The University of Sydney
Media Law: Defamation and Privacy
LAWS3428/LAWS5128 Semester 1, 2022
Indirect Protection of Reputation
Generally
- A claim for mere loss of reputation is the proper subject of an action for defamation, and cannot ordinarily be sustained by means of any other form of action: Hallett J (obiter), Foaminol Laboratories v British Artid Plastics (399).
- Other causes of action o Injurious falsehood o Deceit
o Conspiracy o Intimidation
o Negligent misstatement
o Liability under the Australian Consumer Law o Privacy and breach of confidence
Injurious Falsehood (Malicious Falsehood in UK)
- Established as an intentional tort in Ratcliffe v Evans.
o Cf defamation: strict liability.
- Plaintiff bears the onus of proof: Palmer Bruyn & Parker v Parsons [58].
- Elements (Gummow J, Palmer Bruyn & Parker v Parsons [52]):
o (1) a false statement of or concerning the plaintiff’s goods or business;
§ Cf defamation: proof is for the defendant.
o (2) publication of that statement by the defendant to a third person;
o (3) malice on the part of the defendant; and
§ Cf defamation: malice is not required.
§ The dominant purpose must be improper: Omega Plumbing v Harbour Radio [18]-[19].
• Reckless indifference as to the truth of what is published as well as knowledge of its falsity will justify an inference of malice: Palmer Bruyn [192]-[194] (quoted in Menulog v TCN Channel Nine [30]).
• “[A]n intent to injure another without just cause or excuse” or “some indirect, dishonest or improper motive”: Palmer Bruyn [193].
• An honest belief in an unfounded claim is not actionable; nor is mere carelessness (in contrast to recklessness or conscious indifference to truth): Palmer Bruyn [192].
o (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.
§ Cf defamation: proof of damage is not required.
§ Standard of damage
• Special damages are damages suffered prior to trial, whereas actual damages are damages that include future economic losses.
• Note that the HoL in Ratcliffe v Evans required special damages, whereas the HCA in Palmer Bruyn merely required actual damages.
o It appears that mere actual damages are required in Australia as McCallum J followed the HCA: Mahon v Mach 1 [15].
§ Causation/remoteness (note that this is a general tort principle)
• The defendant must have (Palmer Bruyn [73]):
o (1) intended to cause the harm; or
o (2) that the harm be the natural and probable result of the publication of the false statement.
o Application: (1) Outlandish false statements (2) circulated through the Council and (3) and was done with malice by a councillor opposed to the contract, however, (4) although there was a cancellation of
the contract (actual damage), the loss of the McDonald’s contract as a result of the internal circulation through the Council was not the natural and probable result such that the plaintiff failed; McDonalds was an intervening third party: Palmer Bruyn.
o Application: (1) False statements about eg voltage and dogs doing backflips with dog collars (2) published via radio, but (3) malice could not be shown as the RSPCA’s motive was for law reform and they genuinely thought that the collar was bad so there was no malice: Orion Pet Products v RSPCA.
- Remedies
o (1) Damages
§ This includes exemplary damages.
§ Note damages debate between Ratcliffe (special damages) and Palmer (actual damages).
o (2) Interlocutory injunction
§ The plaintiff must show (Omega Plumbing v Harbour Radio [16], [53]):
• (1) prima facie case; and
o Must be a probability that at the trial of the action the plaintiff will be held entitled to relief: ABC v O’Neill [65] [not in course].
• (2) balance of convenience.
o Whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted: ABC v O’Neill [65] [not in course]; Omega Plumbing v Harbour Radio [53].
§ Application: The plaintiff had a prima facie case because prima facie (1) there was a suggestion that there was a systematic practice of defrauding customers; (2) there were advertisements on this claim; (3) it was driven by malice as Channel Nine had been told that it is a one-off and they failed to address it and intended to proceed, and (4) sales would go down (particularly as it would air at 7pm when people are ordering food). The balance of
convenience element favoured the plaintiff as no prejudice was shown by delaying the broadcast, whilst there was a large risk of irreparable damage to the plaintiff: Menulog v TCN Channel Nine.
