NEW DEFAMATION LAWS R A Mulholland QC

INTRODUCTION Old Act Cause of action = “defamatory matter” or “the matter of the imputation”. Each imputation constituted a separate cause of action. New Act Cause of action = defamatory matter (non-exhaustive definition of “matter” in Schedule 5 and equivalent to the publication complained of).

DEFENCES Old Act Statutory defences only. New Act Statutory plus common law defences.

JUSTIFICATION Old Act Truth a defence to defamatory imputation if its publication was for the public benefit (s15). Plea open in respect of each imputation (partial justification). New Act Truth (substantial) a complete defence to defamatory imputation (s 25). Plea open in respect of each imputation.

CONTEXTUAL TRUTH Old Act Not available. New Act Defence if the defendant proves: (a)that “the matter” carried one or more other substantially true imputations additional to the defamatory imputations complained of; (b)because of the substantial truth of contextual imputations, imputations complained of did not further harm plaintiff’s reputation.

POLLY PECK Not available under old Act. Preserves general law defences. Polly Peck has two aspects: a) Plaintiff alleges several distinct defamatory meanings but there is arguably a common sting; b) Plaintiff alleges one or more such meanings but defendant denies and asserts that in the context of the whole publication other meanings arise. Query whether available and, if so, its practical use.

CONTEXTUAL TRUTH Plaintiff’s imputations The plaintiff is a thief. The plaintiff had an adulterous affair with X. Defendant’s contextual imputations The plaintiff is a rapist. The plaintiff was guilty of promiscuity.

CONTEXTUAL TRUTH Plaintiff’s imputations The plaintiff despises coloured people. Defendant’s contextual imputations The plaintiff despises bureaucrats, doctors and women.

CONTEXTUAL TRUTH Plaintiff’s imputations a) the plaintiff unlawfully procures miscarriages; b) the plaintiff unlawfully procures miscarriages for financial gain; Defendant’s contextual imputations a) that the plaintiff is a person who carries out abortions on pregnant women; b) that in deciding whether to carry out abortions the plaintiff gave primacy to the patient’s decision and desire to have an abortion; …/2

c) The plaintiff advocates and performs abortions on request regardless of reasons; d) the plaintiff regards financial gain to herself as an important and necessary matter when considering whether to terminate pregnancies. c) that the plaintiff conducts such abortions on the basis of reasons which many people in the community would regard as inadequate or tenuous. CONTEXTUAL TRUTH

ABSOLUTE PROTECTION Old Act Sections 10 (parliamentary speeches and petitions), 11 (applying to defamation in courts, statutory inquiries and publications by government or parliament) and 12 (reports of official inquiries). New Act Wider provision. Non-exhaustive list of privileged occasions with capability to specify in schedule additional circumstances. Again, general law applies.

PUBLIC DOCUMENTS Under old Act, s 13 protected various reports of matters of public interest if published “in good faith for the information of the public” (as defined). Under new Act:  defence to publication of defamatory matter if defendant proves matter was contained in “public document” or fair copy of “public document”, or fair summary of, or fair extract from, “public document” (as defined); …./2

PUBLIC DOCUMENTS  power to add additional documents in schedule;  defeated only if plaintiff proves defamatory matter was not published honestly for the information of public or advancement of education.

FAIR REPORT OF PROCEEDINGS OF PUBLIC CONCERN Old Act Section 13 (1). New Act Defence to publication of defamatory matter if def proves matter was, or was contained in, fair report of any “proceedings of public concern” (as defined). Defence also available in certain circumstances where reliance on earlier published report. Defence defeated in same circumstances as s 28. Again, general law qualified privilege may require consideration.

STATUTORY QUALIFIED PRIVILEGE Not available under old Act. Defence for publication of defamatory matter if defendant proves: a) recipient has an interest or apparent interest in having information on some subject; b) the matter is published to recipient in the course of giving recipient information on that subject; and c) conduct of the defendant in publishing that matter is reasonable in the circumstances. To satisfy (a), defendant must believe on reasonable grounds that the recipient had that interest. …/2

STATUTORY QUALIFIED PRIVILEGE Key words “interest”, “information”, “subject”, “reasonable”. Non-exhaustive list of factors that may be taken into account on “reasonable” question. NSW provision interpreted heavily in favour of plaintiffs and against media defendants. To what extent will court have regard to “practical realities” in judging journalists? Defence not defeated simply because publication for reward but is lost if proved that publication was actuated by malice.

TRADITIONAL COMMON LAW QUALIFIED PRIVILEGE Not available under the old Act. Applies where one person has a duty or interest to make the defamatory statement and the recipient of the statement has a corresponding duty or interest to receive it; such communication is privileged because its making promotes the welfare of society. Reciprocity is essential. …./2

TRADITIONAL COMMON LAW QUALIFIED PRIVILEGE Common law has not recognised an interest or duty to publish defamatory matter to the general public except in exceptional circumstances. Irrelevant statements not protected and may afford evidence of malice. Malice will destroy plea (eg irrelevance, manner and extent, knowledge of falsity or recklessness, defendant’s conduct in litigation).

EXPANDED COMMON LAW PRIVILEGE Protection for statements on political and governmental matters. Publisher’s conduct must be reasonable but this requirement applies only where publication would otherwise be held to have been made to too wide an audience (compare traditional privilege where reasonableness not required). Defence defeated if publication actuated by malice (ill-will or other improper motive) but not simply because publisher did not believe in the truth of what was published or wanted to damage the political prospects of the defendant.

HONEST OPINION Protects publication of defamatory matter expressing an opinion honestly held by its maker. Applies to opinion of defendant, defendant’s employee or agent and other person (the commentator). In each case opinion must relate to a matter of public interest and be based on “proper material” (as defined). …./2

HONEST OPINION Defence defeated only if plaintiff proves opinion was not honestly held at the relevant time or did not believe the opinion was honestly held by the employee or agent at such time, or in case involving “commentator”, defendant had reasonable grounds to believe that opinion was not honestly held by commentator at relevant time.

INNOCENT DISSEMINATION Defence to publication of defamatory matter if defendant proves publication was in the capacity of, or as an employee or agent of, a “subordinate distributor” (as defined) and neither knew nor reasonably ought to have known it was defamatory which lack of knowledge was not due to the defendant’s own negligence. A person is a subordinate distributor if the person was not the first or primary distributor of the matter, was not the author or originator of the matter and did not have any capacity to exercise editorial control over the matter before it was first published.

TRIVIALITY It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. Cf s 20 of old Act

REMEDIES Cap of $250, on non-economic loss. Exemplary damages abolished. Defendant’s state of mind not relevant to damages except if it affects the harm suffered by the plaintiff. Non-exhaustive list provided of matters in mitigation of damages. Damages may be assessed as a single sum in the case of multiple causes of action.