice under the public figure test. The Constitutional privileges conferred by the public figure test are not recognised when a declaratory judgment is sought. Even if all other defences were still recognised, this would benefit United States plaintiffs enormously (and defendants as well). It may be that in New South Wales, where the problems of the public figure test do not exist, the benefits to be gained by a declaratory judgment procedure are limited.

2.109 A declaratory judgment action is designed to be fair to both sides: plaintiffs give up the chance of damages; defendants give up some defences, concentrating on contesting truth. It seems that the only defences which could be sensibly eliminated in a declaratory judgment action in New South Wales would be the qualified privilege defences. This will certainly give a remedy where a damages action would leave a plaintiff with nothing, but without forcing the defendant to pay damages; both sides benefit from a quicker and cheaper trial; and the flow of accurate information to the public is improved.

Costs of proceedings seeking a declaration

2.110 One key argument in favour of retaining damages in defamation actions is that they are necessary if a successful plaintiff is to have the costs of the action covered. A costs order made against a defendant will usually leave the plaintiff substantially out of pocket, because not all of the plaintiff’s solicitor/client costs will be recoverable on taxation. To compensate plaintiffs for losing the prospect of damages, it may be necessary to provide that the successful plaintiff in a declaratory judgment action be awarded more generous costs than the usual party and party scale - perhaps solicitor/client or even indemnity costs.⁴⁷ These costs should not be excessive anyway, since the proceedings should be considerably faster than a standard defamation trial. The knowledge that no damages are available will ensure that the parties concentrate on the issues.

Would a declaratory judgment vindicate reputation?

2.111 It may be argued that a declaratory judgment is not likely to be publicised as widely as the original defamatory statement, which may have been quite sensational. In this case, a plaintiff’s reputation is unlikely to be fully restored. One argument in favour of large awards of damages is that they increase the publicity given to the result of the case (although this also serves to re-publicise the original defamatory material).

2.112 It may be argued that a defendant’s competitors would be eager to report any judicial finding adverse to the defendant. The excessive concentration of ownership of the Australian media means that perhaps there is not as much competition as there should be. The introduction of new technologies may counter, to some extent, the decline of the print media. However, it seems likely that existing media proprietors will feature heavily in the ownership pattern of new forms of media, such as satellite television.

2.113 One possibility is to empower the courts to order that the defendant publish the finding of falsity made against it. This may be thought to intrude too far into freedom of the press. However, it is noted that even in the United States, no ruling has been made that the First Amendment invalidates such an order, although it does require that a plaintiff prove falsity before this order could be granted.⁴⁸ It may be preferable for a judge to order that the defendant, if not willing to publish the court’s finding, should pay to the plaintiff the cost of running a sufficiently prominent advertisement in a rival publication; details of those costs could be provided to the court. In appropriate cases it may be reasonable for the plaintiff to engage an advertising agency to draft and place the advertisement (to ensure it has the maximum impact); these costs could also be borne by the defendant.

2.114 One problem area is finding a method of framing a declaration so that it does not simply further publicise the imputation. A prominent advertisement stating “There is no truth in the rumour that X is a thief” may not have the effect desired by the plaintiff, even if this finding is stated to be the considered verdict of a court after hearing the evidence (rather than simply an insincere or impudent “retraction” out of the defendant’s mouth).

Faster vindication of reputation

2.115 A declaratory judgment action should be heard and resolved much faster than current defamation trials. The remedial structure under consideration would function far more effectively if judges alone heard defamation actions, as discussed in Chapter 4. Alternatively, juries could be retained only to decide whether the pleaded imputations are conveyed and are defamatory, with the judge alone deciding all questions of defences and remedies.

Will declarations be an adequate deterrent?

2.116 As discussed above, the possibility of defamation suits encourages the media to carefully research and check stories. It is arguable that removing damages from the calculation will lead to greater media carelessness and reduce the protection given to reputation.

2.117 When assessing the deterrent role of damages, it is necessary to distinguish between the purpose of awards in individual cases and the effect of having damages as an available remedy. Since punitive damages were abolished in 1974, damages in New South Wales defamation cases have only the functions of consoling the plaintiff and recognising the indefensibility of the defamatory imputations. However, the possibility that damages may be awarded is designed to deter the publication of indefensible defamatory material.

