12th Greek Australian Legal and Medical Conference
Samos, Greece 2009

DEVELOPMENTS IN DEFAMATION AND PRIVACY LAW
IN AUSTRALIA

By: Maurice Neil QC

BACKGROUND

1. The law of defamation seeks to strike a balance between freedom of speech and protection of reputation.

2. The ancient Greeks and Romans had laws regarding defamation. In early English times defamations were severely punished in order to reduce the prospect of persons seeking revenge and taking the law into their own hands.

THE ACTION

3. A plaintiff sues on what is known as “the matter complained of”, which is a publication in oral or written form by one person to another person of and concerning the plaintiff. If the matter complained of conveys to the ordinary reasonable reader or listener a defamatory meaning or imputation about the plaintiff there is a cause of action (subject to any defences).

4. A defamatory imputation is that which tends “to lower the plaintiff in the estimation of right thinking members of society generally” per Lord Atkin in Sim v Stretch (1936) TLR 669 at 671. There are variations of this theme e.g. to make people shun and avoid the plaintiff or expose him to hatred contempt or ridicule. An imputation may be defamatory whether or not it is true, but falsity alone does not render an imputation defamatory.

DAMAGES AT COMMON LAW

5. At common law damages were available for loss of reputation, hurt to feelings including stress and anxiety and to vindicate the plaintiff such that he could point to a verdict in a sufficient sum of money to clear his name or “nail the lie”. Aggravated damages were also available where the circumstances of the publication or the conduct of the defendant had increased the harm to the plaintiff. Exemplary damages were (until abolished) available in serious cases warranting punishment of the defendant.

UNIFORM LAW IN AUSTRALIA

6. Before 1 January 2006 the States and Territories had different laws. Some, such as Victoria, were based substantially on the common law. Others, such as New South Wales, were based substantially on statute supplemented by the common law. In 2005 each of the States and Territories passed Acts in substantially similar terms (“the Act”) whereby the law became uniform throughout Australia with some provincial differences. (For example there are no juries in the ACT). The Act commenced on 1 January 2006.

7. The Act provides that the common law applies except to the extent that it is modified by the Act. The distinction between slander and libel is abolished. The publication of defamatory matter of any kind is actionable without proof of special damage (s.7).

CAUSE OF ACTION

8. Section 8 provides for a single cause of action for defamation in relation to the publication of defamatory matter about a person even if more than one defamatory imputation about the person is carried by the matter. In NSW the imputation is no longer the cause of action (contrary to the position under the 1974 Act). The cause of action is based on the publication of defamatory matter by means of the matter complained of. This basically reflects the common law. The distinction is not really material because practice and procedure has developed in a way which effectively requires cases to be conducted on the basis of imputations.

CORPORATIONS

9. Section 9 provides that corporations other than non-profit organisations or those employing fewer than 10 persons have no cause of action for defamation.

JUDGE AND JURY

10. There is a substantial change to the roles of judge and jury in New South Wales. For most of the years of the 1974 Act the jury determined all issues of liability and also damages. Under s.7A, of the 1974 Act, introduced in the mid-90s, a jury determined at a separate trial whether or not the imputations were conveyed and if so whether they were defamatory. If any imputation was found to have been conveyed and to be defamatory a judge would thereafter determine all issues of liability and damages. Under the Act the jury decides issues of liability (with limited exception(s)) and the judge decides the amount of any damages: see s.22. Either the plaintiff or defendant may elect a jury: see s.21.

TRUTH

11. Section 25 provides a defence to the publication of defamatory matter if the defamatory imputations are substantially true. This accords with the common law. The Act does away with the long standing requirement in NSW for a public interest test in addition to truth.

Thus, for example, a scandalous publication about an aspect of the private life of a person which took place a quarter of a century ago with no element of public interest may nonetheless be successfully defended if shown to be substantially true.

