1. DEFAMATION LAW PRINCIPLES A guest lecture to students of Journalism School of Comm's and Contemporary Arts Edith Cowan University, Western Australia By Jeremy Malcolm Jeremy@Malcolm.id.au Jeremy@Malcolm.id.au 4 September 2006

2. OUTLINE What is defamation? –Slander? –Libel? What are the defences? –Honest opinion (fair comment) –Justification or truth –Qualified privilege What defamation law applies where? A look at some defamation cases

3. ABOUT DEFAMATION LAW Mainly a civil wrong – a tort –But also a crime under the Criminal Code Mainly codified in legislation –But the general law continues to apply too No longer divided into libel and slander –But they still apply to publications before 2006 State rather than Commonwealth law –But since 2006 the State laws are uniform

4. CIVIL AND CRIMINAL LAW In WA, all crimes are found in statute law –Section 345 of the Criminal Code (WA) makes it an offence to publish defamatory matter –Must know it to be false (or not have regard) –Must intend serious harm (or not have regard) WA tort law may also be found in judge- made law – the “common law” and “equity” –The definition of defamation comes from the common law –The rest comes from the Defamation Act 2005

5. WHAT IS DEFAMATION? Any communication (verbal, written, even a gesture or picture) identifying the plaintiff Made by the defendant to third person/s Which, or the imputations from which, would tend to lower the reputation of the plaintiff or expose him/her to ridicule Amongst reasonable members of the community to whom it was published Where there is no applicable defence

6. BUT DEFAMATION NEED NOT Be intentional –You only need to intend to make the statement, not to affect anyone's reputation Be your own statement (republishing someone else's statement is sufficient) –Though the Broadcasting Services Act exempts ISPs from liability for content hosted by them that they weren't aware of Be made in the same jurisdiction as the plaintiff

7. WHAT ARE THE DEFENCES? Substantial truth (s.25, s.26) –Or, contextual imputations are true and statement alone does not worsen reputation Absolute privilege (s.27) –Parliamentary and judicial privilege –“Absolute” because even malice doesn't matter Public documents (s.28) –Information drawn from law reports, Hansard –Published honestly for information or education

8. MORE DEFENCES Fair report of a public concern (s.29) –Or a copy of someone else's report you had no reason to think was not fair –Includes parliamentary, judicial, local and intergovernmental bodies, company meetings Qualified privilege (s.30) –Recipient has an interest in receiving information on a certain subject –Defendant gives such information –Defendant's conduct reasonable

9. YET MORE DEFENCES Honest opinion (s.31) –Opinion honestly held based on proper material on a matter of public interest, stating facts –Or you believed your employee or agent held it –Or you had reasonable grounds to believe a third party held such an opinion Innocent dissemination (s.32) –(as agent) if oughtn't reasonably to have known Triviality (s.33)

10. REMEDIES Injunction –A common law (actually equitable) remedy Damages (s.34) –Rational and appropriate to the plaintiff's loss –Punitive damages abolished but aggravated damages for injury to feelings retained –Economic loss uncapped –Non-economic loss capped at $250 000 (s.35) –Reduced by an apology or retraction (s.38)

11. AMENDS Formalises how disputes are usually settled Without admission of liability it is agreed to –Publish a correction –Pay the plaintiff's expenses And in appropriate cases to –publish an apology –pay compensation Failure to accept a reasonable offer of amends can offer a defence (s.18(1))

12. CHANGES TO THE LAW The main changes brought in by the Defamation Act 2005 were: –Corporations can't sue (except charities and small companies closely related to individuals) –Abolition of the distinction between libel and slander –Introduction of a cap of $250 000 on damages for non-economic loss –Abolishing punitive and exemplary damages –The addition of substantial truth as a defence

13. WHAT LAW APPLIES WHERE? Each State (but not the Territories) still has its own law, but they are uniform since 2006 Any defamation committed overseas that has effects in Australia is subject to our law –Dow Jones v Gutnick –But does the defendant have presence or assets here? Defamation judgments from one country will not routinely be enforced in another

14. USA DEFAMATION LAW The US First Amendment limits the scope of defamation law there –Onus of proving falsity of statement on plaintiff –A public figure will only be defamed if actual malice is proved: New York Times v Sullivan –“Pure” opinions are not actionable –Recovery of damages requires proof of fault As in Australia prior to 2006, each US state has its own defamation law

15. SOME DEFAMATION CASES Gutnick v Dow Jones –Joseph Gutnick sued Dow Jones for alleging he was a client of a convicted money launderer in the online version of Barron's magazine –Dow Jones and its Web site were based in the United States –Gutnick lived here and had a reputation here –Barron's magazine was available in Australia via the Internet, and in some printed copies –Decided Dow Jones could be sued here

16. MORE DEFAMATION CASES Amalgam'd Television Services v Marsden –Barrister John Marsden accused of pedophilia –Channel 7 failed to prove truth or qualified privilege, Marsden succeeded proving malice –$525 000 damages, settled higher on appeal Theophanous v Herald & Weekly Times –Federal MP accused in a letter of bias, stupidity –Created a new common law defence to defamation from freedom of political discussion

17. YET MORE DEFAMATION CASES Chakravarti v. Advertiser Newspapers –Adelaide Advertiser wrote about the Royal Commission into the collapsed State Bank –A manager sued over an account of witnesses –The paper claimed qualified privilege but lost as the report was found not to be fair –The court held a privileged report must not contain commentary, be accurate, and be fair –“Whether it would alter the impression a reader would have received if present at the trial.”

18. CONCLUSION For journalists: –Who does your report identify? –What imputations could be drawn? –Where might their reputation be damaged? –Could you take advantage of any defences? Be more careful when self-publishing Write first, edit later – don't self-censor first Apologise when you need to, but don't roll over when you don't

19. QUESTIONS Any questions? My details: –Jeremy Malcolm –Email: Jeremy@Malcolm.id.auJeremy@Malcolm.id.au –(Former) law practice: http://www.ilaw.com.au/http://www.ilaw.com.au/ Other resources: –AustLII: http://www.austlii.edu.au/http://www.austlii.edu.au/ –Gazette of Law and Journalism: http://www.lawpress.com.au/ http://www.lawpress.com.au/