To ensure that there are not a multiplicity of actions on the same subject, the Act would prevent a person from bringing more than one proceeding in respect of the same matter unless doing so was necessary to obtain a different remedy or the publication was materially different. It would also provide that a person who publishes defamatory matter concerning a group or class would be liable to a member of the group or class in certain circumstances.

A cause of action would be available to a representative of a deceased or a surviving spouse, parent, child or sibling. The action would only be available for publication within three years of death. Damages would not be available. The Act would also provide that actions commenced in defamation should continue after the death of either party but would restrict the remedies available to the plaintiff's estate.

Defences

The Act would provide a defence if the published matter is true and relates to a subject of public interest. It would treat published matter as relating to a subject of public interest unless it involves an unwarranted disclosure of specified 'private affairs'. The defence would thus be somewhat broader than the corresponding defences in New South Wales, Queensland, Tasmania and the Australian Capital Territory.

The Act would create a defence of contextual truth. It would be available where the proceedings are based on all or any of the matter contained in a publication and the defendant shows that the false charge in the publication does no additional harm to the plaintiff because of the more serious charges in the publication which are true and relate to a subject of public interest.

The Act would codify the defence of honest opinion. A defendant could obtain the defence by showing that:

the matter complained of related to a subject of public interest
it expressed the defendant's honestly held opinion
the opinion was based on facts expressly or impliedly referred to in the matter, or generally known at the time of the publication, and
the facts were substantially true or were covered by the defences of absolute privilege, qualified privilege or fair report.

The requirement that the opinion be 'based on' facts would involve a rational connection between the facts and the opinion formed. Prejudiced and biased opinions, therefore, would be afforded protection if they have some rational connection with the facts to which the publication refers.

Related opinion defences would cater for defendants who are not authors of the published matter. A defendant whose agent, employee or independent contractor published defamatory matter would obtain a defence by showing that:

the matter complained of related to a subject of public interest
it amounted to opinion
it was based on facts expressly or impliedly referred to in the matter, or generally known at the time of publication
the facts were substantially true or were covered by the defences of absolute privilege, qualified privilege or fair report
the opinion did not purport to be the defendant's, and
the defendant honestly believed the opinion to be the author's.

A defendant who publishes an opinion by a stranger, such as a newspaper that publishes a letter to the editor, would have a similar defence. However, the defendant would not have to believe that the opinion was genuinely held by the author; it would be enough to show that:

the opinion did not purport to be the opinion of the defendants, their agents, employees or independent contractors, and
there were no reasonable grounds to believe that the opinion was not honestly held by the author.

The Act would provide a defence of absolute privilege to the publication of defamatory matter in the course of proceedings in Commonwealth, State and Territory legislatures, courts, and quasi-judicial and administrative bodies. It would also provide a defence to certain communications involving Commonwealth, State and Territory ministers. Absolute privilege could be extended to other circumstances identified by regulation.

The defence of qualified privilege would be available to a defendant who could show either that the matter was published in any of a number of specified circumstances (such as in response to an attack on the plaintiff's reputation) or that its publication was otherwise reasonable in all the circumstances.

To make out the defence based on reasonableness, the defendant would have to show that:

they believed on reasonable grounds that a recipient had an interest in receiving information on some subject
the publication was made in the course of giving to the recipient information on that subject, and
the publication was reasonable in all the circumstances.

In determining whether the defendant's publication was reasonable in all the circumstances, the following matters would be relevant:

whether the matter relates to a subject of public interest
the seriousness of the charges conveyed by the matter
the adequacy of any steps taken by the defendant to check the accuracy of any facts referred to in the matter
whether the defendant believed that any facts referred to in the matter were untrue
the adequacy of any opportunity given to the plaintiff to comment on the matter before it was published
whether the publication in effect conveyed the gist of the plaintiff's side of the story
the manner of the publication
the language of the publication, and
the number of people to whom it was published.

The Act would create defences for the fair and accurate report of specified public proceedings or the fair and accurate copy or summary of a public document. It would create a limited defence for trivial defamation.

The defence of innocent dissemination would have two limbs: the first covering internet service providers and internet content hosts; the second covering all other 'distributors'.

The first limb would give effect to the current policy of the Broadcasting Services Act 1992 .

The second would cover all other distributors and employees or agents of such persons. It would be a defence for them to show that:

they did not know that the published matter contained the alleged defamatory material, and
it was reasonable for them, having regard to the nature of the matter and any facts of which they were aware, not to monitor or check its contents for defamatory material.

The Act would continue the defences of 'release', 'consent' and 'illegality'.