DAMAGES

12 The three purposes of an award of damages are:

(a) consolation for personal distress and hurt;

(b) reparation for harm done to personal and (if relevant) business reputation; and

(c) vindication

See Rogers v Nationwide News Pty Ltd (2003) 201 ALR 184; 216 CLR 327 per Hayne J at [60]. See also Carson v Fairfax 178 CLR 44 and Ali v Nationwide News Pty Ltd [2008] NSWCA 183 (8 August 2008).

13. Under the Act there are substantial changes as to damages. The maximum amount of damages for non-economic loss is now capped at a statutory amount which is periodically reviewed. At time of writing the “cap” is $280,500 (s.35). As awards of special damages in defamation cases are extremely rare the statutory cap will apply in nearly every case. There is an exception in that the cap may be exceeded where the court is satisfied that the matter warrants an award of aggravated damages. In practice cases where aggravated damages would result in the cap being exceeded are also likely to be rare.

14. The court is to disregard malice of the defendant when awarding damages save to the extent that such malice affects the harm sustained by the plaintiff: see s.36.

COSTS

15. The Act provides for costs penalties in the event of unreasonable failure to make a settlement offer or to agree to a settlement offer.

TIME

16. There is a one year limitation period running from the date of the publication of the matter complained of with limited extension for up to 3 years if the Court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year.

OPERATION OF ACT

17. The new Act applies to publications made on or after 1 January 2006. At the time of writing there have not been many trials under the new system. A number of issues of both substantive law and procedure have been thrown up. These include:

a) Whether all evidence including on damages, should be heard by a jury or whether the damages evidence should be quarantined for the judge phase.

b) Whether in a case of justification the plaintiff will lead a full case in chief, followed by the defendant, or whether the plaintiff will tender the matter complained of followed by the defendant’s case on justification followed by the plaintiff’s case on justification.

c) The scope of the defence of justification.

d) Whether the judge or jury decides on the reasonableness of the conduct of the defendant for the defence of qualified privilege.

e) Whether a plaintiff would decide to join an employee or agent of a media defendant as a defendant.

f) Whether a defendant would decide to plead common law defences in addition to those under the Act.

g) The effect of the statutory damages “cap”.

18. As to whether damages evidence should be heard by the jury two cases in the Supreme Court of New South Wales in July 2008 were conducted on different lines. In Corby v Channel 7 the evidence of damages was not admitted before the jury but was reserved for the judge at a later stage. As it turned out the plaintiff was successful on liability and the matter settled before the damages hearing. In Davis v Nationwide News, the well known actor, Judy Davis, sued upon a newspaper publication. The trial judge ruled that all evidence, including damages, should be heard before the jury and assuming findings in favour of the plaintiff the judge when determining damages would take into account the evidence that had already been heard.

19. As to the sequence of evidence of justification the same two cases were conducted differently. In Corby the plaintiff relied substantially on the matter complained of for a case in chief. Thereafter the defendant presented its case on justification and the plaintiff followed with a case in reply. In Davis the plaintiff presented a full case in chief including on the question of justification followed by the defendant.

20. As to the scope of justification the New South Wales Court of Appeal has ruled that to make out the defence of truth, every material part of the imputation must be true: see Cross v Queensland Newspapers Pty Limited (7 May 2008) [2008] NSWCA 80. This was a case under the NSW Defamation Act 1974 but it is likely that this ruling will be applied in cases under the new Act.

21. As to qualified privilege, at common law the judge made the decision as to whether the matter was published on an occasion of qualified privilege taking into account any jury findings on contested questions of fact relating to that issue. Mallik v McGeown [2008] NSWSC 129 noted that whether a matter was published on an occasion of qualified privilege was historically a question for the judge. In Davis v Nationwide News a ruling was made to the effect that the trial judge must determine the reasonableness of the conduct of the defendant for the defence of qualified privilege. The decision was based on the wording of the Act and a long line of authority to the effect that the conduct of the defendant for the purpose of a defence of qualified privilege was a matter for the judge. It may be anticipated that in future judges will make the decision on qualified privilege in light of the findings, if any, of a jury on any contested questions of fact relating to that issue.

