12.1 A report of certain proceedings which contains defamatory statements made in the course of those proceedings may be protected by a qualified privilege either at common law or by statute. This privilege recognises the public interest in having full information about the administration of public affairs. The limited circumstances in which statute and the common law (at least before the decisions in Theophanous1 and Stephens)2 provide the media with a defence of qualified privilege for publishing defamatory material, makes the protected report defence of potentially great practical importance to the media in performing their functions, particularly at times of increasing scrutiny of public affairs.3
PROTECTED REPORTS AT COMMON LAW
12.2 The common law affords a privilege for the publication of a defamatory statement in a report of certain proceedings. The defence is available only if the report is a fair and accurate account of the proceedings4 and made without malice.5
12.3 The principal categories of protected reports at common law are those of judicial proceedings before a properly constituted judicial tribunal exercising its jurisdiction in open court,6 and of Parliamentary reports and debates.7 Reports of such proceedings attract privilege by reason of the public interest in the proceedings themselves, not in the subject matter discussed in those proceedings.8 Generally, the public have a right to attend Parliament and the courts; if unable to attend in person, it is better that the public should have a fair and accurate report of what took place there rather than rely on rumours.9
12.4 A privilege attaches to the publication of fair and accurate reports of proceedings of public bodies other than Parliament and the courts where such publication is justified by:
- the public interest in the functioning of the body (its status, constitution, functions, and the circumstances in which the defamatory statement was made);
- the public interest in the subject matter of the report (the source of the defamatory statement, the opportunity for response and any making of a finding after inquiry); and
- the interest of the recipients in its subject matter.10
Thus reports of the proceedings of tribunals have been held to be protected where the nature of the tribunal, the interests of the public in the subject matter of the proceedings, and the duty of the tribunal towards the public justify the publication.11 In the Commission’s view, the availability of the privilege of fair protected report ought to continue to depend upon a careful evaluation by the courts of the three factors listed above. To make the privilege more generally available would run the risk that “the power of the press to libel public men with impunity would in the absence of malice be almost unlimited.”12
PROTECTED REPORTS UNDER THE DEFAMATION ACT 1974
12.5 Division 5 of the Defamation Act 1974 (NSW) provides a defence for the publication of a fair protected report, where “protected report” is one of numerous “Proceedings of Public Concern” specified in clause 2 of Schedule 2. Documents specified in clause 3 of Schedule 2 (and fair extracts, abstracts or summaries of them) are similarly protected. As at common law, the defence of protected report is a qualified privilege. Notwithstanding that the report is a fair and substantially accurate summary of the proceedings which it purports to report, the defence is lost if the plaintiff is able to establish that it was not published in good faith for public information or the advancement of education.13
12.6 New South Wales has a very extensive privilege relating to protected reports. Proceedings to which the defence of fair protected report applies include those of parliament and courts (widely defined to include the courts and parliaments of any country), proceedings of international organisations and conferences and official inquiries held in any country. Proceedings of several nominated public investigatory authorities and professional disciplinary tribunals join general classes of associations with specified objects (trade, professional, sporting), and public meetings generally. Documents and records protected by s 25 include proceedings and reports published by parliamentary bodies and court judgments. The broadest category is a record or document kept by a government, statutory authority or court and open to inspection by the public.
12.7 In proposing the contents of Schedule 2 “Proceedings of Public Concern”, the policy adopted by this Commission in its 1971 Report on defamation (on which the 1974 Act is based), was that reports of the proceedings nominated provided material necessary for informed discussion about matters of public interest, whether politics, law, finance or other public concern.14 Dual considerations for the Commission were the importance of openness about the workings of political society, and the importance of informed decision-making.
EXTENDING THE PROTECTED REPORTS DEFENCE
12.8 Since 1974, Schedule 2 has been frequently amended to reflect the statutory creation of tribunals or officials with quasi-judicial, investigatory, disciplinary or compensatory powers. Recent additions have included proceedings of the HomeFund Commissioner, the NSW Crime Commission, the ICAC, the Legal Services Commissioner and Legal Services Tribunal which join the Ombudsman, the Privacy Committee and the perennials, the Racing and Trotting Appeals Tribunals and the Australian Jockey Club.15 Frequently, but not consistently, the amendments correspond with absolute privilege being conferred by ss 17A-17R Defamation Act 1974 on the proceedings of the bodies or officials.
12.9 There is no evidence that the very extensive list of proceedings with protected report status in the Act is considered too generous, nor has it been suggested that it be generally extended further. Specific suggestions for extensions are considered below at paras 12.15-12.21. However, the proliferation of specific occasions where reports of proceedings are afforded protection understandably raises the question of the policy which underlies the decision to confer protected report status under the Defamation Act.
