2.1 The law of defamation exists to protect reputation. Statements and comments affecting the reputation of others are constantly made in everyday speech. Where those statements or comments tend to lower a person’s reputation, any policy of protecting reputation immediately comes into conflict with a wider goal of the legal system, namely, the promotion of freedom of speech. Freedom of speech is a principle of the common law¹ and, at least to some extent, a constitutional principle.² The conflict is between two public interests:³ on the one hand, the interest in the public protection of individual reputation and the provision of an orderly means of achieving it by process of law; on the other hand, the interest in the facilitation of the public’s right to know and in the discovery of truth.⁴

2.2 It is trite that a successful legal system must seek the optimum balance between the protection of reputation and the promotion of freedom of speech. That balance is variously struck in different ages and in disparate contexts. For example, in the context of political discussion, the most recent decisions of the High Court take the view that the traditional approach of Australian law has been to tilt the balance too far in favour of personal reputation at the expense of freedom of communication.⁵ To the extent to which this view leads to a denial of a remedy in defamation at the instance of holders of public office defamed in the course of political speech, it is in stark contrast to that which prevailed a century or so ago when Paterson could write that “the holders of such offices are entitled to the protection of such character and reputation as naturally belongs to such office”.⁶

THE PROTECTION OF REPUTATION

The meaning of reputation

2.3 A person’s reputation consists of the opinions which others hold of that person’s character.⁷ Where, overall, those opinions are favourable, the law protects, in a defamation action, the esteem, goodwill or confidence which they generate.⁸ Reputation cannot be viewed, either historically or analytically, as a mere commodity or asset which possesses a value on some monetary scale. Our notion of reputation, as well as the protection which we afford it, needs to reflect the interest which individuals have in their honour and dignity, in their standing in the community. Roscoe Pound put this succinctly many years ago:

On the one hand there is the claim of the individual to be secured in his dignity and honor as part of his personality in a world in which one must live in society among his fellow men. On the other hand there is the claim to be secured in his reputation as part of his substance, in that in a world in which credit plays so large a part the confidence and esteem of one’s fellow men may be a valuable asset.⁹

2.4 The opinions which collectively go to constitute a person’s reputation may, or may not, reflect the plaintiff’s real character or disposition. Indeed, they may, individually, be based upon matter which is true or untrue. There is, thus, no necessary connection between reputation and truth.¹⁰ This is reflected in the existing law in that the falsity of the imputation is not an essential ingredient of the cause of action in defamation. The truth of the imputation becomes relevant primarily by way of justification: the defendant who can prove that the imputation is a matter of substantial truth and relates to a matter of public interest or is published under qualified privilege has a defence to the plaintiff’s claim.¹¹ Otherwise, the falsity of the defamatory matter is a factor relevant in the assessment of damages, which it can aggravate.¹²

How reputations should be vindicated

2.5 Where matter is published which damages a person’s reputation, the person concerned has an interest in protecting his or her reputation. Except where publication is merely threatened (where an injunction is potentially available),¹³ and except in cases where the interest in reputation is purely financial (as in the case of a trading corporation), the most obvious form of protection for reputation is some public vindication of it. As a demonstrable mark of the wrong done to the plaintiff, vindication “sets the record straight”, restores the plaintiff’s standing in the community, and, ideally, assuages any desire for revenge.¹⁴

2.6 Vindication does not come from a finding that a publication is defamatory. To determine that the publication reduces the plaintiff’s standing in the eyes of the community in itself does nothing to restore the plaintiff’s reputation in that community. Only a finding that what was published is false can do so.¹⁵ This is recognised at common law in two ways. First, a finding of falsity is implicit in a defamation verdict. Once the plaintiff has proved the imputation to be defamatory, it is presumed to be false.¹⁶ In the law of New South Wales, however, there is (at least outside the context of political discussion)¹⁷ no such presumption.¹⁸ Secondly, recognising that the falsity of the imputation is inferred from the defamation verdict, the damages awarded must be of an amount which, in the circumstances, is “the minimum necessary to signal to the public the vindication of the [plaintiff’s] reputation”.¹⁹ This ensures that “in case the libel, driven underground, emerges from its lurking place at some future date, [the plaintiff is] able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.”²⁰ The vindicatory force of an award of damages necessarily relies on this factor in the law of New South Wales.

