Chakravarti v Advertiser Newspapers Limited

A recent High Court decision, arising from a defamation action in South Australia, casts a new light on the Court's views on defamation. The judgments also deal with questions about letters to the editor. In the following pages, Prof Dennis Pearce provides two articles: an overview of the case and a detailed analysis of one aspect of the case. Crispin Hull, of The Canberra Times, also comments on the case.

Defamation before the High Court Again

The High Court on 20 May 1998 ruled in favour of Manobendro Chakravarti who had brought a defamation action against The Advertiser, Adelaide. The action arose out of the publication in 1992 of two articles that reported evidence given to the Royal Commission into the collapse of the State Bank of South Australia. Mr Chakravarti claimed that the articles wrongly suggested that the evidence indicated that he had engaged in misconduct. The Advertiser denied that the articles were defamatory. It also asserted that the articles were a fair and accurate report of the proceedings of the Commission.

Mr Chakravarti largely succeeded in his claims before the initial trial judge; lost much of his claim on appeal by The Advertiser to the Supreme Court; but had his position substantially restored by the High Court with the prospect of an increase in the damages awarded.

The judgments of the High Court are complex. Chief Justice Brennan and Justice McHugh combined in a judgment that largely, but not completely, agreed with a separate joint judgment of Justices Gaudron and Gummow. Justice Kirby delivered a separate and more discursive judgment that looked at many of the issues to which defamation law gives rise.

The judgments devote many pages to the arcane rules of pleading that have become a part of the law of defamation. Their impact on the carriage and outcome of a case was the subject of an article by Crispin Hull in The Canberra Times (reprinted with the kind permission of the author and the newspaper).

Other matters dealt with in the judgments included:

• four of the judges said that it was proper to consider the whole of an article in determining whether statements it contained were defamatory. Justice Kirby considered that one has to look at the ordinary reader and recognise that the reader might only read parts of an article - particularly a headline - and not be aware of qualifications appearing later in the article.
  
  
• All judges ruled that damages could be awarded for economic loss flowing from publication of a defamation. In Mr Chakravarti's case the loss claimed related to dismissal from employment and his subsequent inability to obtain work. In arriving at an appropriate amount of damages the Court said that it was not proper to look only at the defamatory parts of the article. If overall the report was unfair and could not be justified as protected by privilege, the damages should look to the effect on the claimant and not discount it because some statements in the report might not be actionable.
  
  
• The effect of a refusal by The Advertiser to publish letters sent to it by Mr Chakravarti after the publication of each article was a relevant factor in considering whether the paper could claim that the articles were protected as a fair and accurate report of the proceedings of the Commission. This issue is considered in greater detail in the following article.

DENNIS PEARCE

see also
Index of Dennis Pearce's material on the website

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Published Letters as a Defence in Defamation Cases

In the May 1998 Press Council News, Deborah Kirkman wrote of the position of persons seeking to have a letter published by a newspaper. The Chakravarti case [1] summarised in the previous article adds an interesting side light to that discussion. In South Australia it is provided by statute that a fair and accurate report of various public proceedings is privileged unless the report is published or made maliciously. [2] Of relevance to the case in question was that a report of a "meeting of a Royal Commission" was included among the activities that could be protected. [3] However, this defence is subject to the proviso:

the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it is proved that the defendant has been requested to publish by the same newspaper or radio or television station, as the case may be, a reasonable letter or statement by way of contradiction or explanation of such report or other publication and has refused or neglected to do so.

Chakravarti had sent letters to the editor of The Advertiser following publication of each of the articles on which his defamation claim was based. Neither letter was published. Chakravarti claimed that the proviso to the fair report defence prevented The Advertiser being able to rely upon it in this case because of the failure to publish his letters.

The SA Supreme Court rejected his claim on the basis that a letter in reply was not "reasonable" if it controverted the fairness of the report in question. All members of the High Court rejected this approach. Justices Gaudron and Gummow pointed to the fact that the proviso itself uses the word "contradict" in its description of the letter. Justice Kirby saw it as fundamental to the principle underlying the proviso that it should enable the person affected to put his or her side of the story. The defence that a report is a fair report of public proceedings is founded on the benefit to the public of the disclosure of such proceedings. It is equally for that benefit that a report that is inaccurate or unfair should be able to be corrected.

