Making Defamation Law’s Truth Defence More Public Interest Speech Friendly’ submission

‘Making Defamation Law’s Truth Defence

The Hon Greg Smith

Attorney General of New South Wales

FROM:

PhD (Law), LLM, LLB, BA

Associate Professor

Department of Journalism

School of Media, Culture and Creative Arts

Curtin University Western Australia

Sent via email to:

Mr David Mitchell

Legislation, Policy and Criminal Law Review Division

New South Wales Department of Justice and Attorney General
This work may be cited as follows –

Fernandez JM, ‘Making Defamation Law’s Truth Defence More Public Interest Speech Friendly’ (Submission), to Hon Greg Smith Attorney General, New South Wales, 28 April 2011.

The primary proposal in this submission is that in addition to proving the traditional elements of the cause of action for defamation – publication, identification and the existence of defamatory matter – the plaintiff should bear the onus of proving the falsity of the defamatory claim or claims as an essential ingredient of the cause of action where:

1. 
   the plaintiff is a “public figure”;
   
2. 
   the matter complained about is a “matter of public concern”; and
   
3. 
   the defendant is a “media defendant”.
   

Where the matter complained about is not a “matter of public concern” or the plaintiff is not a “public figure” or the action is not against a media defendant, then the cause of action burden of the plaintiff should be limited to the traditional three elements.¹⁰ In such situations, the chill on speech induced by not requiring the plaintiff to bear the burden of proving falsity is a tolerable fetter on freedom of speech, although one commentator was prepared to go further and describe it as “a desirable chill that does not disproportionately infringe freedom of expression”.¹¹ In such cases, the truth defences should continue to be available to defendants.

While the focus of this submission is the reversal of burden of proof at the cause of action stage, it also proposes a related reform aimed at exonerating media defendants who can show that they are not “at fault”.¹²
2. The truth-not-relevant rule

The first thing to note is that fundamentally, and despite some qualifications, defamation is a tort of strict liability.¹³ Thus, it has been said that the plaintiff:

…can get damages (swingeing damages!) for a statement made to others without showing that the statement was untrue, without showing that the statement did him the slightest harm, and without showing that the defendant was in any way wrong to make it (much less that the defendant owed him any duty of any kind).¹⁴
For present purposes, our concern is with the observation that the plaintiff can obtain damages without bearing the burden of proving that the statement was untrue.¹⁵ This we may describe as the truth-not-relevant rule.¹⁶ One formulation of this rule is that of Hunt J in Aldridge v John Fairfax & Sons Ltd,¹⁷ that “there is, simply, no relationship at all between the defamatory nature of an allegation and its truth or falsity”.¹⁸ As explained by the New South Wales Law Reform Commission, the irrelevance of “a necessary connection between reputation and truth is reflected in the existing law in that the falsity of the imputation is not an essential ingredient of the cause of action in defamation.”¹⁹ This proposition is considered trite. Bower called the proposition “needless”.²⁰ It is based on the following view:

The starting point of the law is that the claimant is presumed to have and to enjoy an unblemished reputation and it is up to the defendant to rebut that, either by proving the truth of the defamation or by establishing, in mitigation of damages, that the claimant has a general bad reputation.²¹

The New South Wales Law Reform Commission, citing Aldridge v John Fairfax & Sons Ltd²⁷ as authority, explained the absence of a connection between reputation and truth as follows: “The opinions which collectively go to constitute a person’s reputation may, or may not, reflect the plaintiff’s real character. There is, thus, no necessary connection between reputation and truth.”²⁸ The Standing Committee of Attorneys-General (SCAG) working group reiterated this view when it said “the reality is that truth is not in issue in the vast preponderance of matters that are litigated. In practice, the issue is hardly ever relevant.^”29 This view, taken in Aldridge v John Fairfax & Sons Ltd reflects the position at law and there is ample authority for it.³⁰ In that case the defendant argued that the objective falsity of the matter complained of was relevant as increasing the gravity of the imputations of which the plaintiff complains, and conversely that its objective truth goes to reduce their gravity.³¹ In response Hunt J said in that case: “That proposition is not logical; nor is it the law.”³² His Honour explained this peculiarity in the law as follows:

To say that X is a glutton is just as injurious to his reputation (and thus defamatory of him) when that statement is true as when it is false, although obviously the falsity of the statement may increase the hurt to his feelings. Conversely, to say that Y is universally regarded as the best advocate at the Sydney Bar is no more injurious to his reputation when that statement is false than when it is true. That there is, simply, no relationship at all between the defamatory nature of an allegation and its truth or falsity is well illustrated.³³
Notwithstanding the confinement of the above approach to a particular stage of proceedings, it presents a difficulty – one that confounds even the legal fraternity as will be seen in the next section.
2.1 Issues arising

