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

The foregoing exposition encompasses a number of potential areas for reform but two, in particular, stand out given especially that the “very conception of defamation involves the idea of falsity”.¹⁹⁸ As will be seen shortly one concerns the burden imbalance at the start of the action. The recommendation to address this imbalance is that public figure plaintiffs suing media defendants for defamation in relation to matters of public concern should be required to prove falsity, in addition to the existing three elements.¹⁹⁹ The second concerns a related matter – the concept of fault. It is proposed that the existence or otherwise of fault on the media defendant’s part be taken into account, by way of defence, in determining liability in respect of public figure plaintiffs suing for defamation in relation to matters of public concern. These two proposals are discussed in the following sections.

It is proposed in this submission that rather than leaving it to a media defendant to invoke the truth defence, the burden be reversed so that it is the plaintiff who bears the burden of proving falsity, in situations where the plaintiff is a public figure suing in respect of a matter of public concern. Robertson and Nicol described the effectiveness of burden reversal as a reform measure solution succinctly: “A simple but far-reaching reform in libel law, which would enhance freedom of expression, would be to reverse this burden: to oblige the claimant to prove, on balance, the falsity or unfairness of the criticism.”²⁰⁰ Or as one newspaper colourfully put it in an editorial after the introduction of the UDA: “The boot should be on the other foot – it should be up to the person suing for damages to prove that the material was false.”²⁰¹ The recommendation in this submission, however, does not propose to go so far. That is, it is not proposed that all plaintiffs should bear this reversed burden but only those who are “public figures” and even so, only in relation, to matters of “public concern”. It may also be noted, however, that falsity and unfairness referred to above by Robertson and Nicol, involve distinctly different concepts. The proposal in this submission is limited to the question of falsity. The reform approach proposed here is completely opposite to the prevailing Australian and English approaches but it is entrenched in US defamation law. It has, however, had adherents both in England, and in Australia.²⁰²

In proposing the burden reversal above, the New South Wales Law Reform Commission said: “[W]e recommend in this Report that the defence of justification should be abolished”.²⁰³ Later in the same report the Commission said that the practical outcome of the burden reversal recommendation would be that “justification will be eliminated as a defence in defamation actions.”²⁰⁴ In other words, the truth defence would be eliminated as an affirmative defence. The view concerning the burden reversal approach in the US is that, rather than an elimination of the truth defence, its utility diminishes, albeit substantially, in the preponderance of cases.²⁰⁵ Likewise, in the reform scheme proposed here, the truth defence is not eliminated altogether. Rather it will remain available in cases that fall outside the scope set out above, that is, it will remain available to private plaintiffs, and even to public figures suing in respect of speech that does not fall within the “matter of public concern” ambit. Reversing the burden in question would not mean that the law condones the gratuitous infliction of truth so as to injure a person’s reputation. Rather, it recognises that if the publication of the truth satisfies the preconditions referred to above (by meeting the public figure/public concern elements), any infliction of harm is no more than a by-product of the pursuit of higher ideals – primarily freedom of speech involving matters of public concern and the primacy of “truth” – sought to be achieved by placing the truth inquiry at the start of the exercise, rather than later in the litigation process, as is the case at present.²⁰⁶

The US burden reversal approach in respect of public figures has not been without difficulties. For instance, it has been noted that it does not follow that a case brought under the Sullivan rule “will always produce an adjudication on the issue of truth.”²⁰⁷ It is doubtful, however, whether judicial adjudications always resolve the issue of truth in any event.²⁰⁸ Furthermore, the present reform proposal in fact places the issue of truth in a more prominent position by locating it at the start of the action. Walker has expressed reservations about the New South Wales Law Reform Commission’s burden reversal proposal and among the criticisms made were: (a) that the Commission expressed conflicting views about whether there is a necessary connection between reputation and truth; and (b) that it is incorrect to say that the law is generally only concerned with protecting well-founded reputations.²⁰⁹ While the Commission may have overstated the position when it intimated that that the law is generally only concerned with protecting well-founded reputations, there is nonetheless, much authority in favour of the view that defamation law should only protect deserved reputations.²¹⁰ The responses to the first point have been canvassed elsewhere.²¹¹

A further point to note is that because the reform proposed is aimed only at public figure plaintiffs who are complaining about defamatory matter published by a media defendant, it follows that where the plaintiff is not a public figure or the matter complained about is not a matter of public concern or the defendant is not a media defendant, the traditional elements of the cause of action and the truth defences remain. The retention of the traditional cause of action in the circumstances described here would preserve the existing burden imbalance to the defendant’s disadvantage, but that would be an acceptable chill on speech, if not altogether a “desirable chill”.²¹² Furthermore, the burdens upon the media as a result of retaining this approach in the present context are not ones the media would find unacceptable because the media is primarily interested in protection for publication on matters of public concern.²¹³
4.2 Reform recommendations

