INTRODUCTION
6.1 Previous attempts to reform defamation law on a national basis have been frustrated by profound disagreements over the defence of justification. The issue is whether defendants should be able to escape liability for defamatory publications solely because they are true. The alternative is to require defendants to prove some additional element which will, in effect, provide some protection for privacy.
6.2 This chapter also raises the issue of who should bear the onus of proving truth or falsity. This discussion arises from the proposals for alternative remedies considered above in Chapter 2.
VERSIONS OF THE DEFENCE IN AUSTRALIAN JURISDICTIONS
6.3 Australian jurisdictions can be grouped into (1) those which retain the common law defence of truth alone; (2) those where the defendant must also show the publication was for the public benefit; and (3) New South Wales.
Truth alone
6.4 At common law it is a defence to the publication of defamatory matter if the defendant shows it was true in substance and in fact. This defence is available in Victoria, Western Australia, South Australia and the Northern Territory.1
6.5 The defendant must prove the truth of all material statements in the published matter. The plaintiff will succeed if any distinct allegation arising from the matter is not proved. However, it is sufficient that the “sting” of the allegation complained of is proved true, and this can be done by proving the truth of other allegations with a common sting.2
Truth and public benefit
6.6 In Queensland, Tasmania and the Australian Capital Territory the defendant must, in addition to proving the truth of the allegations complained of as at common law, show that it was for the public benefit that the matter be published.3 This creates the most restricted version of the defence of justification. “Public benefit” is a narrower concept than the New South Wales requirement of “public interest” (see below). It is a question of fact for the jury.
The position in New South Wales
6.7 In New South Wales, an imputation must be shown to be of “substantial truth”, meaning “in substance it is true or in substance it is not materially different from the truth” (s 7(2)). This definition was designed to clarify but not modify the common law.4
6.8 In effect, the Defamation Act 1974 (NSW) makes three different justification defences available:
(1) The imputation is substantially true and relates to a matter of public interest.5 The issue of public interest is decided by the judge.6
(2) The imputation is substantially true and is published under qualified privilege (meaning it is published on an occasion of qualified privilege, is relevant to the occasion, and the manner of the publication is reasonable having regard to the imputation and to the occasion of qualified privilege).7
This defence is not defeated if the plaintiff shows the defendant acted with malice (unlike the defence of qualified privilege alone).8
(3) The imputation is false, but the substantial truth of other “contextual” imputations also conveyed by the published matter means that the imputation complained of does not further injure the plaintiff’s reputation. Each of the contextual imputations, and the imputation complained of, must either relate to a matter of public interest or be published under qualified privilege.9
This is a significant expansion of the common law defence, where a plaintiff can succeed by suing only over those allegations which the defendant cannot justify, even though the matter published contains other allegations which the defendant can justify. Legislation in England and Tasmania provides a narrower form of this contextual truth defence.10 It applies only where the plaintiff sues over words containing two or more “charges” against the plaintiff, some true and some untrue; so plaintiffs are still free to sue only over those parts of a defamatory publication which contain untrue allegations.
SHOULD NEW SOUTH WALES ADOPT A DEFENCE OF TRUTH ALONE?
6.9 The benefits and disadvantages of a defence of truth alone were extensively canvassed before the New South Wales Legislation Committee on the Defamation Bill 1992.
Advantages of truth alone
6.10 It can be argued that publication of true statements does not wrongfully damage reputation but rather only brings it down to its proper level.11 The public benefit or public interest requirement is really designed to protect privacy, not reputation. When this Commission proposed the new “public interest” defence in 1971, the Commission acknowledged that the law of defamation was never intended to protect privacy and “is not a fit instrument for that task.”12 In addition the defence of truth alone is simpler to understand and easier to apply.
Disadvantages of truth alone
6.11 The defence of truth alone “condones embarrassing exposures of purely private matters, lacking any countervailing public interest.”13 This Commission noted that the “public benefit” requirement may have been introduced to assist in the social rehabilitation of former convicts. While this rationale was no more relevant in 1971 than it is today, the Commission did not then recommend a defence of truth alone because “gratuitous destruction of reputation is wrong, even if the matter published is true.”14 It simply replaced the “public benefit” requirement with the more familiar concept of “public interest”.