While Hunt J’s explanation above in Aldridge v John Fairfax & Sons Ltd³⁴ reflects the position at law, that position is open to criticism. The irrelevance of truth in the context cited above, it must be reiterated, occurs only in the cause of action stage where there is no inquiry into the truth or otherwise of the allegation. To use Windeyer’s J’s formulation, the truth or falsity of the words is irrelevant to the question whether they are actionable but relevant to the amount of damages if they are defamatory.³⁵ That is, truth is irrelevant in one context but relevant in another, in one and the same action.

Several criticisms may be made of the truth-not-relevant principle. The first springs from the Rofe v Smith’s Newspapers Ltd principle referred to above – that “no wrong is done to him by telling the truth about him.”³⁶ This alone should make any injury to reputation (or the commission of a wrong) irrelevant, in the eyes of defamation law, if the imputation is true. That is, any injury arising from the publication of the defamatory imputation would be justified if the allegation were true. This is because the publication merely lowers the reputation concerned to its proper level – a “truthful statement defines reputation rather than damages it.”³⁷ The English Court of Appeal explained this point in Chase v News Group Newspapers Ltd:³⁸

English law does not permit a claimant to recover damages in respect of an injury to a character which he/she does not possess, or ought not to possess. For this reason a successful plea of justification is an absolute defence to a claim in libel because it shows, as a matter of objective fact, that a claimant is not entitled to the unblemished reputation which he/she claims to have been damaged by the publication of which complaint is made.³⁹

On this basis, defamation law should not offer the aspiring plaintiff any succour in commencing an action where adverse imputations have been justifiably published. Defamation law, after all, is not aimed at providing a blanket protection for reputation.⁴⁰ The protection provided is a qualified one although the authorities do not always make this clear. The New South Wales Law Reform Commission, in a discussion entitled “Objectives and context of defamation law” states all too briefly: “The law of defamation exists to protect reputation.”⁴¹ Gillooly’s formulation is more to the point: “Defamation may be broadly defined as the unlawful publication by one person of matter that is defamatory of another.”⁴² It is aimed at providing protection only against unlawful publication. Publication is not unlawful, for instance, if it can be met by a defence (e.g. truth, honest opinion, qualified privilege) or if the complainant does not have legal capacity (e.g. a deceased or under-aged person).

A further criticism of the truth-not-relevant approach may be made. While it may be the position at law that there is no relationship at all between the defamatory nature of an allegation and its truth or falsity, Hunt J’s view that it is “not logical”⁴³ that the objective truth should reduce the gravity of the adverse imputation is not beyond question. One may argue that it is perfectly logical that if the defendant has spoken the truth about a person, the objective truth of the imputations should go towards reducing their gravity and eliminate the basis for an action.⁴⁴

Third, the term “truth” in the ‘truth is no libel’ sense is a loose one, such that the term does not resemble truth in the everyday sense of representing reality. It has been suggested that the principle that truth in that context is meant to be viewed in a loose and unscientific sense.⁴⁵ Such an approach potentially creates confusion as to what would constitute the truth for the purpose of the ‘truth is no libel’ defence.

Finally, the claimed irrelevance of the truth in the context seen above is rejected by practitioners in the field. In the lead up to the introduction of the Uniform Defamation Acts (UDA) the Standing Committee of Attorneys-General reiterated, in their proposals, that in the vast majority of cases truth is not in issue and that it is hardly ever relevant.⁴⁶ The response that this view elicited from a prominent Australian Bar Association reinforces the present argument that this aspect of the law is a muddle. In a submission in response to the SCAG working group proposals referred to above, the NSW Bar stated:

In discussing recommendation 14 [the SCAG discussion on “truth” in its July 2004 proposals] it is asserted that in practice the issue of truth is hardly ever relevant. That is not the experience of the Association’s members who practise extensively in the field. Truth is on very many occasions highly relevant not just in matters which proceed to hearing but in assessing whether to proceed at all…It is completely unclear as to what is being proposed, other than in order to establish a defence of truth the defendant must, self-evidently, prove the substance of the charge.⁴⁷
2.2 Summary

