10.1 Qualified privilege is a defence to the publication of defamatory statements which may be false but which warrant protection from an action in defamation because the occasion on which they are made demands that they be made freely with the prospect of litigation removed. The protection is not as great as that given by absolute privilege and can be defeated if the defendant is found to be motivated by malice. At common law, the defence is available if the statement is made in the performance of any legal, moral or social duty or interest, to a person having a corresponding duty or interest to receive it.1 A common example is that of a current or former employer providing a character or professional reference for an employee (or former employee) at the request of a person proposing to make a job offer to that employee.
10.2 The common law defence is accompanied in New South Wales by a defence of statutory qualified privilege under section 22 of the Defamation Act 1974.2 Section 22 provides a defendant with a defence of qualified privilege in circumstances where:
(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 information to him or her on the subject; and
(c) the conduct of the publisher in publishing the matter was reasonable in the circumstances.
The effect of section 22 is to overcome the restrictions of the duty/interest requirement at common law and to focus attention on reasonableness in all the circumstances.3
10.3 The decision in Theophanous v Herald & Weekly Times4 now supplements the operation of both the common law defence of qualified privilege and s 22 of the Defamation Act 1974 (NSW) by applying the constitutional implication of freedom of political discourse to the law of defamation. The effect is to provide a defendant whose publication occurs in the course of political speech with a defence to a claim in defamation provided that the defendant can establish the elements of the defence.
10.4 The focus of this chapter is the operation of the qualified privilege and constitutional defences in respect of media defendants. This is the practical context in which the law gives rise to problems.
COMMON LAW QUALIFIED PRIVILEDGE
10.5 In order to rely on a defence of qualified privilege at common law, the person who makes a statement must have an interest or a duty (legal, social or moral), to make the statement to the person to whom it is made, and the recipient of the statement must possess an interest in receiving, or a duty to receive, the information that corresponds with the interest or duty of the person making the statement.5 The question of moral or social duty is a question on the facts of each case.6 According to traditional learning, proving reciprocity of duty and interest poses difficulties for mass media defendants who attempt to rely on the defence. Only in exceptional cases would a person have an interest or duty to publish defamatory matter to the world at large.7 Further, the defence is not absolute as it may be defeated if the plaintiff can establish that the defendant’s conduct was motivated by malice. One way to prove malice is to show that the publisher did not have an honest belief in the truth of what was published.8
10.6 In the light of the majority judgments in Stephens v WA Newspapers9 and Theophanous, the traditional understanding of common law qualified privilege now needs re-evaluation in respect of the reciprocal interest and duty requirement. Although the common law has on occasion upheld defences of qualified privilege for publications to the world at large,10 it has generally taken a restricted view of the occasions when a person has an interest or duty to publish material to the general public. However, the joint majority judgment in Theophanous now holds that the public at large has an interest in the discussion of political matters such that each and every person has an interest, of the kind contemplated by the common law, in communicating his or her views on those matters and each and every person has an interest in receiving information on those matters. Such an interest exists at all times, and it therefore follows that the discussion of political matters is an occasion of qualified privilege.11 This very substantial expansion of the range of privileged occasions was applied in a recent Victorian case.12
10.7 A more limited extension of the scope of the defence was proposed by Justice McHugh in his dissenting judgment in Stephens. Justice McHugh was of the view that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. His Honour was also of the opinion that persons with special knowledge of the exercise of public functions or powers or the performance by public representatives or officials of their duties, will, on occasions, have a corresponding duty or interest to communicate information concerning such functions, powers and performances to members of the general public. As a result, the existing common law categories of qualified privilege should be extended to protect communications made by such persons - for example, whistleblowers and investigative journalists. Such protection should also extend to the media which have an ancillary privilege to publish such information in good faith.13
10.8 Another limited extension of qualified privilege, focusing also on the role of the media in reporting statements of public interest, was proposed by Justice Brennan in his dissenting judgment in Stephens. His Honour would attach a qualified privilege to media reports, other than those of the proceedings of public bodies, where there is a duty to inform the public in order to allow the public to perform its own proper functions as viewed from time to time. Whether or not the privilege would attach in any case depends on a balancing of four factors: the “public interest” content of the statement; the fairness and accuracy of the report; the publisher’s reasonable belief that the maker of the statement had particular knowledge of the defamatory matter; and the opportunity afforded to the defamed party to respond. The requirement that the defamed person must have been offered a right of reply is noteworthy. It is aimed (like the requirement that the publisher have a reasonable belief that the maker of the statement has particular knowledge of the defamatory matter), at providing the public with some assurance of the truth of the defamatory statement.14
SECTION 22 OF THE DEFAMATION ACT 1974 (NSW)
10.9 While the first two conditions of this section overcome the restrictions of the reciprocity requirement at common law,15 it is the interpretation of “reasonableness” which defendants (particularly media defendants) see as unduly limiting the scope of the defence. Section 22 may have been intended to provide the same protection as that available pursuant to s 17(d) and s 17(e) of the Defamation Act 1958 (NSW).16 Those sections provided a defence of qualified privilege in specific cases where the publication was in answer to an inquiry, or where the purpose of it was to provide information. They did not require any examination of the circumstances of the publication; in particular, there was no requirement for a defendant to establish belief in the truth of what was published.17 However, it was quickly established that section 22 did not have the same effect as the provisions of the 1958 Act.18 For section 22 requires that the defendant’s conduct in publishing must be reasonable in the circumstances, and this does not solely depend on the extent of the recipient’s interest in knowing the truth.