§ Application: The plaintiff had a prima facie case because prima facie (1) the statements were false, (2) these were broadcast on radio; (3) malice could be shown as there was repetition and increasing rhetoric (“grossness and falsity”; “cavalier”), and (4) [not discussed] damage to the business. The balance of convenience element favoured the plaintiff as the defendants can easily broadcast other information: Omega Plumbing v Harbour Radio.
- Advantages over defamation
o Defamation is forensically much easier for a plaintiff as the plaintiff only needs to prove that the material was defamatory of the plaintiff and falsity and damage is presumed.
o Corporations
§ A corporation has no cause of action in defamation unless it is an excluded corporation: DA s 9.
o Injunctive relief
§ It is easier to get an interlocutory injunction as free speech is less of a consideration compared to defamation: Omega Plumbing v Harbour Radio [53].
• This is because it is directed at protecting economic interests.
§ Note, however, you cannot reframe a defamation case into an injurious falsehood case: Cvek v Mihailescu [37].
• This is because the aspersions are about personal qualities and are in substance defamatory; the claim in substance must be related to potential damage of goods or business.
o Exemplary damages
§ Exemplary damages cannot be awarded for defamation (DA s 37), but there is no such bar for injurious falsehood.
o Single meaning rule
§ The single meaning rule does not apply to [injurious] falsehood: Ajinomoto Sweeteners v Asda.
• That is, multiple meanings of the same words can be pleaded.
• Due to the principled approach, it is likely that the Australian courts will follow this.
Misleading or Deceptive Conduct
- ACL s 18 and defamation are distinct.
o [ACL s 18] does not exclude defamatory claims as the former protects consumers whilst the latter protects reputation: Global Sportsman v Mirror Newspapers.
o Defences to defamation under statute and common law are not imported under [ACL s 18]: Global Sportsman v Mirror Newspapers.
- Test: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive: ACL s 18 (formerly TPA s 52).
o Source of law
§ Ensure which jurisdiction’s ACL applies.
§ Commonwealth (only corporations)
• The ACL (Cth) applies to corporations: Competition and Consumer Act s 131.
§ NSW (either corporations or natural persons related to NSW)
• The ACL applies as a law of NSW and is referred to as the ACL (NSW): Fair Trading Act s 28.
• The ACL (NSW) applies to and in relation to (Fair Trading Act s 32):
o (a) persons carrying on business within this jurisdiction, or
o (b) bodies corporate incorporated or registered under the law of this jurisdiction, or o (c) persons ordinarily resident in this jurisdiction, or
o (d) persons otherwise connected with this jurisdiction.
o ‘in trade or commerce’
§ It is the conduct itself, not the organisation, that must be ‘in trade or commerce’: Aldi v TWU.
§ Application: The publications against dog collars by the RSPCA were not ‘in trade or commerce’ as they were just raising awareness: Orion Pet Products v RSPCA.
- Defence for information providers
o The ACL does not apply to a publication of matter by an information provider if (ACL s 19(1)):
§ (a) in any case--the information provider made the publication in the course of carrying on a business of providing information; or
§ (b) if the information provider is the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or the holder of a licence granted under the Broadcasting Services Act 1992—the publication was by way of a radio or television broadcast by the information provider.
§ ‘Information provider’
• A person who carries on a business of providing information: ACL s 19(5).
o This requires a characterisation of if someone is in the business of providing information: Versace v Monte [124]-[132].
§ Orthodox journalistic activities typically fall under this: Bond v Barry.
§ Application: Although Monte was self-publishing a book, it was a
“fanciful, fictitious account” as a private investigator and therefore was not an ‘information provider’: Versace v Monte [124]-[132].
§ Application: Freelance investigative journalism was sufficient: Bond v Barry.
• Includes the following (ACL s 19(6)):
o (a) the holder of a licence granted under the Broadcasting Services Act 1992;
o (b) a person who is the provider of a broadcasting service under a class licence under that Act;
o (d) the Australian Broadcasting Corporation;
o (e) the Special Broadcasting Service Corporation.