2.7 Preoccupation with the amount of damages awarded has meant that reform of the law of defamation has tended to proceed from perceived inadequacies in damages as a remedy for vindication of the plaintiff’s reputation to the suggestion of other remedies which might be more effective in this respect. Thus, in DP 32, the Commission investigated an alternative remedial structure for the law of defamation which sought to move the emphasis away from large awards of damages towards correction orders (voluntary or court-ordered) and declaratory judgments.²¹ This approach is hardly surprising. It reflects a prevailing concern with very large awards of damages of which there had been a number of examples shortly before the publication of DP 32.²²

A new cause of action

2.8 Since the publication of DP 32, the focus of the Commission’s inquiry has shifted. In the light of our own further research and reflection and of the submissions which we received in response to DP 32, we have concluded that the starting point for reform of the law of defamation should not be its remedial structure. After all, remedial rights are merely reflections of the substantive rights which they protect and enforce. For reasons to which we have already referred in para 2.6, and which we develop in Chapter 4,²³ a defamation action ought to promote express findings on the issue of truth or falsity if it is effectively to vindicate the plaintiff’s reputation. Vindication ought not be left, as it currently is, to an inference drawn from the size of the damages award.²⁴ In our view, therefore, falsity ought to be an ingredient of the cause of action in defamation.

2.9 Once falsity is made an ingredient of the cause of action, every judgment for the plaintiff will necessarily involve a finding that the imputations (of statements of fact) are false - except where the plaintiff says only that the imputation does not relate to a matter of public interest.²⁵ Accordingly the plaintiff need not generally point to the size of the award to claim restoration of reputation, but need only point out that the judge found the issue of falsity in his or her favour. In the Commission’s view, this conclusion is not rebutted by an argument that a judge’s reasons will, or may, or are likely to, have less currency than the mere amount of the damages.²⁶ When damages were assessed by a jury and the judge had nothing to say upon the matter of assessment, it might happen that the jury’s verdict was the only significant aspect of the trial which could be reported. But damages in New South Wales are now assessed by a judge alone²⁷ and the Commission recommends that this should remain the law.²⁸ The assessment of damages will ordinarily be found in the judgment as the culmination of a reasoning process which will involve, amongst other things, some analysis and description of the imputations upon which the plaintiff has succeeded, and, of course, the view the judge took of them as justification for the damages which he or she awarded. The Commission sees no reason to suppose that a judge’s conclusions about the character and extent of a defamatory imputation will receive less publicity than an unvarnished report of the amount of the damages. Thus, vindication will generally follow judgment.

Remedial consequences

2.10 In the Commission’s view, any remedies which the plaintiff pursues in defamation ought (i) to further the vindication of the reputation which the cause of action promotes; (ii) to compensate the plaintiff for injury suffered to reputation and feelings;²⁹ and (iii) to compensate the plaintiff for economic loss. At present, all of these functions are subsumed in an award of damages.

Damages

2.11 In its Discussion Paper on Defamation (“DP 32”)³⁰ the Commission pointed out that awards of damages run the risk that they may not vindicate the plaintiff’s reputation for the following reasons:

· Damages may come a long time after publication. Where they do and where the award is publicised, there is a danger that the award may serve only to revive the defamatory matter rather than vindicate the plaintiff’s reputation.

· Damages may not be publicised at all, as where they form part of a settlement whose terms are confidential. In such cases, the award may completely fail to vindicate the plaintiff’s reputation.

The Commission adheres to these views which have been the driving force behind the new remedy of declaration of falsity which we propose in this Report.³¹

2.12 The deficiencies of damages as a means of vindication do not, of course, mean that damages are not capable of compensating plaintiffs for loss. “Compensation” is the restoration of plaintiffs, so far as money can do it, to the position which obtained before the wrong.³² Leaving aside economic loss (which we consider separately below), compensation may be required in a defamation action for injury to the plaintiff’s reputation and feelings. It is true that, in respect of such injuries, plaintiffs cannot be precisely restored to their pre-publication states. Quite simply, a monetary award in itself is just as incapable in this context of replacing losses which are not commensurable in money as it is in personal injury cases.³³ Rather, the function of compensation is to provide solace or consolation to the plaintiff for the wrong done.³⁴ Such damages are aimed at alleviating the sorrow, distress or discomfort which the plaintiff suffers as a result of the defendant’s defamation.

2.13 Currently, a damages award in a defamation case also serves the object of compensating the plaintiff because the plaintiff was defamed.³⁵ This is the vindicatory function of the award: it focuses on the attitude of others to the plaintiff and requires that the damages awarded to the plaintiff for injury to reputation and injury to feelings are of a sufficient magnitude to demonstrate the baselessness of the published defamatory matter. It is clear that the element of vindication is not recognised by an independent assessment of damages under that separate head, to be added to those awarded for injury to the plaintiff’s reputation and feelings.³⁶ The total damages “must not exceed the amount appropriate to compensate the plaintiff for any relevant harm he or she has suffered”.³⁷ The vindicatory element may be satisfied by inflating the compensatory damages within the range which is appropriate in the circumstances,³⁸ the one award of damages operating both as compensation and vindication.