General principles
12.10 Amendments to Schedule 2 of the Defamation Act are made by the legislature, on the advice of parliamentary drafters and the relevant department. The Commission understands that Parliamentary Counsel’s Office will usually consider whether the proceedings of any new authority should have protected report status, but that no formal procedure is followed.16 While the policy enunciated in the common law is available to assist this decision, the Commission understands that there are no formal guidelines to which reference may be made during the drafting process. This, we feel, should be changed.
12.11 The Commission does not consider that the privilege has been extended inappropriately, but is concerned that the current procedures may not ensure that proper consideration is given to all proceedings which could merit inclusion in Schedule 2. There is a need to ensure that there are principles to which any decision to confer protected report status is referable and that they are consistently applied.
12.12 The Commission recommends that the Office of Parliamentary Counsel prepare a policy for determining whether proceedings are appropriate for inclusion in Schedule 2 as Proceedings of Public Concern. This policy should be made available to those responsible for the preparation of legislation concerning the proceedings of any body or official which could be considered to merit this protection.
12.13 The policy guidelines should have reference to the common law principles governing protected reports.17 The privilege applies at common law in order to inform the public of what occurred in the proceedings of certain public bodies, even if this means that untrue and defamatory statements are published. The privilege should be conferred only where there is a clearly demonstrated need.
Drafting practice
12.14 The format adopted in the draft Defamation Bill 1992 separates the Schedule of Proceedings of Public Concern into proceedings classified by reference to a general character, such as parliamentary bodies, courts, tribunals and certain categories of associations, and reports of proceedings of specified bodies under specified Acts.18 The Commission considers that this format assists in ascertaining easily whether any particular report may have a privilege and as an improvement on the existing Act should be adopted.
Specific extensions of the defence
12.15 In DP 32, several specific proceedings were mentioned for possible incorporation in Schedule 2 so as to attract the protected report privilege.19 Any decision to do so should be made with reference to the purpose of the privilege, that is the public interest in the community’s being informed about the conduct of public affairs even if this results in defamatory statements about a person being published without means of redress.
Technical amendments
12.16 As noted in the DP 32, proceedings under Part 10 of the Legal Profession Act 1987 (NSW) were omitted from the Bill.20 This appears to be a technical omission only, but should not be overlooked should the format of the draft Bill Schedule 2 be adopted. The other technical correction noted in the Discussion Paper as necessary for the Defamation Act 1974 (NSW), that relating to the commencement of operation of the Medical Practice Act 1992 (NSW), has already occurred.21
Proceedings of a local authority
12.17 Clause 7 Schedule 2 of the Defamation Bill 1992 makes reports of proceedings of local councils and authorities protected reports. Although this Commission proposed such a clause in the draft legislation accompanying our 1971 Report on defamation,22 a policy decision by the Government of the day saw it removed from the Defamation Act 1974. No explanation for the decision was offered in debate on the Defamation Bill, but the Government indicated the matters were relevant to its plans for protection of privacy.23
12.18 Although the status of local council proceedings was uncertain in 1974, the Supreme Court has since held them to be “proceedings of a public meeting” within the meaning of clause 2 (9) of Schedule 2 to the Defamation Act 1974 so that the defence of s 24 (2) is available for publication of a report of such proceedings.24 It is arguable that proceedings of the other local authorities included in the proposed clause would also fall within the definition of “public meetings” in Sch 2 cl (9) of the current Act (Sch 2 cl (10) of the draft Bill).
12.19 The Commission considers, however, that the status of reports of proceedings of local authorities should be put beyond doubt. Local councils are the third tier of government in this country, and authorities constituted at the local level are responsible for significant aspects of the government of the Australian people. The public interest in being informed about the conduct of affairs in local councils and authorities is unarguable.25 Therefore the Commission recommends that Schedule 2 clause 7 of the Defamation Bill 1992 making proceedings of local council, boards and authorities “Proceedings of Public Concern” be enacted.
Recommendation 36
The Defamation Act 1974 Schedule 2, “Proceedings of Public Concern”, should be amended to include proceedings in public of a local council, board, or other authority constituted for public purposes under the legislation of the Commonwealth, a State or a Territory, so far as the proceedings relate to a matter of public interest.
Proceedings at company general meetings
12.20 Another proposal from this Commission omitted from the Defamation Act 1974 by the then Government for unexplained policy reasons was the detailed clause relating to proceedings at a general meeting of various categories of companies.26 The draft Defamation Bill 1992 included this clause in almost identical terms,27 proposing protection for reports of general meetings held in Australia or overseas of companies incorporated, listed or carrying on business in Australia. It would extend to meetings of unincorporated associations but exclude foreign and exempt proprietary companies.
