The object of the law of defamation is to protect reputation. The person whose reputation is lowered by a defamatory imputation has a cause of action in respect of that imputation.
The Commission has determined that, if defamation actions are to result in the effective vindication of reputation, the principal issue in such actions, so far as the nature of the particular case permits, should be the truth or falsity of each imputation pleaded. Accordingly, regardless of the remedy sought, the Commission recommends that the plaintiff will generally have to prove the falsity of the imputation in order to succeed in a defamation action. Exceptions are made to accommodate cases where the imputation is conveyed by a statement of opinion which cannot be proved to be either true or false, and in order to preserve such protection of privacy as the law of defamation provides in the absence of more specific legislation.
The remedies available to enforce the cause of action should facilitate the prompt public restoration or vindication of the plaintiff’s reputation and provide the plaintiff with compensation for the injury suffered. Economic loss consequent upon the defamation should continue to be recoverable as under the present law.
Currently, the remedy most commonly pursued in respect of non-economic loss is damages, whose object is both to compensate the plaintiff for the injury to reputation and the hurt to feelings inflicted by the imputation and to serve as vindication of the plaintiff. But an award of damages is inadequate to furnish vindication to the plaintiff. It may come long after the defamatory publication and revive the imputation rather than extinguish it. It may not be publicised. Moreover, although the evidence in support of the proposition is anecdotal at best, the threat of large awards of damages for defamation is generally regarded as having a “chilling effect” on freedom of speech vital in a pluralist democratic society.
Under the Commission’s recommendations, it will generally be unnecessary for a judge assessing damages to pay heed to the recognition of any element of vindication, since vindication will have been provided by the judge’s reasons. The assessment of damages will focus, therefore, on providing compensation for injury to reputation and hurt to feelings.
As an alternative to an action for damages, the Commission recommends that plaintiffs should be able to seek a declaration of falsity, whose aim will be the speedy and effective vindication of the plaintiff’s reputation. The remedy must generally be sought within four weeks of publication. It will be available, in the court’s discretion, where the imputation of which the plaintiff complains is both defamatory and inherently capable of being proved false. A declaration will not be granted where the defendant has a triable defence of absolute privilege, protected report or court or official notice. But defences currently available to an action for damages - which have deflected the focus of the law of defamation away from the determination of issues of truth or falsity - cannot be raised in opposition to a declaration of falsity. A successful plaintiff will be entitled to costs, including, in the ordinary case, indemnity costs, and the court will have power to order publication of the terms of its declaration with the same prominence as that given to the defamatory statement.
The Commission also recommends that a plaintiff who wishes to avoid litigation altogether may choose to make a formal request in accordance with the specified procedure for a correction of an allegedly defamatory imputation. A publisher who responds to such a request by making a correction which, in point of promptness and adequacy, is agreed between the parties or complies with promulgated requirements, may, after paying the claimant’s costs, plead the correction in bar to an action for non- economic damages.
The Commission has formulated its recommendations bearing in mind the importance of balancing the protection of individual reputation against the notion of freedom of speech. We have concluded that recent decisions of the High Court strike that balance better than would the importation of a “public-figure” test along American lines.
Underpinning any reform of the substantive law of defamation is a determination of the proper distribution of functions between judge and jury. Here the Commission endorses the position which now obtains in New South Wales where the function of the jury is restricted to the determination of whether or not the matter complained of was published by the defendant and, if it was, whether or not it conveyed the imputation pleaded by the plaintiff and, if so, whether or not that imputation is defamatory.
