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

2 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4, at 21.

3 Gibbons T (1996), “Defamation Reconsidered” Vol 16 No 4 Oxford Journal of Legal Studies 587, at 589.

4 That is, to show that: (a) publication occurred; (b) the plaintiff was identified; and (c) the matter was defamatory.

5 Briefly stated, this refers to any person in public office, or who seeks a public profile, or who by virtue of his or her office or calling exercises practical power over people’s lives or influences the formation of public opinion: see heading 4.2 Recommendation (a)(i).

6 Briefly stated, this refers to matters of government and politics, matters of public affairs, matters that include discussion about the conduct, policies or fitness for office of the public figure concerned, matters that people may be legitimately interested in or concerned about, and all speech relevant to the development of public opinion on the whole range of issues which people should think about (authorities omitted): see heading 4.2 Recommendation (a)(ii).

7 On this point see heading 3.6 below and heading 4.2 Recommendation (b) below.

8 See heading 3.5 below.

9 New South Wales Law Reform Commission (October 1995), Defamation, Report No 75, Para 4.15. For a more recent call for a burden reversal in England, see Milo D (2008), Defamation and Freedom of Speech, Oxford University Press, Oxford, at 156:

It is argued that there is a sound foundation for the proposition that the claimant in a defamation action involving public speech should bear the burden of proving the falsity of the statements complained of. On the other hand, the same argument does not compel a change in the law in regard to private speech; in that context, it is reasonable for the law to require the defendant to prove truth.

10 See above fn 4.

11 Milo D (2008), above fn 9, at 184.

12 See heading 5 below.

13 Milmo P and Rogers WVH (2004), Gatley on Libel and Slander, 10th Edn, Sweet & Maxwell, London, at 8. As noted in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, Gleeson CJ, McHugh, Gummow and Hayne JJ, at 600:

The tort of defamation, at least as understood in Australia, focuses upon publications causing damage to reputation. It is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care (authority omitted).

14 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 631, citing Weir T (1996), A Casebook on Tort, 8th Edn, at 525. What Lord Steyn omitted from that quotation is Weir’s rhetorical question that immediately followed: “Are we still in the law of tort?”

See also Hulton v Jones [1910] AC 20; Cassidy v Daily Mirror Newspapers [1929] 2 KB 331; Slim v Daily Telegraph [1968] 2 QB 157, at 172.

15 See, for instance, the proposition in the quotation accompanying above fn 14.

16 For the purposes of the present discussion falsity and untruth are treated as equivalent.

17 (1984) 2 NSWLR 544.

18 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551 (italics added). Walker has made a similar observation, noting that “the truth or falsity of published material is irrelevant at the stage when the court is deciding whether the material conveys a defamatory meaning”: Walker S (May 1997), “Defamation law reform: the New South Wales Defamation Bill 1996 and the Australian Capital Territory’s Report”, Vol 5 No 1 Torts Law Journal 88, at 89.

19 NSWLRC Report No 75, above fn 9, Para 2.4. See also Walker’s view that “there is no necessary connection between the concept of reputation, on which defamation law is based, and the concept of truth”: Walker (May 1997), above fn 18, at 90. Walker also states that “there is much about the law of defamation that is based on policies which have nothing to do with the truth or falsity of the published material” (at 91).

20 Spencer Bower (1990), A Code of the Law of Actionable Defamation with a Continuous Commentary and Appendices, 2nd Edn, Legal Books, Redfern, NSW, at 237.

21 Gatley (2004), above fn 13, at 7.

22 See Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 205. His Honour, speaking in the context of the New South Wales truth plus public benefit defence, which pre-dated the UDA (under the UDA truth is a complete defence as noted above), explained the distinction as follows:

…I am unable to accept the proposition that without a plea of justification (that is of truth and public benefit) the truth or falsity of a defamatory statement is an irrelevant consideration in a defamation case. The truth or falsity of the words is irrelevant to the question whether they are actionable but not, I think, to the amount of damages if they be defamatory (italics added).

His Honour added (at 205):

A jury is always likely to think that heavier damages should be given for the gratuitous publication of statements that are false than would be appropriate if the same statements were true. A plaintiff is always permitted to go into the witness box to say that what was said of him was a lie. If he does so, surely the defendant should be permitted to call evidence to answer him? If he does not, must the defendant remain silent on the matter unless he has pleaded truth and public benefit? (italics added).