The issue is whether and how to protect privacy
6.12 The public interest requirement means that at least some protection for individual privacy is provided by New South Wales defamation law. The question is whether privacy should be protected separately or at all.
The compromise in the Defamation Bills 1991
6.13 The Attorneys General of Queensland, New South Wales and Victoria noted that there was general community support for some form of privacy protection. They referred to previous discussions by the Standing Committee of Attorneys General during earlier reform attempts. The Attorneys supported the views of the Australian Law Reform Commission (ALRC), which had opposed any reduction in the available privacy protection, such as the public interest or public benefit requirement in some jurisdictions.15
6.14 The Attorneys argued that, despite the ALRC’s recommendations that truth alone should be a defence for defamation and that privacy be separately protected, that the ALRC in fact viewed defamation and “publication” privacy as inseparable. The decision to provide separate protection for privacy may have been influenced by the fact that the ALRC had a separate reference on privacy, and the privacy issue was receiving much “political mileage” at the time. The ALRC had recommended a single statute covering “unfair publication”, although it had different elements with respect to defamation and invasion of privacy.
6.15 The Attorneys concluded that privacy was a value which required protection, and that it was appropriate for this protection (at least in a limited form) to be part of the law of defamation.16
The “truth and privacy” hybrid
6.16 The Defamation Bills 1991 contained a hybrid form of the justification defence. Truth alone was sufficient, unless the matter carrying the imputation concerned the plaintiff’s “private affairs” (defined inclusively in cl 4).17 If so, the publication of the matter either had to (a) be “warranted” in the public interest, or (b) attract the common law defence of qualified privilege (malice being irrelevant here) and the manner of publication be reasonable in the circumstances (cl 20). Clause 22 contained “examples” of situations where publication would be warranted in the public interest.18
6.17 This was an attempt at compromise between truth alone and the additional public interest or benefit requirement. The New South Wales Legislation Committee on the Bill agreed with many submissions which argued that this hybrid defence added needless complexity to the law in this State.19 The onus was on the defendant to show substantial truth; it then shifted to the plaintiff to show that the matter concerned his or her private affairs; the defendant then had to show publication was warranted in the public interest.
6.18 Particular criticism was directed to the use of the word “warranted”, which made the defendant’s burden far heavier than the current requirement of showing that the imputation “relates to” a matter of public interest. The definition of “private affairs” in cl 4, being inclusive, was not a true definition and attempts to apply it in practice could cause endless disputes and confusion. The novel use of “examples” in cl 22 was a drafting technique of uncertain effect, and illustrated the difficulty of defining the circumstances in which such publication should be excused.
6.19 The alternative of showing that the circumstances of publication would attract the common law defence of qualified privilege would almost never be available for a media defendant, since they can rarely use the common law form of that defence. This represents a contraction of the available protection, since under the current New South Wales Act truth on an occasion of statutory qualified privilege is a defence (s 14(2), 15(2)). This defence is available even where the defendant is shown to have acted with malice.
6.20 Clause 21 basically re-enacted the contextual truth provisions of the current Act, with a major drafting error which would have destroyed the defence. It is currently available where the false imputation “does not further injure the reputation of the plaintiff” (s 16(2)(c)). Clause 21(1)(b) made it available where the false imputation “does not further harm the plaintiff”. Since this would likely to be construed to encompass harm to the plaintiff’s feelings - easily shown with respect to a false, defamatory imputation - the defence would rarely succeed.
The recommendations of the Legislation Committee
6.21 The Committee concluded that truth alone should be the defence for defamatory imputations. A tort of privacy should be introduced in separate legislation. Until this is done, the defence of justification should continue to require truth and public interest or qualified privilege as set out in the Defamation Act 1974 (NSW), s 15. The defence of contextual truth under s 16 also should remain unchanged.
THE COMMISSION'S APPROACH
6.22 The provisional view of the Commission is that privacy protection should not form part of the law of defamation. The interests to be protected are different and the means of protecting them should also be different. Truth alone is a better defence for defamation law; it is simpler, and disclosure of truth does not wrongfully harm a person’s reputation. On the other hand, the truth of information and whether it is defamatory is irrelevant to whether it invades a person’s privacy. If privacy protection is desired, it should be provided by separate legislation.