2.118 It is arguable that damages are necessary to keep irresponsible publishers in line. Giving plaintiffs the option to sue for damages should retain this deterrent effect; but this will also hamper efforts to shift away from damages as the appropriate form of final relief. The threat of damages may not keep irresponsible publishers in line anyway, because they have calculated that the profits from their conduct will outweigh any likely recovery by the plaintiff.

2.119 A defendant’s concern for its own reputation and credibility should ensure that regular declarations that it publishes false material will have a significant deterrent effect. This will apply both to individual journalists and particular publications. If a plaintiff can sue for a declaration of falsity, defendants will probably lose many cases they would win if the plaintiff was seeking damages (because qualified privilege defences will be unavailable); they will have to pay to publicise their own carelessness; and cover most or all of the plaintiff’s costs. This is likely to be a powerful deterrent.

2.120 Damages will, of course, still be available for any specific pecuniary loss which results from the defamation.

POSSIBLE PROCEDURAL AND REMEDIAL STRUCTURE

2.121 It may be possible to combine several of the above remedies in a workable structure which better serves the interests of the parties and the public. The following is one example of such a structure, although there are numerous possible variants.

2.122 The plaintiff could choose to seek either a declaration alone, or damages and (if desired) a declaration as well. A declaration alone would be much easier to obtain: the defendant would have the onus of proving truth, and the qualified privilege defences would not be available. Nor would the defence of offer of amends, as the only effect of this defence is to bar any award of damages.

2.123 If damages are sought, the plaintiff would have the onus of proving that the imputations were false (or not related to a matter of public interest), and that they were published in circumstances likely to result in harm to the plaintiff’s reputation. The qualified privilege defences would be available - including, if accepted, the proposed media qualified privilege defence (which would usually require the defendant to offer to the plaintiff an opportunity to reply, because this would be strong evidence of good faith). A correction defence would also be available, to bar general damages or limit them to a specified sum. The defence of offer of amends would be available (see Chapter 11 for possible reforms designed to make that defence easier to use). If desired, the plaintiff could seek a correction order; if granted, it would reduce the damages payable.

2.124 In some cases the plaintiff may fail to satisfy the requirements for an award of damages - for example, by being unable to prove falsity. In such cases, the plaintiff may be able to satisfy the less onerous requirements for a declaratory judgment. A declaration could then be made; however, the plaintiff (being only partially successful in the action) would receive a reduced costs award.

Declaratory judgment procedure

2.125 Requirements. The plaintiff would have the option of seeking a declaration alone (as with any other civil remedy). In this case, the plaintiff would have to prove the following:

• the pleaded imputation arises from the matter complained of, and is defamatory;
• it was published of and concerning the plaintiff; and
• it was published by or on behalf of the defendant.

2.126 Defences. The following defences would be available, with the onus on the defendant to prove all necessary elements. The plaintiff would still have to prove malice to rebut certain defences, as at present.

• Unlikelihood of harm (as in s 13 of the Defamation Act 1974 (NSW)).
• Justification (truth and public interest or qualified privilege requirements, as in s 15 - unless separate privacy remedy established).
• Contextual truth (s 16).
• Absolute privilege.
• Protected report.
• Court notices, official notices etc (s 27-28).
• Comment.

But not qualified privilege as at common law or under statute (s 22).

2.127 Remedy. The remedy given would be a declaration that the defendant had defamed the plaintiff. In addition, the plaintiff would recover solicitor / client or perhaps even indemnity costs. If the defendant is unwilling to publish the declaration, it would have to pay to the plaintiff the price of placing an advertisement in a rival publication.

2.128 The declaration would reflect any findings made as to:

• falsity or lack of substantiation of any defamatory imputation of fact;
• falsity or lack of substantiation of any imputation of fact alleged to be the proper material for comment;
• lack of genuineness of any opinion allegedly forming the basis for the defamatory imputation; and
• lack of good faith in publishing a protected report or court notice, etc.

2.129 Example. The plaintiff may prove that four defamatory imputations arise from the matter complained of. Declarations could be made that the defendant has not substantiated the first defamatory imputation; that the plaintiff has proved the second to be untrue; that the defendant has not proved a factual basis for the opinion expressed as the third imputation; and that the defendant did not honestly hold the opinion expressed as the fourth imputation.