In obiter remarks, His Honour said (at 205) that he did not agree with “strong dicta” from Jordan CJ and Halse Rogers J in Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 that disapproved of the view that a defendant could call evidence of the truth of his statements with a view to mitigating damages although he had not pleaded justification. It may also be noted that the term “actionable” here appears to take the sense of whether the plaintiff has a cause of action and not in the sense discussed in Gatley (2004), above fn 13, at 8, where it is stated that a defamatory publication is not “actionable” if it is true. The term as used here does not mean that action cannot commence, but that the plaintiff will not obtain judgment because the defendant is able to defeat the complaint: see Brennan DJ (1994), “The defence of truth and defamation law reform”, Vol 20 No 1, Monash University Law Review 151, at 151.

23 Although falsity may, of course, aggravate damages: see fn 33 below.

24 NSWLRC Report No 75, above fn 9, Para 2.4; and see, for example, section 25 UDA.

25 George P (2006), Defamation Law in Australia, LexisNexis Butterworths, Chatswood, NSW, at 246.

26 Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 204 (italics added). See further Bower (1990), above fn 20, at 78:

In any action of defamation, the defendant may set up, as an affirmative defence thereto, that any defamatory matter published by him is true. Such a defence must be pleaded, and, when so pleaded, is called a plea of justification, and the defendant is said to ‘justify’ the defamatory matter in respect of which the plea is pleaded.

27 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544.

28 NSWLRC Report No 75, above fn 9, Para 2.4.

29 Standing Committee of Attorneys-General (SCAG), “Proposal for uniform defamation laws” (July 2004), SCAG Working Group of State and Territory Officers, Item 4.9.4, at 23, in the discussion preceding Recommendation 14 (italics added). See full quotation in text accompanying fn 47 below.

30 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551. The authorities Hunt J cited are: Spencer Bower (1923), Law of Actionable Defamation, 2nd Edn, at 236 and 237; Clines v Australian Consolidated Press (1965) 66 SR (NSW) 321, at 327 and 333; 83 WN (Pt 2) 299, at 304 and 310; Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 205; and Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd (1980) 2 NSWLR 845. In the last-mentioned case Hunt J, at 847, said:

The fact that the matter complained of may be untrue is, however, wholly irrelevant to the question of defamation.

31 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551.

32 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551.

33 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551 (italics added). In 1704 in the context of seditious libel, Holt LCJ explained famously that “a true libel is especially dangerous, for unlike a false libel, the dangers of truthful criticism cannot be defused by disproof…The greater the truth the greater the libel”: R v Tutchin (1704) 14 Howell’s State Trials 1095, at 1128. The concern in that case was with ensuring the stability of government by proscribing the fomenting of ill will against the government. As Holt LCJ held, it was “very necessary for all governments that the people should have a good opinion of it.”

34 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544.

35 Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 205.

36 See text accompanying above fn 2.

37 George (2006), above fn 25, at 240.

38 (2003) 11 EMLR 218.

39 Chase v News Group Newspapers Limited (2003) 11 EMLR 218, Brooke LJ, at 227 (Rix and Keene LJJ agreeing). See further the view expressed in a disquisition appended to the report of Wyatt v Gore (1816) and cited in Bower (1990), above fn 20, at 338:

…the reputation cannot be said to be injured where it was before destroyed. The plaintiff has previously extinguished his own character…The law considers him as bringing an action of damage to a thing which does not exist.

See also the view that “no one has a right to a reputation which is unmerited. Accordingly one can only suffer an injury to reputation if what is said is false”: Lonrho v Fayed (No 5) (1993) 1 WLR 1489, CA, Stuart-Smith LJ, at 1502. Gatley (2004), above fn 13, at 268 notes that English law is “committed to the proposition that a claimant is not entitled to recover damages for injury to a reputation which he ought not to possess”, citing Chase v News Group Newspapers Limited (2003) 11 EMLR 218, at 227.

40 A distinction is made between defamatory publications and publications that constitute an actionable defamation: Brennan (1994), above fn 22, at 151.

41 NSWLRC Report No 75, above fn 9, Para 2.1.

42 Gillooly M (1998), The Law of Defamation in Australia and New Zealand, Federation Press, Sydney, at 2 (italics added). For a similar qualification, see Bower (1990), above fn 20, at 1, where the author states: “Defamation is the publication of defamatory matter, as hereafter defined (italics added).”

