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Panpa Bulletin : March 2006
Publishers, journalists and their advisors have long been frustrated by the lack of uniformity in Australia's defamation law. The result was uncertainty, complexity and an imbalance between free speech protection and protection of rep- utation. Pushed by the Commonwealth Attorney-General's Department in March 2004 to introduce a sweeping national code, states and territories arrived at a largely uniform model. The Northern Territory is the only jurisdiction yet to pass legislation adopting the model at the time of writing. So, it looks like we're almost there. Here is a rundown of what the key changes mean: The whole truth Additional statutory defences, in particular the introduction of truth alone as a defence across the board are proposed. The ad- ditional requirement of public interest or public benefit (pre- viously an element in several states) has been removed, dis- pensing with the need to assess a subjective element pre-publica- tion and eliminating a quasi right of privacy. Contextual truth An example will help here. A story claims a man was a murder- er, a rapist and a chronic gambler. The first two claims are proven true but the third was false. The third claim may defame the plain- tiff in isolation but in the context of the true claims it is likely the plaintiff's reputation would not be further injured. The publisher could raise the defence of contex- tual truth on this basis, provided the more serious claims are in the public interest. Journalists and editors should tread carefully in relying on this in practice. Honest opinion The defence will be made out if the defamatory imputations are proven to be an expression of the defendant's honestly held opin- ion based on proper material and relating to a matter of public interest. Criteria for determin- ing whether or not an opinion is based on proper material have been included. The defence ex- tends to the activities of third par- ties such as interviewees or letters to the editor. Qualified privilege An additional qualified privi- lege defence is available where defamatory matter contains in- formation on a subject of interest to the recipient, published in the course of giving such informa- tion and the conduct of the de- fendant is "reasonable in all the circumstances". If the require- ment is narrowly interpreted - as has been the experience in NSW - the defence may be of little use to publishers. A list of matters a court may take into account in determining this point has been included and journalists should seek clarification on their scope. Absolute privilege An absolute privilege defence in respect to proceedings of par- liamentary bodies, courts, tribu- nals and other specified bodies has been included in the chang- es. Defences also relate to publi- cation of public documents, fair reports of proceedings of public concern and innocent dissemi- nation. Single cause of action Apart from defences, other key changes will benefit publishers. Publishers who have defended claims in NSW (and to some ex- tent Queensland and Tasmania) will be familiar with the problems associated with each imputation being a separate cause of action. Increased legal complexity, time and cost and an adverse impact on the availability of defences were the result. Sense has pre- vailed with the adoption of the common law position of a single cause of action for defamation regardless of the number of im- putations. Juries Each state has taken an inde- pendent approach to the role of juries. The Commonwealth want- ed juries to be excluded from def- amation actions. Instead, parties outside of South Australia and the ACT have the capacity to elect to have the final hearing heard by a jury (other than for determina- tion of damages and subject to the court's discretion). To the re- lief of those publishing in NSW, the much maligned s7A jury trial, where a jury determined whether pleaded imputations were de- famatory and the judge deter- mined defences and damages in a second trial, no longer applies. Procedural changes Other procedural aspects of interest include a one-year limi- tation period; a $250,000 cap on non-economic damages; restric- tions on the right of companies to sue; confirmation that the deceased cannot be defamed (to the relief of obituary writers everywhere); and inclusion of an offer of amends procedure and defence. The legislation should elimi- nate the practice of forum-shop- ping, where plaintiffs select the most favorable jurisdiction in which to sue. If there is cross-bor- der publication, the applicable substantive law will be that of the state or territory with which the harm occasioned by the publica- tion has its closest connection. Multiple proceedings in respect of the same publication or an- other of the same or like matter cannot be commenced without leave of the court. Will publishers and jour- nalists be satisfied with the changes? Well, yes and no. If uniform- ity meant bad law, the exercise would have been fruitless. The uniform legislation is far from perfect but is an improvement. The Commonwealth remains unhappy with the role of juries and the restriction on certain cor- porations having the right to sue, so these areas may be open to further reform. Some transitional issues have also emerged. Hopefully better statutory de- fences (apart from qualified priv- ilege) and procedural improve- ments will encourage bolder and more dynamic journalism. Whether this happens remains to be seen. Much will depend on subsequent interpretation of the new defences and the willingness of publishers to "push the enve- lope". Matthew lamb is General Counsel at australian associated Press (aaP), australia's national news agency. Matthew has been at aaP for four years and was previously an intellectual property and media practitioner in private practice. 54 | PaNPa bUlletiN March 2006 Media laW defamation law: it’s all coming together at last all states and territories bar the northern territory has passed legislation adopting a largely uniform model of defamation law. Matthew Lamb points out the pros and cons of the new legislation.