INTRODUCTION
9.1 Qualified privilege is a defence for defamatory statements made without ill-will or improper motive. At common law it is available if the statement is made in the performance of any legal, moral or social duty, or in the pursuit of an interest, to a person having a corresponding duty or interest to receive it.
9.2 In New South Wales an important extension of the common law is made by s 22 of the Defamation Act 1974. In Queensland and Tasmania the common law defence has been replaced by the codified defence of qualified protection. In all other Australian jurisdictions only the common law defence is available.1
9.3 Debate over qualified privilege has concentrated on the question of whether it should be available to the mass media. A media defendant, such as a newspaper, rarely can use the common law defence, due to the lack of the necessary duty / interest relationship between the publisher and its readers. The media thus look to the statutory forms of qualified privilege to broaden the protection available.
9.4 The Commission does not propose to examine the common law defence.2 The issues raised are the current operation of s 22; various proposals which have been made for changing the defence, or creating a new one; and the special position of a journalist’s confidential sources. A particular proposal for simplifying the defence (and in fact the whole law of defamation) also will be examined in this context.
The current position in New South Wales
9.5 Section 22 of the Defamation Act 1974 (NSW) provides:
(1) Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in having information on some subject;
(b) the matter is published to the recipient in the course of giving to him information on that subject; and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication.
(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest.
(3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication were it not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward.
9.6 Section 22 has been seen as potentially vital for the media and investigative journalism in particular. It could allow consideration to be taken of the public interest in the free flow of information and the exposure of wrongdoing.3 However, attempts by media defendants to rely on the defence have rarely been successful.4
9.7 If a policy decision is made to make qualified privilege more generally available to the mass media, this could be done either by revamping s 22, or creating a new specific media defence. Before examining these options, the purpose of s 22 and its current operation should be examined.
The purpose of s 22
9.8 Despite the potential of s 22 to protect media defendants, it was not designed for that purpose. It was created following the 1971 Report of the New South Wales Law Reform Commission on Defamation.5 The Commission was concerned then at the artificiality of the duty/interest requirement of the common law. This was replaced with the test of the reasonableness of the defendant’s conduct in publishing. The context in which the new defence was discussed was that of persons considering whether to enter into a relationship, such as one party extending credit to another, or hiring another as an employee. The specific examples given of bodies which should be able to use the defence were mercantile agencies and credit reference bureaux.
9.9 It seems that the Commission at that time was more concerned with facilitating the operation of business enterprises than protecting the mass media.6
9.10 Section 22 was in fact designed to provide the same protection as was available under s 17 (d) and (e) of the Defamation Act 1958 (NSW).7 However, the way s 22 was drafted means that it operates quite differently in practice (see paragraphs 9.31-9.34 below).
How can media defendants gain the protection of s 22?
9.11 The common criticism by media defendants of s 22 is that it has been interpreted in such a way as to make it impossible for them to satisfy. In particular, the requirement that conduct in publishing be “reasonable” (s 22(1)(c)) is said to have been too narrowly interpreted. Various cases are said to have placed undue emphasis on whether or not the published statements can be proved true (which should only be required for the defence of justification), and whether the defendant believed they were true when they were published.8
Propositions relevant to the requirement of “reasonable conduct” under s 22(1)(c)
9.12 The most complete formulation of the relevant principles under s 22 (1)(c) was laid down by Hunt A-JA (with whom Samuels JA agreed) in Morgan v John Fairfax & Sons Ltd [No 2].9 These may be summarised as follows:
(1) The defendant must establish that its conduct was reasonable in the circumstances in relation to each imputation found in fact to have been conveyed by the matter complained of. (The more serious the imputation, the greater the obligation on the defendant to ensure its conduct was reasonable).
(2) If the defendant intended to convey any imputation so conveyed, the defendant must establish that it believed in the truth of that imputation (except in certain circumstances - see paragraphs 9.14-9.16 below).
(3) If the defendant did not intend to convey any imputation so conveyed, the defendant must establish:
(a) that it believed in the truth of each imputation it did intend to convey (except in the same circumstances); and
(b) that its conduct was nevertheless reasonable in relation to each imputation it did not intend to convey but which was in fact conveyed.
(4) The defendant must also establish:
(a) that before publishing the matter complained of, the defendant exercised reasonable care to ensure it got its conclusions right, (where appropriate) by making proper enquiries and checking on the accuracy of its sources;
(b) that the defendant’s conclusions followed logically, fairly and reasonably from the information it had obtained;
(c) that the manner and extent of publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which the defendant is giving information to its readers.
These propositions were not intended to be exhaustive.
