Making Defamation Law’s Truth Defence More Public Interest Speech Friendly’ submission
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240 In Cusson v Quan [2007] ONCA 771, Sharpe JA (Weiler and Blair JJA agreeing), Para 124, held, after reviewing the authorities in overseas jurisdictions, “that the appropriate way for this court to reconcile the authorities is to adopt a public interest defence for responsible journalism.” In that case, the defendant newspaper alleged that the plaintiff Canadian police constable, who was portrayed as a hero for his rescue efforts after the September 11, 2001 attack on the World Trade Centre, had misrepresented himself to New York police, that he might have compromised rescue operations, that he had been asked to leave Ground Zero by New York police, and that he faced disciplinary charges for his conduct. The media greeted the decision in Cusson v Quan as a “significant shift away from the traditional common law”: see CanWest News Service (2007), “Court gives journalists new defence in libel trials”, 14 November. Retrieved 16 February 2008, from The Canadian Newspaper Association (2007), “Ontario Court of Appeal recognises a ‘public interest responsible journalism’ defence in libel actions in Ontario”, Media Release, 15 November, at 2, said: For many major media [outlets], the decision merely brings the law into line with what the media already seek to do. 241 Section 30(3). 242 Note that the Australian Press Council has clearly acknowledged the need to harness responsibility to freedom (see above fn 213). See also Australian Press Council (2001), “Submission of the Australian Press Council to the NSW Attorney-General on possible reforms to the NSW defamation laws”, 10 October. Retrieved 13 February 2008, from It should be a defence that the defendant was not negligent in publishing the matter. This should be so if the defendant took reasonable steps to ensure the accuracy of the matter as set out in Paragraph 4 above (Paragraph 4 identifies a range of situations similar to those identified by Lord Nicholls in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609). In the same submission, albeit in respect of the qualified privilege defence, the Council expressed support for several practical indicia of responsible journalism, including as to whether the media report is fair and accurate; whether the maker of the statement can be presumed to have particular knowledge; whether the report is accompanied by the defamed party’s response; the source’s integrity; and the lack of ostensible bias: see Recommendations 4(3) and 4(4). See further section 134, Civil Law (Wrongs) Act 2002 (ACT) and the discussion on this in Gillooly (2004), above fn 218, at 219-220.
243 See Gillooly (2004), above fn 218, at 220 (reference omitted). Note also, more recent empirical evidence that even “up market” newspapers rely too heavily on press releases. Nick Davies, author of a text that has caused a stir in journalism circles, states that he engaged specialist researchers from the University of Cardiff in Wales, to analyse more than 2,000 home news stories, stories about the UK that had been produced by the best newspapers in the country see The Media Report (2008), ABC Radio National, “Journalists and their information”, 21 February. Retrieved 23 February 2008, from And one of the things I asked them to do was to find out where the raw material in these stories had come from. And basically, the bottom line was that 80 per cent of these stories, 80 per cent, were composed wholly, mainly or partially of second-hand material, great chunks of which came from the public relations industry. So if we run that stuff straight into our newspapers, what we’re doing is no longer telling people the truth as we see it, but we’re serving the political or commercial interests of these PR outlets. It’s scary. In the book (Davies N (2008), Flat Earth News, Chatto & Windus, London), the author makes the following observation, at 73: Working in a news factory, without the time to check, without the change to go out and make contacts and find leads, reporters are reduced to churnalism, to the passive processing of material which overwhelmingly tends to be supplied for them by outsiders, particularly wire agencies and PR. In these circumstances, the news factory will produce an effective and reliable product for its readers and viewers and listeners only if those outside supplies are delivering an effective and reliable account of the world. Are they? For more recent Australian perspectives on this subject see: Jackson S (2008), “PR handouts make the news”, The Australian (Media), 5 June, at 33, where the writer refers to Australian studies that show a similar trend; and the findings from a joint crikey.com and Australian Centre for Independent Journalism investigation: see “Over half your news is spin”, 15 March 2010 245 Australian Press Council adjudications on complaints received are available at 246 For example, the Authority, regularly publishes its findings on “investigations” into broadcast (radio and television) activity: see 247 See, for instance, the reservations expressed in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, at 623, where Lord Nicholls observed that “the sad reality is that the overall handling of these matters by the national press, with its own commercial interests to serve, does not always command general confidence.” 248 A useful indicator can be found in Lord Nicholls’ non-exhaustive list of ten factors in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, at 626: (1) the seriousness of the allegation; (2) the nature of the information, and the extent to which the subject matter is a matter of public concern; (3) the source of the information; (4) the steps taken to verify the information; (5) 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; and (10) the circumstances of the publication, including the timing. 249 Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, Lord Hoffmann, at 1297. 250 Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, Lord Hoffmann, at 1297. See also Lord Bingham’s view in the same case, at 1291: Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner…[C]onsideration should be given to the thrust of the article which the publisher has published. If the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might if the whole thrust of the article is untrue. These views were cited with approval by a unanimous Court of Appeal in Cusson v Quan [2007] ONCA 771, Sharpe JA (Weiler and Blair JJA agreeing), Para 98.
