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

130 New York Times v Sullivan 376 US 254 (1964).

131 Middleton and Lee (2007), above fn 111, at 119. The Supreme Court said in the Sullivan case that the First Amendment protects criticism of government officials even if the remarks are false and defamatory. The Court said that public officials cannot successfully sue for libel unless they establish that defamation has been published with knowing falsity or reckless disregard for the truth. This burden of proof for public officials has come to be known as New York Times actual malice. The Sullivan decision superseded, in part, the libel laws of the fifty states (ibid, at 121).

132 They are reflected in a series of “free speech” cases: Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Cunliffe v Commonwealth (1994) 124 ALR 121; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; and Levy v The State of Victoria & Ors (1997) 189 CLR 579.

133 Levy v The State of Victoria & Ors (1997) 189 CLR 579, Kirby J, at 637:

The conceptual foundation for the constitutional freedom of communication in Australia is different from that derived from the First Amendment to the United States Constitution, as it has been interpreted (italics added).

See also Levy v The State of Victoria & Ors (1997) 189 CLR 579, McHugh J, at 622:

Unlike the Constitution of the United States, our Constitution does not create rights of communication.

134 See, for instance, the view expressed by Brennan J for the majority in New York Times v Sullivan 376 US 254 (1964), at 269:

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people” (italics added, reference omitted).

135 418 US 323 (1974).

136 Gertz v Robert Welch Inc, 418 US 323 (1974). The term “public figure” has since undergone refinement so that a distinction is made between “public officials”; “public figures”; “limited, or ‘vortex’ public figures”; “involuntary public figures”; “public personalities”; and “private individuals”: see Holsinger and Dilts (1997), above fn 104, at 164-177.

137 Middleton and Lee (2007), above fn 111, at 142, and 119. Pember (2003/2004), above fn 51, at 161 and 180 takes the same view. In Gertz v Robert Welch Inc, 418 US 323 (1974) the court said the states may decide what level of fault private libel plaintiffs must meet to collect general damages. Four states require private persons involved in matters of public interest to prove actual malice; New York requires a slightly lower standard, requiring private persons to prove gross irresponsibility, and about thirty states impose the lesser standard of negligence, requiring private persons to prove that defamation was published with a lack of due care: see Middleton and Lee (2007), above fn 111, at 142–143 (references omitted).

138 Middleton and Lee (2007), above fn 111, at 119. See further Robertson and Nicol (2002), above fn 85, at 75.

In America, defamation actions cannot succeed unless the media are proved at fault: the claimant must show that the allegations were false and published with a reckless or negligent disregard for the truth. What US courts found repugnant about United Kingdom law was how it placed the burden of proving truth on the defendant, and held him liable to pay damages for statements he honestly believed to be true and had published without negligence.

139 (2007), above fn 111, at 119.

140 Middleton and Lee (2007), above fn 111, at 136 (italics in original).

141 Middleton and Lee (2007), above fn 111, at 136-137. See also Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), Stevens J, at 782, where his Honour referred to the principle in Gertz v Robert Welch Inc, 418 US 323 (1974), at 347:

While deliberate or inadvertent libels vilify private personages, they contribute little to the marketplace of ideas…it helps to remember that the perpetrator of the libel suffers from its failure to demonstrate the truth of its accusation only if the “private-figure” plaintiff first establishes that the publisher is at “fault” i.e. either that it published its libel with “actual malice” in the New York Times sense (“with knowledge that it was false or with reckless disregard of whether it was false or not,”) or that it published with that degree of careless indifference characteristic of negligence (references omitted).

142 Holsinger and Dilts (1997), above fn 104, at 139:

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 private lives are needlessly defamed by their employers or by other non-media entities. Such plaintiffs need prove only identification, publication and defamation. Harm and fault are assumed (italics added).

In Gertz v Robert Welch Inc, 418 US 323 (1974), at 346, the Court said:

…a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions. And liability may far exceed compensation for any actual injury to the plaintiff, for the jury may be permitted to presume damages without proof of loss and even to award punitive damages (italics added).

Thus, the statement in the NSWLRC Discussion Paper No 32, above fn 121, Para 10.54 (italics added) that “[i]n the United States, there is no strict liability for defamation, as all plaintiffs must prove some fault on the part of the defendant” must be qualified so that it recognises that this rule applies only to cases involving media defendants.

On this point see also Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 774-776. Thus, even when private figures are involved, the constitutional requirement of fault supersedes the common law’s presumptions as to fault and damages and the plaintiff must bear the burden of showing falsity, as well as fault, before recovering damages. See also Dun & Bradstreet Inc v Greenmoss Builders Inc 472 US 749 (1985) where a three-person plurality suggested that Gertz v Robert Welch Inc, 418 US 323 (1974) did not apply where the case involved no matter of public importance. Dun & Bradstreet debatably did not involve the media and concerned a private matter published to a limited audience by a non-media commercial corporation.