The requirement of belief in truth
9.13 It can be seen that the defendant need not show a belief in the truth of every imputation conveyed - only those it intended to convey. This belief must be “honest”, that is, the defendant must actually hold the belief; it need not be “reasonable”, that is, based on reasonable grounds. (However the defendant’s conduct in publishing must always be reasonable, and the existence of reasonable grounds for the belief is relevant in assessing whether the conduct was reasonable).
9.14 There are even two identified exceptions to the requirement that the defendant honestly believe in the imputations it intended to convey. These were identified in two recent cases.
9.15 In Barbaro v ATV10 a film was produced by another company to be included in the defendant’s telecast. The Court of Appeal held that television can show events as they happen and so act as a primary source. Viewers can thus assess for themselves the imputations conveyed, and the defendant need not show it honestly believed in their truth in order for its conduct in publishing to be reasonable. This can be contrasted to print media articles, which may refer to but do not establish their sources.
9.16 In Collins v Ryan11, an interlocutory decision of Hunt J, the requirement of belief in the truth was discussed in the context of letters to the editor published by a newspaper defendant. Where such letters contain statements of opinion, the defence of comment of a stranger will normally apply. Where they contain statements of fact, however, the defence of comment is unavailable. Hunt J held that it was arguably reasonable for the defendant to provide a forum in which members of the public may not only express their opinions, but also express and debate factual issues, even where the publisher does not honestly believe in the truth of the facts asserted.12
Should these requirements be relaxed?
9.17 In practice s 22 acts to encourage journalists to make proper and careful inquiries. It will not be available if the journalist is careless and does not check the accuracy of sources. Examples of matters which could be relevant were listed in the 1971 Report of this Commission.13 They all emphasise the care taken by the publisher to ensure the recipient is not misled, either as to the facts or as to the reliability of the publisher’s opinions.
9.18 Several commentators have argued that other factors should be expressly considered when assessing whether the defendant’s conduct was reasonable in the circumstances. The aim would be to lessen the perceived emphasis on proof of truth (and belief in truth). These other factors could include: the extent of the public interest in the matter published;14 the status of the plaintiff as a person holding important public office;15 and the journalists’ adherence to his or her professional code of ethics.16
9.19 These could be expressly listed in the legislation, although they would only remain matters to be considered in the court’s discretion.
PROPOSALS FOR A SPECIFIC MEDIA DEFENCE
9.20 The alternative to revamping s 22 to make it more easily available to the mass media is to create a specific media defence. Various attempts have been made to formulate such a defence.
The Defamation Bills 1991
9.21 The Bills introduced into the Parliaments of Victoria and Queensland (and tabled in the ACT) in 1991 would have made an equivalent of s 22 available in those other jurisdictions (cl 27).
9.22 The Bills also contained an additional defence, contained in cl 25. It was designed to extend qualified privilege to the media.17 The New South Wales Legislation Committee which examined the Bill concluded that this defence would cause confusion, would need significant redrafting, would not extend protection much beyond what is available under s 22, and should be abandoned.18
The recommendations of the Legislation Committee
9.23 The Legislation Committee favoured retaining the common law defence of qualified privilege, and the defence under s 22. It also proposed an additional defence, as follows:
The Committee also believes that in matters of sufficient public importance, the defence of qualified privilege should also be available without the requirement of good faith, provided that it was in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit.19
This defence is based on s 17(h) of the Defamation Act 1958 (NSW). Section 17 of that Act listed a number of situations where “qualified protection” was to be available, replacing the common law defence. These provisions were similar to those now in operation in Queensland and Tasmania.
Problems with “qualified protection” under the Defamation Act 1958 (NSW)
9.24 The qualified protection provisions of the 1958 Act were heavily criticised by this Commission in the 1971 Report. The Commission noted that the structure of the section made it difficult to separate various matters: those going to the existence of an occasion of privilege; those going to the nature of the imputations protected on such an occasion; and those showing lack of good faith and so destroying the protection. (Lack of “good faith” replaced the concept of “malice”, which defeats the common law defence). The section relied on various fine and unworkable distinctions, such as that between “motive” (as an element of good faith) and “purpose” (as a matter relevant to the existence of an occasion of qualified protection. For example, under s 17(h) the defendant’s purpose had to be “the discussion of some subject of public interest”). The Commission concluded that the common law defence was more straightforward and more flexible than this list of protected situations.
9.25 Section 17(h) of the 1958 Act was singled out for particular criticism. In its original form it included a confusing reference to comment, which is a separate defence. The Commission went on to say:
Section 17(h) has been the source of great difficulty and many of its problems remain unresolved. But we think that, at least in the context it would have in the proposed Bill, a provision along the lines of s 17(h) would give too extensive a privilege.