6.23 This means that protection of privacy should not be examined as part of a reference on reform of defamation. Privacy is a notoriously slippery concept. An enormous amount of work on how it should be protected has been done within Australia and around the world. Protection from misuse of “information privacy” by Commonwealth agencies resulted from the Australian Law Reform Commission’s 1983 Report on Privacy.20 Despite the extensive research and consultation undertaken by the ALRC and the depth of expertise and talent available to it, its 1979 recommendations for the protection of “publication privacy” have not been adopted, federally or anywhere else. This illustrates the difficulties involved in reaching agreement between all interested parties on a workable model in this area.
6.24 The Commission proposes to concentrate on desirable reforms to the law of defamation in New South Wales. Protection of privacy should be examined separately. Until this is done, the current justification defences under the Defamation Act 1974 (NSW) should remain unchanged.
Reasons for retaining the current justification defences until privacy is examined separately
6.25 The defences of truth on an occasion of qualified privilege and contextual truth raise little controversy, and are generally accepted as appropriate means of resolving the conflict between freedom of speech and protection of reputation. It is the defence of truth and public interest which attracts criticism. The provisional view of the Commission is that this form of privacy protection is not unduly restrictive of free speech in New South Wales. One reason is that the other justification defences are available.
The public interest requirement gives some protection to privacy
6.26 The current law essentially gives the same protection to privacy as the proposal in the Defamation Bill 1992. This is illustrated by the case of Chappell v TCN Channel Nine Pty Ltd.21 To remove the public interest requirement would be to make a decision about the extent of privacy protection which should be available. This should not be done before the issue is comprehensively examined.
“Public interest” has often been interpreted and applied
6.27 In contrast to concepts such as “private affairs”, “public interest” is a well known phrase which is also present in other aspects of defamation law, such as the defence of comment. Many cases have analysed and applied the concept of public interest in particular circumstances. While no definition which will apply in all circumstances has been or can be given, a discussion of such a definition by Lord Denning is often cited:
I myself would not confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or others, then it is a matter of public interest on which everyone is entitled to make a fair comment.22
The public interest requirement is not too onerous
6.28 Few cases can be cited in which a defence of justification failed because the public interest requirement could not be satisfied. Chappell’s case is one example.
There is no presumption of falsity in New South Wales
6.29 At common law defamatory matter is presumed to be false, and the defendant cannot lead evidence of truth unless a plea of justification is made.23 However in New South Wales, there is no presumption that defamatory matter is either true or false, although as discussed above the onus is on the defendant to establish truth if justification is pleaded.24 This means that the defendant may lead evidence of the truth of defamatory matter in mitigation of damages, even where justification is not pleaded - perhaps because the public interest requirement cannot be satisfied or there are evidentiary difficulties. The plaintiff is also entitled to lead evidence of falsity in any case, and so achieve some restoration of reputation.
Summary
6.30 The above considerations, coupled with the availability of the other justification defences, suggest that the truth and public interest defence does not overly inhibit free speech in New South Wales, at least compared with the position in other Australian jurisdictions.
ONUS OF PROOF
6.31 A more fundamental question is whether the defendant should have to prove truth at all. The proposals for alternative remedies discussed in Chapter 2 suggested that plaintiffs should have to prove falsity if they wish to claim damages, but not when seeking a declaration alone.
6.32 The reasons for this proposal are:
- it will bring a damages claim in defamation closer to other torts, where the plaintiff has the onus of proving most vital elements;
- it will place the onus of proof on the party who would generally be expected to have best access to the relevant facts; and
- it will encourage plaintiffs to sue for a declaration alone, which will encourage the free flow of information to the public, and also ensure that false statements can be corrected and damaged reputations restored.
6.33 The reasons generally given for requiring defendants to prove truth are:
- it acts as a powerful deterrent to the publication of false information;
- it gives effect to the presumption of innocence, which assumes that a person has a good reputation in the absence of evidence to the contrary; and
- it removes the inequity of requiring the plaintiff to prove a negative.