12.21 The Commission is not now persuaded that widening the category of protected reports by incorporating this clause from the draft Defamation Bill is necessary. No evidence has been presented to the Commission that restrictions on what may be reported from company meetings without privilege in practice unduly inhibits the media’s publication of information about the activities of companies that is in the public interest. The privilege attaching to reports of public meetings in clause 9 of Schedule 2 of the Defamation Act 1974 offers an alternative source of protection for reports of many of the proceedings covered by the draft clause. The Commission does not consider that the public interest warrants conferring the privilege more extensively in this area.
ATTRIBUTED STATEMENTS
12.22 In its report Unfair Publication: Defamation and Privacy, the Australian Law Reform Commission proposed that there should be a separate defence of fair report for attributed statements generally.28 This recognised that, although the categories of protected reports such as in the NSW legislation were comprehensive, a list could not cover all proceedings and statements which are of legitimate public concern. It also addressed the effect of the republication rule that a person who repeats a defamatory statement made by another is also liable, as if he had made the original statement: “For the purposes of the law of libel a hearsay statement is the same as a direct statement and that is all there is to it”.29 This, the ALRC argued, limits the media’s ability to publicise serious allegations against people because the media was not in a position to determine the truth of the contents of another’s defamatory statement. As a result, the public was denied its legitimate interest in being informed about the conduct of public affairs.
12.23 The Commission is not persuaded that this category of statements deserves the status of protected report. We are mindful of the danger that a statutory provision such as proposed by the ALRC may be abused, despite the safeguards it incorporates. The original author may not wish a defamatory statement made in a private setting, or one which attracted qualified privilege, published to the world at large. The right of reply requirement is intended to provide the public with balanced information, but may be insufficient guarantee against abuse. The person defamed may be unable to exercise it, or to do so ably, or to dispel the public perception that any reply is purely self-serving.
12.24 Even without abuse, the availability of such a defence could lead to unnecessary harm. Unless the condition regarding reasonableness is read down, the republisher will have no obligation to consider the truth of the statement repeated. The publisher may avoid investigating the matter further so as to be certain of complying with the requirement of only adopting it. As a result the defamation will be given a far wider airing, more seriously affect the person’s reputation, and yet entitle that person to a lesser remedy.
12.25 There has been little support for the development of a general attributed statements defence. Nor, in the Commission’s view, is there any evidence that such a defence is necessary for proper debate on matters of public administration and public interest. In any event, the existing privilege for protected reports in New South Wales is already very generous,30 while the development of the constitutional defence and the expanded notion of common law qualified privilege have opened up significantly the range of occasions on which attributed statements will be protected.31
RIGHT OF REPLY
12.26 In DP 32, the issue of making the protected report defence subject to a right of reply was raised, and the model proposed by the ALRC offered for consideration.32 It is a common, but not universal, practice of media to solicit a reply to accompany an otherwise protected report. When this does not occur the person defamed is denied both redress and the chance to offer an explanation. Concern on this score lies behind Justice Brennan’s recommending that the extension of common law qualified privilege for media reports of statements by another person depend upon the defamed party being given an opportunity to make a reply.33
12.27 A right of reply has long been a feature of defamation law in other jurisdictions.34 We are not, however, persuaded of the need to require, or the efficacy of requiring, a right of reply as a condition of using the defence of protected report. The rationale of the defence is predicated on communicating to the public what occurs in courts and other proceedings which the public are entitled to attend, and on informing them about the conduct of public affairs, rather than providing the public with a balanced account of any public issue.35 Fairness is a matter of whether the report is a substantially accurate summary of the proceedings, not whether as a whole it is fair or unfair to any particular person. This explains why the defence is available even though the reporter knows that what was said during the proceedings is untrue. Further, there are some circumstances where to allow a right of reply published in the media may, indeed, question the integrity of the proceedings reported, especially if there were no right of reply available during the proceedings themselves.
COURT AND OFFICIAL NOTICES
12.28 The Defamation Act 1974 (NSW) provides a defence for the publication of a notice in accordance with the direction of a court of any country,36 and the publication of any notice or report in accordance with an official request.37 The protection does not extend to the person making the official request and this has led to the suggestion that the official therefore has insufficient protection against a suit for defamation.
12.29 The Commission is not persuaded that further protection is necessary for an official making the original statement. In our 1971 Report on defamation, which was where the current provisions of the 1974 Act originated, this Commission considered that “(c)ommonly, he would have some separate defence of privilege”.38 The potential for abuse of the provision is such that any greater level of protection is unwarranted.39
FOOTNOTES
1. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.
2. Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.
3. For the extent to which the media can now rely on common law qualified privilege, see paras 10.5-10.8.
4. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 780; John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624 at 634; Stephens at 246-247 per Brennan J dissenting.
5. See Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 at 320-21, considering a provision of the now repealed Defamation Act 1958 (NSW).