The hallowed place of truth in freedom of speech and in human endeavour is reflected in defamation law, inter alia, by the principle in Rofe v Smith’s Newspapers Ltd – that no wrong is done by telling the truth about a person.⁴⁸ The practical operation of the truth defence, however, exposes a disjuncture between the Rofe v Smith’s Newspapers Ltd principle and the practical reality of its application. Defamation law sits squarely in the realm of the law of torts⁴⁹ which is “now firmly civil and provides the plaintiff with remedies against unlawful, that is, ‘tortious’, conduct”.⁵⁰ If, as the practitioners argue, truth is relevant in deciding whether to proceed at all, the irrelevance of truth to the cause of action, and the relegation of concern for the truth to a later stage of proceedings, renders the procedure in respect of this defence highly unsatisfactory. It may be noted briefly that the approach to the cause of action (where there is no relationship at all between the defamatory nature of an allegation and its truth or falsity) is, however, not a universal one. In the United States, for instance, recent rulings require most libel plaintiffs to carry the burden of proving a defamatory allegation to be false when the story focuses on a matter of public concern.⁵¹

A hallmark of enlightened defamation law is the emphasis it places on truth, especially in cases involving public figures and matters of public concern. As Chesterman noted: “There are strong arguments to support the proposition that an important yardstick by which to assess any defamation law is the extent to which it promotes the public adjudication of truth or falsity in cases of public interest.”⁵³ The “public interest” qualification in that proposition is important in the context at hand. The present operation of Australian defamation law fails this test identified by Chesterman. Defamation law “is often described as a ‘plaintiff’s tort’. That is to say, it is a branch of the law that is weighted against defendants.”⁵⁴ As seen earlier, the bar that a plaintiff must cross in establishing the cause of action is “set rather low” and the burdens on the plaintiff are “not particularly demanding”.⁵⁵ Hunt J referred to it as “the low threshold which a plaintiff must overcome in order to establish that he has been defamed”.⁵⁶ There are strong views that this approach is wrong, as will be seen in the following discussion.

The requirement on the plaintiff to do no more than establish the three elements of the cause of action – publication, identification and existence of defamatory matter⁵⁷ – arguably constitutes the single biggest imbalance factor in Australian defamation law. The burden in question here can also be characterised as the “presumption of falsity” burden – that is, a defamatory imputation is presumed to be false and the burden of showing that it is substantially true is upon the defendant. The following sections consider this issue in more detail.
3.1 A presumption of falsity?

The notion of the “presumption of falsity”⁵⁸ requires clarification, especially in light of the view that “the very conception of defamation involves the idea of falsity”.⁵⁹ To facilitate a proper explication of the concern under this heading it is useful to reiterate some fundamental principles of Australian defamation law. First, showing that the matter published was false is not part of the cause of action.⁶⁰ A second relevant principle is: “At common law, since truth is a complete defence, evidence of the truth of the defamatory matter cannot be given unless truth be pleaded in justification.”⁶¹ These principles appear to have given rise to the view that “at common law, a plea of the general issue without a plea in justification admits that the matter complained of was false.”⁶² The foregoing statements may be alternatively expressed as follows. If the defendant did not plead the truth defence, he or she is not permitted to provide evidence of the truth of the defamatory matter. And, further, if the defendant has not pleaded the truth defence, it is taken as an admission that the matter complained of was false, and that therefore, there is a presumption of falsity against the defendant. As George notes:

However, this presumption has been criticised on the basis that the failure to justify cannot logically amount to a failure to deny the truth of the defamatory matter if falsity is not an element in determining whether the matter is defamatory. A plea of justification in a defamation action is not a traverse but a plea of confession and avoidance. Falsity is not an element which the plaintiff has to prove on liability.⁶³
A number of difficulties arise in this area and it may be seen in the conflicting views as to whether there is, in the first place, a presumption of falsity against the defendant who does not plead the truth defence. Widely conflicting views have been expressed.
3.1.1 View that there is a presumption