Action for damages

2.130 Requirements. If damages are sought, the plaintiff would have to prove the following:

• the pleaded imputation arises from the matter complained of, and is defamatory;
• the imputation is either

  (a) a false imputation of fact, or

  (b) an imputation of fact not published in the public interest (unless separate privacy remedy established), or

  (c) an expression of opinion;

• it was published of and concerning the plaintiff;
• it was published by or on behalf of the defendant; and
• it was published in circumstances likely to result in harm to the plaintiff’s reputation.

2.131 Defences. The following defences would be available.

• Contextual truth (as to imputation of fact).
• Absolute privilege.
• Qualified privilege - common law or under statute (s 22).
• Protected report.
• Court notices, official notices etc (s 27-28).
• Comment (as to imputation of opinion).
• Offer of amends (s 36-45).

2.132 Remedies. The remedy granted would be damages. These would be discounted if a judicial declaration was also sought, obtained and publicised. A declaration could still be granted if the damages claim fails but the separate requirements for a declaration are satisfied. However in this case the plaintiff, being only partially successful, will not recover full costs.

Correction defence

2.133 A correction defence would be available, to bar or limit general damages. This would require a correction to be published within seven days of one being requested, or service of a statement of claim (whichever occurs first). Publication of a correction would have to be accompanied by an offer to pay the plaintiff’s costs to date.

Replies

2.134 An offer to publish a reply (within one week of one being requested, or service of a statement of claim) would be strong evidence of good faith (and vice versa) under the proposed media qualified privilege defence.

Correction orders

2.135 These would be available as final relief in the action. In addition a rapid procedure for making correction orders is desirable. The Commission welcomes submissions on how such a procedure could be made workable.

ISSUES ARISING IN CHAPTER 2 - ALTERNATIVE REMEDIES AND PROCEDURES

1. Should the primary purpose of defamation law be to enable plaintiffs to restore their reputation, or to provide compensation for injury to reputation and feelings?

Voluntary Corrections

2. Should plaintiffs be required to request a correction before commencing litigation?

3. Should defendants be able to rely on prompt and adequate corrections as a defence?

4. What information should accompany a request for a correction?

5. When must the correction be printed?

6. Is it acceptable to make a correction defence available only to media defendants? If not, how could it be made more easily available to other defendants?

7. Should a prompt and adequate correction bar any award of general damages against the defendant? Or limit general damages to a specified maximum? Or require the plaintiff to prove some additional element before general damages can be recovered?

8. Should defendants only be able to use a correction defence in certain circumstances?

9. Should courts have power to recommend publication of a correction? Or should this be done, if at all, by a mediator outside the court system?

10. Should plaintiffs be given a statutory right of reply?

Court-Ordered Corrections

11. Would a rapid procedure for making correction orders be a significant intrusion on freedom of the press?

12. If not, what procedures should be adopted? Is a form of summary procedure desirable? What evidentiary standards should apply?

13. Would correction orders made at the final trial of the action effectively restore reputation?

Declaratory Judgments

14. Should two separate remedial regimes be created - allowing a plaintiff to seek a declaration alone, or damages and (if desired) a declaration as well?

15. If so, should plaintiffs bear the onus of proving falsity (or that the imputation did not relate to a matter of public interest) if seeking damages? What problems, if any, are likely to arise if the onus of proving truth remains on the defendant when the plaintiff seeks a declaration alone?

16. Should the qualified privilege defences be unavailable in actions seeking a declaration alone?

17. What costs should be payable to plaintiffs who successfully seek a declaration alone?

18. Would such a dual remedial regime adequately deter careless injury to reputation by defendants?

1. The empirical survey of suits commenced in the NSW Supreme Court conducted by Edgeworth and Newcity found that the media comprised 68.5% of all defendants. (A similar study by Sourdin reached a figure of 68.1%). M Newcity “The sociology of defamation in Australia and the United States” (1991) 26 Texas International Law Journal 1 at 31; 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 15-16.

2. See New South Wales. Law Reform Commission Blasphemy (Discussion Paper 24, 1992) at paras 2.8-2.23 for a discussion of ecclesiastical offences.

