1.1 Defamation law is controversial. Most defamation actions involve media outlets, and thus tend to be widely reported in the media. News, current affairs and other media coverage tend to focus on a relatively small proportion of the population - politicians, business people, entertainers and so on. As a result, such people are more likely to be defamed. Occasionally they sue. Because they are famous their defamation suits are also reported. Consequently, defamation is probably one of the best known non-criminal areas of the law.

1.2 Nevertheless, the intricacies of defamation law are not well understood. Myths abound; only some have a basis in legal or practical reality. The law is complex and the precise details of its operation can occupy the time of lawyers and courts for weeks. The basic issues involved are more easily comprehended. Defamation law is our legal system’s attempt to reconcile the mutually incompatible interests of freedom of speech and protection of reputation. In the modern “information age”, a third interest must also be recognised - that of the public in receiving accurate information from the mass media.¹ These are relatively straightforward concepts. In practice, their application and interaction produce a morass of complex questions.

1.3 Many people agree that defamation law should be changed. Few agree on how it should be changed. This state of affairs has generated a virtual defamation law reform industry in Australia and around the world. It is not surprising that such a vital and controversial area of law should continue to invite scrutiny. The balance which it strikes between such important competing interests should continue to be reassessed in the light of contemporary social values.

THE COMMISSION'S REFERENCE

1.4 The New South Wales Law Reform Commission is currently conducting a review of the defamation law of this State. The reference was received from the Attorney General, the Hon John P Hannaford MLC, on 4 November 1992. The terms of reference are set out at page (ix) above.

The current law in this State

1.5 The defamation law of New South Wales is unique. It is governed by the Defamation Act 1974 (NSW), which was passed following the 1971 Report of the New South Wales Law Reform Commission on Defamation.² That Act repealed the Defamation Act 1958 (NSW) (an attempt at codification) and provided that the common law was to operate, although substantially modified in some areas. The Act has now been in operation for some 19 years and has been the subject of extensive judicial interpretation and academic analysis.

The law in other Australian jurisdictions

1.6 Perhaps the major problem with defamation law in Australia is its lack of uniformity. All jurisdictions have introduced legislation to modify or codify the common law, and in no two jurisdictions is the law identical. Victoria and South Australia have the fewest departures from the common law.³ Western Australia is similar, although defences under the Criminal Code Act 1913 (WA) are available in civil actions.⁴ The Australian Capital Territory and the Northern Territory have their own statutory alterations of the common law.⁵ Finally Queensland and Tasmania have codified defamation law, with statutes based on the Indian Penal Code of 1860.⁶

1.7 The major print and electronic media now publish and broadcast nationally. Reputations are no longer confined to local communities but extend throughout the country and beyond. The variations in defamation law throughout Australia cause problems for all concerned - plaintiffs, defendants, lawyers, and the general community.

Past attempts at reform in Australia

Reports in other States

1.8 Reports on defamation law were issued by the Law Reform Committee of South Australia in 1971 and the Law Reform Commission of Western Australia in 1979.⁷ The latter was produced on a co-operative basis with the Australian Law Reform Commission.

The Australian Law Reform Commission Report

1.9 In 1976, the Australian Law Reform Commission (ALRC) was given two separate references dealing respectively with defamation and privacy. Certain aspects of invasion of privacy caused by publication were dealt with as part of the defamation reference. The ALRC undertook an exhaustive program of research and public consultation. In 1979 it released its Report on Unfair Publication: Defamation and Privacy.⁸ That Report has played a major part in all subsequent debates over defamation law reform in Australia.

The Uniform Bills

1.10 In July 1980, the Standing Committee of Attorneys General (SCAG) began discussing a uniform national defamation law based on the ALRC Report. An enormous amount of material was submitted to the Standing Committee. Draft Bills were released for public comment in 1983 and 1984.

The collapse of the uniformity exercise

1.11 None of the recommendations of the ALRC were ever implemented. Agreement could not be reached in such key areas as the defence of justification and the definition of defamatory matter. Defamation law reform was removed from SCAG’s agenda in May 1985.

The current reform process

Reconsideration by the Standing Committee of Attorneys General

1.12 In March 1990, SCAG considered reinstating defamation law reform as an active project on their agenda. In June 1990, the Attorneys General of Queensland, Victoria and New South Wales decided to proceed with a review of the law in their respective jurisdictions, with the ultimate aim of achieving uniformity throughout Australia.

The two Discussion Papers

1.13 A joint Discussion Paper was released by the three Attorneys General in August 1990. The Paper elicited a wide-ranging response and many submissions were received. A second joint Discussion Paper was released in January 1991. Further submissions were received.

