Submission of the Australian Press Council to the NSW Attorney-General on possible reforms to the NSW defamation laws.

10 October 2001

Executive Summary
Introduction
Aim
Offers of Amends and Mediation
Tougher capacity tests
Jury role
Qualified Privilege
Public Figures
Guidance on Limitation of Damages
Access to Defamation law by corporations and government bodies
Defences: Truth, public interest and lack of negligence
Additional Issue

PART 2
Possible changes to the NSW Defamation Act 1974 No 18

Executive Summary

The Australian Press Council has for many years advocated uniform defamation laws in Australia. It urges the Government of New South Wales to initiate action to achieve that outcome by making both substantive and procedural reforms to defamation law as set out in this submission.

The objectives include speedy correction of factual error and compensation for maliciously inflicted financial damage while preserving freedom of speech and avoiding lengthy lottery-like trials. There are five main proposals.

The first is for an up-graded Offer-of-Amends process, post-writ and pre-trial. It is envisaged that there will be a requirement for the parties to attempt to settle grievances. The intent should be to achieve voluntary amends (published correction, apology or financial settlement) satisfactory to the plaintiff. If a settlement cannot be reached through the initial offer the parties should be required to employ a mutually acceptable mediator (not court ordered or supervised) in an attempt to reach a compromise.

A mutually acceptable compromise offer will include the terms on which the proceedings will be terminated. If there is no such compromise and the case proceeds to trial the plaintiff will be responsible for the subsequent costs of both parties if the trial judge considers the Offer-of-Compromise to have been reasonable.

Judges should be required to take a stronger view of the capacity of material to carry imputations, only referring to the jury claims that are more likely than not to have been conveyed in the article.

The trial process itself should be amended to bring the jury into both the imputations and the defences stages. At the start of the trial the jury should have the right to read the material complained of before being addressed by counsel for either side. The jury should hear the imputations representations of counsel then retire and decide whether any imputations need to be defended. When they return the trial will either terminate with a decision for the defendants or continue with the hearing of defences.

The law of qualified privilege should be extended to cover a greater range of circumstances, especially the fair reporting of public comment, including third party statements

The judge alone should decide the damages payable to a successful plaintiff guided by clauses within the legislation comparable with amounts possible under other legislation/court guidelines.

To succeed in a defamation action people of public prominence should have to prove malice and actual harm to reputation

Government departments and corporations should not be able to sue individuals for defamation.

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Introduction

The Australian Press Council urges the Government of New South Wales to make both substantive and procedural reforms to defamation law as set out in this submission. From the point of view of the Press Council defamation law is too restrictive of free speech and the public's right to know.

Recent cases have brought into the spotlight defects in NSW law and the accompanying processes that demand a reforming response from the Government. The defects have made court action in this sphere of the law uncertain and expensive, while not achieving the basic aims of defamation law.

The Council also advocates uniform national defamation laws because State and Territory borders have become increasingly irrelevant to publishers. Even national borders are becoming less relevant.

The Council's objective is to achieve consistency of defamation law and practice across the nation. Reform action has started with the parliament of the ACT recently passing a Defamation Reform Bill (Defamation Bill 1999). While that action underlines the necessity for reform NSW reform is important because that is where most media organisations have their headquarters and because a NSW lead will be the influential factor in achieving Australia-wide reform.

This submission, drafted in consultation with experienced executive and legal staff from media organisations who have to deal daily with defamation law, promotes reforms that make the law and its administration more certain, more accessible, and more protective both of wronged plaintiffs and of free speech.

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Aim

The overall aim of reform should be to achieve legislation that will enable what Jeff Shaw QC, the then NSW Attorney General, advocated at the NSW Law Society media awards on May 17, 2000:

Speedy correction of factual error, yes. Compensation for maliciously inflicted financial damage, certainly. But the over-riding consideration should be freedom of speech.

The balance between free speech and privacy and between media comment and judicial processes should not automatically fall in the direction of privacy or judicial convenience. Free speech should have sufficient primacy to put a strong burden of proof of any need to restrict it.