2.14 The danger of introducing vindication as an element in damages in defamation cases is that the award will turn into an exemplary one,³⁹ and statute outlaws the award of exemplary damages in defamation cases in New South Wales.⁴⁰ Indeed, the suspicion is that, in the past, juries have, under the guise of vindicating the plaintiff’s reputation, made large awards of damages which are really designed to punish the defendant, particularly media defendants. The adoption of the Commission’s recommendation that falsity should be an ingredient of the cause of action will largely eliminate this danger. The emphasis on vindication in damages will be reduced since vindication will come primarily from the finding of falsity. This means that the central focus of the law of damages will be, as it should, to provide the plaintiff with compensation for injury to reputation and injury to feelings.

2.15 We should emphasis that in advancing the proposition that vindication will now be found primarily in the judge’s reasons, we are not seeking to make any comparison between what a jury might award, or might have awarded, and what a judge might award in like circumstances.⁴¹ We have pointed out that the total damages must not exceed what is appropriate for an assessment of compensation for injury to reputation and hurt to feelings. There cannot be any question, therefore, of a judge deleting from the assessment of damages an element which would have required a separate computation by a jury. The consequence which we have suggested is simply that it will be only in the most exceptional circumstances that a judge will find it necessary to inflate the compensatory damages to the top of the range for the purpose of underlining the vindicatory aspect of the award.

The declaration of falsity

2.16 The inadequacy of damages as a remedy to restore the plaintiff’s reputation has led the Commission to investigate alternative remedial machinery which will result in the speedy and public vindication of the plaintiff’s reputation. The Commission has determined that the most effective means by which plaintiffs can vindicate their reputations is by obtaining a declaration that a publication which defames them is false (“the declaration of falsity”), a remedy which we develop, as an alternative to damages, in Chapter 6. Although seldom used in practice, the declaration is, of course, a remedy which is already available to plaintiffs in defamation cases.⁴² The declaration of falsity proposed by the Commission is, however, substantially different from the declaratory procedure currently available since, by entailing findings on the single issue of the truth or falsity of the imputation about which complaint is made, the remedy is specifically designed to provide plaintiffs with a real opportunity of vindicating their reputations. And, while our declaratory remedy will constitute final relief, speed will be of its essence. Further, as the remedy will not, in our view, have the chilling effect on freedom of speech which is perceived in large awards of damages,⁴³ it should be available in the context of political discussion.

2.17 In outline, the declaratory remedy which the Commission recommends will be available to plaintiffs where: (i) the cause of action is founded on an imputation which is defamatory of the plaintiff and is false; (ii) the matter is published by the defendant of and concerning the plaintiff; and (iii) the remedy is sought within four weeks of publication (or, exceptionally, within such longer period as the court may in its discretion permit). The remedy will be granted in the court’s discretion.⁴⁴ Affirmative defences cannot be raised in opposition to the action since they do not traverse the issue of falsity.⁴⁵ A successful plaintiff will be entitled to costs (prima facie, indemnity costs) and to an appropriate publication of the terms of the declaration. The reputation of plaintiffs who successfully obtain this remedy will be vindicated soon after the publication of the defamatory matter, the time at which such empirical evidence as is available suggests that plaintiffs are most likely to be satisfied with non-monetary relief.⁴⁶

Relationship between damages and the declaration of falsity

2.18 Under the Commission’s proposals, the cause of action for defamation will give rise to a choice of remedies, primarily between an action for damages and one for a declaration.⁴⁷ In accordance with the general position in remedial law, choice of remedy will lie primarily with the plaintiff. Except in the case of economic loss,⁴⁸ plaintiffs will have to elect to bring an action either for a declaration or for damages in respect of defamatory imputations arising from the same matter. But where a plaintiff elects to pursue a declaration rather than damages, the election will become binding only when the terms of any orders ancillary to the declaration granted have been satisfied.

2.19 Plaintiffs whose primary concern is to restore their reputations as speedily as possible will, no doubt, generally opt for a declaration of falsity, just as those who are moved to obtain compensation for the injury done to them will opt for an award of damages. A major factor influencing plaintiffs’ choice will be the defendant’s ability to rely, in an action for damages, on a defence (such as qualified privilege) which is unavailable in a claim for a declaration. Another factor which may influence plaintiffs’ choice is that indemnity costs will generally be available when a declaration is sought.⁴⁹

2.20 The Commission regards the development of alternative remedies in the law of defamation as a significant reform of the law. A legal system which effectively promotes damages as the sole remedy in defamation is remedially crude. A plaintiff obtains damages or nothing at all. One situation in which the plaintiff obtains nothing at all is where the defendant can rely on a defence of privilege to defeat the action. Privilege will defeat the whole of the action, yet the plaintiff may neither demand nor need anything more to restore his or her reputation than a simple declaration that the imputation is false.