The Defamation Bills 1991

1.14 On 14 November 1991, Defamation Bills were introduced in the Parliaments of Queensland, Victoria and New South Wales. Subsequently a draft based on these Bills was tabled for consideration in the Legislative Assembly of the Australian Capital Territory. Essentially the Bills reproduced the current Defamation Act 1974 (NSW). There were significant changes in some areas, including justification, qualified privilege, court-recommended corrections and limitation periods. The Bills were not uniform; for example, in New South Wales damages were to be assessed by the judge, whereas in Victoria they were to be assessed by the jury.

The New South Wales Legislation Committee on the Defamation Bill

1.15 On 14 November 1991, the Defamation Bill 1991 (NSW) was referred to a Legislation Committee of the Legislative Assembly, chaired by Malcolm Kerr MLA, for a full consideration of its provisions. The Bill was reintroduced in 1992 and re-referred. The Committee issued a Discussion Paper in May 1992. It received over 70 written submissions and heard evidence over five days from 16 witnesses. Its final Report was issued in October 1992.⁹

1.16 The major recommendation of the Report is that the Bill should be referred to this Commission for a comprehensive review and redrafting of its provisions. Subsequently the Commission was given its current reference on defamation. The Report also contains recommendations on specific issues, such as the defence of justification. It recommends a number of tasks for the Commission. Some of these were effectively already undertaken by the Legislation Committee itself, such as an extensive review of the qualified privilege provisions.¹⁰

The position in other jurisdictions

1.17 The Bill introduced in Queensland in 1991 lapsed when the Parliament was prorogued in early 1992. The Queensland Government remains receptive to the uniformity initiative and is prepared to consider developments in other States. The Queensland Criminal Code Review Committee has recommended that defamation should be removed from that criminal statute.¹¹ A new Criminal Code is expected to be introduced into the Parliament in April 1994. A new Defamation Act would have to be compiled by that date.

1.18 The Victorian Government is no longer actively pursuing the uniformity initiative but is prepared to consider developments in other States.

1.19 The eastern States’ Defamation Bills were thoroughly examined by the ACT Community Law Reform Committee as part of its ongoing reference on defamation. The ACT Government remains supportive of the uniformity initiative, and is also awaiting developments.

THE COMMISSION'S APPROACH

The focus of the Commission’s work

1.20 The Commission must concentrate on achieving the best possible defamation law for New South Wales. As outlined above, the lack of uniformity among the Australian jurisdictions is a major problem in defamation law. The Commission’s terms of reference indicate that it should have particular regard to the proposals of the Standing Committee of Attorneys General for uniformity of defamation laws in Australia. The actual achievement of uniformity is beyond our brief and our capacity.

1.21 The Bills introduced in Queensland, Victoria and the ACT were essentially versions of the current New South Wales Defamation Act 1974. In this context, the Commission plans to examine ways in which that Act could be improved. Discussions and proposals advanced during the Commission’s review may lead to a re-examination of the position in other States. This may rejuvenate the uniformity initiative.

The purpose of this Discussion Paper

1.22 The above outline of the current reform process indicates that extensive consultation already has taken place in this area. A number of discussion papers and reports have generated a wide range of responses. In this context, there could be an argument for the Commission to proceed directly to its final report, relying on the views already expressed as well as on its own research.

1.23 However, the process of law reform involves both research and consultation. The community should be involved in all law reform efforts. This is especially so in contentious areas involving vital interests, such as defamation. It is essential that the community be given an opportunity to comment on any reform proposals in this area.

1.24 The purpose of this Discussion Paper is to identify the major issues upon which the Commission intends to focus. It also indicates the direction which the Commission proposes to take on those issues, or at least the choices the Commission faces.

1.25 The views expressed in this Discussion Paper are not the final recommendations of the Commission. They are made for the purpose of encouraging comments and suggestions from interested persons and groups. A Report containing our final recommendations to the Attorney General will be prepared after the Commission has completed its research and consultation program.

General theme of this Discussion Paper

1.26 To some extent, the current reform process was prompted by concern over large awards of damages in defamation cases. The number of cases in which massive damages are awarded appears to be small.¹² Nevertheless, when such awards occur, they generate a great deal of media comment. Consequently, there may be a perception that defamation suits represent an ideal opportunity for plaintiffs to make a fortune.

1.27 It has been argued that successful plaintiffs need to receive significant damages if they are to have their costs covered.¹³ The complexity of defamation law means that costs in a fully litigated suit are substantial. Not all of these will be recovered by a successful plaintiff.

1.28 Yet damages are not the ideal remedy for the injury suffered by a defamed plaintiff. An award of damages does nothing to restore a plaintiff’s reputation, unless it is publicised. The injury suffered by a defamed plaintiff is usually non-financial. It is not even measurable in money terms.

1.29 Thus, one of the general themes of this Discussion Paper is to remove the preoccupation with large awards of damages in defamation cases, by focusing on the reform of procedures and remedies. These proposals are designed to restore reputation more quickly and effectively; reduce costs; and reduce the threat to free speech caused by the prospect of excessive damages.