Under the Bill, defences of truth are more widely available, a much greater range of reports may be published with impunity, provision is made for escape from liability in the case of “innocent” publication, and exemplary damages are abolished. In this context, a man having no other defence should not, we think, be given a defence by reference merely to the tests of good faith, public interest and public benefit under s 17(h).20
9.26 The Commission went on to reject a qualified privilege defence intended specifically for newspapers which had been proposed to the Shawcross Committee in England in 1965.21 The policy decision which must be made now by the Commission is whether the circumstances have changed so much since 1971 as to necessitate designing a specific defence for the mass media.
Assessment of the New South Wales Legislation Committee’s proposed defence
9.27 The defence proposed by the Legislation Committee is based on the old s 17(h), but makes one important change - it drops the requirement of good faith. This is replaced with the somewhat nebulous concept of “public importance”, which determines those “matters” which attract the protection of the defence. When added to the concepts of “public interest” and “public benefit” (not to mention “public discussion”) which are already part of the defence, this fails to promote clarity. The proliferation of such terms was lamented by this Commission in 1971.22
9.28 In addition, dropping the requirement of “good faith” would make the defence very extensive indeed. In fact, it would not be a “qualified” privilege. At common law the concept of malice is vital since it distinguishes qualified privilege from absolute privilege. The concept of malice would have to feature in some form in any proposed statutory qualified privilege defence for the media.
9.29 The Legislation Committee may have intended to avoid the problem raised by the defence in cl 25 of the Bill, which would have added the concept of “good faith” to that of malice.
A better defence for the media
9.30 If a specific media defence is desirable, it may be preferable to base it on s 17(e) of the Defamation Act 1958 (NSW), rather than s 17(h).
9.31 Section 17(e) read:
17. It is a lawful excuse for the publication of defamatory matter if the publication is made in good faith -
...
(e) for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances.
9.32 The requirement of “good faith” was defined in the 1958 Act. This could be replaced with a provision that the defence is defeasible if malice is shown, as at common law. Spelling out a definition of “good faith” was argued to contain too great a risk of injustice in the 1971 Report of this Commission.23
9.33 It can be seen that the reasonableness of the defendant’s conduct depends on the extent of the recipient’s interest in the truth. No inquiry is made into the circumstances of the publication, and no inquiry is made into the defendant’s belief in the truth of what was published. (Note that lack of belief in truth will generally negative good faith, or show malice; but the onus is on the plaintiff to show malice).24
9.34 Section 22 actually was intended to provide the same protection as that available under the old s 17(e) (and s 17(d)). However, because of the requirement under s 22 that the defendant’s conduct in publishing must be “reasonable in the circumstances”, all circumstances of the publication must be considered. Reasonableness does not depend solely on the extent of the recipient’s interest in knowing the truth. Thus, s 22 does not provide the same protection as the old s 17(e).
Benefits of a defence based on s 17(e)
9.35 Extends protection to the media. This defence should be quite easy for the media to use, as was shown in Calwell v Ipec Australia Ltd.25 In that case the defence was established even though neither party called any oral evidence in chief. In particular, neither the author of the article nor anyone else on behalf of the defendant was called to give evidence of his belief in the truth of what had been published. It was held that the issues to be considered are:
(i) the purpose of the publication;
(ii) its subject matter;
(iii) the interest of the public in knowing the truth; and
(iv) the relevance of the imputations concerning the plaintiff to the subject about which the defendant was giving information to the public.26
9.36 Such a defence would recognise that there are occasions where it is in the public interest for certain information to be revealed, but the media defendant is unable or unwilling to prove the truth of that information. It allows the media to perform their socially desired and useful role of promoting debate on matters of public interest. The defence also recognises that in practice the media cannot always establish the truth of information in the same way that a court does; and it recognises that courts cannot always establish the absolute truth (in a philosophical sense) anyway.27
9.37 Protection of sources. One of the most common complaints levelled at the current s 22 is that a media defendant almost always must reveal the sources of its information at trial in order to establish the defence. This is because the likelihood of the truth of the information and the defendant’s belief in its truth are relevant matters when deciding whether the defence is made out, as discussed above.
9.38 By contrast, under the old s 17(e) belief in truth does not have to be shown to establish the elements of the defence. These elements can be established at trial without the journalist having to give evidence or reveal sources. Once they are established, the onus passes to the plaintiff to defeat the defence by showing lack of good faith. If evidence of this is produced, the defendant can then choose whether to reveal its sources.
Problems of a defence based on s 17(e)
9.39 Encouragement of media carelessness. As discussed above, the current s 22 places a strong emphasis on the care taken by the publisher to ensure the information and conclusions are accurate. Less emphasis is placed on this by s 17(e), because the reasonableness of the defendant’s conduct does not depend on all the circumstances, but only on the extent of the public’s interest in knowing the truth.