Economic loss

2.21 Injury to reputation can be productive of both economic loss (“special damage”) and non-economic loss (“general damage”). The Commission believes, for basic reasons of corrective justice, that whatever the remedy plaintiffs pursue, they should be able to recover all the economic losses which they can prove are attributable to the defamation. In particular, we do not believe that the fact that a plaintiff seeks a declaration of falsity should, in itself, result in the plaintiff’s being denied recovery of proved economic loss.

Weakening the hold of damages on defamation law

2.22 Although damages will remain a major remedy in defamation litigation under our proposals, the Commission is mindful that some submissions received in response to DP 32 were critical of any move away from the existing law in which damages is, generally, the only remedy sought in defamation actions.⁵⁰ We have therefore considered whether there are arguments of policy which require the maintenance of the status quo. The overlapping arguments which are made in favour of keeping the existing law are:

• paying compensation is the accepted means of righting wrongs;
• money payments have greater “cultural significance” than any alternative remedies;
• only damages compensate and deter;
• only damages are an adequate deterrent to the media;
• plaintiffs will only be happy with damages and will not in practice pursue alternative remedies;
• since Carson’s case,⁵¹ damages might be expected to be lower, meeting community concern about the high level of damages awards; and
• damages are necessary to cover costs.

2.23 In evaluating these arguments, the Commission begins by noting that they are directed only to the recovery of damages for non-economic loss (that is, for injury to reputation and to feelings) and for vindication.⁵² We also note that some of the arguments imply that damages should expressly serve the purpose of deterring defendants (and, by implication, free speech)⁵³ in defamation cases. Deterrence, a notion redolent of punishment, is appropriate only to exemplary damages, whose express object is to punish and deter. Pursuant to a recommendation of this Commission,⁵⁴ exemplary damages were abolished in defamation actions in this State in 1974,⁵⁵ and the Commission regards their reintroduction in this context as neither desirable nor feasible.

2.24 In so far as the arguments in para 2.22 express a concern that vindication can come only from a large award of damages, they are met by the Commission’s recommendation that falsity be a necessary ingredient of the cause of action: regardless of the remedy chosen by the plaintiff, vindication will now come primarily from the findings in the action. In so far as those arguments assert that damages are essential to effect compensation to the plaintiff, the Commission agrees. We also point out that our recommendations strengthen the compensatory focus of damages in defamation cases.

2.25 So far as the arguments in 2.22 assert as a fact that only damages will in practice provide vindication to plaintiffs (the “cultural significance” argument), the Commission points out that there is no empirical evidence about what plaintiffs and ordinary members of the public in New South Wales think about the role of damages in defamation cases. In particular, we do not know if they perceive that vindication is only possible through the medium of an appropriately substantial damages award. Empirical evidence from the United States,⁵⁶ as well as anecdotal evidence which has come to the Commission’s attention, suggest that, while plaintiffs may settle for a declaration or retraction (and costs) soon after publication, their mood hardens into a determination to seek damages as time passes. This may reflect a desire for revenge,⁵⁷ or a hardening of the plaintiff’s attitude after the defendant’s rejection of approaches seeking an apology or a correction. But, whatever the empirical force of the proposition that only damages vindicate, it does not argue against the development of alternative remedies aimed at obtaining the most effective vindication possible of the plaintiff’s reputation.

Reform of aspects of the law of damages in defamation cases

2.26 In their dissenting judgment in Coyne v Citizen Finance Ltd,⁵⁸ Chief Justice Mason and Justice Deane, reflecting the widespread concern with damages awards in defamation cases to which we have drawn attention in para 2.7, spoke of “the somewhat unprincipled common law rules relating to the nature and limit of defamation damages”. The lack of principle to which their Honours drew attention results largely from the vindicatory factor in damages awards in defamation cases. Our recommendation that falsity should be an ingredient in the cause of action minimises this factor and asserts that compensation is the central function of damages. Taken together with the fact that judges now assess damages in defamation,⁵⁹ the result should be that the assessment of damages will be approached in a more sophisticated way. It will now be much easier for judges, concentrating on the compensatory nature of the award, to identify the factors relevant to the extent of harm; to isolate the factors relevant to the defendant’s conduct which aggravate harm (“aggravated damages”); to draw analogies with non-economic loss in personal injury cases; and to be aware of the ranges within which the award in question should fall. Overall, it may be expected that the level of damages will fall.

