The Responsible Reporter

Press Council member CHRIS McLEOD looks at the legal concept of 'reasonableness', its application to defamation law and how it is affecting journalists' defences.

Journalists are being painted into a corner by defamation law reform. The corner is that of reasonableness.

The press can never expect to be able to publish whatever it likes with immunity. Though there are laws that specifically restrict aspects of publishing, the press itself recognises that it must behave responsibly. That's why the Australian Press Council exists. The press pushes its case for press freedom with vigour, but it recognises that to balance those rights, it has responsibilities.

The Press Council provides a mechanism for those with grievances against the press to air them. Most would say that this is reasonable.

Every person has some concept of what's reasonable behaviour - it's what stops society falling into anarchy and the law of the jungle.

So it should be no surprise that 'reasonableness' is emerging as an important concept in defamation.

It isn't a new concept but it is a significant one in the reform proposals that are emerging from state and territory moves on uniform defamation law.

Reasonableness came to prominence as a defamation defence in two High Court cases, first in Theophanous v The Herald and Weekly Times (1994) and the subsequent modification in Lange v The ABC (1997).

The High Court, basically, found that certain defamatory material could be published, even if wrong, as long as publication was reasonable in the circumstances.

The material said to be eligible for such protection was discussion of government and political matter, based on an implied right in the Commonwealth Constitution to a free political system, unfettered by law.

What evolved from that is the defence known as "extended qualified privilege", with an emphasis on reasonableness.

Lower courts in Australia have taken mixed approaches to the application of the defence and considerable uncertainty has surrounded its effectiveness.

Reasonableness isn't a new idea.

Queensland's defamation code, in force since 1889, provides a qualified protection defence (Section 16[e]) that says it's a lawful excuse to publish defamatory material

if the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make the person's conduct in making the publication reasonable under the circumstances ...

While the legalese may be difficult to decipher, it is clear that reasonable conduct is essential.

According to the High Court decisions, reasonableness requires that:

• The publisher had reasonable grounds for believing the matter published was true;
   
• The publisher took proper steps, so far as reasonably open, to verify the accuracy of the material;
   
• The publisher did not believe that the matter published was untrue;
   
• The publisher sought a response from the person defamed and published the response (if any) except in cases where it was not practicable, or it was unnecessary, to give the defamed person a chance to respond.

In NSW, the concept was picked up in s22 of the Defamation Act, (1974, as amended):

Where, in respect of matter published to any person:

1. the recipient has an interest or apparent interest in having information on some subject,
    
2. the matter is published to the recipient in the course of giving to the recipient information on that subject, and
    
3. the conduct of the publisher in publishing that matter is reasonable in the circumstances,

there is a defence of qualified privilege for that publication.

The protection has qualifications, of course, largely based on what the High Court had said.

Unfortunately, the defence has enjoyed little success, due either to judges interpreting many of the High Court's propositions as being absolute (reasonable in all the circumstances) or defendants not being able to convince courts they did enough investigation or inquiry before publication.

In one of the first cases where the extended qualified privilege defence made available by the Theophanous and Lange cases was tested (Craigie v Nornews Pty Ltd, 1999), a newspaper argued in the NSW Supreme Court that its conduct in reporting allegations of improper spending of an association's funds was reasonable - it had reported accurately criticisms made by one person of another. The newspaper lost.

Justice Ireland said, in part:

In my view the defendant fell far short of what was reasonable in the circumstances. In particular the evidence does not establish that the defendant believed in the truth of the imputation, or that reasonable care was exercised to make inquiries or check the accuracy of the source material relied upon.

The judge said the effort made by the reporter to contact the plaintiff was just one unsuccessful phone call to the plaintiff's home.

In a Victorian case (Popovic v The Herald And Weekly Times, 2002), a jury found a columnist's statements and conduct to be reasonable but the decision, controversially, was taken away by the judge. The Court of Appeal upheld the judge's action, finding that the journalist acted unreasonably by including only part of an exchange from a court transcript to underline criticism of a deputy chief magistrate.

In a NSW s22 case (O'Shane v John Fairfax & Sons Ltd, 2004), a court found the newspaper did not act reasonably because the imputations drawn did not follow logically from information obtained by the newspaper.

Both these cases involved members of the judiciary and their fitness for office, raising the question of what constitutes discussion of government and political matter. But reasonableness was a turning point in both and the courts applied tough tests.

The theory of extended qualified privilege also has developed in the United Kingdom.

In a 1998 case (Reynolds v Times Newspapers), the courts for the first time recognised a right-to-know principle and a duty and interest relationship between the public and the press. The Court of Appeal's decision that such a relationship existed was upheld in 1999 by the Law Lords.

The Lords set out a list of circumstances under which the media would have such a defence. In short, these are the issues to be addressed:

• The seriousness of the allegation;
   
• The nature of the information and whether it is of public concern;
   
• The reliability of source of the information;
   
• Steps taken to verify the information;
   
• The status or currency of the allegation;
   
• The urgency of the matter;
   
• Whether comment was sought from those affected;
   
• Whether the article contained the comments of those affected;
   
• Whether comments and allegations were adopted as statements of fact;
   
• The circumstances, including timing, of the publication.

Since the Reynolds decision, the principles of qualified privilege have been made clearer. (In Reynolds the court found against The Sunday Times - noting the reporter believed Reynolds didn't have a defence to the allegations it aired so didn't contact him and had not taken any notes during his inquiries.)

In a 2001 case (Loutchansky v Times Newspaper, second action) the Appeal Court considered the qualified privilege defence of Reynolds and accepted that it was available, but noted that no privilege existed unless the journalist acted responsibly.

Lord Phillips said setting the standard of journalistic responsibility too low would inevitably encourage too great a readiness to publish defamatory matter. Journalists ought to be rigorous, not lax, he said.

We see from all of this that the so-called reasonableness test is more of a "responsible journalist" test.

This is the likely way forward.

The Australian state and territory Attorneys-General have developed a model for uniform defamation law. Legislation has been introduced in every state jurisdiction (under the threat of a national defamation law being imposed by the Commonwealth) and the territories are also moving to introduce similar legislation by the start of 2006.

While hardly any of the concepts in the model law are new, there is a heavy emphasis on reasonable conduct - by publishers and journalists.

There's an offer of amends process designed to head off legal action. It requires reasonable offers.

There will be a defence of qualified privilege if "the conduct of the defendant in publishing that matter is reasonable in the circumstances".

And in determining questions of reasonableness, the model Act says:

Whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account

1. the extent to which the matter published is of public interest; and
    
2. the extent to which the matter published relates to the performance of the public functions or activities of the person; and
    
3. the seriousness of any defamatory imputation carried by the matter published; and
    
4. the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
    
5. whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
    
6. the nature of the business environment in which the defendant operates; and
    
7. the sources of the information in the matter published and the integrity of those sources; and
    
8. whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
    
9. any other steps taken to verify the information in the matter published; and
    
10. any other circumstances that the court considers relevant.

To some the bar may seem to be set far too high. And questions will remain about the approach courts will take.

For journalists, they'll need to be extremely thorough.

To the consumer, that's probably quite reasonable.

Chris McLeod

Note: Chris McLeod works as Editorial Development Manager for the Herald and Weekly Times

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