Outline of contents of this Discussion Paper

1.30 This Paper consists of eleven chapters.

Chapter 1 outlines the context in which the reference arose, and the Commission’s approach to it.

Chapters 2 to 5 discuss issues of procedure and remedies. They explore various options for reducing costs and delays in defamation litigation.

Chapters 6 to 11 discuss issues of substantive law. These all relate to defences.

The issues discussed in Chapters 2 to 11 are drawn from the Report of the Legislation Committee on the Defamation Bill 1992 and the reform process which preceded it. They also reflect the Commission’s research into reforms which could be beneficial in New South Wales.

1.31 The contents of Chapters 2 to 11 are as follows.

Chapter 2 - Alternative Remedies and Procedures

This chapter explores options for reducing the emphasis on damages in defamation actions. These are:

• voluntary corrections of defamatory matter by defendants;
• compulsory correction orders; and
• declaratory judgments.

Chapter 3 - Alternative Dispute Resolution (ADR)

This chapter examines the use of ADR in defamation disputes. It focuses on:

• the need for ADR;
• mediation; and
• arbitration.

This chapter explores three options for reducing the procedural difficulties caused by using juries in defamation trials. These are:

• abolition of juries;
• retention of juries only to decide whether published matter is defamatory; and
• retention of juries in their current role, but implementing reforms to enable them to perform it more effectively.

Chapter 5 - Other Procedural Issues

This chapter examines procedural reforms designed to ensure that defamation actions can restore reputation more effectively. These are:

• providing a shorter limitation period in which defamation suits can be commenced;
• giving courts an express power to strike out defamation actions; and
• using agreed statements of issues and exchanging witnesses’ statements.

Chapter 6 - Justification

This chapter examines whether New South Wales should adopt a defence of truth alone, and explores related issues concerning protection of privacy.

Chapter 7 - Absolute Privilege

This chapter examines the scope of this defence. It focuses on:

• bodies to be covered by this defence;
• the scope of parliamentary privilege; and
• arguments against extending absolute privilege.

This chapter examines the scope of this defence, and proposals for making it applicable to reports of a wider range of proceedings.

Chapter 9 - Statutory Qualified Privilege

This chapter focuses on the protection available under this defence to the media. It examines:

• the current operation of this defence, and proposals for making it more widely available;
• proposals for a specific media defence;
• the protection of journalist’s sources; and
• simplifying the defence, and the tort of defamation in general, by basing it on negligence.

Chapter 10 - The Public Figure Test

This chapter examines a form of qualified privilege for statements concerning “public figures” which exists in the United States of America. It identifies issues relating to:

• recent developments in Australian constitutional law;
• the operation of the public figure test in its United States context; and
• whether the test should be introduced in New South Wales.

Chapter 11 - Innocent Publication

This chapter examines ways of protecting distributors and other persons innocently involved in the publication of defamatory matter. It examines:

• the protection currently available at common law and under statute;
• a blanket defence for distributors; and
• liberalising the current offer of amends defence.

1.32 Each chapter concludes with a brief summary of tentative proposals and major issues on which submissions are sought. It is emphasised that submissions on any issue raised in this Discussion Paper are most welcome.

1. Australia. Law Reform Commission Unfair Publication: Defamation and Privacy (Report 11, 1979) at paras 30-33.

2. New South Wales. Law Reform Commission Defamation (Report 11, 1971).

3. Primarily the Wrongs Act 1958 (Vic) and the Wrongs Act 1936 (SA).

4. West Australian Newspapers v Bridge (1979) 141 CLR 535.

5. ACT: Defamation Act 1901 (NSW) and Defamation (Amendment) Act 1909 (NSW). Northern Territory: Defamation Act (which includes the Defamation Act 1980 (NT) and the Defamation Amendment Act 1989 (NT)).

6. Criminal Code Act 1899 (Qld); Defamation Act 1957 (Tas). For a summary of the intricate differences between the various Australian jurisdictions, see T K Tobin and M G Sexton Australian Defamation Law and Practice (looseleaf, Butterworths, Sydney 1991) at paras [1020]-[1065].

7. Law Reform Committee of South Australia Reform of the Law of Libel and Slander (Report 15, 1971); Law Reform Commission of Western Australia Report on the Law of Defamation (Project No. 8, 1979).

8. Australia. Law Reform Commission Unfair Publication: Defamation and Privacy (Report 11, 1979).

9. Legislation Committee on the Defamation Bill 1992, Report on the Defamation Bill 1992 (Legislative Assembly, Parliament of New South Wales, October 1992) (NSW Legislation Committee Report).

10. NSW Legislation Committee Report at 76-77.

11. Queensland. Criminal Code Review Committee Final Report of the Criminal Code Review Committee to the Attorney-General (June 1992) at 13.

12. The evidence is explored further in Chapter 4.

13. For example, A Henskens Evidence before NSW Legislation Committee (19 February 1992) at 19-20.