6.34 If the alternative remedies discussed in Chapter 2 are accepted, this will obviously remove some of the problems defendants experience with the defence of justification. They will still bear the onus of proving truth (and the public interest or qualified privilege requirements of the defence of justification) if the plaintiff seeks a declaration alone.
6.35 Submissions on any aspect of this proposed remedial structure, including placing the onus of proving falsity on the plaintiff when damages are sought, are welcomed by the Commission.
ISSUES ARISING IN CHAPTER 6 - JUSTIFICATION
1. Does the defence of truth and public interest cause excessive restriction of free speech in New South Wales?
2. Is legal protection of privacy desirable? If so, should it be part of the law of defamation, or entirely separate?
3. Following the proposals being considered for declaratory judgments, discussed in Chapter 2, should plaintiffs bear the onus of proving falsity (or that the imputation did not relate to a matter of public interest) if seeking damages?
FOOTNOTES
1. In Western Australia, s 356 of the Criminal Code 1913 (WA) imposes an additional requirement of public benefit, but the High Court held in West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535 that the common law defence is also available for civil actions in that State.
2. See the cases discussed by T K Tobin and M G Sexton Australian Defamation Law and Practice (looseleaf, Butterworths, Sydney 1991) at paras [11,001] - [11,060].
3. Criminal Code (Qld) s 376; Defamation Act 1957 (Tas) s 15. The relevant wording is slightly different in the ACT: Defamation Act 1901 (NSW) s 6.
4. New South Wales. Law Reform Commission Defamation (Report 11, 1971) at 86 (paras 30-31).
5. Defamation Act 1974 (NSW) s 15(2)(a).
6. Section 12.
7. Section 15(2), s 14.
8. NSWLRC Report 11 at 93 (paras 71-72); T K Tobin “Defending a defamation action” in J C Gibson (ed) Aspects of the Law of Defamation in New South Wales (Young Lawyers Section, NSW Law Society, Sydney 1990) at 70-71.
9. Section 16.
10. Defamation Act 1952 (UK) s 5; Defamation Act 1957 (Tas) s 8.
11. Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 21-22 per Street A-CJ.
12. NSWLRC Report 11 at 7 (para 5).
13. J G Fleming The Law of Torts (8th edition, Law Book Company, Sydney 1992) at 556-557.
14. NSWLRC Report 11 at 92 (para 64).
15. Australia. Law Reform Commission Unfair Publication: Defamation and Privacy (Report 11, 1979) at paras 3, 230, 243; Attorneys General of Queensland, New South Wales and Victoria Discussion Paper on Reform of Defamation Law (No. 1) (August 1990) at paras 7.4 - 7.9.
16. Attorneys General of Queensland, New South Wales and Victoria Reform of Defamation Laws - Discussion Paper (No. 2) (January 1991) at paras 4.1 - 4.8.
17. Defamation Bill 1991 (NSW), cl 4(1): “‘private affairs’ of a person includes the health, private behaviour, home life, personal relationships or family relationships of the person”.
18. The matter was complicated further by the use of sub-examples within cl 22, such as: “Example 2 The matter is relevant to a topic of public interest, examples of such topics being: (a) the public, commercial or professional activities of a person” etc.
19. Legislation Committee on the Defamation Bill 1992, Report on the Defamation Bill 1992 (Legislative Assembly, Parliament of New South Wales, October 1992) at 33-52.
20. Australia. Law Reform Commission Privacy (Report No 22, 1983); see the Privacy Act 1988 (Cth). Adoption of similar measures in NSW has been urged by the NSW Privacy Committee: Privacy and Data Protection in NSW: A Proposal for Legislation (submission to the Independent Commission Against Corruption, June 1991); see the Data Protection Bill 1992 (NSW).
21. (1988) 14 NSWLR 153.
22. London Artists Limited v Littler [1969] 2 QB 375 at 391.
23. Roberts v Camden (1807) 103 ER 508.
24. Defamation Act 1974 (NSW) s 47; Singleton v Ffrench (1986) 5 NSWLR 425 at 441-444.