THE CONTEXT OF FREEDOM OF SPEECH

2.27 The Constitution contains an implication of freedom of political discussion.⁶⁰ The common law of defamation chills political discussion and is in conflict with the constitutional implication to the extent to which it fails to provide a defence to an action in defamation to a defendant who can prove that (i) it was unaware of the falsity of the matter, (ii) it did not publish recklessly (that is, not caring whether the matter was true or false), and (iii) the publication was reasonable in all the circumstances.⁶¹

2.28 The scope of the constitutional implication is uncertain in a number of respects. First, the meaning of “political discussion” requires elucidation. As Justice Toohey pointed out in Cunliffe v Commonwealth,⁶² the constitutional implication asserts, at its lowest, “an implied freedom on the part of the people of the Commonwealth to communicate information, opinions and ideas relating to the system of representative government”, while, at its highest, it recognises “a freedom to communicate in relation to public and political matters generally”. Secondly, and more particularly, the constitutional guarantee arguably operates only in respect of a narrow range of plaintiffs, broadly “public figures” which would include politicians and candidates for political office, but not government employees or those who do not hold official or government positions.⁶³ Thirdly, the meaning of the “reasonableness” qualification requires clarification, particularly on the issue whether the defendant must establish an honest belief in the truth of the matter published, as the defendant is generally required to do under s 22 of the Defamation Act 1974 (NSW).⁶⁴ Where relevant, these issues are addressed in detail in the appropriate places of this Report.⁶⁵

2.29 Fortunately, the doubts surrounding the precise scope of the constitutional implication do not, for the most part, require resolution for the purposes of this Report. First, as we explain in Chapter 5, the Commission does not favour the development of a “public figure” test in Australia which would expand, or at least intersect with, the constitutional implication of freedom of political speech. In our view, to the extent to which the approach in Theophanous focuses on “political speech” as the point at which the constitutional implication becomes crucial, it provides a more sensible expression of concerns about freedom of speech than would the introduction of an American-style public figure test. Secondly, and more broadly, the Commission has, in any event, worked from the premise that freedom of speech is not necessarily limited to the context of political discussion. Our concern has been much wider, namely, to ensure that the law of defamation should not unnecessarily interfere with freedom of speech in any context. The principle of freedom of speech has thus been a major influence on the recommendations which we make throughout this Report.

2.30 In particular, concerns about freedom of speech underline three of the major recommendations which the Commission makes in this Report. First, our recommendation that falsity should be an ingredient of the cause of action in all defamation cases is influenced by the consideration that the public interest in freedom of speech is often an interest in finding out the truth and that this generally requires the public adjudication of truth or falsity.⁶⁶ Secondly, the fact that this recommendation relieves the defendant of having to prove the truth of the imputation by way of defence facilitates freedom of speech in those cases in which the defendant may be deterred from publication because of doubts about being able to prove the truth.⁶⁷ Thirdly, the new remedy of “declaration of falsity” which we develop in Chapter 6, has been consciously driven by the consideration, amongst others, that it will not have the “chilling” effect on freedom of speech which is perceived in the threat of large awards of damages and which we noted in DP 32.⁶⁸

2.31 Of course, we recognise, as has the High Court,⁶⁹ that freedom of speech is not, and cannot be, unqualified. Like other freedoms, freedom of speech confers power and the possession of power in a democracy entails accountability. Power, in this context, refers principally to the power of the media, whether that of media proprietors or media editors (especially those who enjoy, or assert that they enjoy, a large measure of independence from proprietorial interference). The media is sometimes bound by self-regulating codes of ethics which seek to ensure the flow of accurate information and the protection of privacy (though not specifically of reputation).⁷⁰ But, in the event of a failure of self-regulation, the following question recently posed by a journalist, David Leser, inevitably arises:

[I]n an age where the power of the media is greater than ever before, who keeps a check on them (us) to see that they (we) haven’t lost their (our) ethical moorings? Who dares take on the new philosopher/kings?⁷¹

DEFAMATION AND PRIVACY

2.32 In DP 32 we pointed out that the law of defamation is concerned with the protection of reputation, not privacy.⁷² Although the scope of privacy laws is now potentially much wider,⁷³ its four classical forms are:⁷⁴

• “appropriation”, that is, exploitation of the plaintiff’s name or likeness;
• “false light”, that is, portraying the plaintiff in a light that is highly offensive to the reasonable person;
• “intrusion”, that is, violation of the plaintiff’s private space or solitude; and
• “publication of private facts”, that is, publication of true facts where that publication is offensive to the sensibilities of the reasonable person.