9.40 This does not seem to make good sense, because it means that the more the public craves information about a particular issue, the less care the media need to take in giving them that information.
9.41 This concern could be allayed by adding a requirement of “reasonable care” to the elements of the defence. The requirement would have to be carefully framed to avoid reintroducing the same “reasonable conduct in the circumstances” test of the current s 22. Such a requirement also could mean that sources would have to be identified, at least in a general way. Alternatively, it would be open to the plaintiff to argue that failure to make reasonable inquiries is evidence of malice (or lack of good faith).28
9.42 Too extensive a privilege? A defence based on s 17(e) may protect the publication of false and defamatory statements, denying redress to plaintiffs who cannot produce evidence of lack of good faith.
Should a defence based on s 17(e) be linked to a reply?
9.43 As discussed above in Chapter 2,29 it may be appropriate to require a media defendant to offer a reply to persons allegedly defamed in order for this defence to succeed. This is because the defence should be relatively easy to establish, and difficult for plaintiffs to defeat by finding evidence of malice (or lack of good faith).
9.44 This defence is based on the extent of the public interest in the matter published. It may be appropriate therefore for a reply to be available to protect individuals, and to increase the flow of information to the public.30 There are three ways this could be done. One is to make offering an opportunity to reply, within a strict time limit (say one week) of one being requested or service of a statement of claim, a condition for the success of the defence (which then bars damages).31 The second is to provide that offering a reply is not a condition for the success of the defence but is only evidence of good faith. The third is to award an opportunity to reply as a final remedy to the plaintiff in cases where this defence succeeds; this means the media qualified privilege defence would be a “partial” one, in that it does not bar all remedies to the plaintiff.
9.45 Option 1 - Offering reply to be an element of media qualified privilege defence. The advantage of this option is that it quickly puts both sides of the debate before the public. It allows plaintiffs to clarify the position and contain any unjustified damage to their reputations. If the plaintiff rejects the defendant’s offer, the plaintiff will lose at trial (provided that the other elements of the defence are made out).
9.46 Defendants should not be obliged to publish unreasonable replies. Guidelines should be provided as to what is reasonable: the reply should appear in the same part of the newspaper or broadcast as the original defamatory matter, be moderate in tone and length, and not expose the defendant to suit by third parties. Other suggestions are that the reply should be limited to facts and be restricted solely to the defamatory imputations arising. This should avoid a possible problem for media defendants, in that a reply thought to be too long or irrelevant may later be held reasonable, and so a hurried decision not to publish it will deny the defence.32
9.47 Option 2 - Offering reply to be evidence of good faith. It may be impractical for the media to afford an opportunity to reply to all who complain that a story has defamed them. Given this, it may be thought undesirable to make the defence conditional on offering a reply. An alternative is to provide that offering a reply is evidence of good faith (and vice versa).33
9.48 Option 3 - Reply to be final relief where media qualified privilege made out. The advantage of this approach is that a plaintiff still gains some relief if the defence is established, and that the free flow of information is promoted. The defendant would not be forced to publish a reply under pressure in order to use the defence.
9.49 The problem with having the reply as final relief is that it will not be published until after trial of the action, which may simply rake up old accusations. If it appears that the defence will succeed, though, the action may be settled on terms that a reply be published.
9.50 Another disadvantage is that the court will have to play an active role in drafting the reply, assessing the impact of the original defamatory material, and deciding what reply would be appropriate for the particular publication. Under Options 1 and 2, the content and form of the reply will largely be negotiated between the parties, relying on the guidelines provided. The court will only have to assess the merits of particular suggested replies if agreement cannot be reached and the case comes to trial.
9.51 Both of Options 2 and 3 were used in the defence contained in cl 25 of the Defamation Bill 1991. Offering a reply was evidence of good faith (cl 25(2)). If the defence succeeded - and the court decided that the statement was false - it could order the defendant to publish a reply approved by the court (or a mediator appointed by the court) (cl 25(4)).
THE PROTECTION OF JOURNALISTS' SOURCES
9.52 Discussion of statutory qualified privilege raises the question of whether specific protection should be given to journalists’ sources. Attempts by the media to rely on s 22 have usually created a dilemma: should journalists reveal the sources of their information at trial in order to show that publication was reasonable? Or should journalists adhere to their professional code of ethics, which states that “In all circumstances they shall respect all confidences received in the course of their calling”?34
9.53 Additional conflicts have arisen in the context of whether the media can be forced to reveal sources before trial. The “newspaper rule” is a discretionary rule of practice which states that the media will not be required to reveal their sources in pre-trial interrogatories or discovery of documents, unless it is necessary in the interests of justice. However, it has been held not to protect against preliminary discovery aimed at revealing the identity of the source so that the plaintiff could sue it (rather than suing the media). This was in a case where the media defendant might well have succeeded on the defence of statutory qualified privilege, which meant that the plaintiff would be denied an effective remedy against the media defendant. In those circumstances, the defendant had to abandon the defence of statutory qualified privilege to have the order for preliminary discovery set aside.35
The wider issues raised by the question of protecting journalists’ sources
9.54 Arguments for the protection of journalists’ sources are based on promotion of the free flow of information and the public’s “right to know”. The media’s important role in this process would be compromised if the sources of that information were not allowed to remain confidential. Information would be less forthcoming, and the public interest would not be served.