The co-author of the Middleton and Lee (2007) book, above fn 111, in a personal communication to the author of this article reiterated the view that since Gertz v Welch every person suing the media for libel must prove some level of fault:

Implicit in Hepps, and explicit in Dun & Bradstreet, is a configuration of a private plaintiff and a private matter. However, the Court has never found such a configuration in a case involving a media defendant and I think it is highly unlikely that this configuration exists: email from Professor William E Lee, Grady College of Journalism & Mass Communication, University of Georgia, Athens, Georgia, on 18 December 2007.

The other co-author of the book in a separate email wrote:

I stand behind the statement that all libel plaintiffs must prove fault to successfully sue the media…I believe all libel plaintiffs suint the media must prove fault: email from Professor Kent R Middleton, Grady College of Journalism & Mass Communication, University of Georgia, Athens, Georgia, on 18 December 2007.

143 See heading 3.3 above.

144 Middleton and Lee (2007), above fn 111, at 148.

145 Middleton and Lee (2007), above fn 111, at 148.

146 Middleton and Lee (2007), above fn 111, at 148.

147 Gertz v Robert Welch Inc, 418 US 323 (1974), at 334 and 346 418 US 323 (1974). In relation to private individuals the Court said (at 346):

…a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons (italics added).

148 Robertson and Nicol (2002), above fn 85, at 109.

149 Committee on Defamation, HMSO, 1975, Cmnd 5909, Para 141.

150 Mitchell (2005), above fn 69, at 94, citing William Coulson and Sons v James Coulson and Co (1887) 3 TLR 846.

151 Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 ChD 501. There Jessel MR, in refusing an injunction said:

As a general rule the plaintiff who applies for an interlocutory injunction must shew the statement to be untrue (at 508).

152 Mitchell (2005), above fn 69, at 94, citing Townshend (1890), A Treatise on the Wrongs Called Slander and Libel, 4th Edn, New York, at 692.

153 [1891] 2 Ch 269.

154 Bonnard v Perryman [1891] 2 Ch 269, at 284 (Lord Esher MR, and Lindley, Bowen and Lopes LJJ concurring).

155 Robertson and Nicol (2002), above fn 85, at 109. Article 10 refers to the European Convention on Human Rights incorporated into English law by Section 12, Human Rights Act 1998 (UK). The latter came into force in October 2000. For a similar view about modern influences on freedom of speech see Tipping A (2002), “Journalistic Responsibility, Freedom of Speech and Protection of Reputation – Striking the Right Balance Between Citizens and the Media”, Vol 10 Waikato Law Review 1, at 2.

See also the strong views expressed by Lord Lester at the House of Lords Committee stage of the Defamation Bill 1996 (UK), 571 HL Deb. Cols 239–243, 2 April 1996. There Lord Lester said the rule as to burden of proof in defamation proceedings “derived from the Star Chamber’s concern with preserving peace is hardly consistent with modern day notions of freedom of speech” (Col 239). Lord Lester added:

The time has come to throw off the shackles of the Star Chamber and to adjust the law of defamation to contemporary notions of free speech (Col 241).

See further Milo (2008), above fn 9, at 156, for a more recent reiteration of the call for a burden reversal. See also the extract from Milo (2008) in fn 9 above; and fn 103 above.

156 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 628. There Lord Steyn noted (ibid) that the Human Rights Act 1988 (UK) “reinforced” the constitutional dimension of freedom of expression, and that that was “the backcloth” against which the defamation appeal before the court should be considered:

The new landscape is of great importance inasmuch as it provides the taxonomy against which the question before the House must be considered. The starting point is now the right of freedom of expression, a right based on a constitutional or higher legal order foundation. Exceptions to freedom of expression must be justified as being necessary in a democracy. In other words, freedom of expression is the rule and regulation of speech is the exception requiring justification. The existence and width of any exception can only be justified if it is underpinned by a pressing social need. These are fundamental principles governing the balance to be struck between freedom of expression and defamation (at 628–629, italics added).

In the same case Lord Nicholls also made similar remarks. While Lord Nicholls appeared on the one hand to be referring to freedom of speech in relation to “political matters”, his Honour also acknowledged on the other hand that one of the “contemporary functions of the media is investigative journalism [which] as much as the traditional activities of reporting and commenting, is part of the vital role or the press and of the media generally” (at 622, italics added). This latter formulation appears to protect freedom of speech more broadly.

