Freedom of Speech Encouraged

Chris Merritt, of The Australian Financial Review, looks at a recent High Court decision which gives further protection to freedom of the press.

Just where is the High Court going? After its decisions in Capital Duplicators, it may have appeared to be playing it safe, of slowing the pace of reform that was so evident in Mabo and the Political Ads Ban Case.

But such an assessment would seriously underestimate the judges at the peak of the judicial system.

This High Court is activist to the core. If reminders were needed, the Chief Justice, Sir Anthony Mason, set out his views in a major speech in November.

And three weeks before Capital Duplicators preserved the status quo on State taxes, the court handed down another decision that may signal the end of the status quo on free speech issues.

The case, Pervan v North Queensland Newspaper Company, concerned the law of defamation in Queensland and for that reason it was widely viewed as being of relevance only in Queensland. After all, no two States have exactly the same defamation laws.

But the significance of this case is not in the legal principle it decided but in the judges' supporting discussion - or obiter dicta.

Such statements do not have the force of law, but they can provide a good indication of the direction of the court's thinking. With a reforming court like this, they can also amount to a mechanism by which the court can signal the type of argument that may find favour in future.

In Pervan, six judges (McHugh dissenting) said the encouragement and protection of freedom of expression and discussion was of "paramount importance".

This is comforting to those interested in free speech. But the statement takes on its true significance when it is realised that the court, by implication, is saying that there is another interest that is not so important.

The context of this statement was a decision that reinforced the position of the Innisfail Advocate and other Queensland newspapers that publish defamatory commentaries, such as letters to the editor, based on under-lying facts that are privileged - such as the proceedings of Parliament.

The court held that it was not necessary for newspapers to satisfy themselves of the truth of whatever is said under the protection of privilege before being able to comment in print.

This simply reinforces established principle. The court also held that it was not necessary for newspapers to hold the opinion expressed in the defamatory material - which in this case was a classified advertisement.

But the judges went on to say just enough to suggest they may be adopting a new - and refreshing - way of viewing the contending interests in defamation cases like Pervan.

They recognised that their inter-pretations of the law meant individuals may be incidentally disparaged during the course of public discussion on matters of public interest.

But even if they were, that was not enough to justify a different outcome. The court clearly believed there was something more important at stake. That something was "...the freedom of expression and discussion, especially in relation to matters of public interest".

This is quite a shift. In 1988, when the court engaged in a balancing exercise in relation to NSW defamation law, it arrived unanimously at the opposite outcome. The law in NSW, of course, was not the same as that in Queensland.

But that is not the point. The issue is the procedure used by the court to balance the competing interests.

In 1988, the rights of defamed Filipino businessman Eduardo Cojuangco were so important that the court actually saw them as part of the public interest in the administration of justice.

Such a grand description obviously weighed heavily in the judicial balance, so heavily that it was considered to be "paramount".

This outweighed the interests of the public in free speech, which was read down in that case to focus merely on the interests of the defendant newspaper, The Sydney Morning Herald, and its journalist, the late Peter Hastings.

But in Pervan, it was the defendant newspaper that benefited from the judicial eloquence. Its interests were aligned with freedom of discussion, which was "one of the essential elements which go to make up our freedom of speech".

Remember, this is the Innisfail Advocate we are talking about, not The Sydney Morning Herald.

And the defamatory material in question was a small advertisement, not a painstaking expose on public finances in another country.

All of this, however, was not a statement of legal principle and may lead to nothing. But it does raise the tantalising possibility that the High Court may be changing the way it balances the contending interests in cases involving free speech.

The balance between individual reputation and the broader interest of the community in free speech could be undergoing adjustment - in favour of the community.

The final answer will have to wait until the judges consider this question directly and are thereby required to make a statement of legal principle that would then become binding on all other courts.

So what's behind the change? Between 1988 and now, the High Court decided that the right to free speech was so important that it was an implied part of the Constitution.

The extent of that implied constitutional protection is extremely qualified. Nevertheless, the thinking behind it may well have been a silent influence on the way the court saw the contending interests.

This approach may also have been influenced by recent criticism from legal academics Stephanie Palmer and Ian Cram. In separate articles in 1992, they stated that English courts generally give the free flow of information insufficient weight whenever it is part of a judicial balance.

By definition, the harm caused to the public interest by restrictions on the flow of information cannot be quantified.

This intangible benefit is therefore easily outweighed when compared to the competing interests of justice - more accurately described as the rights of competing litigants - which take tangible form in particular cases.

Despite all this, it is still too soon to uncork the champagne. The lone dissent in Pervan was by Justice McHugh. In this area of law, he is widely considered to be the court's leading authority.

(Reprinted by kind permission of The Australian Financial Review)

Chris Merritt

For other articles on the site on defamation,
see the defamation index page.

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