2.33 The existing law of defamation affords some protection to privacy interests. First, defamatory publications extend not only to those which tend to bring the plaintiff into hatred, ridicule and contempt, but also to those which tend to cause others to shun the plaintiff.⁷⁵ Thus, it is defamatory of the plaintiff to say that she has been raped because the publication of such a statement may lead people to shun her, even though it should not cause any right-thinking member of society to alter their opinion of her character.⁷⁶ Quite clearly, this also protects the interest which the plaintiff has in that aspect of privacy which guards against the publication of private facts.⁷⁷ Secondly, the defence of justification is only available to a defendant who can prove that the imputation is true and relates to a matter of public interest.⁷⁸ If the recommendations in this Report are adopted, the plaintiff will bear the burden of showing, in a damages claim, that the imputation is false or, if it is not, that its publication does not relate to a matter of public interest. This linkage of truth and public interest is designed to protect interests in the “publication of private facts” aspect of privacy. In Rofe v Smith’s Newspapers Ltd Street ACJ gave the following example:

[T]o allow past misconduct, or discreditable episodes which were dead and gone, to be revived and dragged into the light of day at will by maliciously minded scandalmongers was too hard on people who, whatever indiscretions they might have committed in the past, were leading respectable lives.⁷⁹

2.34 While the interests in reputation and privacy are theoretically quite separate, the practical allocation of problems to one or other, or both, branches of the law gives rise to great debate and controversy. The recent Ettingshausen litigation provides an example.⁸⁰ The defendant clearly invaded the plaintiff’s privacy by photographing the plaintiff’s genitals without the plaintiff’s consent, an action which, in the circumstances, seems capable of falling within most of the four species of privacy identified in para 2.32. That action also carried a defamatory imputation (that the plaintiff “deliberately permitted a photograph to be taken of him with his genitals exposed (that is shown) for the purposes of reproduction in a publication with a widespread readership”). The question whether cases such as this should be allocated to the law of privacy or to defamation (or both) requires extensive consideration which cannot occur in the context of a review whose primary concern is with the law of defamation.

2.35 The Commission acknowledges that the introduction of privacy concerns into the law of defamation can have a distorting effect on the function of defamation law. That distortion is magnified if, as the Commission recommends in this Report, falsity becomes an ingredient of the cause of action in defamation. For there is no reason in principle why the plaintiff should be able to succeed in an action for damages for defamation by establishing either that the imputation is false or that it does not relate to a matter of public interest. The two are simply not alternatives. Proof that the matter does not relate to a matter of public interest will do nothing to vindicate the plaintiff’s reputation, the primary objective of the law of defamation.⁸¹

2.36 However, to reform the law of defamation in such a way as to remove from it all matters which, more properly, belong to a law of privacy would be to leave many plaintiffs vulnerable and without a legal remedy for the invasion of their privacy. Except in the case of the declaration of falsity where there is no “public interest” alternative,⁸² the Commission’s recommendations, therefore, deliberately do not touch this aspect of the law of defamation. We do, however, envisage that this should only be an interim position and that the “public interest” component which we now retain in the law of defamation should be removed when privacy laws are enacted. We therefore urge a comprehensive review of the law to consider the possible introduction of privacy laws, including the way in which such laws would interact with the law of defamation.

Recommendation 1

The Government should give urgent consideration to the development of privacy laws, including the interaction of those laws with the law of defamation.

FOOTNOTES

1. See E Barendt, Freedom of Speech (Clarendon Press, Oxford, reprinted ed 1987) at 30.

2. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Cunliffe v Commonwealth (1994) 124 ALR 121. If some of their reasoning is disregarded, recent cases dealing with the inability of local councils to sue in defamation can also be seen as arguing in favour of free speech: see para 1.9.

3. Theophanous at 131, per Mason CJ, Toohey and Gaudron JJ); Stephens at 237-328 per Brennan J dissenting.

4. Barendt at 8-23.

5. Theophanous; Stephens. Compare Hill v Church of Scientology (Supreme Court of Canada, 20 July 1995, No 24216, as yet unreported).

6. J Paterson, The Liberty of the Press, Speech and Public Worship, Being Commentaries on the Liberty of the Subject and the Law of England (Macmillan & Co, 1880) at 179 (where the author was speaking of holders of honorary office, though, at 180, he points out that the view is stronger in the case of a holder of an office of profit since in that case there is potentially tangible financial damage). Paterson’s view probably mirrors that which led to the emergence of the earlier action, scandalum magnatum, derived from a criminal statute of 1275, which provided a remedy to men of high position who had been scandalised: see Paterson at 180-182.

7. Gatley on Libel and Slander (8th ed, Sweet & Maxwell, London, 1981) at para 203. For a judicial discussion, see Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 399.