157 English Pen & Index on Censorship (2009), Free Speech is Not For Sale, at 2 and 8.

158 Ministry of Justice (2010), Libel Working Group Report, 23 March, at 44.

159 Ministry of Justice (2010) report, above fn 158, at 44.

160 House of Commons Culture, Media and Sport Committee, Press Standards, Privacy and Libel, Second Report of Session 2009-10, Vol 1, Para 135.

161 Press Standards, Privacy and Libel report, above fn 160, Paras 135, 163 and 178.

162 NSWLRC Report No 75, above fn 9, Recommendation 5, and Para 4.1. See further clause 7, Defamation Bill (1996) NSW exposure draft tabled by the NSW Attorney-General on 18 September 1996 extracted in Gillooly (1998), above fn 42, at 24.

163 NSWLRC Report No 75, above fn 9, Recommendation 7.

164 NSWLRC Report No 75, above fn 9, Para 4.20 (references omitted). It added:

The result is likely to be that litigation and trials should not be overly protracted as they currently are in the rare cases where justification is relied on as a defence. Further, the Commission notes that commentators have not identified any serious problems associated with placing the onus of proving falsity on the plaintiff in United States law; yet there is a good deal of commentary on the difficult problems caused to plaintiffs (and defendants) by the onus of proving actual malice.

165 NSWLRC Report No 75, above fn 9, Paras 4.7-4.15. See also NSWLRC Discussion Paper No 32, Para 6.32 for a further list of reasons for its proposal that plaintiffs should have to prove falsity if they wish to claim damages. The reasons the Commission gave there for this proposal are:

• it will bring a damages claim in defamation closer to other torts, where the plaintiff has the onus of proving most vital elements;

• it will place the onus of proof on the party who would generally be expected to have best access to the relevant facts; and

• it will encourage plaintiffs to sue for a declaration alone, which will encourage the free flow of information to the public, and also ensure that false statements can be corrected and damaged reputations restored.

The Commission also noted the reasons “generally given for requiring defendants to prove truth” (NSWLRC Discussion Paper No 32, Para 6.33):

• it acts as a powerful deterrent to the publication of false information;

• it gives effect to the presumption of innocence, which assumes that a person has a good reputation in the absence of evidence to the contrary; and

• it removes the inequity of requiring the plaintiff to prove a negative.

166 NSWLRC Report No 75, above fn 9, Paras 4.8-4.9:

The effect of the common law presumption [of falsity] is that the issue of truth must be raised by the defendant as a defence to the plaintiff’s claim (the defence of justification)…Whether the defence of justification is raised or not, truth or falsity may otherwise be raised by either party as a factor relevant in the assessment of damages. The result of relegating the determination of the truth or falsity of the defamatory matter to a defence of justification is that the issue of truth or falsity may not be, and usually is not, litigated in defamation actions, save on the issue of damages (italics added, references omitted).

167 NSWLRC Report No 75, above fn 9, Para 4.11.

168 NSWLRC Report No 75, above fn 9, Para 4.12.

169 NSWLRC Report No 75, above fn 9, Para 1.16 (italics added).

170 NSWLRC Report No 75, above fn 9, Para 4.21.

171 NSWLRC Report No 75, above fn 9, Para 4.15. See also Para 4.22 and Recommendation 8:

The plaintiff may establish a cause of action for damages in defamation by establishing that the defamatory imputation is inherently not capable of being proved true or false.

172 NSWLRC Report No 75, above fn 9, Para 1.19. However, in Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, Kirby J, at 578 said the New South Wales approach had certain disadvantages:

It has led to many pre-trial applications, complex interlocutory proceedings and a potential for injustice, depending upon the ingenuity and skill of the pleader of the imputations. It enlarges judicial control over the consideration of the matter complained of by the tribunal of fact. It may also lead to double-dipping in the calculation of the damages for the wrong done by the publication, looked at as a whole. Because readers and viewers are not favoured with the pleaded imputations when they receive the matter complained of, there is a risk that the attention at the trial will be deflected from the item actually said to have harmed the plaintiff’s reputation to an evaluation of pleaded imputations and a debate about whether they truly arise. Without the clear authority of statute, this approach should not be extended to jurisdictions which have not so far embraced it (italics added).

Also see George (2006), above fn 25, at 227–230 for a discussion on this point.

173 NSWLRC Report No 75, above fn 9, Para 1.19:

Practically, this is a substantial difference from the New South Wales position, which, by placing a premium on careful and accurate pleading, achieves a precision in the formulation of the plaintiff’s case which is not always attainable in other jurisdictions (ibid).