22. Section 31 provides for a defence of honest opinion including cases where there is an expression of opinion of an employee or agent of the defendant. Section 31(4) provides that where a defence of honest opinion is established it is defeated only if the plaintiff proves that the opinion was not honestly held by the defendant or that the defendant did not believe that the opinion was honestly held by an employee or agent. Various complications and possible interpretations may yet arise in relation to this section. In the case of a purported comment by an employee or agent of a media defendant plaintiffs may have to consider, on a case by case basis, whether to join such a person as a defendant.

23. The array of statutory defences now available to defendants may lead to them considering, on a case by case basis, whether they need to plead additional common law defences.

24. As to damages and the statutory “cap”, previously a plaintiff could recover one sum for the total number of imputations conveyed by each separate publication. In other words, if in the one Statement of Claim a plaintiff sued on two or more publications, each containing a number of imputations, he or she could not recover a separate amount per imputation but could recover a separate amount for each publication. These would be added together to produce the final verdict for the plaintiff.

25. In the Davis case the judge ruled that the statutory “cap” (then $280,500) applied to the whole of the proceedings i.e. the whole case brought by the plaintiff even where a number of publications were included in the one Statement of Claim.

It remains to be seen whether, in cases of multiple publications of the same matter or where there are different but related publications, plaintiffs will elect to issue separate Statements of Claim.

If a plaintiff did not follow this course and pleaded all publications in the one Statement of Claim, the statutory “cap” would apply to the lot. It also remains to be seen how defendants will react if plaintiffs plead separate Statements of Claim and whether or not separate Statements of Claim would be ordered to be heard together or consolidated into one.

RECENT DEVELOPMENTS

26. Recently the Court of Appeal in NSW has delivered a judgment which appears to somewhat strengthen the defence of common law qualified privilege in non mass media cases. In Fraser v Holmes 253 ALR 538 (5th March 2009), the Court of Appeal reversed the primary judge’s finding of malice. The court then upheld a plea of qualified privilege where a Member of Parliament during an election campaign sent a letter to 629 residents who had identified their occupation as nursing, about an opposing candidate which included inaccurate assertions about the candidate but where the MP’s source was a parliamentary colleague whose honesty and integrity he had no reason to query and where he believed the assertions to be accurate and well founded.

27. In Radio 2UE v Chesterton [2009] HCA 16 (22 April 2009) the High Court reaffirmed the traditional standards by which allegedly defamatory imputations are to be judged and held that the standard applied generally to defamation cases with no separate category for business or professional reputation.

28. It may be expected that some of these issues will settle down with time. This area of law has long been attended by complications including those arising out of the different functions of judge and jury. At some stage the law reform authorities may decide to consider the question of whether the whole of a defamation action should be decided by either a jury or a judge alone.

PRIVACY

29. In the UK a right of privacy has been recognised pursuant to the application of European Human Rights law. In Canada a number of provinces have a statutory cause of action for invasion of privacy. In New Zealand the law recognises the existence of a common law tort of privacy. Although two lower court rulings in Australia have held there is such a tort there is no appellate court recognition and no statutory provision.

30. At time of writing the Australian Law Reform Commission has produced a report recommending a statutory right to sue for serious invasions of privacy where:

(a) the individual had a reasonable expectation of privacy; and

(b) the conduct complained about would be regarded as highly offensive to a reasonable person; and

(c) the public interest in privacy outweighs other matters of public interest – including the interests in informing the public about matters of public concern and in allowing freedom of expression.

