Making Defamation Law’s Truth Defence More Public Interest Speech Friendly’ submission
|
|  Yüklə 0.5 Mb.
|
In gathering news, journalists should seek personal information only in the public interest. It is suggested that although the Australian Press Council uses the term “public interest” in the foregoing statement, the term in fact means matters of “public concern” as the following Press Council commitment expressed in the preamble to its Statement of Principles shows. Retrieved 7 February 2008, from Freedom of the press carries with it an equivalent responsibility to the public. Liberty does not mean licence. Thus, in dealing with complaints, the Council will give first and dominant consideration to what it perceives to be in the public interest. While the code of ethics of the other peak journalism body, the Media, Entertainment and Arts Alliance, does not contain such an explicit profession of commitment to matters of public concern or public interest, it is suggested that their professional ethos in this regard is similar to that of the Australian Press Council. 214 See above fn 4. 215 See above fn 5. 216 See above fn 6. 217 See the definition suggested below under heading 4.3 Model Provision (a) (iii). 218 See, for example, Gillooly’s observation concerning the “needs of society in the 21st century”: Gillooly M (2004), The Third Man: Reform of the Australasian Defamation Defences, Federation Press, Leichhardt, NSW, at 20. 219 See text accompanying fn 84 above. 220 See heading 1 (Introduction) above. 221 See heading 3.1 above. 222 See heading 3.3 above. 223 See heading 3.5 above. 224 For the latest substantial discussion on reform in this area in England see Milo (2008), above fn 9, especially Chapter 5. 225 See text accompanying above fn 191. 226 See above fn 6. 227 See NSWLRC Report No 75, above fn 9, Paras 4.23–4.26. There, the Commission leaves the option of raising the fair comment defence to the defendant: see Recommendation 9. The defence of honest opinion is set out in section 31 UDA. 228 See heading 3.7 above. 229 The body of law in connection with sections 65A(1), (2) and (3) Trade Practices Act 1974 (Commonwealth) concerning “prescribed publication” and “prescribed information provider” may assist in this respect. See further Gillooly (1998), above fn 42, at 8; Bond v Barry [2007] FCA 1484; the discussion in the context of journalists’ “shield law”: Senate Legal and Constitutional Affairs Legislation Committee, Evidence Amendment (Journalists’ Privilege) Bill 2010; Evidence Amendment (Journalists’ Privilege) Bill 2010 (No 2), 18 November 2010, Canberra, L&C 3 – L&C 14; and Evidence Amendment (Journalists’ Privilege) Act 2011 section 126G which provides definitions of ‘journalist’ and ‘news medium’. 230 Middleton and Lee (2007), above fn 111, at 119 (italics added); Soloski J (1985), “The Study and the Libel Plaintiff: Who Sues for Libel?”, 71 Iowa L Rev 217, at 218, notes that in one study negligence or malice was the central legal issue in nearly ninety per cent of libel cases against the media. 231 The terms “reckless disregard” and “fault” are closely linked. In New York Times v Sullivan 376 US 254 (1964), the US Supreme Court imposed on public figure plaintiffs the burden of proving knowledge of falsity and “reckless disregard of whether it was false or not” (at 280). Also note Middleton and Lee (2007), above fn 111, at 119 on the US position: Public officials and public figures have the heavy burden of establishing that the media published defamation knowing that their story was false or recklessly disregarded the truth. 232 Lange v Atkinson [2000] 3 NZLR 385 at Para 46, cited with approval in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, Para 1244. 233 Section 30(3). 234 Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609. 236 See, for instance, Lord Hoffmann’s discussion under the heading “Responsible journalism”, Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, at 1297–1298. The guideposts for determining “responsible” journalism are drawn from a variety of quarters, and notably from: (a) Lord Nicholls’ “well-known list of ten matters”, set out in the Reynolds case, which may be taken into account (see Jameel, Lord Hoffmann, at 1297); (b) Lord Nicholls’ view in Bonnick v Morris [2003] 1 AC 300, at 309, that responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals (see Jameel, Lord Hoffmann, at 1297); and (c) the relevant standards of conduct “must be applied in a practical and flexible manner. It must have regard to practical realities” (see Jameel, Lord Hoffmann, at 1297). 237 See fns 239 and 240 below. 238 For a detailed discussion of the factors that may be taken into account in considering journalistic fault in the United States see Middleton and Lee (2007), above fn 111, at 142-146; Holsinger and Dilts (1997), above fn 104, at 177-193; Pember (2003/2004), above fn 51, at 181-194. The factors that are commonly considered in determining questions of fault include: negligence or failure to exercise reasonable care such as by relying on an untrustworthy source, not reading or misreading pertinent documents, failure to check with an obvious source, careless editing or news handling, knowledge of falsity, reckless disregard for the truth; whether time was of the essence for the media, the interest that was being promoted by the publication, the extent of damage to reputation if the statement was false. Some of the landmark cases in this area were St Amant v Thompson 390 US 727, 88 S Ct 1323, 20 L Ed 2d 262, 1 Med L Rptr 1586 (1968); Herbert v Lando 441 US 153, 99 S Ct 1635, 60 L Ed 2d 115, 4 Med L Rptr 2575 (1979); Bose Corp v Consumers Union 446 US 485, 104 S Ct 1949, 80 L Ed 2d 502, 10 Med L Rptr 1625 (1984); Anderson v Liberty Lobby 477 US 242, 106 S Ct 2505, 91 L Ed 2d 202, 12 Med L Rptr 2297 (1986); and Masson v New Yorker Magazine, Inc 501 US 496, 111 S Ct 2419, 115 L Ed 2d 447, 18 Med L Rptr 2241 (1991). 239 In Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, the plaintiffs were found by the jury to have been defamed by the publication, which said the plaintiffs’ bank accounts were being monitored by authorities in a bid to prevent them from being used to funnel funds to terrorist organizations. The case is noted for its loosening of the test for “responsible journalism” set earlier in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, at 626, where Lord Nicholls listed certain matters which might be taken into account in deciding whether the test of responsible journalism was satisfied. See Lord Nicholls’ list of factors that may be taken into account (below fn 248) and the view that these factors should be applied in a “flexible” manner: see above fn 236. For a view welcoming the “responsible journalism” position taken in Jameel see Vassall-Adams G (2006), “A resounding victory for newspapers”, Times Online, 11 October. Retrieved 17 January 2007, from <http://www.timesonline.co.uk/article/0,,28009-2398961,00.html> and Butterworth S (2006), “Star-spangled judgment”, MediaGuardian, 11 October. Retrieved 15 February 2008, from |