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DANCING IN THE STREETS THE DEFAMATION TANGO

Australian Bar Association Conference


Dublin, 29 - 2 July 2005

The Hon Justice Michael McHugh AC High Court of Australia

DANCING IN THE STREETS THE DEFAMATION TANGO1

Australian Bar Association Conference
Dublin, 29 June - 2 July 20052

Rationale underlying defamation law in the 21st century

The title of this paper is taken from remarks made by Professor Alexander Meiklejohn, a prominent American First Amendment scholar. The First Amendment relevantly provides that "Congress shall make no law … abridging the freedom of speech, or of the press." In response to the decision of the United States Supreme Court in New York Times Co v Sullivan3, which strengthened freedom of speech by invoking First Amendment protections to limit libel law, Professor Meiklejohn is reported to have exclaimed that: "It is an occasion for dancing in the streets."4




1 I am indebted to Lorraine van der Ende, Research Officer in the Library of the High Court of Australia, for her assistance in preparing this paper.
2 This paper has not been updated to deal with subsequent legal changes.
3 New York Times Co v Sullivan 376 US 254 (1964).
4 Quoted in Lewis, Make No Law: The Sullivan Case and the First

Amendment, (1991) at 200.

In delivering the opinion of the Supreme Court in New York Times Co v Sullivan, Justice Brennan emphasised that the case was determined5:

"… against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open."

Few doubt the importance of protecting freedom of expression. Freedom of expression is recognised as a fundamental human right in Article 19 of the International Covenant on Civil and Political Rights, and in numerous other international agreements6, domestic constitutions7



5 New York Times Co v Sullivan 376 US 254 (1964) per Brennan J at

270.
6 For example: Art 19, Universal Declaration of Human Rights (1948); Art 9, African Charter of Human and Peoples' Rights (1981); Art 13(1), American Convention on Human Rights (1978); Art 11(1), European Convention on the Protection of Human Rights and Fundamental Freedoms (1953); Principle 1, Johannesburg Principles on National Security, Freedom of Expression and Access to Information (1996); Principle 1, Inter-American Declaration of Principles on Freedom of Expression (2000).


7 For example: Art 19, Constitution of India (1950); Art 10, Federal Constitution of Malaysia (1981); Art 12, Constitution of Mauritius (1968); Art 19, Constitution of Pakistan (1973); s 46, Constitution of the Independent State of Papua New Guinea (1975); Art 16, Constitution of the Republic of South Africa; First Amendment, Constitution of the United States of America.

and judicial decisions8. Within Australia, Professor Michael Chesterman describes9 freedom of speech as:


"… a 'delicate plant' within Australian law. It is alive as an important value to be protected, and it is growing. But the plant needs to be nurtured. It is not so robust or so strongly established that it could never wither away on account of destructive or unsympathetic treatment."

While freedom of speech is a significant factor in considering the development of defamation law, it is only one part of the 'defamation dance'. The public interest that partners the right to freedom of speech in the 'defamation tango' is the right to protection of reputation. The title of this paper – 'The Defamation Tango' – invokes the constant tension between freedom of speech and the protection of reputation that is inherent within defamation law and the need to strike an appropriate balance between these two conflicting public interests.


International human rights instruments recognise the need to qualify freedom of expression so as to protect reputation. Both Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights, for example, provide

8 For example: Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (1986) 25 ILM 123 par 30; Lingens v Austria (1986) 88 ILR 513 par 41; Handyside v United Kingdom (1979) 50 ILR 150 par 49; Media Rights Agenda et al v Nigeria (1998), unreported, No. 105/93, 128/94, 130/94, 152/96 (African Commission on Human and Peoples' Rights) par 54.
9 Chesterman, Freedom of Speech in Australian Law: A Delicate

Plant, (2000) at 1.

that no one shall be subjected to "… unlawful attacks on his honour and reputation" and that "everyone has the right to the protection of the law against such interference or attacks."


In the 21st century, both the right to freedom of speech and the right to reputation are legitimate values that should be recognised and protected by law. The law of defamation serves the important social purpose of attempting to find a balance between the two. The law of defamation is complex. But as I noted some years ago, its complex nature is "… the inevitable consequence of attempting to harmonise two irreconcilable concepts – a protection of reputation and freedom of

expression."10

Balancing Freedom of Expression and Reputation in Australian
Defamation Law

I doubt if any rational person would argue that freedom of expression must never be subject to legal restriction whatever the circumstances. No reasonable person would suggest that in war time a person should have the right to communicate sensitive information to the enemy. Nor, to take a famous example of Holmes J, is a person entitled to falsely shout "fire" in a crowded theatre. Once it is accepted that limits of some kind must be placed on freedom of expression, the question becomes: in what circumstances should freedom of expression




10 McHugh, "Introduction: What is an Actionable Defamation", contained in Gibson (ed), Aspects of the Law of Defamation in New South Wales (1990) at xliii.

give way to the need to protect the reputations of members of the particular society? Obviously, different societies and different eras of the same society will answer that question differently.