It was stated in More v Weaver [1928] 2 KB 520, Scrutton J, at 521, that there are cases where statements are defamatory although the law does not allow any action to be brought in reference to them. See also Brennan (1994), above fn 22, at 151.

43 Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551.

44 A further criticism may be made. Hunt J noted that “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”: Aldridge v John Fairfax & Sons Ltd (1984) 2 NSWLR 544, at 551. Hunt J’s analogy is odd considering that defamation law hardly ever encounters plaintiffs who complain about favourable imputations concerning them. Defamation law is concerned only with damage to reputation and this necessarily arises from negative imputations against the plaintiff.

45 Bower (1990), above fn 20, at 78 states:

It is not true, except in a loose and unscientific sense, that ‘the truth is no libel,’ for this would, in strictness, involve the proposition that falsity is part of the connotation of defamation, and part, therefore, of the plaintiff’s burden of proof, which it certainly is not.

The “presumption of falsity” is discussed under heading 3.1 below.

46 See the quotation accompanying fn 47 below.

47 New South Wales Bar Association’s Submissions to the Standing Committee of Attorneys-General Working Group of State and Territory Officers, July 2004 Proposal for Uniform Defamation Laws.

48 See text accompanying fn 2 above. See also M’Pherson v Daniels [1829] 10 B & C 263, Littledale J, at 272, where his Honour noted that truth is an answer to the action “because the plaintiff is not entitled to recover damages in respect of an injury to a character which he either does not, or ought not to possess.”

49 The Uniform Defamation Acts make this clear. See, for instance, section 6(1): “This Act relates to the tort of defamation at general law.”

50 Chisolm R and Nettheim G (1992), Understanding Law, 4th Edn, Sydney, Butterworths, at 30.

51 Pember DR (2003/2004), Mass Media Law, McGraw-Hill, New York, at 201. See discussion under heading 3.3 below.

52 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), O’Connor J (delivering the court’s judgment), at 776-777 (italics added).

53 Chesterman M (2000), Freedom of Speech in Australian Law: A Delicate Plant, Ashgate Dartmouth, Hants, England, at 168 (italics added). The author adds:

In cases involving public officials or public figures to which the Sullivan rule relates, the interests of at least three parties or interest groups will generally be better served by such an adjudication. These are (i) the plaintiffs themselves, (ii) the governmental, commercial or other public entity from which their status as public official or public figure derives, and (iii) the public at large (ibid, references omitted).

54 Burrows J and Cheer U (2005), Media Law in New Zealand, 5th Edn, Oxford University Press, Melbourne, at 29.

55 Gillooly (1998), above fn 42, at 15.

56 Hawke v Tamworth Newspaper Co [1983] 1 NSWLR 699, Hunt J, at 723.

57 See above fn 4.

58 For a historical account of the presumption of falsity see Hirth JA (2004), “Laying to Rest the Ecclesiastical Presumption of Falsity: Why the Missouri Approved Instructions Should Include Falsity as an Element of Defamation”, 69 Missouri Law Review 529.

59 See TA Street, Foundations of Legal Liability, (1906), Vol 1, at 275 cited in Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416, Evatt J, at 431. See further NSWLRC Report No 75, above fn 9, Para 2.6:

…a finding of falsity is implicit in a defamation verdict. Once the plaintiff has proved the imputation to be defamatory, it is presumed to be false.

60 Bower (1990), above fn 20, at 237; Allen v Flood [1898] AC 1, Cave J, at 37. Also see heading 1 (Introduction) above.

61 Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 204.

62 Australian Consolidated Press v Uren (1966) 117 CLR 185, Windeyer J, at 204 (italics added).

63 George (2006), above fn 25, at 246 (authorities omitted).

64 Armstrong M, Lindsay D and Watterson R (1995), Media Law in Australia, 3rd Edn, Oxford University Press, South Melbourne, at 31 (italics added). See, however, a qualification in Armstrong et al (1995), Chapter 3 endnote 1, in reference to the pre-UDA situation where truth was not a complete defence in some jurisdictions:

This statement remains correct at common law, but in NSW, Queensland, Tasmania and the Australian Capital Territory where legislation provides justification only if true material is also published in the “public interest” or for the “public benefit” it is better to avoid the notion of presumption of falsity and say that the defendant carries the burden of proving truth: Singleton v Ffrench (1986) 5 NSWLR 425.

Note, however, that under the UDA truth is now a complete defence.

