NEW DEFAMATION LAWS

1
NEW DEFAMATION LAWS

• R A Mulholland QC

2
INTRODUCTION

• New Act
• Cause of action defamatory matter
  (non-exhaustive definition of matter in
  Schedule 5 and equivalent to the publication
  complained of).

• Old Act
• Cause of action defamatory matter or the
  matter of the imputation.
• Each imputation constituted a separate cause of
  action.

3
DEFENCES

• New Act
• Statutory plus common law defences.

• Old Act
• Statutory defences only.

4
JUSTIFICATION

• New Act
• Truth (substantial) a complete defence to
  defamatory imputation (s 25).
• Plea open in respect of each imputation.

• 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).

5
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 plaintiffs reputation.

6
POLLY PECK

• Not available under old Act.
• Preserves general law defences.
• Polly Peck has two aspects
• Plaintiff alleges several distinct defamatory
  meanings but there is arguably a common sting
• 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.

7
CONTEXTUAL TRUTH

• Plaintiffs imputations
• The plaintiff is a thief.
• The plaintiff had an adulterous affair with X.

• Defendants contextual imputations
• The plaintiff is a rapist.
• The plaintiff was guilty of promiscuity.

8
CONTEXTUAL TRUTH

• Plaintiffs imputations
• The plaintiff despises coloured people.

• Defendants contextual imputations
• The plaintiff despises bureaucrats, doctors and
  women.

9
CONTEXTUAL TRUTH

• Defendants contextual imputations
• that the plaintiff is a person who carries out
  abortions on pregnant women
• that in deciding whether to carry out abortions
  the plaintiff gave primacy to the patients
  decision and desire to have an abortion
  /2

• Plaintiffs imputations
• the plaintiff unlawfully procures miscarriages
• the plaintiff unlawfully procures miscarriages
  for financial gain

10
CONTEXTUAL TRUTH

• The plaintiff advocates and performs abortions on
  request regardless of reasons
• the plaintiff regards financial gain to herself
  as an important and necessary matter when
  considering whether to terminate pregnancies.

• that the plaintiff conducts such abortions on the
  basis of reasons which many people in the
  community would regard as inadequate or tenuous.

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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.

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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

13
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.

14
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.

15
STATUTORY QUALIFIED PRIVILEGE

• Not available under old Act.
• Defence for publication of defamatory matter if
  defendant proves
• recipient has an interest or apparent interest in
  having information on some subject
• the matter is published to recipient in the
  course of giving recipient information on that
  subject and
• 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

16
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.

17
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

18
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,
  defendants conduct in litigation).

19
EXPANDED COMMON LAW PRIVILEGE

• Protection for statements on political and
  governmental matters.
• Publishers 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.

20
HONEST OPINION

• Protects publication of defamatory matter
  expressing an opinion honestly held by its maker.
• Applies to opinion of defendant, defendants
  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

21
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.

22
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
  defendants 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.

23
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

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REMEDIES

• Cap of 250,000.00 on non-economic loss.
• Exemplary damages abolished.
• Defendants 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.