The extent to which freedom of expression and reputation are protected by defamation law in Australia differs across jurisdictions. There are at present, broadly, three different regimes in operation. These are, first, the common law states of South Australia, Victoria and Western Australia; second, the Code States of Queensland and Tasmania; and third, New South Wales, the Australian Capital Territory and the Northern Territory which have introduced substantial statutory modifications to the common law.
All of these jurisdictions balance freedom of expression and reputation. They provide a cause of action to individuals whose reputations are damaged by defamatory publications but they also provide a range of defences to a publication in circumstances where the value of the speech concerned is deemed sufficiently significant to outweigh the protection of reputation. But the differences in the law of defamation between jurisdictions in Australia suggest that no one has managed to find a universally acceptable balance that will provide for the protection of reputation without overly burdening freedom of expression.
Jurisdictions outside Australia also show different approaches in striking the balance between the two values. United States jurisprudence gives freedom of expression a far higher value than reputation. This is the result of the First Amendment to the United States Constitution. As a consequence, defamation law in the United States strongly favours the publisher in contrast to other common law

jurisdictions such as the United Kingdom and Australia. On the whole, United Kingdom, Irish and Australian law prefers the protection of reputation to freedom of expression, much to the chagrin of publishers.


Inevitably, the appropriate balance to be struck between free speech and reputation depends upon factors such as the value that society gives to reputation and free expression at a particular time, the subject matter of the expression, its truth, who is the publisher and the recipient of the material, the means used to convey the communication, and many other factual considerations. I suspect the balance is also influenced by the quality and standard of the media. There is no precise formula for determining the correct balance. Furthermore, no eternally perfect balance can be found because a shift in attitudes and social values necessarily influences developments in defamation law.
Accordingly, the "defamation tango" represents the constant interplay between two social values and the need to find an appropriate balance both in theory and practice. The recent discussion paper released by the Standing Committee of Attorneys-General11 pointed out that:
"If the balance is tilted too far in favour of protecting personal reputation, the danger is that the dissemination of information and public discourse will be stifled to an unhealthy degree. Conversely, if it is tilted too far in favour of freedom of expression there will be little to constrain people from lying, or exaggerating and distorting facts, and causing irreparable harm to the reputations of individuals."

11 SCAG Working Group of State and Territory Officers, Proposal for

Uniform Defamation Law, (July 2004) at 6.

The Presumption of Falsity
In an action tried under the Anglo-Australian common law, there is a presumption that, if the matter published is defamatory, it is false12. No principle of the common law demonstrates more clearly the common law’s preference for the protection of reputation over freedom of expression. As I explained in a judgment in the New South Wales Court of Appeal in Singleton v Ffrench13, however, this rule resulted from an error by Lord Ellenborough in Roberts v Camden14. There, his Lordship said that, if the defendant did not prove the truth of the libel, the law assumes it be false. But a plea of truth in a defamation action is a plea in confession and avoidance; it is not a traverse of the allegation of defamatory matter. The plea of truth confesses that the matter is defamatory of the plaintiff but asserts that it is not actionable. Since 1652, the plaintiff in a defamation action has not had to prove the falsity of the words published to maintain the action15. Since that time, the common law courts have treated the allegation in the plaintiff's pleading that the words were published "falsely and maliciously" as surplusage16.

12 Beevis v Dawson [1957] 1 QB 195.
13 (1986) 5 NSWLR 425 at 442. See also the criticism of Lord Ellenborough’s statement in Roberts by Spencer Bower KC in his famous work, Actionable Defamation, 2nd ed (1923) at 236.
14 (1807) 9 East 93 at 95; 103 ER 508 at 509.
15 Anon (1652) Sty 392; 82 ER 804-805; Rowe v Roach (1813) 1 M & S 304; 105 ER 114.
16 Motel Holdings Ltd v Bulletin Newspaper Co Pty Ltd [1963] 63 SR (NSW) 208 at 212.