In this section reform recommendations are made and explanations are provided for these recommendations:

1. 
   the plaintiff is a “public figure”;²¹⁵
   
2. 
   the matter complained about is a “matter of public concern”;²¹⁶ and
   
3. 
   the defendant is a “media defendant”. ²¹⁷
   

This recommendation springs from the following arguments: (a) to accord greater protection to the discussion of matters of public concern²¹⁸ and to freedom of speech generally; (b) the need to bring defamation law more into line with tort law generally;²¹⁹ (c) the need to address the present paradox that appears to marginalise a core value (truth) in the defamation action;²²⁰ (d) the need to correct the unfair presumption-of-falsity burden on the defendant;²²¹ (e) the need to bring this area of the law more into line with a jurisdiction which has led the way internationally in freedom of speech matters;²²² and (f) to give effect to a longstanding proposal by the New South Wales Law Reform Commission²²³ which continues to gather momentum.²²⁴

The issue was discussed above.²²⁸ Inevitably one side may be exposed to a setback where it is impossible to prove that a defamatory imputation is true (defendant is at a disadvantage) or false (plaintiff is at a disadvantage). The recommendation here, in keeping with the freedom of speech priority advocated in this submission, is that the error be made on the side of the defendant. Thus, if the plaintiff is unable to establish the falsity of the defamatory statement the plaintiff fails to mount the action.

The Model provisions here are set out in an order that corresponds with the recommendations above.

(a) Where the person suing for defamation is a “public figure” and the matter complained about is a “matter of public concern” and the defendant is a “media defendant”, the plaintiff – in addition to proving publication, identification and the existence of defamatory matter – bears the onus of proving the falsity of the defamatory matter as an essential ingredient of the cause of action.

1. 
   The term “public figure” means:
   

1. 
   any person holding “public office” whether elected to that office or not;
   
2. 
   any person who seeks a public profile;
   
3. 
   any person who, while not actively seeking a public profile, is a willing participant in the creation or promotion of that profile, or is a willing participant in a public controversy or public debate; and
   
4. 
   any person who by virtue of his or her office or calling exercises practical power over the lives of people or influence in the formation of public opinion or as role models.
   

1. 
   matters of government and politics;
   
2. 
   matters of “public affairs” whether they concern matters or government and politics or not;
   
3. 
   matters that include discussion about the conduct, policies or fitness for office of the public figure concerned;
   
4. 
   matters that people may be legitimately interested in or concerned about; and
   
5. 
   all speech relevant to the development of public opinion on the whole range of issues which people should think about’.
   

(b) Where the plaintiff is a “public figure” who is seeking damages against a “media defendant” for speech on “a matter of public concern” and the defamatory matter concerned is not capable of being proved false by the plaintiff, the plaintiff does not have a cause of action.

The idea for a “no fault” defence springs from our earlier examination of the US position. There the “degree of journalist’s fault is the central issue in many libel suits”.²³⁰ This centrality is illustrated by the role that “reckless disregard” for truth or falsity plays in defamation in that country.²³¹ Recklessness as to truth has traditionally been treated as equivalent to knowledge of falsity.²³²

For the purposes of this submission the recommendation is not that the plaintiff bear the burden of proving fault on the defendant’s part but rather that the media defendant be entitled to establish an absence of fault on their part in respect of the defamatory publication. That is, it should be a defence to show that the media defendant was not at fault in respect of the defamatory publication. The determination as to the existence or otherwise of fault should be made on the basis of criteria that may legitimately apply to media defendants taking into account both the interests of freedom of speech and the competing public interest in ensuring an appropriate standard of care in respect of the kind of publication that is the subject of the defamation complaint.