31. Those who are against the recommendation have argued that it would have an adverse impact on freedom of speech and investigative journalism. The Chairman of the Commission has stated that the focus of the Commission was more on the private sphere than the mainstream media. The consultation exercise had thrown up stories of people’s distress at invasions of their privacy such as photographic images being captured in toilets or dressing rooms with digital cameras or phones and then posted on internet sites. There was concern that new technologies will make the capture and dissemination of private personal images easier.

32. It remains to be seen whether this recommendation will be accepted by Australian Governments.

VOLUNTARY CONTRIBUTION TO LOSS OF PRIVACY

33. One emerging problem area is that of invasion of privacy by abusive material on the internet.

34. Search engines may collect material for one purpose but can be accessed and used for other purposes.

35. There have been reports of cases of school pupils allegedly involved in so- called cyber bullying.

36. If a student chooses to go on Face Book, My Space, Twitter or use mobile phones for similar purposes or as cameras it becomes possible for gossip sessions to become public events in cyberspace.

37. If people put up information about themselves it is virtually there forever. Likewise false, abusive, vicious or unseemly material sent to their site and to others is virtually there forever.

38. In New South Wales a Parliamentary Inquiry is looking into the effect of bullying, including bullying among schoolchildren and young people, and how it can be prevented.

39. Legislative responses, if any, will need to balance wide ranging social and technological issues.

BACKGROUND

40. The law of defamation seeks to strike a balance between freedom of speech and protection of reputation.

41. The ancient Greeks and Romans had laws regarding defamation. In early English times defamations were severely punished in order to reduce the prospect of persons seeking revenge and taking the law into their own hands.

THE ACTION

42. A plaintiff sues on what is known as “the matter complained of”, which is a publication in oral or written form by one person to another person of and concerning the plaintiff. If the matter complained of conveys to the ordinary reasonable reader or listener a defamatory meaning or imputation about the plaintiff there is a cause of action (subject to any defences).

43. A defamatory imputation is that which tends “to lower the plaintiff in the estimation of right thinking members of society generally” per Lord Atkin in Sim v Stretch (1936) TLR 669 at 671. There are variations of this theme e.g. to make people shun and avoid the plaintiff or expose him to hatred contempt or ridicule. An imputation may be defamatory whether or not it is true, but falsity alone does not render an imputation defamatory.

DAMAGES AT COMMON LAW

44. At common law damages were available for loss of reputation, hurt to feelings including stress and anxiety and to vindicate the plaintiff such that he could point to a verdict in a sufficient sum of money to clear his name or “nail the lie”. Aggravated damages were also available where the circumstances of the publication or the conduct of the defendant had increased the harm to the plaintiff. Exemplary damages were (until abolished) available in serious cases warranting punishment of the defendant.

UNIFORM LAW IN AUSTRALIA

45. Before 1 January 2006 the States and Territories had different laws. Some, such as Victoria, were based substantially on the common law. Others, such as New South Wales, were based substantially on statute supplemented by the common law. In 2005 each of the States and Territories passed Acts in substantially similar terms (“the Act”) whereby the law became uniform throughout Australia with some provincial differences. (For example there are no juries in the ACT). The Act commenced on 1 January 2006.

46. The Act provides that the common law applies except to the extent that it is modified by the Act. The distinction between slander and libel is abolished. The publication of defamatory matter of any kind is actionable without proof of special damage (s.7).

CAUSE OF ACTION

47. Section 8 provides for a single cause of action for defamation in relation to the publication of defamatory matter about a person even if more than one defamatory imputation about the person is carried by the matter. In NSW the imputation is no longer the cause of action (contrary to the position under the 1974 Act). The cause of action is based on the publication of defamatory matter by means of the matter complained of. This basically reflects the common law. The distinction is not really material because practice and procedure has developed in a way which effectively requires cases to be conducted on the basis of imputations.

CORPORATIONS

48. Section 9 provides that corporations other than non-profit organisations or those employing fewer than 10 persons have no cause of action for defamation.