Armstrong et al noted as follows in respect of the truth defence in the pre-UDA context: “A person who claims to have been defamed in the media has a distinct advantage. The law presumes that the media report is false.”⁶⁴ The plaintiff need not prove that the matter complained of was false⁶⁵ because “the falsity of the imputation is not an essential ingredient of the cause of action in defamation.”⁶⁶ This has led to suggestions that the nature of the action is such that there was a presumption of falsity (at least in the former truth alone jurisdictions⁶⁷) against the defendant.⁶⁸ Bower has stated: “…if he [the defendant] does not prove the truth of the defamatory matter, the law assumes it to be false” and further that “it is for the defendant to allege and prove the truth”.⁶⁹ Bower went so far as to describe this presumption as one of “three needless propositions”.⁷⁰ The Australian Law Reform Commission has noted that “[t]he law presumes the falsity of defamatory words, and the defendant has the burden of proving the truth of the imputation.”⁷¹ In Herald & Weekly Times Ltd & Anor v Popovic⁷² Gillard AJA said: “The defendants pleaded and relied upon the defence of justification. The law presumes that the defamatory words complained of are false and the plaintiff does not have to prove that the defamatory words were untrue.”⁷³ In Allworth v John Fairfax⁷⁴ Higgins J said: “Where truth alone is a defence, whilst there is no presumption of falsity, a failure to plead justification will be taken as an admission of falsity.”⁷⁵ While Higgins J appears to draw a distinction between a “presumption” and an “admission”, from a defendant’s perspective there is no real difference.

Speaking in the context of the pre-UDA defence in New South Wales, Windeyer J stated: “Whatever the position at common law, there is not…any reason for saying that in the absence of a plea of truth and public benefit the libel is presumed to be untrue. There appears to be no logical presumption either way.”⁷⁶ The New South Wales Law Reform Commission too has noted the confusion the alleged presumption evokes:

Where the truth of a defamatory imputation is in issue, the onus of proof is on the defendant. This situation has produced an assertion, if not a doctrine, that there is a presumption of falsity of a defamatory imputation. See, for example, Gatley, paragraph 351. Such a presumption is not useful and may be mischievous. It may be mischievous in that it gives a foothold in a fiction for the magnification of damages. It may be mischievous in other ways because no one can foretell what will be the consequences of treating as a fact something which may or not be a fact.⁷⁷
Whether one takes the view that there is a presumption or that there is no presumption, the better view is that the “presumption of falsity” is just a loose way of describing the current position, that is, the onus of truth is on the defendant. It does not provide grounds for thinking that falsity is a sort of hidden ingredient in the cause of action. It is appropriate next to consider the arguments for and against burden reversal.
3.2 Burden reversal arguments

3.2.1 Arguments against burden reversal

In favour of the approach that does not impose a burden of proof of falsity on the plaintiff, it may be argued that because it is the defendant who has made a charge against the claimant, the claimant may say that he or she is entitled to be regarded as “innocent” until proven “guilty" and that a claimant who faced general charges of wrongdoing, such as an accusation of involvement with organised crime, might otherwise be placed in an extremely difficult position.⁷⁸ A second argument is that it is “too onerous” to put the burden of falsity on the plaintiff because the plaintiff should not be asked to prove a negative.⁷⁹ A third argument is that the plaintiff may be asked to disprove a vague defamatory statement whose meaning is difficult to determine.⁸⁰ A fourth argument is that the presumption induces a spirit of caution among publishers,⁸¹ that is, it produces a desirable chilling effect. These arguments are rejected as they are far outweighed by the arguments set out in the next section.
3.2.2 Arguments for burden reversal

Six main arguments may be made in favour of placing the burden of proof of falsity on the plaintiff.⁸²

First, it may be said that the present approach deems the defendant guilty until proven innocent and it goes against the grain of hallowed legal principle.⁸³

Second, the present approach can be viewed as contradictory to an important tort principle, that is, “the placing on the defendant of the burden of proof on what is (or should be) the central issue in proceedings having as their purpose the vindication of reputation is out of line with the general approach in tort law”.⁸⁴ Defamation law’s approach in relation to the present burden evokes the following question: “In every other civil action claimants must prove their case in order to win damages: why should libel be any different?”⁸⁵ The present rule is arguably anomalous in the context of a system of civil liability, which generally requires a plaintiff to prove that the defendant was at fault.⁸⁶ There are also “many instances” in which plaintiffs are asked to prove negatives.⁸⁷ There are even instances in which plaintiffs are asked to prove falsity, as in the tort of injurious falsehood⁸⁸ and in the law of misrepresentation where the plaintiff bears the burden of proving the falsity of the representation.⁸⁹ The burden of proof in civil cases generally also stipulates that the “persuasive burden” lies upon the party who substantially asserts the affirmative of the issue.⁹⁰

It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. This rule is adopted principally because it is just that he who invokes the aid of the law should be the first to prove his case; and partly because, in the nature of things, a negative is more difficult to establish than an affirmative.⁹¹
The heaviness of the burden is more pronounced given that liability for unintentional defamation is a firm common law principle.⁹²

