LAWS1114 Lecture 10

Defamation 2

Resolution of civil disputes without litigations

Offers to make amends

  • See ss 12 - 19.
  • Hinchy wants us to read it ourselves.

Apologies

  • See s 20.

Role of judge and jury

  • See ss 21 - 23.
  • Role of judge: to determine a question of law (whether an imputation is capable of being defamatory).
    • General test: Radio 2UE (formulated as a matter of law)
  • Role of jury: to determine a question of fact (Did the imputation carry a defamatory meaning and if so, did it damage the reputation (and defences).

Defences

Scope of defences under general law

  • s 24 (1) provides that a defence under the Defamation Act 2005 (Qld) is additional to any defence at general law. s (2) provides that the general law is used to determine whether the publication of defamatory matter was through ‘malice’.
  • If there is malice, one must apply what malice is at common law to the case.

Justification

  • s 25 reflects the defence of justification at general law.
  • NB: the meaning of ‘substantially true’ in Schedule 5.
    • Substantially true means true in substance or not materially different from the truth.
  • NB: This defence is in relation to statements of fact.

Contextual truth

  • NB: Hinchy will be focusing on qualified privilege and honest opinion rather than contextual truth in this lecture. However, we will still need to know about Contextual truth.
  • NB: This defence is in relation to statements of fact.
  • When the plaintiff selectively chooses part of the defamatory matter and relies on that. The defendant may use this defence and raises contextual imputations.
  • Purpose of s 26
    • Edward Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 (13 July 2007). (Hinchy said not to worry about this case.)
    • Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 (4 August 2010).
      • [31]: In the second reading speech introducing the 2005 Act, the Attorney General, Mr Debus, said: ‘Clause 26 provides for a defence of contextual truth… The purpose of the defence is basically to prevent plaintiffs from taking relatively minor imputations out of their context within a substantially true publication.’
      • [32] …in the Explanatory Note that accompanied the presentation of the (then) Bill, the following appears: ‘Clause 26 provides for a defence of contextual truth. The defence deals with the case where there are a number of defamatory imputations carried by a matter but the plaintiff has chosen to proceed with one or more but not all of them.’
      • [33] The interstate counterparts of s 26 of the 2005 Act (as enacted in Western Australia and Victoria as part of the national approach to defamation law) has been the subject of consideration on at least two previous occasions.
      • In Wookey v Quigley [2009] WASC 284, Hasluck J outlined the purpose of the section. His Honour said:
      • [62] ‘My understanding is that this provision covers the situation where the plaintiff draws a particular allegation out of the material complained of but ignores some other more serious allegation, possibly because the defendant might be able to justify it. In that situation it is open to the defendant to raise and justify the more serious imputation in order to establish that the plaintiff's reputation has not actually been damaged as alleged by the plaintiff in seeking to confine his complaint to the less serious imputation selected by him.’
      • In Newnham v Davis (No 2) [2010] VSC 94, Kaye J said at [48]; ‘The first point … is whether the contextual imputations pleaded by the defendant are, or are capable of being, additional to the imputations pleaded by the plaintiff. It is clear, from the express terms of s 26(a), and also from the structure of a contextual truth defence, that the contextual imputations must be “additional to” the imputations pleaded by the plaintiff. Section 26(a) expressly requires that the contextual imputations arise “in addition to” the defamatory imputations of which the plaintiff complains.’
      • ‘The structure of s 26 is such that it requires a comparison, by the Court, of two sets of imputations to be derived from the defamatory material, namely, the plaintiff’s imputations, and the contextual imputations. Thus, as Hunt J stated in the John Fairfax & Sons Ltd case (Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36), it is necessary that the contextual imputations relied on by the defendant “differ in substance” from those pleaded by the plaintiff.’
  • General law
    • The Explanatory Notes state the difference between s 26 and the general law.
  • In order to succeed in contextual truths, you have to identify additional imputations and prove that the majority of them are substantially true.

Absolute privilege

  • See s 27.

Publication of public documents

  • See s 28.

Fair report of proceedings of public concern

  • See s 29.

Qualified privilege

  • NB: This defence is in relation to statements of fact.