JUDGE AND JURY

49. There is a substantial change to the roles of judge and jury in New South Wales. For most of the years of the 1974 Act the jury determined all issues of liability and also damages. Under s.7A, of the 1974 Act, introduced in the mid-90s, a jury determined at a separate trial whether or not the imputations were conveyed and if so whether they were defamatory. If any imputation was found to have been conveyed and to be defamatory a judge would thereafter determine all issues of liability and damages. Under the Act the jury decides issues of liability (with limited exception(s)) and the judge decides the amount of any damages: see s.22. Either the plaintiff or defendant may elect a jury: see s.21.

TRUTH

50. Section 25 provides a defence to the publication of defamatory matter if the defamatory imputations are substantially true. This accords with the common law. The Act does away with the long standing requirement in NSW for a public interest test in addition to truth. Thus, for example, a scandalous publication about an aspect of the private life of a person which took place a quarter of a century ago with no element of public interest may nonetheless be successfully defended if shown to be substantially true.

DAMAGES

51. The three purposes of an award of damages are:

(a) consolation for personal distress and hurt;

(b) reparation for harm done to personal and (if relevant) business reputation; and

(c) vindication

See Rogers v Nationwide News Pty Ltd (2003) 201 ALR 184; 216 CLR 327 per Hayne J at [60]. See also Carson v Fairfax 178 CLR 44 and Ali v Nationwide News Pty Ltd [2008] NSWCA 183 (8 August 2008).

52. Under the Act there are substantial changes as to damages. The maximum amount of damages for non-economic loss is now capped at a statutory amount which is periodically reviewed. At time of writing the “cap” is $280,500 (s.35). As awards of special damages in defamation cases are extremely rare the statutory cap will apply in nearly every case. There is an exception in that the cap may be exceeded where the court is satisfied that the matter warrants an award of aggravated damages. In practice cases where aggravated damages would result in the cap being exceeded are also likely to be rare.

53. The court is to disregard malice of the defendant when awarding damages save to the extent that such malice affects the harm sustained by the plaintiff: see s.36.

COSTS

54. The Act provides for costs penalties in the event of unreasonable failure to make a settlement offer or to agree to a settlement offer.

TIME

55. There is a one year limitation period running from the date of the publication of the matter complained of with limited extension for up to 3 years if the Court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year.

OPERATION OF ACT

56. The new Act applies to publications made on or after 1 January 2006. At the time of writing there have not been many trials under the new system. A number of issues of both substantive law and procedure have been thrown up. These include:

(a) Whether all evidence including on damages, should be heard by a jury or whether the damages evidence should be quarantined for the judge phase.

(b) Whether in a case of justification the plaintiff will lead a full case in chief, followed by the defendant, or whether the plaintiff will tender the matter complained of followed by the defendant’s case on justification followed by the plaintiff’s case on justification.

(c) The scope of the defence of justification.

(d) Whether the judge or jury decides on the reasonableness of the conduct of the defendant for the defence of qualified privilege.

(e) Whether a plaintiff would decide to join an employee or agent of a media defendant as a defendant.

(f) Whether a defendant would decide to plead common law defences in addition to those under the Act.

(g) The effect of the statutory damages “cap”.

57. As to whether damages evidence should be heard by the jury two cases in the Supreme Court of New South Wales in July 2008 were conducted on different lines. In Corby v Channel 7 the evidence of damages was not admitted before the jury but was reserved for the judge at a later stage. As it turned out the plaintiff was successful on liability and the matter settled before the damages hearing. In Davis v Nationwide News, the well known actor, Judy Davis, sued upon a newspaper publication. The trial judge ruled that all evidence, including damages, should be heard before the jury and assuming findings in favour of the plaintiff the judge when determining damages would take into account the evidence that had already been heard.

58. As to the sequence of evidence of justification the same two cases were conducted differently. In Corby the plaintiff relied substantially on the matter complained of for a case in chief. Thereafter the defendant presented its case on justification and the plaintiff followed with a case in reply. In Davis the plaintiff presented a full case in chief including on the question of justification followed by the defendant.