Third, the present approach is inimical to freedom of speech: “From the more general perspective of freedom of speech there is no doubt that the present rule inhibits the ability of the media to expose what they believe to be matters of public concern”.⁹³

Fourth, quite apart from the incompatibility of the presumption of falsity with freedom of speech:

…one can doubt whether it is reasonable to expect the defendant to show the truth of matters, in the nature of things generally outside his personal knowledge, rather than require the plaintiff to show the allegations are false. After all, the plaintiff will always know the truth about his or her conduct.⁹⁴

Adjudication on truth or falsity would facilitate the restoration of the reputation of an unjustly defamed plaintiff. It is the case that this adjudication takes place in any event if the defendant pleads justification for the law of defamation, but a failed defence of justification does not amount to a finding of falsity in favour of the claimant; all it implies is that the defendant has failed to prove as a matter of probability that the statement was true. This is not the same as a finding that as a matter of probability the statement was false. In any event, the issue of truth and falsity may never arise in a defamation case; classic examples are cases of absolute and qualified privilege, where the issue of falsity is irrelevant to the availability of the defence.⁹⁹

The defendant must prove the truth of the facts relied on if these latter defences are to be pleaded successfully. There is a presumption of falsity. The risk of a necessarily fallible legal process, in other words, is largely borne by the defendant. In view of the popular hostility to sections of the press that is quite a substantial risk.¹⁰²

In stark contrast to the current Australian and English approach,¹⁰³ the United States has made important strides towards protecting freedom of speech in their law of defamation. In the United States “anyone involved in a matter of public concern who sues the mass media for libel must now offer evidence of falsity to have a case.”¹⁰⁴ This rule is closely linked to the “public figure” requirement.¹⁰⁵ The US Supreme Court has revised the rules on truth as a libel defence, particularly shifting the burden of proof from the media to the plaintiff:

Thus, the rule today is that to win a libel case resulting from the media’s coverage of any issue of public concern, the plaintiff always bears the burden of proving that the libellous statement is false. But what about libel cases not involving issues of public concern? The Supreme Court left that up to the states: the states are constitutionally required to place the burden of proof on plaintiffs only in cases involving public issues. However, some states have completely abandoned the common law rule that presumed all libellous statements to be false and now require all plaintiffs to prove the falsity of every allegedly libellous statement. Also, in most cases the old requirement of truth plus good intentions is no longer valid. As a general rule, there can be no successful libel suit against the media unless the material is proven false – period. If it cannot be proven false, the publisher’s motives no longer matter in most libel suits.¹⁰⁶
However, in most US jurisdictions, plaintiffs suing in respect of a matter of private concern still enjoy the traditional protection.¹⁰⁷

For some professional communicators, the common law of libel, with its easy assumption of falsity and harm, is still there and can be used by private individuals whose lives are needlessly defamed…Such plaintiffs need prove only identification, publication, and defamation. Harm and fault are assumed. From then on, the burden of proof is on the defendants to justify their acts, if they can.¹⁰⁸

The falsity and fault elements are “fairly recent additions” to American defamation law;¹¹² and they only apply to cases that impinge on the First Amendment right to free speech.¹¹³ Nonetheless, in practice this means that “[m]ost plaintiffs have to satisfy all six elements of a libel suit.”¹¹⁴ Furthermore, even private-figure individuals must prove falsity provided that the action involves matters of a public concern. There is no longer any doubt that the First Amendment requires a private plaintiff to prove falsity against a media defendant that publishes matters of public concern.¹¹⁵

… the need to encourage debate on public issues that concerned the Court in the governmental-restriction cases is of concern in a similar manner in this case involving a private suit for damages: placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result. Because such a “chilling” effect would be antithetical to the First Amendment’s protection of true speech on matters of public concern, we believe that a private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant. To do otherwise could “only result in a deterrence of speech which the constitution makes free.”¹¹⁶
The US approach has been described as the “clearest example of departure from the common law.”¹¹⁷ This approach recognises that “requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so” but such an approach has been justified primarily on the ground that the First Amendment requires the protection of some falsehood in order to protect speech that matters.¹¹⁸ Thus, the US courts have been willing to insulate even “demonstrably false speech” from liability so as to provide “breathing space” for true speech on matters of public concern. ¹¹⁹ This, however, does not mean that the media are given a carte blanche to peddle falsity because once the plaintiff’s burden is satisfied the attention turns to the defendant and the focus then is on whether the defendant was at fault:

A jury is obviously more likely to accept a plaintiff’s contention that the defendant was at fault in publishing the statements at issue if convinced that the relevant statements were false. As a practical matter, then, evidence offered by plaintiffs on the publisher’s fault in adequately investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted.¹²⁰

The US defamation law position may be briefly stated as follows: “Public officials, public figures, and private persons involved in matters of public concern must prove not only recklessness or negligence to win libel suits but also falsity.”¹²² Private persons who are not involved in matters of public concern still must prove at least negligence but not necessarily falsity.¹²³ That said, however, the plaintiff’s burden of proving falsity, where the burden arises, is not as onerous as it might appear, and “it may be somewhat easier to prove falsity than to prove fault.”¹²⁴ In Philadelphia v Hepps the US Supreme Court said its decision “adds only marginally to the burdens that the plaintiff must already bear”.¹²⁵ Although the standard of proof for fault is that the evidence has to be clear and convincing, US appeal courts have held that falsity need only be proved by a “preponderance of the evidence,” that is, there need be only more evidence than not that the statements were false.¹²⁶ If, however, the evidence indicates that the statements are true, they are not actionable, regardless of the extent of harm caused and regardless of the defendant’s motives. In Garrison v Louisiana the Supreme Court held that truth “may not be the subject of either civil or criminal sanctions where the discussion of public affairs is concerned.”¹²⁷

Given the close nexus between falsity and fault,¹²⁸ it is useful to consider the latter element in the American defamation scheme. Since the decision of the US Supreme Court in Gertz v Welch “every person suing the media for libel must prove some level of fault.”¹²⁹ The historical turning point in this area is the US Supreme Court decision in New York Times v Sullivan where the Court declared unconstitutional the common law of strict liability when the media defamed a public official.¹³⁰ This decision, commonly referred to as the public figure defence, “constitutionalised” US defamation law, with its ruling that the robust political debate necessary in a democracy is inadequately protected by a common law requiring a libel defendant to prove the truth to overcome presumed falsity.¹³¹ Australian defamation law took a leaf out of the Sullivan page in developing the implied freedom of political communication¹³² defence but did not go quite as far as the US did, partly because the “conceptual foundation” for the two approaches was deemed to be different.¹³³ Even so, it is arguable that in addition to the First Amendment imperative, the extent of the leeway given to American defamation defendants is itself a product of the free speech-oriented interpretation of the First Amendment by US Courts, rather than being the product of an incontrovertible constitutional injunction.¹³⁴

In the US, a further turning point came in Gertz v Welch,¹³⁵ which not only defined public figures but also eliminated the doctrine of strict liability in defamation law for private persons.¹³⁶ Since then the law has developed in a way that a defamation plaintiff – aside from proving defamation, identification and publication – must also prove that a media outlet erred in the preparation of a story. As earlier pointed out, Middleton and Lee note: “Since Gertz v Welch, every person suing the media for libel must prove some level of fault.”¹³⁷ That is, by virtue of the First Amendment, plaintiffs cannot succeed unless they can show that the media defendant published “with fault, usually negligence or recklessness.”¹³⁸ As Middleton and Lee note further: “The Court, by providing constitutional protection for defamation when a journalist’s error does not rise to the level of negligence or recklessness, revolutionised libel law.”¹³⁹ This revolution, however, was not unbridled so as to leave the media free to wreak havoc on reputations. In respect of fault, once a court decides that a person is a public official, a public figure, or a private person, the focus of the case “turns to the question of fault, that is, whether communicators published the alleged libel carelessly or maliciously.”¹⁴⁰ Private persons must prove that a publisher acted deliberately, negligently or carelessly, while public officials and public figures must prove that the publisher knew that the publication was false or published it with reckless disregard for the truth.¹⁴¹ However, where the defendant is a non-media entity private plaintiffs not involved in a matter of public concern are permitted to sue for presumed damages without proving fault.¹⁴²
3.3.3 Harm

Although this element is not directly relevant for the purposes of the reform proposals in this submission, its role in the American defamation scheme is described here in the interests of gaining a complete picture of the “six” hurdles placed in the path of most American defamation plaintiffs.¹⁴³