9.55 In effect, arguments for “shield laws” to protect journalists from compulsion to disclose sources are seeking a form of professional privilege. It can be distinguished from other forms of privilege, such as that between lawyers and clients, because it seeks to protect not the content of the information (which usually already has been published) but its source.
9.56 This complex and difficult issue really relates to the laws of evidence and contempt. The Commission is reviewing what changes may be desirable to practice and procedure in the law of defamation. In this context, it would be inappropriate to embark on a review of evidence law (and privileged communications in particular) and contempt of court.
9.57 Extensive work is being done on protection of sources by other bodies. The Western Australia Law Reform Commission (WALRC) has recently released a Report on Professional Privilege for Confidential Communications, focussing mainly on journalists’ privilege.36 In New South Wales, the State Opposition has recently released a Discussion Paper which effectively endorses the recommendations of the WALRC.37 In May 1993, the Federal Senate Standing Committee on Legal and Constitutional Affairs received a reference on Rights and Obligations of the Media, requiring an examination of (among other things) “the need for journalists to protect the identity of their sources of information”. Several proposals have been put to the governments of Queensland38 and South Australia.39 Specific examination of such an important issue is clearly preferable to an incidental look at it in the course of reviewing defamation law.
9.58 However, it is necessary to examine the question of protection of sources when any proposals concerning statutory qualified privilege are discussed. Difficulties arise in two contexts: before trial and at trial.
Protecting sources before trial when statutory qualified privilege is raised
9.59 If statutory qualified privilege becomes more widely available to the media, it seems likely that there will be more preliminary discovery applications seeking the identity of sources. This is because there will be more cases where the defendant “might well succeed” on the defence, and so more cases where the media defendant will be in a better position than the source to defend the action. Thus more plaintiffs will seek to commence defamation proceedings against the source rather than the media defendant. As has happened in the United States, an expansion of qualified privilege may result in an erosion of the protection of sources.40 This issue must be carefully considered when assessing any proposals for relaxing the requirements of s 22 or introducing a new media defence.
Protecting sources at trial
Under the current s 22
9.60 In most cases a media defendant will have to reveal its sources at trial in order for the defence under s 22 to succeed. It will be difficult for the defendant to show that its conduct in publishing was reasonable in the circumstances without revealing the nature and source of its information. Even if this can be done, disclosure of the source still may be ordered, because it may be otherwise impossible for the plaintiff to produce evidence of malice in order to rebut the defence.
9.61 Sources also may have to be revealed where the plaintiff seeks only a judicial declaration, under the remedial regime discussed in Chapter 2. In such an action the qualified privilege defences are not available. However, if the source is not revealed, a declaration that the defendant has not been able to substantiate the relevant imputation is likely, if not a declaration that it is false.
9.62 It is thus open to a media defendant to preserve the confidentiality of its sources by, in effect, making itself more vulnerable in a defamation action. The difficulty is finding a way of making a defence such as s 22 available while still preserving the confidentiality of sources.
9.63 It may be possible to give judges various options when considering claims for the protection of sources. The WALRC has recommended that judges be given a discretion to excuse witnesses from answering questions or producing documents in judicial proceedings, where this would involve a breach of confidence between the witness and a confidant.41 The proposed discretion is specifically extended to questions seeking the identity of sources. The court is required to weigh the public interest in having the evidence before the court against the public interest in preserving confidences between persons in the relative positions of the witness and the confidant, and in the encouragement of the free flow of information between such persons.
9.64 The court must consider the following matters:
(a) the likely significance of the evidence to the matters in dispute;
(b) the nature of the confidence and the relationship between the witness and the confidant;
(c) the effect of disclosure on any person and the community, taking into account the ethical, moral or religious dictates of certain professions which demand non-disclosure; and
(d) any means available to the court to limit the adverse consequences of disclosure, and any alternative means of proving relevant facts.
The scope of this discretionary protection is not restricted to journalists’ sources but extends to other professions and vocations. However, it can be seen that the journalists’ ethical obligation not to disclose sources is a relevant factor.