The assessment of fault against a list of factors is not unknown to defamation law, much less to the UDA itself. The UDA defence of qualified privilege provides a list of factors that may be taken into account in deciding whether the defendant’s conduct was “reasonable in the circumstances”.²³³ It is recommended that the “no fault” defence be entrenched as a broader defence in the UDA – one that is not confined to the defence of qualified privilege. The decision of the House of Lords in the Reynolds²³⁴ and Jameel cases²³⁵ and section 30(3) UDA provide a useful foundation upon which to embark on this exercise. In essence, what the Jameel case espouses is improved protection for the media provided that the media can show that it acted responsibly²³⁶ or that it was not negligent. Notably, there is already strong media support for these approaches abroad.²³⁷

The criteria for establishing fault have a long history in United States case law.²³⁸ In England there has been a recent trend toward giving consideration to questions of journalistic fault.²³⁹ A more recent Court of Appeal case in Canada suggests support for such an approach.²⁴⁰ In Australia, support for a similar approach can be found in the UDA defence of qualified privilege;²⁴¹ and from the Press Council.²⁴² Two significant benefits of such an approach have been previously noted: (a) it would rid defamation law of “one of its most archaic and objectionable features – no fault liability”; and (b) it would provide “a new and powerful reason for journalists and publishers to get their stories right”.²⁴³

Any suggestion that the notion of “responsible journalism” is too vague is easily overcome:

But the standard of responsible journalism is as objective and no more vague than standards such as “reasonable care” which are regularly used in other branches of the law. Greater certainty in its application is attained in two ways. First, as Lord Nicholls said, a body of illustrative case law builds up. Secondly, just as the standard of reasonable care in particular areas, such as driving a vehicle, is made more concrete by extra-statutory codes of behaviour like the Highway Code, so the standard of responsible journalism is made more specific by the Code of Practice which has been adopted by the newspapers and ratified by the Press Complaints Commission. This too, while not binding upon the courts, can provide valuable guidance.²⁴⁴
Furthermore, questions of media fault are regularly decided in quasi-judicial contexts such as through adjudications or findings handed down by the Australian Press Council²⁴⁵ and the Australian Communications and Media Authority²⁴⁶ although it is not suggested here that such adjudications are an effective alternative to the judicial process.²⁴⁷ For present purposes the existence of fault may be determined incrementally as we develop our case law²⁴⁸ and by taking into account relevant factors, including the relevant professional practice codes. Taking such an approach would give the “fault” element a clearer focus and one that the journalism profession itself would, broadly speaking, require no conversion to. Importantly, it must be recognised that these tests can be converted into “hurdles” in the “hands of a hostile judge” who applies “the closest and most rigorous scrutiny”.²⁴⁹ What is suggested here is, as proposed in the Jameel case, that the standard of conduct required of the publisher “must be applied in a practical and flexible manner. It must have regard to practical realities.”²⁵⁰
5.1 Reform recommendations

The reform recommendations under this heading are as follows:

Placing the burden of proof in respect of the absence of fault in this recommendation brings about a situation very close to the Australian position as regards trespass to the person.²⁵² As noted above, there is a close nexus between fault and the scope of this submission.²⁵³ Since much turns on how “fault” is determined it remains for the operation of this rule to be spelt out more clearly and this is done in the recommendations that follow.

7. 
   whether comment was sought from the claimant;
   
8. 
   whether the article contained the gist of the claimant’s side of the story;
   
9. 
   the tone of the article;
   
10. 
    whether there was malice;²⁵⁶
    
11. 
    the timing of the publication;
    
12. 
    whether the article was presented in a fair and balanced way;
    
13. 
    the quality of the sources relied upon;
    
14. 
    whether the party adversely depicted by the publication was given an opportunity to comment on the allegations prior to publication;²⁵⁷ and
    
15. 
    any applicable media professional practice codes.
    

The factors proposed above are not meant to constitute a longer list of burdens on the media than those proposed earlier by the courts.²⁵⁸ Rather, it is meant to identify as many factors as possible and to capture them in a convenient place, such as in the legislation, so as to serve as a useful reference point for all concerned. The factors identified above in fact mirror many of the media’s own avowed professional code commitments and at least one acknowledges unfair hurdles that may be placed in the way of information gathering.²⁵⁹

The media has expressed justified reservations about a list such as the one proposed in clause (b) above.²⁶⁰ These concerns stem primarily from the fact that, until recently, these criteria were “not applied generously”.²⁶¹ Further, as Lord Hoffmann observed in the Jameel case, “these tests can be converted into “hurdles” in the “hands of a hostile judge” who applies “the closest and most rigorous scrutiny”.²⁶² In any event, it is proposed here that in weighing up the criteria set out in Recommendation (b) above the media should not be compelled to meet all or most of the criteria set out. The court should adopt a qualitative rather than a quantitative approach, and apply a flexible test²⁶³ that also takes into account the practical exigencies of news production²⁶⁴ and the interests of freedom of speech.²⁶⁵

The proposal here is to make available an additional defence, rather than to force a defendant into limited defence options. Indeed, the “no fault” defence provides the media with a sound basis and incentive to reinforce their own professionalism, while not depriving them of the more traditional truth defences.