3. W P Keeton (ed) Prosser and Keeton on the Law of Torts (5th edition, West Publishing Co, St Paul 1984) at 772-773; D A Anderson “Reputation, compensation, and proof” (1984) 25 William and Mary Law Review 747 at 774.

4. Australia. Law Reform Commission Unfair Publication: Defamation and Privacy (Report 11, 1979) at paras 34-35 and 253; Newcity at 15 fn 63, 45. It must be noted that defamation actions have long been used to redress injury caused by placing the plaintiff in a ridiculous light, which is arguably not injury to reputation at all: R Watterson “What is defamatory today?”, paper presented at the conference Finding a Remedy for Defamation (Sydney, June 1993).

5. 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 86-88. These researchers have been criticised for too readily accepting the self-serving statements of plaintiffs that they were not primarily motivated by money. However, 90% of plaintiffs contacted the media defendant and attempted to resolve the dispute before suing; few plaintiffs suffered financial harm because of the defamatory matter; most plaintiffs were dependant on their reputation to earn a living; and most had never sued for anything before. These factors support the claims by plaintiffs that their primary interest was in restoring their reputation.

6. Uren v John Fairfax and Sons Pty Ltd (1967) 117 CLR 118 at 150 per Windeyer J. See Carson v John Fairfax & Sons Ltd (1993) 67 ALJR 634 at 643, 648-649; and in the Court of Appeal (1991) 24 NSWLR 259 at 272(B-E), 299-300.

7. J G Fleming “Retraction and reply: alternative remedies for defamation” (1978) 12 University of British Columbia Law Review 15 at 15-16; ALRC Report 11 at paras 252, 257.

8. This definition, and that given for “reply”, is that of the Annenberg Program: see R M Schmidt “A proposal for libel law reform” in Kaplar (ed) at 70-71.

9. D A Hunt “Defamation - pre-trial practice” in J C Gibson (ed) Aspects of the Law of Defamation in New South Wales (Young Lawyers Section, Law Society of NSW, Sydney 1990) at 8-9.

10. Fielding v Variety Inc [1967] 2 QB 841 at 849; Lawrie v Northern Territory News Services Pty Ltd (1985) 82 FLR 70; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 659-660.

11. T K Tobin and M G Sexton Australian Defamation Law and Practice (looseleaf, Butterworths, Sydney 1991) at para [16,030].

12. Full details are set out in R Brown The Law of Defamation in Canada (Carswell, Ontario 1987), Vol 2 at 1059-1061.

13. Keeton at 846-847.

14. The Project produced an extensive Report in 1988; see Schmidt in Kaplar (ed) at 65-82.

15. A bill “to protect the constitutional right to freedom of speech by establishing a new action for defamation”, H R 2846, 99th Cong, 1st Sess (1985). A retraction under this Bill would only preclude the awarding of costs against the defendant in a declaratory judgment action.

16. Full details are set out in Brown, Vol 2 at 795-804. It is not clear why daily television or radio programs should be given twice as long to consider the issue as daily newspapers.

17. California’s retraction statute has been held not to cover magazines, because it requires a retraction within three weeks of demand: G D Schwarzbach “Shouldn’t California’s retraction statute protect magazines too?” (1989) 18 Southwestern University Law Review 197.

18. Anon, “US ‘model’ libel law would substitute retractions for money damages” (1989) 21 (2) Australian Author 16.

19. D M Cendali “Of things to come - the actual impact of Herbert v Lando and a proposed national correction statute” (1985) 22 Harvard Journal of Legislation 441 at 496.

20. See McKenzie v Mergen Holdings Pty Ltd (1990) 29 NSWLR 43, which discusses the evidence of malice which is required when attempting to rebut the defence of qualified privilege.

21. The Hon R M Hope AC, CMG, QC, Chairman and Professor David Weisbrot, Commissioner of the NSW Law Reform Commission Submission to NSW Legislation Committee on the Defamation Bill 1992 (9 September 1992) at 2.