174 ALRC Report No 11, above fn 71, Para 125, in reference to the former “public benefit” requirement said:

The addition of a “public benefit” element to the justification defence had the effect, at a time when damages were the only available remedy, of injecting into defamation law a privacy value.

175 Australian Law Reform Commission (September 2007), Review of Australian Privacy Law, Discussion Paper No 72, Paras 38.24-38.26 note the low incidence of privacy complaints against media organisations.

176 London Artists Ltd v Littler [1969] 2 QB 375, at 391 (italics added). Also see Allsopp v Incorporated Newsagencies Co (1975) 26 FLR 238, at 244-5. For a more recent view on the attitude of the courts in England towards “public interest” see Gatley (2004), above fn 13, at 312:

To a very large extent, whether an imputation relates to a matter of public interest or not is determined by value judgment, by the individual perception of the tribunal charged with the task of making the decision, and current mores and attitudes. The courts now treat many more matters as being of legitimate public concern or interest than would have been the case in the nineteenth century, a tendency accentuated by Article 10 of the European Convention on Human Rights.

177 See, for example, Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), at 777. See also Dun & Bradstreet Inc v Greenmoss Builders Inc 472 US 749 (1985), at 758, where the US Supreme Court noted that it had long held that not all speech is of equal First Amendment importance, but that it is speech on matters of public concern that is at the heart of the First Amendment protection.

178 Middleton and Lee (2007), above fn 111, at 147.

179 Bonnick v Morris & Others, Unreported, PC 30/2001, 17 June 2002.

180 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609.

181 This was Justice Tipping’s observation: see Tipping A (2002), above fn 155, at 7.

182 Tipping (2002), above fn 155, at 7 (italics added). See also the justification for caution expressed by Kirby J in Channel Seven Adelaide Pty Ltd v Mannock [2007] HCA Transcript 414 (7 August 2007), albeit in a slightly different context:

[S]ometimes it has been known for media items to parade as being concerned with great issues of social importance, but the actuality of the item is focused, in the nature of media today, on an individual and a sort of infotainment approach. We have to keep our eye on the realities of the way the media operates today and fashioning requirements of pleading.

In Francome v Mirror Newspapers [1984] 2 All ER 408, Donaldson MR, at 413, noted that the media “are peculiarly vulnerable to the error of confusing the public interest with their own interest.”

See further the distinction drawn between matters that “the public takes great interest in”, on the one hand and, on the other hand, matters that “affect property of considerable value” and is of “public importance” going beyond the plaintiff and defendants and having “a very substantial character”: see Johansen v City Mutual Life Assurance Society Ltd (1905) 2 CLR 186, Griffith CJ (delivering judgment of the Full Court), at 188.

183 Australian Law Reform Commission (1995), Open Government: A Review of the Federal Freedom of Information Act 1982, Report No 77, Para 8.13.

184 ALRC Report No 77, above fn 183, Para 8.13.

185 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, at 640 (italics added).

186 Reynolds v Times Newspapers & Ors [1999] 4 All ER 609, Lord Nicholls, at 617 (italics added). In the same passage Lord Nicholls cited Cox v Feeney (1863) 4 F & F 13, at 19, 176 ER 445, at 448, where Cockburn J approved an earlier statement by Lord Tenterden CJ that “a man has a right to publish, for the purpose of giving the public information, that which it is proper for the public to know” (italics added). See also McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70, Tamberlin J, at 75–76:

The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where “the public interest” resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facts of the public interest that are competing and the comparative importance that ought to be given to them so that “the public interest” can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable.

See also McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, Hayne J, at 443:

It may readily be accepted that most questions about what is in “the public interest” will require consideration of a number of competing arguments, or features or “facets” of, the public interest.

187 For a more detailed discussion of the criteria of newsworthiness, see White S (2000), Reporting in Australia, 2nd Edn, MacMillan, Sth Yarra, Melbourne, at 11–21.

188 Butler D (2005), “A Tort of Invasion of Privacy in Australia?” Vol 29 Melbourne University Law Review 339, at 380. Middleton and Lee (2007), above fn 111, at 223, state as follows in relation to the “public interest defence”:

Newsworthiness is a broad defence allowing the use of information of public interest in commercial contexts. Newsworthiness has been recognised in reports of commercially staged press conferences and in the photos on book covers. Newsworthy names and photos may also be used in incidental advertising for a publication or broadcast (italics added).

The “public interest defence” has been cast in New Zealand, in terms of “legitimate public concern”: see Butler (2005, ibid) citing Hosking [2005] 1 NZLR 1, Gault P and Blanchard J, at 32.