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1. Offers of Amends and Mediation

1. Newspapers routinely receive complaints of errors and inaccuracies, voluntarily publishing corrections where they feel they are warranted. It is not intended that a revised Offer of Amends process in the legislation should inhibit or replace those arrangements.
2. The proposal is that after a writ for defamation has been issued the pre-trial Offer-of-Amends stage should incorporate formal steps. A plaintiff should be required within fourteen days of the issuance of the writ to set out for the defendant what the alleged false and defamatory statements are and what requests are made for correction or retraction.
3. The defendant should be required to attempt a settlement within fourteen days by responding to the particular claims with an Offer of Amends (retraction, correction, apology, letter-to-the-editor, money or some combination of these), including a mandatory offer to pay the expenses to date of the aggrieved person.
4. Similarly the plaintiff should have fourteen days to respond to the Offer-of-Amends.
5. Failure of a defendant to make the offer or the refusal of a plaintiff to accept a voluntary offer, on the grounds of the inadequacy of the response, should trigger independent mediation.
6. Mediation should be conducted using either existing forms of commercial dispute resolution or an ad hoc mediator acceptable to both parties (not court ordered or supervised). Mediation should seek an acceptable compromise. It must be completed within thirty days. There should be sanctions for tardiness and/or non-participation.
7. Acceptance of an Offer of Amends should bar new claims relating to the material complained of. Implementation of an accepted Offer should be court supervised.
8. If both parties to the case report non-acceptance of an Offer the case should be listed for trial within thirty days.
9. If an aggrieved person does not promptly accept a reasonable Offer and an action is brought against the defendant the court should have power to order the aggrieved person to pay the costs of the publisher in the action, including costs on an indemnity basis.
10. If an Offer of Amends is not accepted it should be a defence that an offer was made as soon as practicable after the defendant became aware that the matter might be defamatory, providing the defendant was ready and willing to perform the terms of the Offer, and that in all the circumstances the offer was reasonable.

Action required: Amend and simplify Division 8, Offer of Amends, Sections 37-45 of the Defamation Act 1954.

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2. Tougher capacity tests

1. Defamation should not be a lottery dependent upon unduly strained or remote language imputations. The onus should be on plaintiffs to establish to the court that in the context of the published material the language used is more likely than not to be actually injurious to the plaintiff's reputation or business.
2. Defamation should not rest on words taken out of context. Following World Hosts Pty Ltd v Mirror Newspapers there should a legislative basis requiring the headline and the body copy to be read in conjunction with each other.
3. Judges should be under greater onus to strike out imputations that do not meet the capacity test that the material complained is more likely than not to carry the imputation pleaded by the plaintiff.

Action required: Change Section 7A (1) to read ... more likely than not carries the imputation pleaded by the plaintiff.

Change Section 7A (2) (a) to read '... does not have a strong likelihood of carrying ...'

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3. Jury role

1. The jury should be involved in the whole case except the final assessment of damages. There is no need for a separate Section 7A trial. Decisions on imputations should come at the start of the trial. The jury should hear the input on those matters, retire and decide and then come back immediately and hear evidence if there are any matters that require defences.
2. The situation in which the jury first addresses the alleged defamatory material at present is artificial and strained. The need is for the jury, prior to any address by counsel, to have the opportunity to read the matter complained of before being addressed by counsel, whether for the plaintiff or the defendant.
3. The legislation should direct the court on the principles and guidelines of amounts of awards, in line with personal injury practice. Where the plaintiff succeeds the judge rather than the jury should make decisions on the amount of damages.

Action required: Appropriate amendments to the Act.

Change the Practice notes.