Procedures

The Act would provide for a limitation period of 12 months from the date of publication. A court could, however, extend this period to a maximum of three years from the date of publication if it decided that it was just and reasonable to do so.

State and Territory Supreme Courts and the Federal Court would be granted concurrent jurisdiction to hear causes of action arising under the Act. The Act would provide that appeals from first instance proceedings could be heard only by the Federal Court.

Juries would have a role in deciding whether a publication is defamatory and whether a defence is available, but they would have no role in awarding damages. Juries would be available in the Federal Court and in those State and Territory courts for which State or Territory legislation permits their use. Further consideration is being given to whether, in such courts, the Act should provide common criteria for judges to apply in deciding whether to order a jury trial. State and Territory laws would govern who may sit on a jury and what size the jury should be in State and Territory courts.

To facilitate the speedy resolution of defamation proceedings, the court would be required to strike out proceedings for want of prosecution in certain circumstances.

The Act would encourage use of alternative dispute resolution (ADR) processes such as mediation, case appraisal or evaluation, and early 'neutral evaluation', before defamation actions proceed to trial. The Act would not replace but supplement existing ADR referral mechanisms, so as not to introduce additional costs. The court would be given discretion to refer proceedings, either with or without the consent of the parties, to an existing ADR process.

Remedies and related issues

The Act would include a range of provisions aimed at encouraging plaintiffs and defendants to take steps that would vindicate the reputation of plaintiffs. In essence, action on the part of defendants that would lead to vindication of reputation would result in lower damages. The Act would also include new remedies designed to reduce the law's emphasis on damages.

The Act would provide a strong incentive for publishers to give an adequate right of reply.

The Act would encourage potential defendants to be more forthcoming about their errors by providing that an apology would not be an express or implied admission of liability. But because apologies should be published swiftly and with prominence if they are to restore the plaintiff's reputation, the Act would provide that an apology could mitigate damages, or be taken into account in deciding whether or not to grant a declaration or make correction orders, only in limited circumstances.

The Act would give the court the power to make correction orders, but only after it had found for the plaintiff.

The Act would facilitate a coherent approach to damages by:

setting out the factors relevant to an assessment of damages, and
maintaining the position regarding damages and joint tortfeasors.

Other elements of the national law

The Act would permit corporations to sue for defamation. The traditional common law limitations on damages they could recover would, however, be maintained. Artificial persons such as local councils and similar elected bodies would not be able to sue.

The Act would provide that, where a number of people are responsible for publication, each of them has a separate defence of honest opinion and qualified privilege.

The Act would make it clear that it is not intended to affect the operation of State and Territory legislation dealing with criminal defamation.

Scope of the national law

The application provisions of the national law would ensure that the Act is limited to matters within Commonwealth constitutional power. However, the proposed law would be a code for most defamation proceedings. It would cover the kinds of defamatory publications which raise the greatest jurisdictional and practical problems: those which cross State and Territory boundaries. It would thus reduce the complexity of the law.

A reference of power from the States to the Commonwealth Parliament in accordance with s51(xxxvii) of the Constitution would remove even these limitations. It would ensure that the Act could be a code for all defamation actions.

INTRODUCTION: THE NEED FOR A NATIONAL LAW

In March 2004 the Attorney-General's Department released its discussion paper, Outline of a possible national defamation law .

The introduction to that paper incl uded some general observations:

defamation law in Australia is constituted by a patchwork of common law and State and Territory statutes
the Australian Law Reform Commission concluded in 1979 [1] not only that significant changes were needed 'in the substantive law governing rights of action and defence', but that 'the laws [were] complex and [conflicted] from one part of the country to another'
the Commission recommended replacing that patchwork with a codified, uniform law
no great progress towards uniformity has been made since 1979, and
the development of a national media and the internet makes differences between Australian States and Territories increasingly hard to justify.

The release of the discussion paper was the first step towards developing a draft Bill for a national defamation law that could be enacted by the Commonwealth Parliament pursuant to the existing constitutional powers of the Commonwealth. Such a law would be a national code for defamation.

In developing the more detailed proposal set out below the Attorney-General's Department took into account the comments received during consultations with legal practitioners, media representatives and other interested parties in Sydney, Melbourne, Brisbane, Adelaide and Perth. It also took into account numerous submissions that were received in relation to the discussion paper. More than 20 of those submissions involved close consideration of the discussion paper and were prepared by experts in the field.

References below to 'the Act' are intended as short-hand references to a national code that could be enacted by the Commonwealth Parliament. The attached draft provisions cover important aspects of the proposal. These are the cause of action in publication of defamatory matter, the defence of truth and public interest, the defence of contextual truth, the defence of honest opinion, and the defences of absolute and qualified privilege, fair report and triviality. The intention is to facilitate understanding and further discussion of these aspects in particular.