65 At common law, the falsity of the published defamatory matter was presumed: see Gillooly (1998), above fn 42, at 23. See further NSWLRC Report No 75, above fn 9, Para 4.7 where the report notes that the absence of a requirement on the plaintiff to prove the falsity of the publication was explained at common law “by saying that once the plaintiff had proved the imputation to be defamatory, it was presumed to be false” (italics added, citing Gatley 8th Edn (1981), Para 351). See also Gatley (2004), above fn 13, at 269.

66 NSWLRC Report No 75, above fn 9, Para 2.4. Bower (1990), above fn 20, at 236 states: “Similarly, as regards falsity, it was never necessary for the plaintiff to prove this, or to allege it.”

67 It has been said that in New South Wales, in the pre-UDA context, there was no presumption of falsity, at least outside the context of political discussion: NSWLRC Report No 75, above fn 9, Para 2.6.

68 Pearson M (2007), The Journalist’s Guide to Media Law, 3rd Edn, Allen & Unwin, Crows Nest, NSW, at 207.

69 Bower (1990), above fn 20, at 237. See also fn 26 above; and Mitchell P (2005), The Making of the Modern Law of Defamation, Hart Publishing, Oxford, at 94:

In defamation the words used are presumed to be false, unless the defendant shows them to be true by successfully pleading justification.

70 Bower (1990), above fn 20, at 237. Bower states that in Roberts v Camden (1807) 9 East 93, Lord Ellenborough CJ, at 94, went through the “laborious process of enunciating three needless propositions”. The remaining two propositions were: (a) if the defendant does not prove the truth of the defamatory matter, the law assumes it to be false; and (c) thereupon malice is to be “necessarily inferred from making a false charge” (italics in original). See also Roberts v Camden, at 95:

At common law, in the absence of a defence of truth, the falsity of the defamatory statements is presumed and may be taken into account as increasing the hurt to the plaintiff on the issue of damages.

See further George (2006), above fn 25, at 246.

71 Australian Law Reform Commission (1979), Unfair Publication: Defamation and Privacy, Report No 11, Para 120.

72 (2003) 9 VR 1.

73 Herald and Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1, at 57.

74 (1993) 113 FLR 254.

75 (1993) 113 FLR 254, at 266 (reference omitted).

76 Australian Consolidated Press v Uren (1966) 117 CLR 185, at 205. In Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254, at 263, Higgins J speaking in a pre-UDA context noted that section 47 of the Defamation Act 1974 (NSW) provides that, so far as it is relevant to quantum, truth or falsity is not presumed.

77 New South Wales Law Reform Commission (1971), Defamation, Report No 11, Appendix D – Notes on Proposed Bill and Rules, Para 35. That proposed reform was titled: “Section 8: No presumption of falsity.” The Gatley reference there was to the 8th Edn.

78 Gatley (2004), above fn 13, at 269 (references omitted). For other arguments opposing the view that the plaintiff should bear the onus of proving falsity in defamation cases see, for example, England and Wales, Supreme Court Procedure Committee (July 1991), Report on Practice and Procedure in Defamation (the “Neill Report”), at 72-73.

79 NSWLRC Report No 75, above fn 9, Para 4.19; Gatley (2004), above fn 13, at 269.

80 NSWLRC Report No 75, above fn 9, Para 4.19 (references omitted).

81 Report of the Committee on Defamation (1975), UK, Cmnd 5909, Para 141 (the Faulks Committee). The Neill Committee made a similar observation: Supreme Court Procedure Committee (1991), Working Group on Practice and Procedures in Defamation, Para XIX4.

82 Gatley has noted that there are arguments on both sides “from a theoretical point of view” concerning the presumption of falsity of the defamatory imputation: see Gatley (2004), above fn 13, at 269.

83 See, for instance, Article 11 Universal Declaration of Human Rights 1948:

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence.

Gatley, however, states without elaboration that in the defamation context “arguments that the defendant is presumed guilty until proven innocent are arguably misplaced”: Gatley (2004), above fn 13, at 269 fn 25.

84 Gatley (2004), above fn 13, at 269 (italics added).

85 Robertson G and Nicol A (2002), Media Law 4th Edn, Penguin, London, at 109.

86 Barendt E, Lustgarten L, Norrie, K and Stephenson H (1997), Libel and the Media: The Chilling Effect, Oxford University Press, Oxford, at 195.