189 Butler (2005), above fn 188, at 380.

190 NSWLRC Report No 75, above fn 9, Para 4.15.

191 NSWLRC Report No 75, above fn 9, Para 4.22. The example given there was the defendant makes a statement that: “The plaintiff has written a bad play.” A further example might be, as often arises in “restaurant review” cases, where the defendant makes negative statements that turn entirely on the taste of the food served by the plaintiff: see Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675; John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218.

A similar difficulty arose in Grobbelaar v Newsgroup Newspapers Ltd [2001] 2 All ER 437. In that case England’s Sun newspaper had argued that it “is extremely difficult to prove that a professional sportsman has deliberately under-performed”: see Milo (2008), above fn 9, at 165.

192 NSWLRC Report No 75, above fn 9, Para 4.22 (italics in original).

193 475 US 767, 12 Med L Rptr 1977 (1986), Powell J, at 776.

194 Philadelphia Newspapers v Hepps 475 US 767, 12 Med L Rptr 1977 (1986), Powell J, at 776. In that case, Powell J in fact said those cases “would” succeed.

195 Milo (2008), above fn 9, at 167 (reference omitted).

196 See also Milo (2008), above fn 9, at 167.

197 In NSWLRC Report No 75, above fn 9, Para 4.22, the Commission recommended as follows where the words are incapable of being proved true or false:

In such cases, the Commission recommends that a plaintiff seeking damages who cannot prove the falsity of the pleaded imputation relied on should plead that it is not capable of being proved true or false. If the plaintiff succeeds in showing that the imputation is inherently not capable of being proved false, then comment will be available as an affirmative defence which the defendant may choose to establish (italics in original).

198 Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416, Evatt J, at 431 citing TA Street, Foundations of Legal Liability (1906), Vol 1, at 300. This point was made in Ch 1 heading 3. Put in another way the search for truth is a “central issue in defamation actions” in defamation: see heading 1 (Introduction) above. See further Gibbons (1996), above fn 3, at 614:

[T]he underlying assumption, that reputation should be protected, is unfounded. What is required, instead, is a means of dealing with the important concern, indirectly associated with reputation, that individuals should not be judged by false information.

199 See above fn 4.

200 Robertson and Nicol (2002), above fn 85, at 108-109.

201 The West Australian (2006), Editorial, “Free speech still hobbled under uniform defamation law”, 23 January, at 16. See further Day M (2006), “Freedom of speech undefined”, The Australian, 12 April, at 12:

Truth alone is now a defence and that is a step forward. But it is not as open and shut as that. Every story in this newspaper today consists of more than a single statement of fact. “Joe Bloggs is a crook” may stand up if he is one, but the story will most likely go on to say why, give examples of his crookedness and contain comments from others about his crooked behaviour. If some of the statements cannot be proved – and it is no easy thing to do – publishers need to rely on the defence of qualified privilege for the whole article; that is, that is, a statement may be false but should be published with protection from defamation because the information contained in the statement is of legal, moral or social importance…journalists need to reach the status of saints to satisfy the qualified privilege rules.

202 See headings 3.4 and 3.5 above.

203 NSWLRC Report No 75, above fn 9, Para 1.24 (italics added).

204 NSWLRC Report No 75, above fn 9, Para 4.15 (italics added).

205 See Pember (2003/2004), above fn 51, at 201:

Truth is still a defence in a libel action, but it has lost much of its importance in light of recent rulings that 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 (italics added).

206 Note, for instance, the view of the New South Wales Bar Association: see quotation accompanying fn 47 above.

207 Chesterman M (2000), above fn 53, at 167. For a further discussion of some of the problems involving the Sullivan rule, see Chesterman, at 159-191.

208 See Fernandez JM (2009), “An exploration of the meaning of truth in philosophy and law” (December 2009), Vol 11 University of Notre Dame Law Review 53.

209 Walker (May 1997), above fn 18, at 90.

210 See, for example, in Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743, where Lord Diplock, at 745-746, noted that one element of the balance was the right to protect an “unsullied reputation if he deserves it”.

211 See, for instance, the view that the common law is averse to permitting a plaintiff to recover damages “for a character which he did not possess or deserve; and this the law will not permit”: Plato Films Ltd v Speidel [1961] AC 1090, at 1141-2. Note further the view that a reputation can be acquired “regardless of one’s morality or conduct justifying it”: see discussion in Walker S (1994), “Regulating the media: Reputation, truth and privacy”, Vol 19 Melbourne University Law Review 729, at 733 (reference omitted).

212 See text accompanying fn 11 above.

213 See, for example, the opening statement in the Australian Press Council’s, Print Media Privacy Standards governing member media organisations. Retrieved 7 February 2008, from