Academic journal article University of Queensland Law Journal

Distorting the Law of Defamation

Academic journal article University of Queensland Law Journal

Distorting the Law of Defamation

Article excerpt

In Theophanous v The Herald & Weekly Times Ltd (1) and Stephens v West Australian Newspapers Ltd (2) the High Court 'constitutionalised' the law of defamation. The ' Theophanous defence' that it created was short-lived. In Lange v Australian Broadcasting Corporation (3) it was abandoned. Lange created in its place a special category of common law qualified privilege for communications about government and political matters. The achievement of Chief Justice Brennan in leading the Court in Lange to speak with one voice is remarkable. The Court delivered 'a concise, synthesising and conciliating judgment, which brought together the strands of the previous decisions'. (4) However, the legacy of Lange for the law of defamation is an uncertain and unstable defence that provides little practical protection for communications about matters of public interest.

The Theophanous defence arose because the common law defence of qualified privilege was perceived at the time to provide inadequate protection against liability for communications to the general public on matters of public interest. The seemingly obvious course of developing the common law was not chosen. Instead, a constitutional defence was created. The Lange defence that replaced it has the same threshold requirement that the communication be about 'government or political matters'. Uncertainty surrounds what this phrase means in practice. It is a narrower category than matters of public interest, but how narrow is it?

The Lange defence requires a defendant to prove that its conduct in making the publication was 'reasonable in all the circumstances of the case'. The High Court stated a general rule that a defendant's conduct in publishing defamatory matter will not be reasonable unless the defendant 'had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue'. (5) In practice, the defence provides very little protection for participants in public affairs and the media that report their statements. As the 2002 case of Roberts v Bass (6) shows, a defendant may do better relying instead upon the traditional defence of qualified privilege. If the defendant has a duty or interest in making the publication, and members of the general public have an interest in receiving information about the relevant subject, then an occasion of qualified privilege will exist. The substantial burden of proving 'malice' will be placed on the plaintiff. Unlike the Lange defence, a defendant relying upon the traditional defence of qualified privilege is not required to prove that its conduct was reasonable.

Nearly twenty years after the first Freedom of Speech cases were decided, defamation defences in Australia remain in a distorted shape as a result of the Theophanous adventure. This article argues that rather than repairing the Lange defence, it should be replaced. It should be replaced by a coherent defence of qualified privilege for communications about matters of public interest. Such a defence would not distinguish between communications about the ill-defined category of 'government and political matters' and other matters of public interest. A new common law defence of

qualified privilege for Australia could look to developments in other common law jurisdictions, particularly the Reynolds defence that has developed in the United Kingdom. (7) The formulation of such a defence would confront difficult questions of legal policy about what a defendant must prove to attract such a defence, and what a plaintiff must prove to defeat it. Should a defendant be required to prove that its conduct was reasonable in all the circumstances? Is such a requirement too restrictive of the freedom of ordinary citizens to communicate with government and with each other about matters of public interest? Is such a requirement necessary to protect individuals, including participants in public affairs, from false defamatory communications, and to optimise the flow of accurate information about public affairs? …

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