Comments in response to the proposal should be provided to the Department no later than 31 October 2004.

THE CAUSES OF ACTION AND RELATED ISSUES

Action for publication of defamatory matter

At common law, a person has a cause of action against another for the publication of defamatory 'matter' such as words, gestures or images. By contrast, in New South Wales, Queensland and Tasmania, a person has a cause of action for the publication of a defamatory imputation; that is, a defamatory allegation or charge.

Some have argued that making the cause of action dependent on the publication of imputations saves resources and court time by clearly identifying the issues at trial. However, other practitioners, judges, and academic commentators have claimed that it fosters complex interlocutory skirmishing and distracts from the real issue. In Chakravarti v Advertiser Newspapers , for instance, Kirby J commented: [2]

In some jurisdictions (eg, New South Wales) each imputation upon which a plaintiff relies in a defamation action is no longer a particular of what is to be put forward at the trial. It is a separate cause of action...In such a statutory context, the need for exact precision in the statement of each cause of action is obvious and essential. This statutory approach has certain advantages. However, it also has disadvantages. It has led to many pre-trial applications, complex interlocutory proceedings and a potential for injustice, depending upon the ingenuity and skill of the pleader of the imputations...Because readers and viewers are not favoured with pleaded imputations when they receive the matter complained of, there is a risk that the attention at the trial will be deflected from the item actually said to have harmed the plaintiff's reputation to an evaluation of pleaded imputations and a debate about whether they truly arise.

The Act would not make the cause of action depend on the publication of a defamatory imputation. It would provide for a single cause of action for the publication of defamatory matter, regardless of the number of imputations it may contain. [3]

Draft provisions covering these aspects are set out in the annexure. [4]

Definition of defamatory matter

In general terms, the common law treats published matter as defamatory if it tends to damage the plaintiff's reputation or to exclude the plaintiff from society. [5] The question whether matter has this tendency is answered by asking how ordinary, reasonable people would react to it. [6]

At common law, matter will only be held to damage a person's reputation if it imputes some element of blameworthiness on their part or if it shows them in a ridiculous light. Matter will tend to exclude a person from society if it causes them to be 'shunned and avoided' [7] irrespective of any effect on their reputation. However, matter that tends to damage a person in their trade or occupation but which does not tend to cause reputational damage or to exclude them from society is not defamatory.

The Act would define defamatory matter as published matter which tends to:

adversely affect the reputation of a person
deter others from associating or dealing with a person
expose a person to ridicule, or
injure a person in their occupation or financial standing.

The first three limbs of this definition are intended to reflect the common law but to recast it in modern terms. The first limb corresponds to the requirement that matter must tend to damage a person's reputation in view of ordinary, reasonable people. The second, which is similar to the formulation in the American Restatement (Second) of Torts , [8] corresponds to the requirement that matter must cause the person to be shunned or avoided. The third expresses the rule regarding matter that has a tendency to expose a person to ridicule. [9]

The fourth limb, however, would adopt the position in Queensland and Tasmania. In those States, it is not necessary to show that a statement which tends to injure a person in his profession or trade also damages that person's reputation or leads to their social exclusion. Thus, a plaintiff can sue for a false claim that they have ceased to carry on business or that their farm has been closed because of a highly contagious virus. The Act would afford protection against such damaging claims.

For the purpose of the definition above, it would be sufficient if the plaintiff's reputation was adversely affected in the estimation of a substantial and reputable section of the community or if a substantial and reputable section of the community was deterred from associating or dealing with the plaintiff. This reflects the position at common law. [10]

Restrictions on multiple actions

To ensure that there is not a multiplicity of actions on the same subject, the Act would generally prevent a person from bringing more than one proceeding in respect of the same matter unless doing so was necessary to obtain a different remedy or the publication was materially different. Put differently, a person could not repeatedly sue a defendant for publishing the same defamatory material unless the earlier proceedings (whether under the national or State law) involved a publication to, say, a smaller audience, or the remedy sought in the later proceedings under the Act (such as a correction order) was not available in the earlier proceedings.

It would, however, be possible to bring further proceedings in the case of deliberate publications of the same matter after the plaintiff had already obtained a remedy in earlier proceedings. This is to ensure that a defendant cannot publish the same matter some time after judgment has been obtained against them and claim that the plaintiff is barred from bringing any further proceedings in respect of the deliberate publication.

The Act would retain the powers of the courts to deal with vexatious proceedings and abuse of process at common law.

