John Fairfax Publications v Hitchcock ([2007] NSWCA 364) - A case note

The action concerns an article published in The Sun-Herald on 26 June 2005. That article included a photograph of the plaintiff together with the following text:

SHARI-LEA Hitchcock's impromptu solo dirty dancing at a function celebrating the new INXS Rock Star TV series last week may have successfully raised the profile of Richard Pratt's former mistress for a nanosecond, but it has done little to commend the ex-North Wollongong Hotel bikini model to pay TV executives.

Well, actually that's not entirely true.

One married pay TV executive was very impressed indeed.

So much so that the grey-haired Lothario exchanged saliva with Hitchcock in a nauseating display that turned the stomachs of pretty much everyone in the room on Tuesday night.

As fellow guests at the Civic Hotel diverted their eyes to prevent themselves from being transformed into pillars of salt, Hitchcock's behaviour became increasingly erratic as the night wore on.

Even though she told one publication she had been invited to the event, organisers claim she was not on the official guest list.

Must just be an INXS fan, we suppose. I'm sure there's a name for that ...

Since the offending article was published prior to the commencement of the uniform defamation legislation, the defence of truth alone was not available (the action has been brought in NSW). If it had been available, the matter would presumably have been settled.

The publishers sought to defend the action on several grounds, including contextual truth, qualified privilege and fair comment. The primary judge (Justice Nicholas) ordered the striking out of the publisher's defences and the publisher appealed, seeking to have the defences reinstated.

The appeal

The key issue addressed in the appeal concerned the notion of the "public interest", since the availability of the defences submitted were conditional on there being some public interest in the publication. Justice McColl, after acknowledging the significance of this concept in relation to defamation law and free speech, noted that "public interest" has no definition in law, apart from that which can be extrapolated from the way the concept has been used. McColl then laid out an extensive exploration of the meaning of "public interest" and how it has developed over time.

The cases discussed in McColl's judgment demonstrate a lack of consistency in the way the notion of public interest has been construed by the courts in relation to defamation. It appears that the only aspect of public interest about which the judiciary are in complete agreement is that there is no agreement as to what is and is not in the public interest.

In some instances, it seems, the emphasis has been placed on the status of the individual concerned, a distinction being made between public persons and private persons, so that all activities of a public individual are regarded as being matters of public interest, while even the public activities of private individuals are not appropriate matters of concern for the public. In other instances, the emphasis has been placed on the conduct of the individual rather than the individual per se, so that the private activities of public persons are not regarded as matters of public concern, while the public activities of private persons may be held to be matters of legitimate public interest. McColl suggests that the latter approach is more widely accepted as the correct one at this point in time, although, in any case, a decision as to the existence of a public interest will depend upon the circumstances.

McColl referred to the decision in Chappell v TCN Channel Nine Pty Ltd (1988), in which it was held that one circumstance that might make private conduct of an individual a matter for public interest is when it affects the performance of public duties. Another circumstance is when individuals themselves make the conduct a matter for public interest.

In the Hitchcock case the "circumstances" that are said to have given rise to a public interest in commenting on an individual's conduct are that the plaintiff "acted in a manner which invited public interest and discussion". In other words, the plaintiff is alleged to have courted media attention in a manner which made her conduct a legitimate subject for public comment. This allegation is based on the plaintiff being a well-known socialite, inviting the media to cover private functions, allowing herself to be photographed by the press, and having made media appearances in which she openly discussed various matters including sex. Interestingly, if this argument succeeds, it would go some way toward establishing the long sought-after "public figure" defence.

Ultimately, McColl's finding that the publisher had an "arguable case" of public interest reflects the court's acknowledgment that there is no universal agreement on what conduct is reportable as a matter of public interest. The determination handed down by the Court of Appeal essentially states that the appeal judges themselves cannot decide whether there is a valid public interest in the reporting of the matter complained of and, for that reason, the publisher should be given the benefit of the doubt.

The future of public interest

Keen observers will notice immediately that the somewhat esoteric distinction between public persons and public activities has less relevance to defamation than it once did, now that truth alone is a defence. On the other hand, those same astute observers will also quickly realise that the rapidly developing jurisprudence of privacy is bound eagerly to grasp such philosophical ideas. Indeed, Ms Hitchcock's grievance would now more appropriately be brought within the jurisdiction of privacy rather than defamation. It should be anticipated that any detritus shivered off by a reformed defamation law, which is capable of restricting press freedom, could find its way into any putative cause of action for invasion of privacy. But such scraps may have many edges. If individuals who court the media can be regarded as having made their conduct an appropriate subject for public comment, those individuals might also be regarded as having sequestered, at least to some extent, their rights to privacy.

Inez Ryan

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