9.65 Courts have a number of options available to ensure that disclosure is necessary (because the evidence is centrally relevant and cannot be obtained in any other way), and to limit the adverse consequences of disclosure. A number of these have been discussed in the United States, where disclosure of sources is usually required in order to give the plaintiff some chance of proving actual malice under the public figure test (see Chapter 10). Some American states have enacted shield laws to protect sources; in those which have not, a complex body of case law governing the court’s discretion has developed. When disclosure is requested, options for the judge include:42
(i) deferring the question of confidentiality to assess relevancy;
(ii) requiring all non-confidential sources to be examined first;
(iii) inspecting the journalist’s notes in camera;
(iv) ordering limited disclosure only to counsel;
(v) ordering a closed court while the source is revealed; and
(vi) making a suppression order to ensure that the identity of the source is disclosed only to the court and the parties.
9.66 One United States case held that in appropriate circumstances, disclosure of the source will not be required, but that as a consequence the court may draw the inference that no source existed.43As discussed above, in many cases in New South Wales, it would be very difficult to establish a defence under s 22 if it was assumed that no source existed.
Under the proposed defence based on s 17(e) of the Defamation Act 1958 (NSW)
9.67 As discussed above, it would not usually be necessary for the media defendant to disclose its sources in order to make out the elements of this defence. If a plaintiff raised a prima facie case of malice (or lack of good faith) which threatened to defeat the defence, the defendant would have the option of revealing its sources in order to show it did not act with malice.
Summary
9.68 The Commission is attracted to the idea of a structured discretion along the lines suggested by the WALRC. Such a discretionary power in the judge, to decide whether disclosure of confidential information is required, would offer some encouragement for the free flow of information in the public interest, while ensuring that justice is done as between plaintiff and defendant. Of course, it is a large question whether such a power should be granted at all. The terms and extent of the power raise equally complex issues.
BASING THE LAW OF DEFAMATION ON NEGLIGENCE
9.69 In oral evidence and written submissions to the New South Wales Legislation Committee on the Defamation Bill 1992, Mr Stuart Littlemore advanced a proposal for simplifying statutory qualified privilege and in fact the whole law of defamation.44 This proposal was extensively discussed in other evidence and submissions to the Committee, which concluded:
The Committee is concerned that there may be unperceived consequences of Mr Littlemore’s proposal; the Committee is not in a position to predict what they might be. However, the Committee is of the view that the proposals are worthy of consideration and recommends that the Law Reform Commission examine ways by which the law of defamation could be simplified.45
The proposal
9.70 Mr Littlemore argued that defences to defamation are extremely complicated. Most members of the community may understand truth and public interest, and comment, but qualified privilege could be simplified to the Donoghue v Stevenson46 standard of a failure to exercise a duty of care.
9.71 Mr Littlemore proposed that one of two approaches could be taken. One would treat defamation law as involving both intentional and unintentional torts. It would involve these elements:
- absolute privilege;
- fair and accurate reports of absolutely privileged occasions;
- truth and public interest;
- fair comment on an appropriate factual basis; and
- statutory privileges (reports to/by the Ombudsman, etc).
3. Unintentional defamations would be defined as those where the publisher asserts that it did not intend to make the or any defamatory imputation.
4. The sole defence to unintentional defamation would be due care. This defence would be defined as non-negligent publication. In the case of a mass media defendant, “negligence” would include breach of the industry code (whether enacted or not) as the equivalent of statutory breach.
5. The remedy awarded would be damages, which would be aggravated by the following factors:
- intentional defamation;
- failure to apologise / correct / retract at the first opportunity; and
- malicious publication.
9.72 The second approach would not distinguish between intentional and unintentional defamations. Defendants would be given a choice of defences. This alternative structure would be as follows:
- A single category of defamation.
- Defence of privilege.
- Further defence of due care.
- Damages (aggravated by failure to apologise / correct / retract at first opportunity, and by malice).
9.73 Mr Littlemore argued that this proposal’s “main effect is to remove the confusion of the competing qualified privilege defences, replacing them with a concept of negligent publication as the basis of liability.”47
Assessment of the proposal
9.74 Many submissions to the Legislation Committee commended the relative simplicity and clarity of the Littlemore proposal, compared to the common law (as modified by the Defamation Act 1974 (NSW)). A standard of negligence - the duty of care expected of a reasonable journalist in the circumstances - is much easier for practitioners to understand and apply. It would thus clarify the obligations of media defendants and individual journalists.