A draft provision covering these aspects is set out in the annexure. [11]

Defamatory matter and groups

At common law, the publication of defamatory matter about a group can only be sued upon by a member of that group who can establish that it refers to them as an individual. As Wilcox J explained in Mann v The Medicine Group : [12]

[A] statement concerning members of a class generally is actionable at the instance of a member of that class only if the member is able to point to circumstances which would indicate to a reasonable reader or hearer that the statement refers particularly to him or her.

The Act is intended to reflect this rule. It would provide that a person who publishes allegedly defamatory matter concerning a group or class would be liable to a member of the group or class if:

the group or class is sufficiently small that the matter complained of can reasonably be understood to refer to such a member, or
the circumstances of the publication of the matter reasonably gives rise to the conclusion that it refers particularly to such a member.

Defamation of the dead

The current law of defamation offers no remedy against false, unfair or unjust attacks on the reputations of a deceased. Thus, a family whose late father and husband is mistakenly identified with a self-confessed murderer, [13] a widow whose husband it is suggested may have been involved in drug trafficking, [14] and a son whose late father is unfairly maligned for consorting with prostitutes have no means of clearing their names. [15] Law reform commissions in Australia, [16] New Zealand, [17] the United Kingdom [18] and Ireland [19] have identified the lack of any remedy as a weakness of current arrangements, as has the Uniform Law Conference of Canada. [20]

Three main arguments have been advanced against proposals to introduce an action for defamation of the dead: first, defamation law is about protecting reputation, and the dead have none; secondly, the death of the person defamed makes it impossible for defendants to establish truth through cross-examination; and thirdly, a new cause of action would inhibit contemporary historical writing.

Several points can be made in response. First, a person's reputation can suffer after their death, and it is somewhat unreal to assert otherwise. If reputation perished with a person, it would be hard to explain why many people now alive are concerned about how they will be regarded after their death. It would be equally hard to explain why families have any legitimate basis for trying to protect the reputation of dead loved ones.

Secondly, the suggested practical difficulties with cross-examination seem to be exaggerated. The death of a person does not render a statement about them incapable of proof. Nor does it render the defendant incapable of relying on defences such as absolute or qualified privilege, which do not depend on the ability to cross-examine the person defamed.

Finally, the evidence that historical writing will be curtailed is lacking. Various law reform commissions have doubted whether there would be any appreciable impact on such writing. [21]

The Act would, therefore, implement the ALRC's recommendation regarding defamation of the dead. A cause of action would be available to a representative of the deceased or a surviving spouse, parent, child or sibling against each publisher of defamatory matter. The action would only be available for publication within three years of death, thereby ensuring that some protection is offered to relatives for a reasonable period but also ensuring that matters are instituted before time has made it too difficult to gather evidence for a trial. Damages, however, would not be available; the remedies would instead be a correction order, declaration or injunction. Furthermore, where a plaintiff has brought proceedings for defamation of a particular deceased, the deceased's representative, surviving spouse, parent, child or sibling could not institute any further proceeding in respect of the same defamatory matter except with leave of the court.

Survival of actions

Survival of actions legislation in the States and Territories has substantially abrogated the common law rule that a personal action dies with the person. Defamation, however, remains the exception. In all Australian jurisdictions except Tasmania, defamation actions do not survive the death of the plaintiff or defendant. [22]

Some of the arguments against survival of actions mirror those against defamation of the dead. In particular, it is claimed that the dead have no reputation that the law should protect, and the death of the person defamed makes it impossible for the defendants to establish truth through cross-examination. The responses to these arguments in the context of defamation of the dead have been set out above, and they apply equally in the context of survival of actions.

In any event, the treatment of defamation action in most Australian jurisdictions is anomalous. If actions for false imprisonment, civil battery and injurious falsehood do not expire with the plaintiff but accrue for the benefit of their estate, there seems little justification for treating defamation actions differently. As one American court has remarked: [23]

Why should a claim for a damaged leg survive one's death, where a claim for damaged name does not? After death, the leg cannot be healed, but the reputation can.

As a general matter, therefore, the Act would provide for survival of actions, as the ALRC recommended. However, while the ALRC recommended that actions commenced in defamation should continue after the death of either party, the case for allowing the plaintiff's estate to recover general damages (including damages for emotional distress) seems more difficult to sustain. The Act would therefore restrict the remedies available to the plaintiff's estate to special damages and the non-monetary remedies of an injunction, declaration or correction order.