22. Other published guidelines could be relevant in some circumstances. For example, the Australian Press Council has “laid down the broad principles to which it is committed”, a list which includes items such as “Rumour and unconfirmed reports, if published at all, should be identified as such”. However, these principles are not intended to be a “precise and exhaustive formula...by which newspapers must govern themselves” (Australian Press Council, Annual Report No. 16, Sydney, 30 June 1992, at 173-174).

23. Media, Entertainment and Arts Alliance, Registered Rules, Rule 65 (Journalists’ Code of Ethics), Item (d).

24. Journalists’ Code of Ethics, Item (a).

25. R P Bezanson, G Cranberg and J Soloski Libel Law and the Press: Myth and Reality (Free Press, New York, 1987) at 40-47.

26. Fleming at 25-26.

27. C Danziger “The right of reply in the United State and Europe” (1986) 19 New York University Journal of International Law and Politics 171 at 183-194.

28. A Palmer “Defamation law reform” (1991) 65 Law Institute Journal 505 at 506-507.

29. Although according to a spokesperson for the New Zealand Justice Minister, it may still be possible to seek damages caused by reckless and wilful libels: S Parker “Free speech gets cheaper” The Bulletin, 15 December 1992, at 20.

30. Correction orders as an alternative remedy to damages - and a factor to be considered when assessing damages - have been endorsed by the Free Speech Committee: Discussion Paper on Defamation Law Reform (Sydney, September 1990) at 15.

31. Cf Red Lion Broadcasting Co v Federal Communications Commission 395 US 367 (1969), discussed in Danziger at 180-181.

32. Applegarth at 35-36; Law Council of Australia Submission to NSW Legislation Committee (30 January 1992) at 24-28; NSW Bar Association Submission to NSW Legislation Committee (14 February 1992) at 13; T K Tobin QC and M G Sexton Submission to NSW Legislation Committee (30 January 1992) at 13-15; Law Institute of Victoria Submission to NSW Legislation Committee (14 February 1992 - first drafted March 1991) at 15-25.

33. Legislation Committee on the Defamation Bill 1992, Report on the Defamation Bill 1992 (Legislative Assembly, Parliament of New South Wales, October 1992) (NSW Legislation Committee Report) at 130.

34. ALRC Report 11 at para 258.

35. See Chapter 4.

36. Eg ALRC Report 11 at para 258.

37. NSW Legislation Committee Report at 155. For news of the Lord Chancellor’s proposals in the UK, see Guardian Gazette, 6 January 1993, at 6.

38. England and Wales. Supreme Court Procedure Committee Report on Practice and Procedure in Defamation (July 1991) (Neill Committee Report) at 144-150. On the proposed new offer of amends defence, see Chapter 11 of this Discussion Paper.

39. R P Meagher, W M C Gummow, and J R F Lehane Equity: Doctrines and Remedies (3rd edition, Butterworths, Sydney 1992), ch 19.

40. ALRC Report 11 at paras 274, 262.

41. See Chapter 10.

42. Soloski and Wissler in Kaplar (ed) at 72-73.

43. P N Leval “The no-money, no-fault libel suit: Keeping Sullivan in its proper place” in J Soloski and R P Bezanson (eds) Reforming Libel Law (Guilford Press, New York 1992) at 215-216.

44. Singleton v Ffrench (1986) 5 NSWLR 425 at 443-444; Defamation Act 1974 (NSW), s 47.

45. Powe at 136-138.

46. M A Franklin “A declaratory judgment alternative to current libel law” (1986) 74 California Law Review 809 at 817-818; Barrett at 864 and fn 104; J S Hulme and S M Springer “Vindicating reputation: an alternative to damages as a remedy for defamation” in Soloski and Bezanson (1992) at 159, 165-167.

47. The ALRC recommended solicitor / client costs: ALRC Report 11 at para 296.

48. Miami Herald Publishing Co v Tornillo 418 US 241 (1974) at 258-259. This case invalidated a Florida statute which required a newspaper to print replies by political candidates to editorials, but the reasoning relied on the fact that such a reply was compulsory even though falsity had not been shown. See Barrett at 870 and fn 138; R Dworkin “The coming battles over free speech” New York Review of Books, 11 June 1992, at 63-64; W A Eberhard “There’s got to be a better way: alternatives to the high cost of libel” (1987) 38 Mercer Law Review 819 at 825.