59. As to the scope of justification the New South Wales Court of Appeal has ruled that to make out the defence of truth, every material part of the imputation must be true: see Cross v Queensland Newspapers Pty Limited (7 May 2008) [2008] NSWCA 80. This was a case under the NSW Defamation Act 1974 but it is likely that this ruling will be applied in cases under the new Act.

60. As to qualified privilege, at common law the judge made the decision as to whether the matter was published on an occasion of qualified privilege taking into account any jury findings on contested questions of fact relating to that issue. Mallik v McGeown [2008] NSWSC 129 noted that whether a matter was published on an occasion of qualified privilege was historically a question for the judge. In Davis v Nationwide News a ruling was made to the effect that the trial judge must determine the reasonableness of the conduct of the defendant for the defence of qualified privilege. The decision was based on the wording of the Act and a long line of authority to the effect that the conduct of the defendant for the purpose of a defence of qualified privilege was a matter for the judge. It may be anticipated that in future judges will make the decision on qualified privilege in light of the findings, if any, of a jury on any contested questions of fact relating to that issue.

61. Section 31 provides for a defence of honest opinion including cases where there is an expression of opinion of an employee or agent of the defendant.

Section 31(4) provides that where a defence of honest opinion is established it is defeated only if the plaintiff proves that the opinion was not honestly held by the defendant or that the defendant did not believe that the opinion was honestly held by an employee or agent.

Various complications and possible interpretations may yet arise in relation to this section. In the case of a purported comment by an employee or agent of a media defendant plaintiffs may have to consider, on a case by case basis, whether to join such a person as a defendant.

62. The array of statutory defences now available to defendants may lead to them considering, on a case by case basis, whether they need to plead additional common law defences.

63. As to damages and the statutory “cap”, previously a plaintiff could recover one sum for the total number of imputations conveyed by each separate publication. In other words, if in the one Statement of Claim a plaintiff sued on two or more publications, each containing a number of imputations, he or she could not recover a separate amount per imputation but could recover a separate amount for each publication. These would be added together to produce the final verdict for the plaintiff.

64. In the Davis case the judge ruled that the statutory “cap” (then $280,500) applied to the whole of the proceedings i.e. the whole case brought by the plaintiff even where a number of publications were included in the one Statement of Claim. It remains to be seen whether, in cases of multiple publications of the same matter or where there are different but related publications, plaintiffs will elect to issue separate Statements of Claim. If a plaintiff did not follow this course and pleaded all publications in the one Statement of Claim, the statutory “cap” would apply to the lot. It also remains to be seen how defendants will react if plaintiffs plead separate Statements of Claim and whether or not separate Statements of Claim would be ordered to be heard together or consolidated into one.

RECENT DEVELOPMENTS

65. Recently the Court of Appeal in NSW has delivered a judgment which appears to somewhat strengthen the defence of common law qualified privilege in non mass media cases. In Fraser v Holmes 253 ALR 538 (5th March 2009), the Court of Appeal reversed the primary judge’s finding of malice. The court then upheld a plea of qualified privilege where a Member of Parliament during an election campaign sent a letter to 629 residents who had identified their occupation as nursing, about an opposing candidate which included inaccurate assertions about the candidate but where the MP’s source was a parliamentary colleague whose honesty and integrity he had no reason to query and where he believed the assertions to be accurate and well founded.

66. In Radio 2UE v Chesterton [2009] HCA 16 (22 April 2009) the High Court reaffirmed the traditional standards by which allegedly defamatory imputations are to be judged and held that the standard applied generally to defamation cases with no separate category for business or professional reputation.

67. It may be expected that some of these issues will settle down with time. This area of law has long been attended by complications including those arising out of the different functions of judge and jury. At some stage the law reform authorities may decide to consider the question of whether the whole of a defamation action should be decided by either a jury or a judge alone.