Proof of harm is the sixth element of a plaintiff’s defamation case in the United States: “A plaintiff cannot sue successfully over a harmless libel, although some harm to reputation may be ‘presumed’.”¹⁴⁴ American defamation plaintiffs may sue for presumed damages (the loss of reputation that a defamation is assumed to cause); two kinds of compensatory damages (one being for actual damages for loss of good name, shame, humiliation and stress; and the other, for special damages for lost revenue and defamation-related expenses); and for punitive damages (awards to punish the defamer).¹⁴⁵ Since the Sullivan case, however, it is more difficult for plaintiffs involved in public affairs to receive awards for presumed damages.¹⁴⁶ In Gertz the Court said that public figures and private plaintiffs must prove actual malice if they are to collect presumed damages from the media.¹⁴⁷
3.4 Falsity burden and England

In England, a proposal to place the burden of proving falsity on the plaintiff made to the Faulks Committee was greeted by what Robertson and Nicol have described as a “pompous response”,¹⁴⁸ that is, the Committee favoured the retention of the burden of proving truth on the defendant because it “tends to inculcate a spirit of caution in publishers of potentially actionable statements which we regard as salutary”.¹⁴⁹ There is older English authority, however, in support of the view that the burden of proof of falsity should be on the claimant. Mitchell cites one such authority from the late nineteenth century where “Lord Esher MR seemed to be departing from that general rule, and saying that the burden of proof of falsity was on the claimant.”¹⁵⁰ Additional support for this idea comes from an earlier case where it was held that the burden of proof of falsity automatically moved to the claimant seeking an interlocutory injunction.¹⁵¹ A leading American commentator writing at the time understood that the burden of proof was reversed in English law. Townshend summarised the English position as being that “the court will not in general interfere unless satisfied that the statements complained of in the document are untrue.”¹⁵² However, the transfer of the burden to the plaintiff did not gain acceptance, notwithstanding the celebrated position favouring freedom of speech taken in Bonnard v Perryman¹⁵³ where the court underscored the freedom of speech imperative. Lord Coleridge CJ, delivering judgment of an impressive majority, said:

The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel.¹⁵⁴
In recent years, however, fuelled by the growing emphasis that both the common law and constitutional or quasi-constitutional instruments have been giving to freedom of speech, there has been a growing recognition of the need for reform:

[Reform is] now clearly seen to be necessary to effectuate free speech as well as to bring libel law clearly into line with other civil actions. A reversal of the burden of proof is essential if the purpose of Article 10 is to be achieved, namely to inculcate a salutary spirit of caution in wealthy public figures who wish to use the law to silence their critics.¹⁵⁵

Burden reversal was given detailed consideration in Australia sixteen years ago by the New South Wales Law Reform Commission. Despite the fact that it was never implemented, it is worth examining that proposal in some detail here. In 1995 the Commission recommended that “[i]n general falsity should be an essential ingredient of the cause of action” in defamation¹⁶² and that the “burden of proving that a defamatory imputation is false should rest on the plaintiff.”¹⁶³ The Commission said it made sense to put the burden of proof of falsity on the plaintiff “simply because the plaintiff, who ‘knows the truth’, is more likely to be in a position to prove falsity than the defendant to prove truth.”¹⁶⁴

Some of the Commission’s justifications for its proposal were:¹⁶⁵ (a) plaintiffs who are not required to put falsity in issue can, in theory, use defamation law to protect undeserved reputations; (b) speaking the truth should generally not give rise to civil liability simply because the truth is defamatory; (c) the determination of truth or untruth of the defamatory imputation is the gravamen of the plaintiff’s complaint in most cases and yet truth or falsity does not play a critical role on the present approach;¹⁶⁶ (d) forcing the plaintiff to either litigate the issue of truth or concede it is consistent with the value that vindication comes primarily from a finding that a defamatory publication is false and this approach should apply to “all cases”;¹⁶⁷ and (e) freedom of speech would be facilitated “because it removes the necessity of the defendant’s having to prove the truth of the defamatory imputation”.¹⁶⁸ The Commission said:

[I]t is only by making this change that the law of defamation can be made to fulfil its essential function of vindicating plaintiffs’ reputations in a way which not only addresses many intractable and long-standing problems of the law of defamation but also promotes the flow of accurate information.¹⁶⁹

A common media concern is that the former public interest/benefit element in the truth defence was a privacy protection device in disguise.¹⁷⁴ In the Australian experience the incidence of privacy invasion by the media is not as serious as might be the case in the United States or in England.¹⁷⁵ Within the privacy protection framework there is room for flexibility so that the scope of protection may be set widely or narrowly. It is suggested that the notion of “matter of public concern” should be applied broadly to enable a wide range of matters to qualify as matters of public concern. Lord Denning MR in his classic statement on the meaning of matters of public interest favoured such a breadth:

I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.¹⁷⁶
That formulation, however, warrants further comment, in particular in relation to “legitimate” and matters of public “concern”. The two terms appear to impose constraints on the ambit to be given to “matter of public concern”.