87 Auburn J, Bagshaw R, Day D, Grevling K, Hochberg D, Hollander C, Mirfield P, Oakley AJ, Pattenden R and Whale S (eds) (2005), Phipson on Evidence, 16th Edn, Sweet & Maxwell, London, at 131-133, discusses “statutory reverse burdens”, and the impact of the Human Rights Act 1998 (UK) on reverse burdens and presumptions (at 142-150).

88 NSWLRC Report No 75, above fn 9, Para 4.19 (references omitted).

89 NSWLRC Report No 75, above fn 9, Para 4.19 fn 33. Barendt E (1993), “Libel and Freedom of Speech in English Law”, Public Law 449, at 457 makes a similar observation.

See further Spencer Bower and Turner, The Law of Actionable Misrepresentation (1974), 3rd Edn, Butterworths, London, Para 68, where the authors state that “the burden of alleging and proving falsity in fact, which alone turns a representation into a misrepresentation, rests on the party who sets it up”.

90 Phipson on Evidence, above fn 87, at 127. The authors’ description of the “persuasive burden” includes references to it as “the legal burden”, “the probative burden”, and “the ultimate burden” (at 125). On the same page the authors state:

What is referred to in this work as the persuasive burden is the obligation imposed on a party by a rule of law to prove (or disprove) a fact in issue to the requisite standard of proof. A party who fails to discharge a persuasive burden placed on him to the requisite standard of proof will lose on the issue in question. The persuasive burden is often referred to as the burden of proof, but it is important to keep it distinct from the evidential burden. The evidential burden is sometimes referred to as “the duty of passing the judge”, or “the burden of adducing evidence”. It obliges the party on whom the burden rests to adduce sufficient evidence for the issue to go before the tribunal of fact.

91 Phipson on Evidence, above fn 87, at 127 (italics added, references omitted).

92 See Hulton v Jones [1910] AC 20.

93 Gatley (2004), above fn 13, at 269 (italics added).

94 Phipson on Evidence, above fn 87, at 196 (reference omitted).

95 For example, see John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131, McHugh JA, at 143, where his Honour acknowledged the plaintiff’s entitlement to damages “to vindicate him”.

96 Milo (2008), above fn 9, at 165.

97 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, Brennan J, at 69.

98 Milo (2008), above fn 9, at 166. For a more detailed consideration of that argument see 33–41 (ibid).

99 Milo (2008), above fn 9, at 165–166.

100 Barendt (1993), above fn 89, at 456 (reference omitted).

101 Barendt (1993), above fn 89, at 456.

102 Barendt (1993), above fn 89, at 456.

103 The common law of England carries a presumption of falsity although there has been discussion on this. However, an amendment (Defamation Bill 1996) moved in the House of Lords Committee stage to place the onus on the plaintiff to show falsity was defeated: see Phipson on Evidence, above fn 87, at 195; and fn 156 below.

See also Barendt (1993), above fn 89, at 457, where the author advances the argument that there is a logical basis for English courts to “alter the rules concerning the burden of proof, just as in the United States it is usually for the plaintiff to prove that the libel is false.”

104 Holsinger R and Dilts JP (1997), Media Law, 4th Edn, McGraw-Hill, New York, at 163. This position was arrived at as a result of the New York Times v Sullivan 376 US 254 (1964) decision. Briefly stated, the facts were that a police official sued the newspaper for publishing an advertisement placed by civil rights activists in which it was claimed that Negro students engaged in non-violent demonstrations were being met by an unprecedented wave of terror. The advertisement contained several false statements, some of which were minor inaccuracies. The police chief, who was not named in the advertisement, joined three others in suing the newspaper.

The Supreme Court affirmed and extended the burden on the plaintiff to prove falsity by holding in Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), that even private individuals who sue in connection with a matter of public concern must prove falsity. The majority said that to hold otherwise would have a chilling effect that would be contrary to the First Amendment’s protection of true speech on matters of public concern.

105 See above fn 5.

106 Overbeck W (2007), Major Principles of Media Law, Thomson Wadsworth, Belmont, CA, at 127 (italics added).

107 See, for instance, Garziano v EI du Pont de Nemours & Co, 818 F 2d 380 (5th Cir 1987). There, the plaintiff sued his employer who accused him of workplace sexual harassment and referred to the event in an information bulletin on sexual harassment. While the court agreed that the bulletin was protected by privilege, it found that there was no reason to spread that information in the community at large.

108 Holsinger and Dilts (1997), above fn 104, at 139 (italics added). As to the view in the quotation that fault is assumed see the discussion below under heading 3.3.2 where it is noted that “every person suing the media for libel must prove some level of fault.”