The Model provisions here are set out in an order that corresponds with the recommendations above.

(a) It is a defence to the publication of defamatory matter involving a “public figure” plaintiff and a “matter of public concern” if it is proved that the “media defendant” was not at fault in respect of the defamatory publication.

(b) In assessing the existence or otherwise of the media defendant’s fault, the court may take the following non-exhaustive list of factors into consideration:

(i) the seriousness of the allegation;

(ii) the source of the information;

(iii) the steps taken to verify the information;

(iv) any unreasonable obstacles to the flow of relevant information to the “media defendant”;

(v) the status of the information;

6. 
   the urgency of the matter;
   
7. 
   whether comment was sought from the claimant;
   
8. 
   whether the article contained the gist of the claimant’s side of the story;
   
9. 
   the tone of the article;
   
10. 
    whether there was malice;
    
11. 
    the timing of the publication;
    
12. 
    whether the article was presented in a fair and balanced way;
    
13. 
    the quality of the sources relied upon;
    
14. 
    whether the party adversely depicted by the publication was given an opportunity to comment on the allegations prior to publication; and
    
15. 
    any applicable media professional practice codes.
    

(c) In considering the factors set out in clause (b) above the media defendant is not required to meet all or most of the matters set out. The court should adopt a qualitative rather than a quantitative approach, and apply a flexible test that also takes into account the circumstances of news production in the particular case and the broader interests of freedom of speech.

(d) The “no fault” defence does not preclude a “media defendant” from relying on any of the other available defences.

The current review of the Defamation Act 2005 (NSW) prompted by section 49 which requires that the Act be reviewed five years from its introduction to determine whether the Act’s policy objectives and provisions are still valid provides an excellent opportunity to address a key inadequacy in the law. Two examples illustrate the inadequacy of the present media-averse approach to the truth defence.

In Snedden v Nationwide News,²⁶⁷ the plaintiff, a former military commander, sued The Weekend Australian, over an article describing his alleged activities in Bosnia during the civil war in the former Yugoslavia in 1991. The imputations found to have been conveyed by the article included: that the plaintiff was a death squad commander, that he had condoned the rape of women and girls, that he was a mercenary, and that he had admitted to committing a massacre.²⁶⁸ The defendant pleaded the truth defence and succeeded in justifying the first two imputations and the court found for the defendant.²⁶⁹ As the defendant newspaper itself subsequently stated, its defence of that article was “extensive and expensive [and the defendant was] likely to be substantially out of pocket”.²⁷⁰

In Trad v Harbour Radio, a community leader named Keysar Trad was the subject of a broadcast in which the defendant described him as “a well known apologist for the Islamic community spewing hatred and bile at anyone who did not agree with (his) philosophies and principles”.²⁷¹ The jury found that among the imputations conveyed and which were defamatory of the plaintiff were that the plaintiff: incites people to commit acts of violence; incites people to have racist attitudes; is a dangerous individual; and was widely perceived as a pest.²⁷² The defendant pleaded the truth defence in response to these imputations. In respect of the imputation that the plaintiff incites people to commit acts of violence the court accepted the defendant’s submission that many of the plaintiff’s published remarks were “distasteful and appear to condone violence”.²⁷³ Similarly the court held that the plaintiff “does hold views which can properly be described as racist [and that] he encourages others to hold those views”²⁷⁴ and that it was appropriate to describe him as “a dangerous individual”.²⁷⁵ In finding for the defendant the judge described the plaintiff as “a person with a seriously compromised reputation”.²⁷⁶ This litigation reportedly cost about $400,000.²⁷⁷

These two cases illustrate the merits of a key argument in the present discussion. Defamation law can be, and in fact is, exploited by those with a tenuous claim to a good reputation, consequently producing an effect that is notoriously inimical to freedom of speech. A burden reversal that requires plaintiffs to prove the falsity of the matter complained about, in the circumstances of the re-assignment of burdens proposed here, would in all likelihood render futile an action for redress in defamation, by plaintiffs with dubious claims to a good reputation, let alone any meritorious claim to vindication, and thereby forestall the commencement of an action. Such an outcome is entirely conceivable in the Snedden and Trad cases referred to above. The prevailing imbalance in the burdens between plaintiff and defendant in such circumstances can be effectively addressed by adopting the burden shift on the formula proposed in this submission. The opportunity should be taken to review the present doctrinal calculus in defamation law, which places excessive burdens on the defamation defendant especially in respect of true statements. This submission provides a pragmatic way forward in promoting speech on matters of legitimate public interest and would bring Australia’s defamation law regime into line with 21^st Century needs.