10.10 The meaning of “reasonableness” in this context was authoritatively established by the Court of Appeal in Morgan v John Fairfax & Sons Ltd.19 This decision explains the construction of s 22 (1)(c) in the following way: in circumstances where a publisher intends to convey an imputation that is found to be conveyed, the defendant must establish that it believed in the truth of that imputation; but where a defendant did not intend to convey any imputation which was in fact so conveyed, the defendant must establish that its conduct was nevertheless reasonable in relation to each imputation it did not intend to convey but which was in fact conveyed. Reasonableness in the latter case requires the court to take into account whether the defendant held a belief in the truth of the matter published, but it is not the sole factor consdered by the court.20
10.11 Some media submissions received in response to DP 32 voiced dissatisfaction with this unwarranted emphasis on proof of belief in truth. It was argued that this does not serve the public interest in the free flow of information. Generally, media submissions tended to prefer versions of statutory qualified privilege - such as those found in s 17(e) of the Defamation Act 1958 (NSW) - which do not require the reasonableness of a defendant’s conduct to depend on the defendant’s belief in the truth, but focus rather on the strength of the recipient’s interest in knowing the truth.21 Suggested reform of s 22 excluded the necessity of establishing an honest belief in the truth of any imputation held to arise; however, it was accepted that publication of matter that was known to be untrue should negate such a defence.22
10.12 A factor underlying media concerns with the interpretation of section 22 is the fear of possibly having to reveal sources in order to establish an honest belief in the truth of what is published. This issue is addressed below at paras 10.21-10.27.
THE CONSTITUTIONAL DEFENCE
10.13 In Australian Capital Television Pty Ltd v Commonwealth23 and Nationwide News Pty Ltd v Wills,24 the High Court recognised a constitutional implication of freedom of political discussion, derived from the principle of representative government which forms part of the Constitution. The majority in Theophanous and Stephens held that the constitutional implication extends in principle to State defamation laws which may otherwise restrict the freedom of the people to engage in political discussion. They were further of the opinion that existing State defamation laws do seriously inhibit freedom of communication on political matters, especially in relation to the views, conduct and suitability for office of an elected representative of Parliament.
10.14 The High Court held that, where the defendant publishes false and defamatory statements in the course of political speech, the defendant is not liable in damages in a defamation claim unless the defendant can show that: (a) it was unaware of the falsity of the matter; (b) it did not publish recklessly (that is, not caring whether the matter was true or false); and (c) the publication was reasonable in all the circumstances.25 “Reasonableness” in these circumstances requires a defendant to show that it took steps to check the accuracy of the material published, or that it was justified in publishing without checking, or that it took steps that were adequate in the circumstances.26
10.15 Theophanous provides the media with a defence to a defamation action when material is published in the course of political discussion. The efficacy and range of the defence as a “media defence” will, however, depend on a number of factors. First, as we have already discussed in this Report, the parameters of “political discussion” have yet to be determined.27 Thus, it is not yet clear whether or not the defence will only arise when the plaintiff is a member of Parliament, a parliamentary candidate or a public official.
10.16 Secondly, the meaning which the courts give to the “reasonableness” requirement of the Theophanous test will be crucial.28 Both at common law29 and pursuant to section 22,30 “reasonableness” in the context of qualified privilege normally requires an honest belief in the truth of what was published. But the focus in Theophanous was on whether adequate and appropriate steps were taken to check the accuracy of the material,31 rather than on the defendant’s belief in the truth of the material. The majority likened the implied freedom to the statutory defence of lawful excuse provided by section 377(1)(h) of the Criminal Code (Qld).32 The policy behind the Queensland defence is the encouragement and protection of freedom of discussion on a matter of public interest for the benefit of the public. The provision does not require that persons wishing to participate in the discussion of matters of public interest must satisfy themselves of the truth of the facts upon which the discussion is based.33 This seems to indicate that belief in the truth of what is published does not form part of the constitutional defence.