§ ‘Publication… by an information provider’
• The publication of third party statements about goods or services, does not, without more, amount to the adoption or making of those statements by the information provider: ACCC v Channel Seven [43].
o This defence does not apply to:
§ A publication of an advertisement: ACL s 19(2).
§ A publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services (publicised goods or services), if (ACL s 19(3)):
• (a) the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or
• (b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or
o Application: Channel Seven promoted and agreed to run stories of a Ponzi scheme on behalf of two women; they were laudatory and uncritical about it.
Channel 7 was not providing news and their commercial interests were aligned with the two women. They therefore did not attract protection under ACL s 19: ACCC v Channel Seven.
• (c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services.
§ A publication of matter in connection with the sale or grant, or possible sale or grant, of, or the promotion by any means of the sale or grant of, interests in land (publicised interests in land), if (ACL s 19(4)):
• (a) the publicised interests in land were interests of a kind sold or granted by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or
• (b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who sells or grants interests of the same kind as the publicised interests in land; or
• (c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that sells or grants interests of the same kind as the publicised interests in land.
- Remedies
o Injunctions: ACL s 232.
o Damages: ACL s 236.
[…]
Fair Comment and Honest Opinion
DA s 31 (Honest Opinion)
- If the defendant is unable to establish honest opinion under statute, it is unlikely they will establish fair comment under common law: McCallum J, O’Brien v ABC.
- Generally
o ‘Expression of opinion’
§ See common law.
o ‘Public interest’
§ See common law.
o ‘Proper material’
§ An opinion is based on proper material if (DA s 31(5)):
• (a) the material on which it is based is—
o (i) set out in specific or general terms in the published matter, or o (ii) notorious, or
o (iii) accessible from a reference, link or other access point included in the matter (for example, a hyperlink on a webpage), or
o (iv) otherwise apparent from the context in which the matter is published, and
• (b) the material—
o (i) is substantially true, or
o (ii) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or
o (iii) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
§ An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material: DA s 31(6).
- Expression of the opinion of the defendant
o It is a defence to the publication of defamatory matter if the defendant proves that (DA s 31(1)):
§ (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and
§ (b) the opinion related to a matter of public interest, and
§ (c) the opinion is based on proper material.
o Defeating the defence
§ The defence is defeated only if the plaintiff proves that the opinion was not honestly held by the defendant at the time the defamatory matter was published: DA s 31(4)(a).
• This is a subjective test.
- Expression of the opinion of an employee or agent of the defendant
o It is a defence to the publication of defamatory matter if the defendant proves that (DA s 31(2)):
§ (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and
§ (b) the opinion related to a matter of public interest, and
§ (c) the opinion is based on proper material.
o Defeating the defence
§ The defence is defeated only if the plaintiff proves that the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published: DA s 31(4)(b).
• It is unclear whether this is intended to be subjective or objective.
- Expression of the opinion of a stranger
o It is a defence to the publication of defamatory matter if the defendant proves that (DA s 31(3)):
§ (a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and
§ (b) the opinion related to a matter of public interest, and
§ (c) the opinion is based on proper material.
o Defeating the defence
§ The defence is defeated only if the plaintiff proves that the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the
defamatory matter was published: DA s 31(4)(c).
• This is an objective test.
Common Law
- The onus is on the defendant to establish the first three elements; the plaintiff must prove the last element to defeat the defence as it presumed: Gardiner v John Fairfax (173).
- Elements (John Fairfax v O’Shane (67,454)):
o there are statements of comment, not fact;
o the statements of comment relate to a matter of public interest;
o the statements of comment are based upon facts truly stated, referred to or notorious; and
o the comments are the honestly held opinion of the commentator, even if they are prejudiced or wrong- headed.
- (1) Statements of comment, not fact
o This is a question for the jury: O’Shaughnessy v Mirror Newspapers [6].
o Test: Whether the ordinary reasonable recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered: Channel Seven Adelaide v Manock [36].
§ The focus is on the statement of comment, rather than whether the matter is a statement of comment: O’Shaughnessy v Mirror Newspapers [6].