4. Qualified Privilege

1. The media needs more reliable criteria of qualified privilege. Neither Lange nor Section 22 of the present Act offers sufficient guidance. Nor is the Common Law extension of qualified privilege in the Reynolds decision by the House of Lords sufficient, assuming that that decision will be influential in Australia.
2. In Lange the High Court imposed the same standards on the media as for commentary made by individuals - belief in the truth. But the media must deal with debate and controversy, accusation and rebuttal. Requiring the media to believe that third party information is true is too stiff a test. How would a newspaper know where the truth lies in a developing public scandal? The timeframe within which newspapers have to work makes it impracticable to wait when the matter is of public interest (eg, public fraud). It could prevent the scandal being brought to light if a response of some sort is an essential ingredient. Guilty parties would simply refuse to comment or at best provide a long delayed stonewalling response
3. Brennan J's view in Stephens was that in respect of third party information the media should have to establish the following five points. As noted above, however, obtaining a response from the defamed party is sometimes impracticable.
1. where the subject matter is defamatory it is nevertheless of relevant public interest,
2. the report is fair and accurate,
3. the maker of the statement can reasonably be presumed to have particular knowledge,
4. the report is accompanied by the defamed party's response, and
5. the publisher has no reason to believe it is not true.
4. Both Reynolds and Stephens have underlined the need for practicality. Publishers essentially need practical ways of interpreting conceptually arguable and shifting criteria such as reasonableness. A practical list might include such requirements as:
1. integrity of sources
2. public interest in the matter being published
3. lack of ostensible bias
4. contact with the person defamed, if practicable
5. accurate reporting of third party statements
5. A recent House of Lords case (Turkington and others v Times Newspapers Ltd [Northern Ireland]) held that a press conference constitutes a public meeting for the purposes of a statutory fair report defence. Sub-section (9) of Schedule 2 of the Defamation Act should be amended to incorporate the effect of this decision into NSW law.
6. An alternative way of handling the problems of reporting persons of public prominence eg, politicians and some others, when they are acting in their public roles, could be to treat reports concerning them the same way as reports from tribunals already extensively listed in qualified privilege Schedules.

Action required: Re-draft Section 22 by the insertion of a new Section 22 (3).

(3) For the purposes of Sub-section (1) the conduct of the publisher in publishing the matter is reasonable in the circumstances if:

1. the information is derived from a reasonable source
2. there is a lack of malice on behalf of the publisher
3. if in the circumstances it is practical there has been contact with the person alleged to have been defamed
4. there has been accurate reporting of third party statements.

Alternative - New Section 22A as follows:

22A Protected Reports of Activities of a Member of the Public

1. In this Section protected report means a report of the activities of a person of public prominence as defined in Schedule 22A which is a matter of public interest.
2. There is a defence of qualified privilege for the publication of acts or statements of persons listed in Schedule 22A

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5. Public Figures

1. Politicians give and take in robust language in the course of arguing matters of public interest. Other public figures seek, from time to time, publicity and notice. Persons of public prominence ought not be able unreasonably to stifle debate or critical comments simply by suing for defamation.
2. Public figures should have to prove malice to be successful in defamation.
3. The law should include provision for a defence that the published material relates to people of public prominence, to matters of public record or to matters of public interest properly the subject of public report and comment.
4. Who should be classified as people of public prominence? The US Supreme court has identified three kinds of public figures:
1. Involuntary public figure: someone who becomes a public figure through no purposeful action of their own, including those who have become especially prominent in the affairs of society.
2. Always public figures: those who occupy positions of such persuasive power and influence that they are deemed public figures for all purposes;
3. Public figures on specific issues: those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.
4. Another possibility is to use a definition such as people who make or engage in public performances or pronouncements to elicit support from the public for economic, professional or political benefit, or to enter into the public debate.
5. This submission prefers a generic definition in the Act and a listing of public figures in the Schedules.

Action required: Redraft 15(2)(b), 16(2)(a) and 16(2)(b)(i) '... relates to a matter of public interest, a person of public prominence, or is published under qualified privilege.'

Redraft Section 31.

and/or

Define persons of public prominence in the Definitions or the Schedules of the Act.

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6. Guidance on Limitation of Damages

1. In NSW, for some personal injury and compensation matters, there is legislative guidance on the sums that can be awarded. The Court of Appeal has also provided lower courts with guiding principles for sentencing and the award of damages in some cases. The principle of comparability should prevail.
2. Similar amendments to legislation and guiding principles on the award of damages in defamation actions, regularly up-dated and fairly publicly available, would, if used in conjunction with a pre-trial Offer of Amends process, lead to more realistic trade-offs between the costs of going to trial and settlement of actions.

