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

3 November 2000

1. Executive Summary

The Australian Press Council strongly supports a move towards uniform defamation legislation throughout all Australian jurisdictions and urges the NSW Attorney to press the Standing Committee of Attorneys-General towards including the development of a uniform defamation code as a priority item on SCAG's agenda. It further suggests that the underlying principles of the ACT Defamation Bill 1999 provide a sound basis for such uniform legislation.

In respect of the particular references sought by the Attorney in relation to the current NSW law, the Council

• proposes that, rather than the putative Declaration of Falsity procedure, an Offer of Amends procedure be provided as a substitute for an award of damages, and the only recompense allowed under such a procedure be for expenses; but it notes that such a procedure can only work if the plaintiff undertakes not to take action in any other jurisdiction on the same matter (para 3.1);
• argues that, where matters go forward to litigation, there should be a one hearing procedure, at the end of which the jury has responsibility to determine whether the matter is defamatory and the judge decides on defences and the quantum of damages (para 3.2); and
• endorses in principle the concept of a "no negligence" defence. (para 3.3).

2. General Comments

The freedom of the press to publish is the freedom of the people to be informed

Australian Press Council Statement of Principles.

The freedom encapsulated in the concept of a free press is not, as is often suggested, some self-serving licence for the press to act without constraint. It is a principle that is adopted in free and democratic societies for the benefit of the people. Defamation law acts as a marked constraint on freedom of the press and, for that reason, it can constrain one of the public's most important safeguards against the abuse of power.

Defamation law in Australia is widely recognised to be in a mess. The law is different in the different jurisdictions. Because most publications are sold in more than one State or Territory, the publisher of a paper in Western Australia must be as aware of the libel law in New South Wales as that of Western Australia. In addition, most major papers are now published on the Internet as well. Such publication occurs instantaneously across Australia.

The result of this is that plaintiffs are able to choose the jurisdiction to bring an action that is most convenient to them, regardless of the law applicable to the place where the paper is produced. This has a 'chilling effect' on the ability of the editors to publish important matters in the public interest, to the detriment of their readers. The public's right to information of importance is limited by the caution which editors must exercise in these circumstances.

There have been a number of unsuccessful attempts over recent years to obtain a uniform code. With recent changes in the office of Attorney-General in several States, and the impetus of new ideas from the ACT, the opportunity is here for NSW to lead renewed efforts to unify the defamation laws across Australia and to update them to the needs of contemporary democratic society.

The Press Council commends the Attorney-General for taking up the matter of defamation law reform. It encourages him to work with Attorneys-General in the other States and Territories towards a common proposal for reform in this area, through the Standing Committee of Attorneys-General, if possible.

The Council has elsewhere expressed the view that the underlying principles of the ACT Defamation Bill 1999 provide an opportunity to try a fresh approach to the obdurate problem of Australian libel law. Such an approach could lead to the adoption of a uniform Australian defamation law that provides a proper balance between freedom of speech and the invasion of personal rights.

The Council recommends that the Attorney collaborate with his colleague in the ACT in developing a joint proposal operating under those principles. Such a move would be clearly in the public interest.

3. Specific Provisions

3.1. Declarations of Falsity/Offers of Amends

For some plaintiffs the prompt and prominent redress of any damage arising from a defamatory statement is more important than the awarding of monetary damages several years after the defamation has been published. For such plaintiffs, the Council believes that there should be, in defamation law, some form of Alternative Dispute Resolution which should be prompt, adequate and, above all, freely chosen by the parties. This would usually be one agreed by the parties without the need for legal action.

The form proposed by the NSW Law Reform Commission, Declarations of Falsity, is commendable in some areas. For example, it places the onus on the plaintiff to demonstrate that the statement or imputation is false. However, the commission later suggests that the burden of proof will be discharged simply by evidence denying the veracity of the imputation, placing the onus back on the defendant merely by this assertion. The Council would argue that the burden of proof of the falsity of a statement requires more than mere assertion, it requires some corroboration as well.

Additionally, the Council would submit that the proposals for Declarations of Falsity are worthless when they do not remove all prospects of an action. A Declaration of Falsity in NSW should preclude any further claim upon the defendant by the plaintiff (including issuing proceedings in another jurisdiction and making a claim for damages for other than economic loss). Publishers are hardly likely to agree to such a declaration being published if it means they will face further claims.