Indeed, the defendant is not permitted to deny those words. A plea that attempts to do so will be struck out as embarrassing17. Falsity is not an element that the plaintiff has to prove to make out a cause of action in defamation. Logically, no presumption of falsity can arise from the defendant's failure to plead truth. Lord Ellenbrough erred therefore in Roberts v Camden when he said that the failure to plead truth gave rise to a presumption of falsity. Despite the error, the course of authority in common law jurisdictions has long affirmed that there is such a presumption. However, in those jurisdictions where truth alone is not a defence to an action for defamation, the reasoning in Roberts v Camden cannot apply. At all events, the New South Wales Court of Appeal has held that there is no presumption in that State that defamatory matter is false18.


In jurisdictions where the presumption applies, it imposes an onerous burden on a defendant in a defamation action. It reflects a tilting of the defamation law balance towards the protection of reputation. It contrasts dramatically with the presumption in favour of freedom of expression that operates in United States jurisdictions.
Critics of the presumption of falsity point to the potential for self censorship if a publisher fears its ability to prove the truth of a statement. However, as the United States experience has shown, Australian law would not be without social costs if the presumption were removed and a


17 Belt v Lawes (1882) 51 LJQB 359.
18 (1986) 5 NSWLR 425.

presumption made in favour of freedom of expression. As one critic has pointed out19, removal of the presumption of falsity:


"… would be to impose an onerous burden on all plaintiffs and there would be occasions when the falsity of a publication could not be proven. This would leave such plaintiffs with no means of redress at all, and would create the potential for publishers to publish defamatory fictions where they knew that their falsity could not be proved. These possibilities are both unacceptable."

While the presumption of falsity emphasises protection of reputation, a defendant can often avail itself of defences that tilt the balance back toward freedom of expression. The common law defence of truth and the statutory defence of truth and public benefit or truth relating to a matter of public interest are striking examples. In other situations, the value of the expression concerned is sufficiently high to tip the balance in favour of protecting that speech regardless of the truth of the statement or the damage done to individual reputations. These situations give rise to the defences of absolute and qualified privilege, fair comment and fair reports of court proceedings.


Truth as a defence to defamation
In the common law States of Australia, truth alone provides a complete defence to a defamation action. One well-known judicial


19 Tobin, "The United States Public Figure Test: Should it be introduced into Australia?", (1994) 17(2) UNSW Law Journal 383 at

405.

explanation of the underlying rationale for this defence to the publication of defamatory matter can be found in Rofe v Smith’s Newspapers20:

"… 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 bought down to it."
This explanation is flawed. The object of a defamation action is not "to clear the character of the plaintiff". It is to protect the reputation of the plaintiff in the particular sector of that person's social, business, or political life that is the subject of the publication. A plaintiff who is a thief is a person of bad character but is entitled to obtain damages – maybe substantial damages – for the false allegation that he is a paedophile. At common law, a defence pleading that alleged that he had been convicted of theft would be struck out21. Not only does it not answer the defamation but the common law will not allow it to be used in mitigation of damages22. In Plato Films Ltd v Speidel23, Lord Radcliffe said:

"I do not believe that 'the character that a man ought to have' or to enjoy had any intelligible meaning. It is not possible for a jury, learning, perhaps long after the event, of this or that discreditable action in a man's life, to remake the current public estimation of him by some ideal piece of



20 Rofe v Smith’s Newspapers (1925) 25 SR(NSW) 4 per Street ACJ

at 21-22.


21 Plato Films Ltd v Speidel [1961] AC 1090.
22 [1961] AC 1090.
23 [1961] AC 1090 at 1129.

analysis. The materials themselves could not be available. Moreover, any rule that made it possible for a defendant to put in evidence by way of mitigation some discreditable action of the plaintiff, irrespective of whether it was publicly known or not and so contributed to his reputation, would be a rule so inherently unfair that it ought not to be accepted."


For reasons similar to those to which Lord Radcliffe gave in respect of mitigation of damages, a number of Australian States and Territories long ago modified the defence of truth in a defamation action. For the defence to be invoked in these jurisdictions, a defendant must establish not only the truth of the defamatory statement, but also that the publication related to the "public interest"24 or was for the "public benefit"25. The additional public interest/public benefit requirement is intended to reflect the fact that a statement, while true, can destroy a reputation while conferring little or no public benefit. The typical example here is a reputation being destroyed by the publication of the details of a youthful indiscretion when the individual concerned has otherwise led an entirely blameless life.

Defenders of the public interest or public benefit requirement contend that the public interest is not served and the welfare of society is not improved by destroying or harming reputations unless the destruction or harm benefits the public. Defenders of truth alone as a



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