251 See heading 5.1 Recommendation (b) below. 252 See, for example, McHale v Watson (1964) 111 CLR 384. In that case Windeyer J held at first instance in the High Court that in a case of trespass to the person it is for the defendant “to prove an absence of intent and negligence on his part” (at 388). 253 See text accompanying fn 230 above. 254 Many of the criteria listed here are drawn from Lord Nicholls’ list in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609: see above fn 248; from the Australian Press Council’s submission in 2001 to the NSW Attorney-General: see above fn 242; and the UDA qualified privilege defence in section 30(3). 255 A distinction may be made between information drawn from a government press release, or the report of a public company chairman or the speech of a university vice-chancellor, on the one hand, and on the other, information drawn from the statement of a political opponent, or a business competitor or a disgruntled ex-employee: see Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Nicholls, at 632. 256 Malice in the present sense is equivalent to that which applies at common law, that is, the publication though truly expressed was distorted by malice or it was the product of a judgment warped by malice: see George (2006), above fn 25, at 346 (reference omitted). Malice may be established by proof that the defendant had improper motives or did not have an honest belief in the truth of the defamatory matter: Gatley (2004), above fn 13, Chapter 16 generally. 257 It remains to be seen, however, whether the courts will consider the provision of an opportunity to comment prior to publication adequate in all cases. The offering of such an opportunity by itself is likely to be inadequate if the party’s response is itself the object of distortion. Furthermore, it is not unknown for some news sources to “boycott” media outlets they consider routinely hostile to them thereby causing them to refuse to deal with that outlet because they “are at war”: see The Media Report (2008), ABC Radio National, “Troubles in the West”, 28 February. Retrieved 13 March 2008, from <http://www.abc.net.au/rn/mediareport/stories/2008/2172534.htm> See also the observation in Morfesse L (2008), “Journo lecturers teach the arts of hypocrisy and waffle”, The West Australian, 21 February, at 2, where the writer notes that the WA Attorney-General, Hon Jim McGinty “doesn’t talk to us.” Mr McGinty and the newspaper have a well-known history of difficult relations: see, for instance, Banks A (2008), “McGinty black-bans The West’s reporters”, The West Australian, 15 February, at 1. 258 For instance, Lord Nicholl’s list in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, at 626, only had ten factors: see fn 248 above. 259 For instance, see clause (vi). Such a provision is justified on the basis that often mechanisms ostensibly aimed at facilitating the flow of information perform less than ideally or are invoked by the authorities to unreasonably obstruct information flow. For a detailed catalogue of such limitations see generally Moss I (2007), Report of the Independent Audit into the State of Free Speech in Australia, 31 October, report commissioned by the “Australia’s Right to Know” group, comprising major Australian news organizations. 260 For a useful summary of statistics showing the poor rate of success suffered by defendants relying on the “responsible publication” defence, see Milo (2008), above fn 9, at 174–175. 261 See Milo (2008), above fn 9, at 174. 262 See text accompanying fn 249 above citing Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279, Lord Hoffmann, at 1297. 263 This caution is sounded on the basis of evidence that the factors listed can serve as an effective brake on speech. Accommodating a defence of “reasonable publication” where a publisher is uncertain of proving the truth of a defamatory statement has been noted to be a formidable one. Until recently, the English experience indicated that the responsible publication defence was applied strictly, so that it failed in the majority of cases: see Milo (2008), above fn 9, at 174–175: It appears logical that the argument from the undesirable chilling effect of the presumption is no longer as potent as it was prior to the development of the responsible publication defence. However, it is submitted that the doctrine is illusory…The question now is whether the defendant would escape liability on the basis of the responsible publication defence. This, however, depends upon a number of variables, including how generously the defence is applied by the courts…(ibid, at 174). The more recent decision in Jameel & Anor v Wall Street Journal Europe [2006] 4 All ER 1279 holds promise for media defendants with its view that the reasonable publication factors should be generously applied. However, that approach remains “in its infancy”: see Milo (2008), above fn 9, at 176. Milo also notes, at 183: There is some empirical evidence to suggest that the chilling effect has not been significantly reduced – indeed, the parameters of the developing defence are unclear and it is arguable that its effect is to compound the chilling effect on freedom of expression. 264 In Campbell v MGN Limited [2004] 2 All ER 995, Lord Hoffmann, at 1012-1013, noted: “The practical exigencies of journalism demand that some latitude must be given.” See also Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, Lord Steyn, at 635: “[I]t will always be necessary to take into account the dynamics of the role of the press…” 265 In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, the Full Court noted at Para 1244 that it “is settled that careless journalism, exuberant reporting or mere failure to inquire is not prima facie proof of reckless disregard” (authorities omitted). 266 On this point see the Australian Press Council recommendation – Item 3.3 in Australian Press Council (2000), “Submission of the Australian Press Council to the NSW Attorney-General on possible reforms to the NSW defamation laws” (3 November). Retrieved 13 February 2008, from The defence of no negligence must also not impinge on the defences that are otherwise available to a publisher. A failure to make out the defence should not mean that other defences are not available. In particular, the defence of taking reasonable steps to ensure the accuracy of the publication should not limit a publisher's ability to argue that it acted reasonably and that what it published was true and/or in the public interest. Nor should a failure to establish the defence be read as an establishment of the reverse - that the paper or its employees have been negligent. See also the powerful statement by Lord Nicholls in Reynolds v Times Newspapers Ltd & Ors [1999] 4 All ER 609, at 626, where his Lordship noted: [I]t should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication (italics added). 268 Snedden v Nationwide News [2009] NSWSC 1446, Para 5. 269 Snedden v Nationwide News [2009] NSWSC 1446, Para 155. 270 Pelly M (2009, December 19-20). Justice doesn’t come cheap for victor. The Weekend Australian, p. 4. 272 Trad v Harbour Radio Pty Ltd [2009] NSWSC 750, Para 2. 273 Trad v Harbour Radio Pty Ltd [2009] NSWSC 750, Para 100. 274 Trad v Harbour Radio Pty Ltd [2009] NSWSC 750, Para 104. 275 Trad v Harbour Radio Pty Ltd [2009] NSWSC 750, Para 110. 276 Trad v Harbour Radio Pty Ltd [2009] NSWSC 750, Para 155. 277 Sheehan P (2009), “Ideological passion sells us short”, Sydney Morning Herald, 10 August |