10.17 Thirdly, to the extent to which “political discussion” and “reasonableness” prove limiting factors, the constitutional defence may prove practically unimportant in the light of the broad view of common law qualified privilege taken by the majority in Theophanous and in Stephens v WA Newspapers.34 The joint majority judgment in Theophanous35 stated that the availability of the defence derived from the Constitution will inevitably have the consequence that the common law defence of qualified privilege will have little, if any, practical significance where publication occurs in the course of the discussion of political matters. However, this proposition is difficult to reconcile with the expansion of common law qualified privilege to cover “political discussion”.36
EVALUATION OF COMMON LAW QUALIFIED PRIVILEDGE, SECTION 22 AND THECONSTITUTIONAL DEFENCE
10.18 The Commission has been concerned throughout this Report to ensure that reform of the law of defamation only interferes with freedom of speech where the provision of such freedom would tilt too heavily against protection of reputation. A consequence of the decision in Theophanous is a greater latitude for freedom of political speech. Deterrence of even ill-founded political statements is liable to be subversive of the basis and working of the system of representative government.37 Outside the context set by that decision, however, the balance between freedom of speech and protection of reputation needs to be weighed differently. While the Commission recognises that the media have an important role in conveying information about State agencies and public officials to the public, it does not suggest that the media should have a generally privileged status in public debate.38
10.19 Whatever the truth or falsity of the allegedly defamatory matter, providing the community with information on a topic of political discussion may override in importance any consideration of compensating damage to individual reputation, provided that the publication is a reasonable one.39 However, for some issues that fall outside the scope of “political matters”, there may not be an equivalent public interest factor (other than curiosity and scandal-mongering) which could afford similar immunity. In such cases, the protection of personal reputation may outweigh the public’s interest in the subject matter. In those cases, both the common law and s 22 require a publisher to demonstrate that the publication was reasonable by proving an honest belief in the truth of what was published. The Commission believes that this premise is correct, for freedom of speech is not unqualified and the power which it confers requires accountability.40
10.20 The Commission makes no recommendation to alter the existing common law or statutory qualified privilege defence at this stage. In the Commission’s view, any developments regarding the duty/interest requirement should be left to the common law. Given the state of flux into which the recent High Court decisions have plunged the law of qualified privilege, any codification of the common law at this stage would be premature.
REVELATION OF SOURCES
10.21 The statutory defence of qualified privilege requires a defendant to establish that the publication was reasonable. As a part of proving “reasonableness”, the publisher is usually required to establish a belief in the truth of the matter published. How a court requires a defendant to prove that belief will depend on the circumstances of each case. The defendant may be required to reveal the source of the allegedly defamatory material to show its conduct was reasonable (rather than identifying the defendant’s source generally).
10.22 In John Fairfax & Sons v Cojuangco, the High Court stated that:
It is a fundamental principle of our law, repeatedly affirmed by Australian and English courts, that the media and journalists have no public interest immunity from being required to disclose their sources of information when such disclosure is necessary in the interests of justice.41
Potentially this conflicts with a section of the Journalists’ Code of Ethics which states that journalists shall “in all circumstances ... respect all confidences received in the course of their calling”.42
10.23 Journalists believe that their ethical code creates a conscience based bar to disclosure of the name of a source where they have been provided with information on an undertaking that the identity of the source will remain confidential.43 The Code does not create any legal privilege to maintain confidentiality, and courts regard a refusal to disclose a journalist’s source as a contempt of court. Recent cases have highlighted the dilemma faced by journalists, who insist that the confidential nature of their relationship with a source is vital to the media’s role as a facilitator of free communication and outweighs the need of the court to have all relevant and admissible information before it.44
10.24 Although the “newspaper rule” allows a newspaper publisher, proprietor or editor to withhold information about the name of the writer of the article which is the subject of the action and about the sources of information supporting the article, this rule only pertains to interlocutory proceedings. It is not applicable at a defamation trial because the question of malice is often an issue and it may become necessary to identify the source in order to assess the motive behind the disclosure of the allegedly defamatory material.
10.25 After examining this specific problem in detail, the Western Australian Law Reform Commission and the Senate Standing Committee on Legal and Constitutional Affairs have recently concluded that a form of statutory judicial discretion should be introduced to excuse a journalist, in the circumstances of the particular case, from answering questions about the identity of a confidential source.
10.26 Such a discretion would balance competing public interests and would be exercised after consideration of a number of factors, including: whether the evidence about the source’s identity is essential to the issue of the case; the truth of statements made about the plaintiff; whether the witness has been given the opportunity to contact the source in order to seek a waiver; whether the communication is of such a nature that it is reasonable that it should be revealed; whether withholding evidence about the identity of the source will cause unfair prejudice to a party to the proceedings; and whether the evidence is obtainable by other means which will not add significantly to the time taken by, or the costs of the proceedings.45
10.27 While these issues are essentially ones of contempt and evidence they effect defamation proceedings and therefore require comment by the Commission. The Commission believes that the proposals outlined in para 10.25 go a long way to strike a balance between the competing public interests in the administration of justice and in maintaining a free flow of information.