PRIVACY

68. In the UK a right of privacy has been recognised pursuant to the application of European Human Rights law. In Canada a number of provinces have a statutory cause of action for invasion of privacy. In New Zealand the law recognises the existence of a common law tort of privacy. Although two lower court rulings in Australia have held there is such a tort there is no appellate court recognition and no statutory provision.

69. At time of writing the Australian Law Reform Commission has produced a report recommending a statutory right to sue for serious invasions of privacy where:

(a) the individual had a reasonable expectation of privacy; and

(b) the conduct complained about would be regarded as highly offensive to a reasonable person; and

(c) the public interest in privacy outweighs other matters of public interest – including the interests in informing the public about matters of public concern and in allowing freedom of expression.

70. Those who are against the recommendation have argued that it would have an adverse impact on freedom of speech and investigative journalism. The Chairman of the Commission has stated that the focus of the Commission was more on the private sphere than the mainstream media. The consultation exercise had thrown up stories of people’s distress at invasions of their privacy such as photographic images being captured in toilets or dressing rooms with digital cameras or phones and then posted on internet sites. There was concern that new technologies will make the capture and dissemination of private personal images easier.

71. It remains to be seen whether this recommendation will be accepted by Australian Governments.

VOLUNTARY CONTRIBUTION TO LOSS OF PRIVACY

72. One emerging problem area is that of invasion of privacy by abusive material on the internet.

73. Search engines may collect material for one purpose but can be accessed and used for other purposes.

74. There have been reports of cases of school pupils allegedly involved in so- called cyber bullying.

75. If a student chooses to go on Face Book, My Space, Twitter or use mobile phones for similar purposes or as cameras it becomes possible for gossip sessions to become public events in cyberspace.

76. If people put up information about themselves it is virtually there forever. Likewise false, abusive, vicious or unseemly material sent to their site and to others is virtually there forever.

77. In New South Wales a Parliamentary Inquiry is looking into the effect of bullying, including bullying among schoolchildren and young people, and how it can be prevented.

78. Legislative responses, if any, will need to balance wide ranging social and technological issues.

BACKGROUND

79. The law of defamation seeks to strike a balance between freedom of speech and protection of reputation.

80. The ancient Greeks and Romans had laws regarding defamation. In early English times defamations were severely punished in order to reduce the prospect of persons seeking revenge and taking the law into their own hands.

THE ACTION

81. A plaintiff sues on what is known as “the matter complained of”, which is a publication in oral or written form by one person to another person of and concerning the plaintiff. If the matter complained of conveys to the ordinary reasonable reader or listener a defamatory meaning or imputation about the plaintiff there is a cause of action (subject to any defences).

82. A defamatory imputation is that which tends “to lower the plaintiff in the estimation of right thinking members of society generally” per Lord Atkin in Sim v Stretch (1936) TLR 669 at 671. There are variations of this theme e.g. to make people shun and avoid the plaintiff or expose him to hatred contempt or ridicule. An imputation may be defamatory whether or not it is true, but falsity alone does not render an imputation defamatory.

DAMAGES AT COMMON LAW

83. At common law damages were available for loss of reputation, hurt to feelings including stress and anxiety and to vindicate the plaintiff such that he could point to a verdict in a sufficient sum of money to clear his name or “nail the lie”. Aggravated damages were also available where the circumstances of the publication or the conduct of the defendant had increased the harm to the plaintiff. Exemplary damages were (until abolished) available in serious cases warranting punishment of the defendant.

UNIFORM LAW IN AUSTRALIA

84. Before 1 January 2006 the States and Territories had different laws. Some, such as Victoria, were based substantially on the common law. Others, such as New South Wales, were based substantially on statute supplemented by the common law. In 2005 each of the States and Territories passed Acts in substantially similar terms (“the Act”) whereby the law became uniform throughout Australia with some provincial differences. (For example there are no juries in the ACT). The Act commenced on 1 January 2006.