General law

  • Example: Say you have a part time job at a cafe and in recent times you’ve noticed that someone you work with is pocketing money. You are an honest person and you have a sense of duty that compels you to tell the supervisor. You tell said supervisor that such-and-such may be stealing money from the till. (P.S. The defamatory imputation is that the other person is dishonest.)
    • This is different from you standing up in the break of the lecture and telling everyone as an example of defamation.
    • The concept of qualified privilege under the Act is not restricted.
  • Reciprocity: there is a duty and a corresponding interest in what is being said.
    • This is fundamental to the common law concept of qualified privilege.
  • The general proposition, malice and the rationale for qualified privilege: Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 (4 August 2010).
    • [14] ‘As a general proposition, the common law protects the publication of defamatory matter made on an occasion where one person has a duty or interest to make the publication and the recipient has a corresponding duty or interest to receive it; but the privilege depends upon the absence of malice. The requirement of reciprocity of interest generally denies the common law privilege where the matter has been disseminated to the public at large.’
    • Mr Lange was the former PM of New Zealand. He sued ABC for defamation. The High Court looked at this issue in context.
      • Lange defence … is not examinable.
  • Malice: Roberts v Bass (2002) 212 CLR 1.
    • NB: We can use Roberts v Bass to get the meaning of malice at common law for the purposes of the defence of qualified privilege.
    • According to Gaudron, McHugh and Gummow JJ at [75]: ‘An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term "express malice" is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege.
    • ‘Accordingly, for the purpose of that privilege, express malice (malice) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff.’
    • If your motivation for reporting something is not through a sense of duty, there could be malice. And if this could be proven, then there is no defence of qualified privilege.
  • Public response to public attack
  • In Browne v Dunn (1893) 6 R 67, 72: Lord Herschell LC said that malice ‘means making use of the occasion for some indirect purpose’.
    • Lord Campbell CJ said that malice was ‘any indirect motive, other than a sense of duty’

Section 30

  • NB: Qualified privilege under this Act is wider than qualified privilege at common law.
  • Interest or apparent interest of the recipient under s 30(1)(a)
    • Restifa v Pallotta [2009] NSWSC 958 (16 September 2009).
    • [46] ‘In either case (at common law or under s 30), it is an element of the defence that the recipient has an interest or an apparent interest in having information on the relevant subject. The word “interest” in reference to the recipient is used “in the broadest popular sense” but it is not enough to establish interest as a matter of gossip or curiosity. The recipients must have an interest in the information “as a matter of substance apart from its mere quality as news”: Bashford at [148] per Gummow J, citing Howe & McColough v Lees (1910) 11 CLR 361 at 398.’
  • Does a judge or jury determine reasonableness under section 30(1)(c)? The judge.
    • Davis v Nationwide News Pty Ltd [2008] NSWSC 699 (11 July 2008)
  • General application and the seriousness of any defamatory imputation under section 30(3)(c)
    • *O’Hara v Sims [2009] QCA 186 (10 July 2009).
    • It should be noted that on 31 March 2010, Justices Gummow and Kiefel refused to grant special leave to appeal to the High Court from the decision of the Queensland Court of Appeal: see O’Hara v Sims [2010] HCASL 77 (31 March 2010).
  • s 30(4): common law definition of malice.

Honest opinion

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245.

General law defence of fair comment
  • Statement of fact versus comment or opinion: [35]-[40].
    • [16]: If the material contains statements of fact, the defence does not apply in respect to those statements.
    • This defence only applies for comment or opinion.
  • Intermingling of fact and comment or opinion: [41]-[42].
    • The statement ‘The data, dates and documents that don’t add up’ is an example of intermingling facts with comments. Involves value judgment. If you can't separate the two, then the defence doesn’t apply.
  • Whether facts on which comment or opinion are based is sufficiently indicated: [45]-[47], [49], [52], [74].
    • If the defence of a fair comment is raised, it must be about opinion. This opinion needs to have evidence backing it up for context as well as to make the said opinion to be considered valid.
  • Test for fairness of comment or opinion: [3].
Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 (27 February 2008).
  • Read [104]-[111]
    • [104] Lord Denning (his statement is obiter dicta)
    • [210]: A good statement about public interest
  • Public interest

Section 31

  • NB: This case was decided on honest opinion at common law. However, it can still be applied to s 31.
  • Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 (27 February 2008).
  • Have a look at the explanatory notes for s 31.
  • s 31(1)(a): The reasoning of Channel Seven v Manock is relevant.
  • s 31(1)(b): [104]-[111] of Fawcett v John Fairfax Publications
  • s 31(2): Situations where you have an employee or an agent. The employer or principal has an honest opinion if the opinion was given by the employee and the employer had no reason to believe it to be false.
  • s 31(3): A commentator expresses the opinion.
  • s 31(4): If the opinion was not honestly held at the time of publication.

Innocent dissemination

  • See s 32.

Triviality

  • See s 33.

Remedies

  • See ss 34 – 39.