8. See G Spencer Bower, A Code of the Law of Actionable Defamation (2nd ed, Butterworth & Co, London, 1923) at 243.

9. R Pound, “Interests of Personality “ (Part 2) (1915) 28 Harv L Rev 445 at 447. See also R Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691.

10. See Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 551 per Hunt J.

11. Defamation Act 1974 (NSW) s 15(2).

12. Consider Defamation Act 1974 (NSW) s 47. See paras 7.16-7.18.

13. That is, a quia timet injunction (one which protects against threatened injury). See further para 6.54.

14. See Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 105 per McHugh J dissenting.

15. Theophanous at 24 per Mason CJ, Toohey and Gaudron JJ. Consider also Dun & Bradstreet Inc v Greenmoss Builders Inc (1985) 472 US 749 at 771 per White J.

16. Gatley at para 351.

17. See para 4.13.

18. Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 205 per Windeyer J; Singleton v Ffrench (1986) 5 NSWLR 425 at 443-444 per McHugh JA.

19. See Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61 per Mason CJ, Deane, Dawson and Gaudron JJ.

20. Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham LC.

21. NSW Law Reform Commission, Defamation (DP 32, 1993) at Chapter 2.

22. Especially John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259 (affmd as Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 with subsequent proceedings in (1994) 34 NSWLR 72); Ettingshausen v Australian Consolidated Press (Supreme Court of New South Wales, Common Law Division, No 12807/91, 10 February 1993, unreported).

23. See paras 4.7-4.15, 4.22-4.26.

24. Consider A Samuels, “Problems of Assessing Damages for Defamation” (1963) 79 LQR 63 at 77-78.

25. See paras 4.16-4.17.

26. See, for example, Dingle v Associated Newspapers Ltd [1964] AC 371 at 404 per Lord Morton of Henryton. The Commission respectfully disagrees with dicta in the House of Lords in Dingle to the extent to which their disapproval of the decision in Rook v Fairrie [1941] 1 KB 507 rests on the assumption that vindication cannot come from the judge’s reasoning only from the amount of the verdict. We point out that: (i) the disapproval came in the context of an attempt to ensure that actions heard by judges alone would not attract lesser damages than those awarded in jury verdicts - a factor which is of no relevance in NSW where damages are always assessed by the judge (see futher para 2.15); (ii) their concern may have been to assert that a judge’s reasoning can never displace a punitive award (see McGregor on Damages (15th ed, Sweet & Maxwell, London, 1988) at para 430) - a factor which is again irrelevant in NSW where there are no exemplary damages (see para 2.14); and (iii) there is no rigorous analysis of the ingredients which go to make up an award of damages in defamation, such as occurs in the decisions of the High Court in Coyne and Carson (see para 2.13).

27. Defamation Act 1974 (NSW) s 7A(4)(b).

28. See paras 3.24-3.29.

29. And, if relevant, injury to health: see Rigby v Mirror Newspapers Ltd (1963) 64 SR (NSW) 34.

30. DP 32 at paras 2.7 - 2.10.

31. See paras 2.16-2.17 and Chapter 6.

32. See M J Tilbury, Civil Remedies Volume 1 (Butterworths, Sydney, 1990) at paras 3032-3034.

33. See Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 per Windeyer J, who expressed similar views in personal injury cases: Thatcher v Charles (1961) 104 CLR 57 at 75-76; Skelton v Collins (1966) 115 CLR 94 at 130-131.

34. See especially Smiths Newspapers v Becker (1932) 47 CLR 279 at 300 per Dixon J; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 per Windeyer J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61 per Mason CJ, Deane, Dawson and Gaudron JJ, at 69-71 per Brennan J. See also John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 at 136-139 per Samuels JA dissenting, at 143 per McHugh JA.

35. Cases in note 34 above.

36. Carson at 72 per Brennan J dissenting.

37. Carson at 66 per Mason CJ, Deane, Dawson and Gaudron JJ.

38. Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 216 per Mason CJ and Deane J dissenting.

39. See John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 139 per Samuels JA dissenting (damages for vindication “scarcely compensation at all”); Broome v Cassell & Co Ltd [1972] AC 1027 at 1114 per Lord Wilberforce dissenting (“if one says that a plaintiff is given compensation because he has been injured, one is really denying the word its true meaning”).

40. Defamation Act 1974 s 46(3)(a).

41. See Dingle v Associated Newspapers Ltd [1964] AC 371 where the House of Lords disapproved, obiter, of the suggestion of the English Court of Appeal in Rook v Fairrie [1941] 1 KB 507 that where damages are assessed by a judge alone (as they were in England during the Second World War) the judge might award less in damages than the jury in the light of the judge’s condemnation of the defendant: see further note 26 above.