So far so good, but at this point the judges separate in their views and the statements of the majority [4] become less than helpful. Ultimately they concluded that the issue was no longer a live one and it was therefore unnecessary to express a final view on the matter. But before reaching that point they indicated that "it would not ordinarily be reasonable to controvert the fairness of a report on a basis which is factually incorrect. That notwithstanding, it does not automatically follow that the measured assertion of a belief which is subsequently shown to be incorrect is unreasonable." However, they then go on to say that the determination of unreasonableness is not to be confined to the facts known at the time the letter of reply is written. A letter might be held to be unreasonable because of some misstatement of fact even though it was thought by all to be accurate at the time that it was written. What is reasonable is a value judgment in the light of all the circumstances.

This is not particularly helpful to either complainants or editors seeking to make a decision whether or not to publish a letter challenging a report. In the Chakravarti case, much of the issue turned on what had been said by a witness. The reporter thought that an answer "yes" had been given to a question and wrote his report accordingly. Chakravarti checked the transcript of the proceedings and found that no such answer was recorded. On this basis he wrote his letter refuting the report. Some time later the transcript was altered to add the answer as heard by the reporter. Clearly both parties acted reasonably. But the change of circumstances at a later date could surely not render Chakravarti's letter unreasonable if it was reasonable on the basis of the facts available at the time when the letter was composed and presented for publication.

A second matter of dispute related to the language used by Chakravarti in his second letter. He had described the article as "grossly unfair and inaccurate". The SA Supreme Court judges thought that this language disqualified the letter from being "reasonable". Only Justice Kirby in the High Court considered the issue. He said the language seemed "hardly extravagant" and was not such as to remove the letter from the operation of the proviso. The proviso is intended to operate in the heat of the aftermath of a publication which is alleged to cause hurt. He held that the failure to publish the letter meant that the newspaper lost the protection of the fair reporting defence.

While this examination of the facts of the Chakravarti case is instructive, of much greater value is the discussion of the general operation of the proviso to the defence of fair reporting by Justice Kirby. It would be wise for editors to keep a copy of this handy for ready reference. In summary he says:

• the letter of refutation must be more than a bald statement, a protest or a demand for a retraction;
  
  
• the letter must be reasonably contemporaneous with the report;
  
  
• the reasonableness of the response is to be judged objectively against the purpose of the proviso which is to allow those who have been hurt by a report to contradict it or explain their position;
  
  
• reasonableness of the response is to be judged objectively against the purpose of the proviso which is to allow those who have been hurt by a report to contradict it or explain their position;
  
  
• reasonableness is not to be judged from the viewpoint of the writer but goes to such matters as length and content. It does not allow an editorial veto but an editor is entitled to respond to it. Should there be a disagreement over matters raised in the response, it is appropriate that the editor negotiate with the writer.

All these factors were seen by Justice Kirby as going to the fundamental reason for both the defence of fair report and the right of reply - that the public interest demands the widest possible dissemination of accurate information relating to the operations of public institutions.

Justice Kirby's conclusion is that which should be most taken to heart by editors.

Because the publication [of a letter] advances freedom of expression and enhances the public's entitlement to make its own judgments on reputation, courts (and therefore editors) should err on the side of upholding publication of such letters. It can rarely be in the public interest or for the public benefit to deny a person claiming to have been defamed an opportunity to put his or her contradictory or explanatory statement before the same public as heard the matter complained of. In some circumstances such a denial would evidence an arrogance of power, deprive the publisher of the privilege otherwise applicable and perhaps even illustrate malice.

If a person is asserting that they have been defamed in a report of a public proceeding, it would seem only good sense for an editor to take advantage of the fair report defence by publishing the person's reply. It is the experience of the Press Council that in many cases the issue will then go away as the person affected will be satisfied that they have had the opportunity to put the record straight. Publication makes sense in terms of the public interest, fairness to the person affected and the economics of avoiding litigation costs.

DENNIS PEARCE

[Professor Dennis Pearce is a Professor Emeritus of Law at ANU and the Chairman of the Australian Press Council.]

see also
Index of Dennis Pearce's material on the website

Footnotes

1. (1998) 154 Australian Law Reports 294. [return to text]
2. Wrongs Act 1936 (SA) s 7(1). For similar provisions in other States and Territories, see Justice Kirby's judgment at fn 246. [return to text]
3. The High Court rejected an argument that the reference to "meeting" limited the provision to reports of gatherings of the Commission. The reference was to the public hearings of the Commission. [return to text]
4. Justices Gaudron and Gummow with whom Chief Justice Brennan and Justice McHugh agreed. [return to text]

Go to
Crispin Hull's analysis of Chakravarti (The Advertiser) Case

see also
Index on defamation material

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Return to APC News 1997 Index

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