American defamation law tends to prefer the term “public concern”¹⁷⁷ to “public interest” although the US Supreme Court “has never defined ‘matters of public concern’.”¹⁷⁸ In the Bonnick case¹⁷⁹ the Privy Council, building on the terminology in the Reynolds case, which dealt with qualified privilege,¹⁸⁰ appears to have deliberately chosen the expression “public concern” rather than the more familiar “public interest”.¹⁸¹ For the purposes of this submission the term preferred is “public concern” rather than “public interest”. What then is the difference between “public interest” and “public concern”? Tipping J offered the following explanation, in the context of qualified privilege, for preferring “public concern” rather than “public interest”:

The expression “in the public interest”, although capturing the rationale for the privilege, carries the risk of subject-matter slippage to “matters of public interest”. It is not necessarily in the public interest to publish to the world at large matters which are of interest to the public. The concept behind the expression “matters of public concern ” is designed to convey more exactly what the privilege is about. The use of the word “concern” does not necessarily signify worry, but it does signify that the subject-matter of the publication must be something about which the public is entitled to be informed. The subject-matter must be something about which the public has a right to know, as Lord Nicholls put it in Reynolds.¹⁸²
A further ground is the confusion that tends to accompany the term “public interest”. The ALRC has stated that the “public interest is an amorphous concept”¹⁸³ and “impossible to define”.¹⁸⁴

It is suggested that the scope of matters of public concern should properly acknowledge the full range of matters that intelligent citizens should think about and this should include issues such as: child or sexual abuse; social misdemeanour by sports and entertainment personalities; substance abuse in sport; business relationships involving political personalities; and relationships that expose a conflict between public and private interests. As Lord Steyn noted, there is a compelling argument to expand the scope of matters of public concern beyond political discussion:

There are other public figures who exercise great practical power over the lives of people or great influence in the formation of public opinion or as role models. Such power or influence may indeed exceed that of most politicians. The rights and interests of citizens in democracies are not restricted to the casting of votes. Matters other than those pertaining to government and politics may be just as important in the community; and they may have a strong claim to be free of restraints on freedom of speech.¹⁸⁵
The task of defining the scope of matters of public concern can be accomplished by the courts conducting an evaluation having regard to all the circumstances while ensuring that it does not supplant the editor’s role in the newsroom. The following proposition from Lord Nicholls, although it was expressed in the context of a privileged occasion, provides a useful basis upon which to approach the present task:

Whether the public interest so requires depends upon an evaluation of the particular information in the circumstances of its publication. Through the cases runs the strain that, when determining whether the public at large had a right to know the particular information, the court has regard to all the circumstances. The court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice.¹⁸⁶

The New South Wales Law Reform Commission justified the proposed exception that the burden of proof of falsity not be reversed if the plaintiff establishes that the imputation is “not capable of being proved true or false”¹⁹⁰ by arguing that on occasion a particular form of words is “inherently incapable of being proved true or false as it is purely a value judgment which depends on matters of personal impression.”¹⁹¹ The Commission also noted that “[o]f course, the plaintiff will always put forward an imputation which is inherently capable of being proved true or false in order to prevent the defendant’s having the advantage of pleading comment.”¹⁹² The Commission’s proposal in this regard is unsatisfactory as it creates room for tactical manoeuvring in relation to defamatory meaning. Furthermore, if a statement is inherently incapable of being proved false by the plaintiff or true by the defendant this could give rise to the situation described in Philadelphia v Hepps where the US Supreme Court said “the outcome of the suit will sometimes be at variance with the outcome that we would desire if all speech were either demonstrably true or demonstrably false.”¹⁹³ That is, those suits could “succeed despite the fact that, in some abstract sense, those suits are unmeritorious.”¹⁹⁴ Burdening plaintiffs or defendants with the onus of proving truth or falsity in circumstances where proof one way or the other is impossible results in a “zero-sum game” – that is, either plaintiffs will benefit or defendants will.¹⁹⁵ In the event of a deadlock arising from the impossibility of proving truth or falsity, a free-speech-centric approach favouring protection for speech by media defendants about public figures on matters of public concern would dictate that protection be given to the publisher of the defamatory statement.¹⁹⁶ In the scheme of the reform proposed here the plaintiff’s inability to establish the cause of action would mean that there is no need for the defendant to mount any defence.¹⁹⁷