42. See P W Young, Declaratory Orders (2nd ed, Butterworths, Sydney, 1984) at para 1712.

43. See paras 6.48-6.51.

44. See paras 6.13-6.15.

45. See paras 6.16-6.32.

46. See note 56 below.

47. Other possible remedies include injunction and account of profits. These are considered in paras 6.52-6.57.

48. See para 2.21.

49. See paras 6.44-6.46.

50. Young Lawyers, Submission (29 October 1993) at 6-7; Law Institute of Victoria, Submission (2 December 1993) at 2-3.

51. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44. But see Hartley v Nationwide News Pty Ltd (1995) 31 Gazette of Law and Journalism 9.

52. No submissions received by the Commission were directed at the recovery of economic loss, where we propose no alteration to the existing law: see para 2.21.

53. Consider Rookes v Barnard [1964] AC 1129 at 1227 per Lord Devlin (power to award exemplary damages can be used against liberty). See also J Stone, “Double Count and Double Talk: the End of Exemplary Damages?” (1974) 46 Aust LJ 311 at 321.

54. New South Wales Law Reform Commission, Report of the Law Reform Commission on Defamation (LRC 11, 1971) paras 42-50.

55. Defamation Act 1974 (NSW) s 46(3)(a).

56. R P Bezanson, G Cranberg and J Soloski, Libel Law and the Press: Myth and Reality (Free Press, New York, 1987) at 171-183 (Iowa Libel Research Project).

57. See Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 104-105 per McHugh J dissenting.

58. (1990) 172 CLR 211 at 215.

59. Defamation Act 1974 (NSW) s 7A(4)(b). See also paras 3.24-3.29.

60. Nationwide News Pty Ltd v Wills; Australian Capital Television Pty Ltd v Commonwealth.

61. Theophanous at 137. See also Tolstoy Miloslavsky v United Kingdom (The Times, 19 July 1995) where the European Court of Human Rights held that an English libel award of £1.5 million violated the right to freedom of expression guaranteed by art 10 of the European Convention on Human Rights. But compare the decision in Hill v Church of Scientology (Supreme Court of Canada, 20 July 1995, No 24216, as yet unreported) where the Court, unanimously, failed to detect any conflict between the common law of defamation and the Canadian Charter of Rights and Freedoms.

62. (1994) 124 ALR 120 at 195.

63. Theophanous at 134 per Mason CJ, Toohey and Gaudron JJ. This view finds some support in the judgment of Deane J who focused more clearly on the identity of the plaintiff: Theophanous esp at 185-187. See also Hartley v Nationwide News Pty Ltd (1995) 31 Gazette of Law and Journalism 9 (alderman); Williams v John Fairfax & Sons Ltd (Supreme Court of NSW, Levine J, No 10872/1989, unreported) at 11 (defendant to defamation action by magistrate arguably able to avail itself of “new common law privilege defence” and “implied freedom of speech” defence). Compare Sporting Shooter’s Association of Australia (Vic) v Gun Control Australia and Crook (1995) 2 Media Law Reporter 83 (County Court of Victoria). See further Chapter 5.

64. See para 10.10.

65. See esp Chapters 5 and 10.

66. See M Chesterman, “The Money or the Truth: Defamation Reform in Australia and the USA” (1995) 2 UNSW Law Journal 300 at 309-310.

67. Theophanous at 132.

68. DP 32 at para 2.11.

69. Theophanous at 133-139.

70. See Code of Ethics of the Australian Journalists’ Association Section of the Media and Entertainment and Arts Alliance.

71. “The Seduction of Richard Carleton” in Good Weekend, January 7 1995, at 17.

72. DP 32 at paras 6.22 - 6.30.

73. See especially Australian Privacy Charter (1994), text in (1995) 69 Australian Law Journal 90-92.

74. See W L Prosser, “Privacy” (1960) 48 California Law Review 383.

75. See Spencer Bower (1923) at 2 (Article 3) and 253-257. See also Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 23-24 per Mason J (dealing with the meaning of defamation under Defamation Act 1958 (NSW) s 5).

76. Youssoupoff v Metro-Goldwyn Mayer Publications Ltd (1934) 50 TLR 581 is the classic authority.

77. See Melvin v Reid (1931) 297 P 91.

78. Defamation Act 1974 (NSW) s 15(2).

79. (1924) 25 SR (NSW) 4 at 22.

80. See Ettingshausen v Australian Consolidated Press Ltd (Supreme Court of New South Wales, Common Law Division, No 12807/91, 10 February 1993, unreported). Earlier proceedings are reported at (1991) 23 NSWLR 443.

81. See para 2.1.

82. See para 4.17.