9.75 The proposal was motivated by concern at the complex difficulties present in the common law and statutory forms of qualified privilege. However it effects an overhaul of the whole law of defamation, almost assimilating it into negligence. This may indeed have some unintended effects. For example, as was pointed out in evidence by Mr Graham Bates,48 the onus is on the plaintiff to establish the elements of the tort of negligence (duty of care; breach of duty; causing damage). In the tort of defamation as it currently exists, the plaintiff need only prove that the matter was published; which gives rise to an imputation of and concerning him; and that the imputation is defamatory. Proof of damage is not required; and the burden is on the defendant to establish defences.
9.76 It is arguable that the current law requires defendants to take reasonable care anyway. They risk failing on the defences of justification and comment if they do not check the truth of statements of fact. More particularly, the defence of statutory qualified privilege under s 22 appears to contain the essence of Mr Littlemore’s proposal. The principles formulated by Hunt A-JA with respect to the requirement that conduct in publishing be reasonable in the circumstances (see above, paragraphs 9.12-9.16) show that reasonable care is at the heart of the s 22 defence. This Commission originally emphasised care when it formulated matters to be considered in assessing whether the defendant acted reasonably.
9.77 The criticism of the current s 22 - that it places too much emphasis on whether the defendant can prove truth and belief in truth - is still likely to be levelled at the defence of due care proposed by Mr Littlemore. This is because:
[a] newspaper with a wide circulation that publishes defamatory comments on untrue facts will in the ordinary course of events have no light task to satisfy the judge that it was reasonable to do so.49
9.78 The truth of the imputations published would thus continue to remain significant under a defence of due care. It would remain difficult for a media defendant to show that due care was exercised when false and defamatory statements were widely published.
9.79 When assessing whether due care was exercised, the tort of negligence applies the concept of reasonable foreseeability. This concept is already applied under s 22 when assessing whether the defendant acted reasonably. If an imputation is found to have been conveyed, and it was reasonably foreseeable that the matter complained of might convey it, a relevant question is whether the defendant considered the possibility that it might be conveyed by what was published.50
9.80 The proposal was advanced as a means of simplifying the qualified privilege defences. Since the defence of statutory qualified privilege already appears to contain the essence of the proposal, the issue which arises is whether the entire tort should be redefined as suggested.
9.81 The Commission welcomes submissions on this proposal.
ISSUES ARISING IN CHAPTER 9 - STATUTORY QUALIFIED PRIVILEGE
This chapter looks at the availability to media defendants of a defence of statutory qualified privilege. As interpreted by the courts, the current s 22 arguably places undue emphasis on proof of truth and belief in truth. This defence has very rarely been successfully pleaded by media defendants.
1. Should qualified privilege be made more generally available to media defendants?
If so, is this best achieved by:
- broadening the requirements for establishing “reasonable conduct” under s 22(1)(c) of the Defamation Act 1974 (NSW)?
- introducing a specific media defence based on s 17(h) of the repealed Defamation Act 1958 (NSW), as recommended by the New South Wales Legislation Committee?
- introducing a specific media defence based on s 17(e) of the repealed Defamation Act 1958 (NSW). If so, should such a defence be linked to a reply?
2. Should journalists’ sources be protected when statutory qualified privilege is raised, and if so how should this be done?
3. Should statutory qualified privilege, and in fact the whole law of defamation, be simplified to the Donoghue v Stevenson standard of failure to exercise a duty of care, so that negligent publication becomes the basis of liability?
FOOTNOTES
1. In Western Australia only the common law defence applies to civil actions; the Code defences apply to criminal prosecutions: Western Australian Newspapers v Bridge (1979) 141 CLR 535.
2. Note that the issue of the availability of this defence under the judicial declaration proposal is discussed in Chapter 2.
3. A A Henskens “Defamation and investigative journalism in New South Wales: the evolution of statutory qualified privilege” (1990) 6 Australian Bar Review 267.
4. Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493 is one example. The defence was also established at the second trial in Morgan v John Fairfax & Sons Ltd (unreported), Supreme Court, NSW, 1 September 1989, Matthews J, CLD 17196/83; this finding was not overturned, although it was held on appeal that its factual basis had not been properly established. It is not known how many actions may have been settled, or potential actions deterred, because statutory qualified privilege was available.
5. New South Wales. Law Reform Commission Defamation (Report 11, 1971) at 98-101 (paras 101-117).
6. Further evidence for this conclusion is given by the Commission’s rejection of a defence based on s 17(h) of the 1958 Act: see NSWLRC Report 11 at 96-97 (paras 94-96).
7. NSWLRC Report 11 at 98 (para 103).
8. Henskens at 270-71; Law Council of Australia Submission to NSW Legislation Committee (30 January 1992) at 7-10.
9. (1991) 23 NSWLR 374 at 387-388.
10. (1989) 20 NSWLR 493 at 500-501 per Samuels JA (with whom Hope JA and Priestley JA agreed).
11. (1991) 6 BR 229 at 233-236.