FOOTNOTES
1. Adam v Ward [1917] AC 309 at 334 per Lord Atkinson.
2. The only other Australian jurisdictions with a statutory defence of qualified privilege are Queensland and Tasmania: see Criminal Code (Qld) s 377 and Defamation Act 1957 (Tas) s 16.
3. The intention behind section 22 was not to diminish or abrogate any defence that may exist at common law in respect of a defendant having an honest belief in the truth of the statement published. A discussion on the purpose of section 22 is contained in DP 32 at paras 10.8-10.10.
4. (1994) 182 CLR 104.
5. Adam v Ward [1917] AC 309 at 334.
6. Stuart v Bell [1891] 2 QB 341 at 350.
7. Stephens v WA Newspapers (1994) 182 CLR 211 at 261 per McHugh J dissenting.
8. See Horrocks v Lowe [1975] AC 135 at 150, approved in Theophanous at 154-155 per Brennan J dissenting.
9. (1994) 182 CLR 211.
10. See Adam v Ward [1917] AC 309 and Loveday v Sun Newspapers Ltd (1938) 59 CLR 503.
11. Theophanous at 140.
12. Sporting Shooter’s Association of Australia (Vic) v Gun Control Australia and Crook (1995) 2 Media Law Reporter 83.
13. Stephens at 266.
14. Stephens at 251-253.
15. For discussion of s 22(1)(a), see Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383 at 390 and (1985) 3 NSWLR 354 at 358-10. For discussion of s 22(1)(b), see Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697.
16. See New South Wales Law Reform Commission, Report on Defamation (LRC 11, 1971) Appendix D at para 103. But compare para 105.
17. See Calwell v Ipec Australia Ltd [1973] 1 NSWLR 550 (CA); (1975) 135 CLR 321 (HC) (Defamation Act 1958 (NSW) s 17(e)).
18. See Wright v ABC [1977] 1 NSWLR 697 at 705, 712; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 793-794, 797-798.
19. (1991) 23 NSWLR 374.
20. Morgan at 387-388 per Hunt AJA, with whom Samuels JA agreed.
21. See Nine Network Australia, Consolidated Press Holdings: Submissions. See also DP 32 at paras 9.30-9.31.
22. Australian Broadcasting Corporation Submission (27 October 1993).
23. (1992) 177 CLR 106.
24. (1992) 177 CLR 1.
25. Theophanous at 137.
26 Theophanous at 138.
27. See especially paras 2.28, 5.3-5.6.
28. For discussion, see S Walker, “The Impact of the High Court’s Free Speech Cases on Defamation Law” (1995) 17 Sydney Law Review 43 at 51-53.
29. Horrocks v Lowe [1975] AC 135 at 150; Theophanous at 154-155 per Brennan J dissenting.
30. See Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 at 387. The test established in this case is subject to the exceptions set out in the cases of Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493, and Collins v Ryan (1991) 6 BR 2210. These exceptions were considered in DP 32 at paras 10.15-10.16.
31. This may, of course, still result in journalists’ having to disclose their sources at trial to enable plaintiffs to investigate whether the journalists did in fact check with their sources.
32. See Theophanous at 138-139.
33. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 328.
34. (1994) 182 CLR 211. See para 10.6.
35. Theophanous at 140.
36. See Sporting Shooter’s Association of Australia (Vic) v Gun Control Australia and Crook (1995) 2 Media Law Reporter 83.
37. Theophanous at 177 per Deane J.
38. M Chesterman, “The Money or the Truth: Defamation Reform in Australia and the USA” (1995) 18 UNSW Law Journal 300 at 320-322. Neither Theophanous nor Stephens suggests otherwise.
39. By contrast, allowing the plaintiff to obtain a publicised declaration of falsity without having to face a defence of privilege does not unduly chill freedom of political discussion by inhibiting contributions to it from the media. It actually enhances such discussion by ensuring that the court’s finding receives publicity: see para 6.39.
40. See para 2.31.
41. (1988) 165 CLR 346 at 354.
42. Registered Rules of the Media, Entertainment and Arts Alliance, Rule 64 (Journalists’ Code of Ethics), Item (c).
43. Australia, Senate Standing Committee on Legal and Constitutional Affairs, First Report of the Inquiry Into the Rights and Obligations of the Media: Off The Record (Shield Laws for Journalist’s Confidential Sources) (October 1994) at 8.
44. For cases, see Off the Record at Chapter 3.
45. See Off the Record at 110-112; and Western Australia, Law Reform Commission, Report on Professional Privilege for Confidential Communications (Project No 90, May 1993) at 129-130.