109 Holsinger and Dilts (1997), above fn 104, at 139. The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the Government for a redress of grievances.

110 The following forceful defence of freedom of speech expressed by the majority in Gertz v Robert Welch Inc, 418 US 323 (1974), at 339-340 provides a useful exposition of the principle:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate…“Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press.…“Allowance of the defence of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.” The First Amendment requires that we protect some falsehood in order to protect speech that matters (references omitted).

111 These six elements are cited by Middleton KR and Lee WE (2007), The Law of Public Communication, Pearson Education Inc, Boston, at 99; and by Holsinger and Dilts (1997), above fn 104, at 163. Pember (2003/2004), above fn 51, at 136, however, cites only five elements (excluding the injury element).

112 Pember (2003/2004), above fn 51, at 136-137.

113 Holsinger and Dilts (1997), above fn 104, at 163.

114 Middleton and Lee (2007), above fn 111, at 99 (italics added). The burden of proof for private persons suing for defamation depends on state law (ibid, at 119).

115 Hirth (2004), above fn 58, at 542.

116 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 777 (references omitted).

117 Gatley (2004), above fn 13, at 269 fn 22 citing Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986).

118 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 778.

119 See Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 778. See further the view expressed in Hustler Magazine Inc et al v Jerry Falwell 485 US 46, at 52 (1988) (references omitted):

Of course, this does not mean that any speech about a public figure is immune from sanction in the form of damages. Since New York Times v Sullivan, we have consistently ruled that a public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood, but only if the statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual's reputation that cannot easily be repaired by counterspeech, however persuasive or effective. But even though falsehoods have little value in and of themselves, they are "nevertheless inevitable in free debate," and a rule that would impose strict liability on a publisher for false factual assertions would have an undoubted "chilling" effect on speech relating to public figures that does have constitutional value. "Freedoms of expression require " breathing space.'" This breathing space is provided by a constitutional rule that allows public figures to recover for libel or defamation only when they can prove both that the statement was false and that the statement was made with the requisite level of culpability.”

120 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 778 (references omitted)).

121 Schauer F (May 1980), “Social foundations of the law of defamation – a comparative analysis”, Vol 1 No 1, Journal of Media Law and Practice 3, at 12. One Australian Law Reform Commission appeared to concur with Schauer’s view: see New South Wales Law Reform Commission (August 1993), Defamation, Discussion Paper No 32, Para 10.12.

In any event the law’s accommodation of such lop-sidedness in burdens is well-acknowledged in the criminal standard of proof maxim: “For the law holds, that it is better that ten guilty persons escape, than that one innocent suffer” (Sir William Blackstone (1783), Commentaries on the Laws of England, 9th ed., Book 4, Chapter 27, at 358 (reprinted 1978).

122 Middleton and Lee (2007), above fn 111, at 146 (italics added). Strictly speaking that proposition is incomplete as it fails to mention the usual elements seen above. The authors also note that the US Supreme Court has “never defined ‘matters of public concern’” (at 147). An equivalent term commonly used in Australia – “public interest” – has also “never been defined”: Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 615.

For a detailed discussion on the “public figure” test, see NSWLRC Discussion Paper No 32, above fn 121, Chapter 10.

123 Middleton and Lee (2007), above fn 111, at 147; Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 776-777:

To ensure that true speech on matters of public concern is not deterred we hold that the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern….

124 Holsinger and Dilts (1997), above fn 104, at 163. See also Middleton and Lee (2007), above fn 111, at 147.

125 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 778.

126 Holsinger and Dilts (1997), above fn 104, at 163; Rattray v City of National City, 23 Med L Rptr 1779 (9th Cir 1995), cert filed, City of National City v Rattray, US No 94-2062; Goldwater v Ginsburg, 414 F 2d 324, 1 Med L Rptr 1737 (2d Cir 1969).

127 379 US 64, 85 S Ct 209, 12 L Ed 2d 1042, 1 Med L Rptr 1548 (1964).

128 See heading 5 below.

129 Middleton and Lee (2007), above fn 111, at 142, citing Gertz v Robert Welch Inc, 418 US 323 (1974) (italics added). Also see the same text, at 119:

A libel plaintiff proving defamation, identification, and publication also must prove that a medium erred in the preparation of a story. The US Supreme Court has said that the First Amendment bars plaintiffs from collection damages for loss of reputation unless they can show that defendants published or broadcast with