6. Kimber v Press Association [1983] 1 QB 65 at 68.
7. R v Wright (1799) 8 TR 293; 101 ER 1396; Wason v Waller (1868) LR 4 QB 73.
8. Stephens at 247 per Brennan J dissenting, citing Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400 at 410; Davison v Duncan (1857) 7 El & Bl 229 at 231; 119 ER 1233 at 1233.
9. C Duncan and B Neill, Defamation (Butterworths, London, 1978) at para 14.29.
10. Stephens at 249 per Brennan J dissenting.
11. Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400; Perera (MG) v Peiris [1949] AC 1 at 21 per Lord Uthwatt. Protection was denied in Chapman v Ellesmere (Lord) [1932] 2 KB 431; Purcell v Sowler (1877) 2 CPD 215.
12. Chapman v Lord Ellesmere [1932] 2 KB 431 at 474-475 per Romer LJ.
13. Defamation Act 1974 s 26. See Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63-4.
14. New South Wales Law Reform Commission, Report of the Law Reform Commission on Defamation (LRC 11, 1971) Appendix D at paras 18-121. Schedule 2 reproduces, apart from two items, the list proposed by this Commission in the 1971 Report. Omitted were “proceedings of a local council, board, or other authority”, and “proceedings at a general meeting of a company” (extensively defined, but including unincorporated associations, and excluding exempt proprietary and foreign companies). See below at paras 12.17-12.19 and 12.20-12.21 respectively.
15. See Defamation Act 1974 Schedule 2 cl 10-20.
16. Advice to the Commission from Parliamentary Counsel’s Office, 17 August 1994.
17. See particularly Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.
18. A similar format for absolute privilege is recommended. See Recommendation 30, Chapter 11.
19. DP 32 at para 8.16.
20. DP 32 at para 8.7.
21. Defamation Act 1974 (NSW) Sch 2 cl 14A.
22. See note 14 above.
23. New South Wales Parliamentary Debates (Hansard) Legislative Assembly, 28 February 1974 at 906; New South Wales Parliamentary Debates (Hansard) Legislative Council, 19 March 1974 at 1517.
24. Cassell v Gold Coast Publications Pty Ltd [1984] 1 NSWLR 12.
25. See Ballina Shire Council v Ringland (1994) 33 NSWLR 680 especially at 690-691 per Gleeson CJ.
26. See note 14 above.
27. Defamation Bill 1992 (NSW) Schedule 2, cl 9.
28. Australian Law Reform Commission, Unfair Publication: Defamation and Privacy (ALRC 11, 1979) at para 92. A recommendation for a similar defence of Neutral Reportage was made in the Annenburg Washington Program Report at 22: see R A Smolla, “The Annenberg Libel Libel Reform Proposal” in J Soloski and R P Bezanson (ed), Reforming Libel Law (Guilford Press, New York, 1992) 229 at 243-244.
29. Lewis v Daily Telegraph Co Ltd [1964] AC 234 at 284 per Lord Devlin.
30. See paras 12.5-12.7.
31. In particular reports of persons “with special knowledge” see Stephens at 264-265 per McHugh J dissenting.
32. DP 32 at paras 8.19-8.21. See ALRC 11 at paras 156, 178-180.
33. Stephens at 252-253. See para 10.8.
34. In other Australian jurisdictions reports of certain public meetings are protected if the publisher meets a request to insert a reasonable letter or statement by way of explanation or contradiction: Wrongs Act 1958 (Vic) s 5; Wrongs Act (SA) s 7; Newspaper Libel and Registration Act 1884 (WA). In the Code states, failure by the publisher of a report of a public meeting to publish a reply is merely evidence of lack of good faith: Criminal Code (Qld) s 374; Criminal Code (WA) s 354; Defamation Act 1957 (Tas) s 13(2)(b). In England protected reports published in the media (“newspapers” as defined in the Act), broadcasts within the UK, and cable broadcasts are divided into those which are privileged without explanation or contradiction, and those privileged subject to explanation or contradiction: Defamation Act 1952 (Eng) s 7 and Schedule Parts I and II. In Canada, the provinces of Ontario, British Columbia, Nova Scotia, Alberta and Saskatchewan all have right of reply procedures for reports of various proceedings: see British Columbia, Law Reform Commission Report on Defamation (Report 83, 1985) at 39. Under the French Press Law, a person named in the press, whether defamed or not, has a legally enforceable right to a reply of equal prominence and length: see ALRC 11 at para 178, footnote 138.
35. Waterhouse v 2GB (1985) 1 NSWLR 58 at 62 per Hunt J.
36. Defamation Act 1974 (NSW) s 27. See also Defamation Bill 1992 cl 32.
37. Defamation Act 1974 (NSW) s 28. See also Defamation Bill 1992 cl 33.
38. NSW Law Reform Commission, Defamation (LRC 11, 1971) Appendix D at para 159.
39. See Campbell v Associated Newspapers Ltd (1948) SR (NSW) 301.