DEFENCES

Truth and the public interest

At common law, it is a complete defence to publication if the matter complained of is true. In Rofe v Smith's Newspapers , Street ACJ explained the rationale for the defence in these terms: [24]

The reason upon which this rule of law rests...is that, as the object of civil proceedings is to clear the character of the plaintiff, no wrong is done to him by telling the truth about him. The presumption is that, by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely brought down to it...

This rationale does not recognise that certain statements can be true but profoundly damaging or hurtful, while conferring little or no benefit to recipients. In other words, by elevating truth-telling to a supreme good, it allows no room for privacy or any other countervailing interest, no matter how strong.

Various submissions have recognised that privacy concerns are important but have suggested they should be dealt with in separate privacy legislation. It is noteworthy, however, that since the ALRC recommended privacy legislation in 1979, no jurisdiction has enacted it. In addition, the future of an action for invasion of privacy at common law is unclear. [25] Absent legislative or common law rights, the case for conferring a limited right of privacy in the defamation context is compelling.

The Act would provide a defence to a defamatory charge or allegation if it is true and relates to a subject of public interest. [26] However, the Act would treat a charge as relating to a subject of public interest unless it involves an unwarranted disclosure of specified private affairs. [27] The Act would also set out a list of warranted disclosures of private affairs. These would range from discussion about any property or service offered to the public to the conduct of persons in their public, commercial or professional capacity. [28]

The truth defence would thus be somewhat broader than the corresponding defences in New South Wales, Queensland, Tasmania and the Australian Capital Territory. In those jurisdictions, the requirement of 'public interest' or 'public benefit' functions primarily to discourage damaging or hurtful statements about a person's private life but may also limit discussion of other matters. [29] A defendant under the Act would have greater scope to rely upon truth alone, since it would be explicit that an unwarranted disclosure of private affairs was the only limitation.

For the purposes of the defence, a charge or allegation would be regarded as true if the defendant establishes that it was substantially true. This would reflect the position at common law. [30] A separate defence would be available to those who show that the charge complained of pales into insignificance beside the truth of the other charges conveyed by the publication. That 'contextual truth' defence is discussed more fully below.

A draft provision covering this aspect is set out in the annexure. [31]

Contextual truth

A plaintiff in a defamation action can choose which parts of a publication they sue upon. This gives rise to the possibility that a plaintiff may artificially confine the dispute between the parties to a relatively minor charge, which, in context, does not harm the plaintiff's reputation. For example, assume a publication makes two claims: the plaintiff is a murderer (which happens to be true) and they stole some raffle tickets (which is false). The plaintiff could decide to sue only on the claim that they stole some raffle tickets and so avoid dealing with the more serious charge. [32] Even if there is no attempt to confine the dispute to the minor charge, the result might be that the defendant is forced to pay damages for defamation when the charge of theft does no additional harm to the plaintiff because of the truth of the other charge.

To address this problem, the Act would create a defence of contextual truth. Subject to one qualification, it would be available where the proceedings are based on all or any of the matter contained in a publication and the defendant shows that the false charge in the publication does no additional harm because of the more serious charge in the publication which they can prove to be true. The qualification is that the defendant would have to show that the true charge relates to a subject of public interest. [33] Similar defences already exist in s16 of the Defamation Act 1974 (NSW) and s18 of the Defamation Act 1957 (Tas).

A draft provision covering this aspect is set out in the annexure. [34]

Downloads

Revised outline of a possible national defamation law July 2004 - 318KB

Defamation law reform

Who's responsible:

Revised outline of a possible national defamation law - July 2004

TABLE OF CONTENTS

SUMMARY OF PROPOSALS

The causes of action and related issues

Defences

Procedures

Remedies and related issues

Other elements of the national law

Scope of the national law

INTRODUCTION: THE NEED FOR A NATIONAL LAW

THE CAUSES OF ACTION AND RELATED ISSUES

Action for publication of defamatory matter

Definition of defamatory matter

Restrictions on multiple actions

Defamatory matter and groups

Defamation of the dead

Survival of actions

DEFENCES

Truth and the public interest

Contextual truth

Downloads

You are here:

Defamation law reform

Who's responsible:

Revised outline of a possible national defamation law - July 2004

TABLE OF CONTENTS

SUMMARY OF PROPOSALS

The causes of action and related issues

Defences

Procedures

Remedies and related issues

Other elements of the national law

Scope of the national law

INTRODUCTION: THE NEED FOR A NATIONAL LAW

THE CAUSES OF ACTION AND RELATED ISSUES

Action for publication of defamatory matter

Definition of defamatory matter

Restrictions on multiple actions

Defamatory matter and groups

Defamation of the dead

Survival of actions

DEFENCES

Truth and the public interest

Contextual truth

Downloads