12. The actual existence of this proposed defence of statutory qualified privilege could not be decided in advance of trial. It was not decided at trial, because the jury found that the pleaded imputations were not conveyed: Collins v Ryan (unreported) Supreme Court, NSW, 17 December 1992, Sharpe J, S10959 of 1988.
13. NSWLRC Report 11 at 98 (para 105).
14. J Fliece “Three men and a discussion paper: a new form of defamation law reform” (1990) 15 Legal Service Bulletin 257 at 261.
15. A A Henskens Evidence before NSW Legislation Committee (19 February 1992) at 15-16; J G Fleming The Law of Torts (8th edition, Law Book Company, Sydney 1992) at 572-573.
16. S Littlemore Evidence before NSW Legislation Committee (18 February 1992) at 106-107. Mr Littlemore proposed that pleading a breach of the Code of Ethics could be a way of showing malice, rather than lack of reasonableness.
17. Attorneys General of Queensland, New South Wales and Victoria Reform of Defamation Laws - Discussion Paper (No 2) (February 1991) at paras 6.27-6.31; P Collins NSW Parliamentary Debates (Hansard) (Legislative Assembly, 14 November 1991) at 4584.
18. Legislation Committee on the Defamation Bill 1992, Report on the Defamation Bill 1992 (Legislative Assembly, Parliament of New South Wales, October 1992) at 67-70, 74-77.
19. NSW Legislation Committee Report at 77.
20. NSWLRC Report 11 at 96-97 (paras 94-95). See also at 8 (para 14).
21. NSWLRC Report 11 at 97 (para 96).
22. NSWLRC Report 11 at 91 (para 59). See also Fleming at 575.
23. NSWLRC Report 11 at 100-101 (paras 113-117).
24. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 42-44.
25. [1973] 1 NSWLR 550 (NSW Court of Appeal); (1975) 135 CLR 321 (High Court).
26. [1973] 1 NSWLR 550 at 562-563; (1975) 135 CLR 321 at 331.
27. P Applegarth “The defamation lottery” (1990) 12 Australian Journalism Review 26 at 28-30; Henskens at 268-269.
28. Applegarth at 31-32.
29. See paragraphs 2.62 - 2.65.
30. J G Fleming “Retraction and reply: alternative remedies for defamation” (1978) 12 University of British Columbia Law Review 15 at 23, 25; Applegarth at 27-28.
31. The New Zealand Defamation Act 1992 makes the defence of fair report of certain proceedings (which it calls a defence of “qualified privilege”, because it is defeasible if the defendant is motivated by ill will) conditional on the defendant (being a newspaper or broadcaster) agreeing to the plaintiff’s request for a reply: s 18(2). Linking replies to the fair report defence has been criticised because the rationale for this defence is not providing accurate information to the public, but maximising the publicity given to the proceedings; and because publication of replies may question the integrity of the proceedings: Applegarth at 33.
32. Applegarth at 33-34.
33. Applegarth at 33.
34. Registered Rules of the Media, Entertainment and Arts Alliance, Rule 65 (Journalists’ Code of Ethics), Item (c).
35. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 (High Court); unreported, Supreme Court, NSW, Court of Appeal, 13 November 1990, Kirby P, Mahoney and Handley JJA.
36. Western Australia. Law Reform Commission Report on Professional Privilege for Confidential Communications (Project No 90, May 1993).
37. Journalists and their Sources: a NSW Opposition Discussion Paper (August 1993).
38. NSW Legislation Committee Report at 109.
39. J Kerin “Improve ethics or no media law reform”, The Australian, 11 May 1993, at 4; C Hackett “Law to protect sources tipped”, The Advertiser, 11 May 1993, at 8.
40. T K Tobin “Disclosure of journalistic sources”, paper presented at the seminar Latest Developments in Media Law (Sydney, 4 December 1992), at 15-17.
41. WALRC Report (Project 90) at paras 8.38-8.55.
42. R Brown The Law of Defamation in Canada (Carswell, Toronto 1987), Vol 2, at 1162-1164; WALRC Report (Project 90) at paras 2.1-2.19.
43. Downing v Monitor Publishing Co 120 NH 383, 415 A 2d 683 (1980).
44. S Littlemore Submission to NSW Legislation Committee (12 December 1991) at 10; Evidence before NSW Legislation Committee (18 February 1992) at 100-105; Submission to NSW Legislation Committee (21 February 1992) at 1-3.
45. NSW Legislation Committee Report at 79-90.
46. [1932] AC 562.
47. Submission to NSW Legislation Committee (21 February 1992) at 1-3.
48. Evidence before NSW Legislation Committee (27 April 1992) at 12.
49. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 360 (Privy Council).
50. Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387-388 per Hunt A-JA.