• Application: A scathing review of O’Shaughnessy’s performance in Othello claiming that he had made his character more important at the expense of others. This was reasonably open to the jury: O’Shaughnessy v Mirror Newspapers [6].
§ A comment is a deduction, inference, conclusion, criticism, judgment, remark, observation, etc, whereas a statement of fact is a direct statement concerning or describing a subject of public interest: Clarke v Norton (499).
• Regard must be had to the language used and the context to determine this: Clarke v Norton (507).
o It is not enough to just say ‘in my opinion’ or ‘in my view’
• A comment can be made by stating a value judgment and can also be made by stating a fact if it is a deduction from other facts: Channel Seven Adelaide v Manock [35].
• Application: Two factors made it difficult to argue the material was not fact: (1) it is harder for a television viewer to distinguish fact and comment; and (2) it was a 15s promotional ad and statements were presented as fact: Channel Seven Adelaide v Manock.
§ Application: Allegation of plagiarism and lazy journalism was comment: Carleton v ABC.
§ Application: Restaurant review was comment: Gacic v John Fairfax.
§ Application: Claims about singer breaching contract were comment: Spiller v Joseph.
§ Application: Debate section of newspaper questioning legitimacy of chiropractic methods was comment: British Chiropractic Association v Singh.
§ Application: Example of a successful defence (but in the WADC); comments on accountant’s competence: McEloney v Massey.
- (2) Public interest
o This is a question of law for the judge: Gardiner v John Fairfax.
o Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment: London Artists v Littler.
o Private actors
§ Just because something is done between private actors does not mean it is not of public interest: South Hetton Coal v North Eastern News.
• Application: Poor living standards for employees of a coal company were matters of public interest because they related to public health: South Hetton Coal v North Eastern News.
o Public figures
§ There is an expectation that public figures to not be too thin-skinned and must bear negative comments as a matter of public policy: Whitford v Clarke.
§ Any aspect of public life of a public figure is a matter of public interest: Whitford v Clarke.
• Application: Politician was sufficient: Whitford v Clarke.
o Reviews/offered for public approval
§ If you offer yourself to public approval (eg publishing a book, opening a restaurant), there is public interest because public attention has been invited: Gardiner v John Fairfax.
• Application: Book review invited public attention: Gardiner v John Fairfax.
o Journalistic standards
§ Application: Discussion of tabloid journalistic standards was of public interest: Kemsley v Foot.
o Corruption
§ Application: Allegations of police corruption in the police was of public interest: Bellino v ABC.
- (3) Based upon facts truly stated, referred to or notorious
o These must be substantially true: John Fairfax v O’Shane.
o Example of the distinction
§ (i) the minister is unfit to hold public office because he lied to the House of Commons; (ii) the minister is unfit to hold public office because of what he said in the House last week; (iii) Mr A (who is widely known to have pleaded guilty to perjury) is unfit to hold public
office. Obviously, in the first example the fact is stated, in the second it is referred to, and in the third the facts are notorious: Lowe v Associated Newspapers quoted in Channel Seven Adelaide v Manock [55].
o Facts truly stated
§ Application: The statements that the women were ‘let off’ was substantially inaccurate and therefore failed this element: John Fairfax v O’Shane.
o Referred to (important for review cases)
§ Application: It was insufficient that the 15s promotional video referred to the main video; it did not indicate what it would be based on: Channel Seven Adelaide v Manock [73].
o Notorious
§ Application: Given public debate about tabloid standards, this would have been notorious to the ordinary reasonable reader: Kemsley v Foot.
- (4) Honestly held
o The plaintiff must prove the last element to defeat the defence as it presumed: Gardiner v John Fairfax (173).
o Malice is narrower here than with qualified privilege as that is concerned with exceeding : Cheng v Tse Wai Chun.
o Test: Lack of honest belief in the comment: Cheng v Tse Wai Chun; Spiller v Joseph.
§ Note that this is yet to be decided in Australia
§ The purpose of this is that the crank, the enthusiast, may say what he honestly thinks: Silkin v Beaverbrook.