Action required: Insertion into the Defamation Act of appropriate Sections providing guidance to courts on awards

and/or Appropriate Practice Notes

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7. Access to Defamation law by corporations and government bodies

1. Corporations with deep pockets are increasingly stifling community comment by instituting libel actions that the individuals charged cannot afford to defend.
2. In the interests of open discussion of public issues, such as the merits of development of environmentally sensitive land areas or construction of new apartment blocks on foreshores, actions against individuals for defamation by corporations and government departments should not be possible. Already Local Government bodies cannot sue.
3. There is ample scope for inter-corporation litigation relating to genuine economic loss within Trade Practices and Company Law.
4. There is no reason to allow defamation law to be used for oppression by virtue of the strength and depth of purse of would-be litigants.

Action required: Add a section (eg, at 7(5)) stating that for the purposes of the Act a company governed under the Companies Act or a government department or statutory body of NSW or any other State is not a person.

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8. Defences: Truth, public interest and lack of negligence

1. It should continue to be a primary defence that the matter is true and relates to a matter of public interest.
2. 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. Other grounds for successful defence should be that the defendant neither breached nor owed a duty of care to the plaintiff, and/or the plaintiff did not suffer harm

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9. Additional Issue

1. At Paragraph 69 in the High Court judgement in Pfeiffer v Rogerson the majority opinion said:

   In Lange, the common law rule which was propounded with respect to qualified privilege was developed so as to satisfy what the court identified as the constitutional imperative respecting freedom of communication. The imperative 'operates as a restriction on legislative power' so that 'statutory regimes cannot trespass upon the constitutionally required freedom.'

2. Conversely, surely this stipulation requires States and Territories to amend their laws explicitly to give effect to 'constitutionally required freedom' of speech.

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PART 2

Option 1

The Press Council would prefer a complete re-write of NSW Defamation Law in plain English in line with this submission.

Option 2

Possible changes to the NSW Defamation Act 1974 No 18 (as amended to January 2001).

Part 1 Preliminary

Sections 1-6: Retain - add definition of Person of public prominence or Public figure.

A person who makes or engages in public performances or pronouncements to elicit support from the public for either economic, professional or political benefit or to enter into public debate

Section 7: Add as 7(5)

For the purposes of this Act, a company governed under the Companies Act, or a government department or body of this or any other State or Territory is not a person.

Part 2 General

Section 7A (1): Amend from 'is reasonably capable of carrying the imputation pleaded by the plaintiff,' to 'more likely than not carries the imputation pleaded by the plaintiff.'

Section 7A (2): Consequent amendment more likely than not carries

Section 7A(3): ditto - subject to other amendments re imputations to be assessed in context.

Section 7A(4)(a): The jury is to be involved in determining whether any defences have been established

Section 7A(4)(b): The court not the jury to retain the decision on the amount of damages

Section 7A(5): Retain (?)

Section 8: Retain

Section 9: Either

i. Repeal or redraft to allow for a better use of the comment defence, or
ii. Revert to Common Law provisions

Part 3 Defence in Civil Proceedings

Division 1 General

Sections 10, 11, 12, 13: Retain

Division 2 Truth

Section 14: Retain

Sections 15, 16: Re-draft 15(2)(b) and 16(2)(a) and (b)(i) 'relates to a matter of public interest, a person of public prominence, or is published under qualified privilege'

Additional Clause: Add Clause(s) providing for absence of negligence as a defence.

Division 3 Absolute Privilege

Sections 17, 17A -17U, 18, and 19: Retain

Division 4 Qualified Privilege

Sections 20-22: Change in line with submission

Division 5 Protected Reports etc

Sections 24-26: Retain

Division 6 Court notices, official notices etc

Sections 27-28: Retain

Division 7 Comment

Section 29: Retain

Section 30: Re-draft

Section 31: Re-draft

Sections 32 33, 34, 35: Re-draft

Division 8 Offer of Amends

Section 36-45: Re-draft in line with proposals in this submission

Part 4 Damages

Section 46: Retain

Section 46A: Stiffen up 46A(2) to ensure heed is taken of Appeals Court guidance.

Section 47: Re-draft

Section 48: Retain

Part 5 Criminal Defamation

Sections 49-53: Retain

Part 6 Supplemental

Sections 54-58: Retain

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See also
2000-2001 Freedom of the Press Report - Defamation Law
For the current state of the law: Press Law in Australia
Index of material on the site on defamation law

Return to
Submissions list
Freedom of the Press overview

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