The Council detailed further concerns with the proposed Declarations of Falsity procedure in its 1996 response to the Law Reform Commission's Report No 75. However, it notes again that it sees some merit in a procedure which provides an alternative to the current defamation litigation process in NSW and would see the Declarations of Falsity as a good starting point for the discussion of such a procedure.

However, if some form of pre-writ settlement is to be considered, the Council would prefer an Offer of Amends proposal similar to that originally brought forward by the ACT in its Defamation Bill 1999. Under this scheme, plaintiffs are encouraged to consider timely and reasonable corrections as an alternate to litigation. The publisher may make a formal Offer of Amends that may involve an apology, correction, offer of settlement or a combination of these. The person allegedly defamed must seriously consider this offer. In the ACT proposal, a reasonable Offer of Amends is a complete defence to later action for defamation.

The Council is strongly of the view that it should not be possible for a person to seek damages in addition to recompense for expenses in relation to an Offer of Amends. Indeed, if such a provision were included, it would almost certainly negate the efficacy of the Offer of Amends procedure. A potential defendant would be obliged to wait and see what damage a claimant had suffered before considering whether to publish an apology or clarification if damages were to be an integral part of the remedy. The basic concept of an amends procedure is that it is a substitute for an award of damages. It is the plaintiff's reputation that is being vindicated. The award of damages is not compatible with this approach to resolution of defamation claims.

As noted above, a Declaration of Falsity or Offer of Amends procedure also has inherent problems for a paper where it is possible to bring actions in more than one jurisdiction relating to the same publication. An apology published for the purpose of one jurisdiction can be used as an admission of guilt in an action brought in another. The proposed procedure could only work if it were accompanied by binding waivers from the plaintiff that action in no other jurisdiction would be brought in relation to the claimed defamation.

3.2 Judges and juries

The Council has concerns with the current system whereby the jury determines whether the pleaded imputations are defamatory and then, after a second hearing, a judge rules on all matters related to defences and damages. This two-trial system has in practice tended to prolong cases, rather than streamline them.

It also places unnecessary pressure on a jury. The jury knows that the matters it is asked to consider represent the plaintiff's last chance in a defamation action. If it does not find the imputations as pleaded can arise, then the plaintiff's case ends. There is therefore undue influence for a finding that at least some imputations do arise, in the knowledge that the defendant will have another chance to argue its case.

Further, the jury makes its findings based solely on arguments from lawyers. It hears none of the witnesses as to the truth or falsity of the material. It therefore has little feel for the context within which the alleged libel has been made.

The Council would argue that it might make more sense for there to be one hearing. This would enable the jury to hear the full evidence and then determine whether the imputations arise and are defamatory. A judge could then rule as to whether any defence is established and the quantum of damages to be awarded.

The system of a judge and/or jury determining meanings, defamation and damages in one hearing is more efficient that the present NSW system, albeit with shortcomings.

3.3 Negligence defence

The Council proposes that there should be a defence which establishes that the published matter that prompts a defamation action was not published negligently. The adoption of this defence would be novel in Australia but the basis for its adoption is argued cogently in the explanatory memorandum of the ACT Defamation Bill 1999. While the test of negligence is at first sight a reasonable basis for reaching a conclusion on a defendant's responsibility for published material that causes harm to a person, the Council sees it as possibly causing some problems in its practical execution. It first needs to be made clear that the establishment of a duty of care to the plaintiff must be a responsibility that lies on the plaintiff. This is not something that lies within the capacity of the paper to establish. What the nature of that duty is will need to be established by the courts and this will lead to a period of uncertainty.

The defence of no negligence must also not impinge on the defences that are otherwise available to a publisher. A failure to make out the defence should not mean that other defences are not available. In particular, the defence of taking reasonable steps to ensure the accuracy of the publication should not limit a publisher's ability to argue that it acted reasonably and that what it published was true and/or in the public interest. Nor should a failure to establish the defence be read as an establishment of the reverse - that the paper or its employees have been negligent.

The Council is attracted by the general notion of a no negligence defence but it thinks that its detail needs more spelling out than is at present to be found in the ACT Bill.

4. Conclusion

The Press Council considers that the matters raised by the Attorney, particularly in relation to a review of the division of responsibility between judge and jury and the question of some pre-writ mechanism for dealing with defamation, show that a new way of dealing with alleged libels is needed. The Council is of the view that the Offer of Amends proposal is one way with which such matter can be dealt without recourse to lengthy, expensive and unnecessary litigation.

See also
1999-2000 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

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