85. The Act provides that the common law applies except to the extent that it is modified by the Act. The distinction between slander and libel is abolished. The publication of defamatory matter of any kind is actionable without proof of special damage (s.7).

CAUSE OF ACTION

86. Section 8 provides for a single cause of action for defamation in relation to the publication of defamatory matter about a person even if more than one defamatory imputation about the person is carried by the matter. In NSW the imputation is no longer the cause of action (contrary to the position under the 1974 Act). The cause of action is based on the publication of defamatory matter by means of the matter complained of. This basically reflects the common law. The distinction is not really material because practice and procedure has developed in a way which effectively requires cases to be conducted on the basis of imputations.

CORPORATIONS

87. Section 9 provides that corporations other than non-profit organisations or those employing fewer than 10 persons have no cause of action for defamation.

JUDGE AND JURY

88. There is a substantial change to the roles of judge and jury in New South Wales. For most of the years of the 1974 Act the jury determined all issues of liability and also damages. Under s.7A, of the 1974 Act, introduced in the mid-90s, a jury determined at a separate trial whether or not the imputations were conveyed and if so whether they were defamatory. If any imputation was found to have been conveyed and to be defamatory a judge would thereafter determine all issues of liability and damages. Under the Act the jury decides issues of liability (with limited exception(s)) and the judge decides the amount of any damages: see s.22. Either the plaintiff or defendant may elect a jury: see s.21.

TRUTH

89. Section 25 provides a defence to the publication of defamatory matter if the defamatory imputations are substantially true. This accords with the common law.

The Act does away with the long standing requirement in NSW for a public interest test in addition to truth. Thus, for example, a scandalous publication about an aspect of the private life of a person which took place a quarter of a century ago with no element of public interest may nonetheless be successfully defended if shown to be substantially true.

DAMAGES

90. The three purposes of an award of damages are:

a. consolation for personal distress and hurt;

b. reparation for harm done to personal and (if relevant) business reputation; and

c. vindication

See Rogers v Nationwide News Pty Ltd (2003) 201 ALR 184; 216 CLR 327 per Hayne J at [60]. See also Carson v Fairfax 178 CLR 44 and Ali v Nationwide News Pty Ltd [2008] NSWCA 183 (8 August 2008).

91. Under the Act there are substantial changes as to damages. The maximum amount of damages for non-economic loss is now capped at a statutory amount which is periodically reviewed. At time of writing the “cap” is $280,5 00 (s.35). As awards of special damages in defamation cases are extremely rare the statutory cap will apply in nearly every case. There is an exception in that the cap may be exceeded where the court is satisfied that the matter warrants an award of aggravated damages. In practice cases where aggravated damages would result in the cap being exceeded are also likely to be rare.

92. The court is to disregard malice of the defendant when awarding damages save to the extent that such malice affects the harm sustained by the plaintiff: see s.36.

COSTS

93. The Act provides for costs penalties in the event of unreasonable failure to make a settlement offer or to agree to a settlement offer.

TIME

94. There is a one year limitation period running from the date of the publication of the matter complained of with limited extension for up to 3 years if the Court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year.

OPERATION OF ACT

95. The new Act applies to publications made on or after 1 January 2006. At the time of writing there have not been many trials under the new system.

A number of issues of both substantive law and procedure have been thrown up. These include:

(a) Whether all evidence including on damages, should be heard by a jury or whether the damages evidence should be quarantined for the judge phase.

(b) Whether in a case of justification the plaintiff will lead a full case in chief, followed by the defendant, or whether the plaintiff will tender the matter complained of followed by the defendant’s case on justification followed by the plaintiff’s case on justification.

(c) The scope of the defence of justification.

(d) Whether the judge or jury decides on the reasonableness of the conduct of the defendant for the defence of qualified privilege.

(e) Whether a plaintiff would decide to join an employee or agent of a media defendant as a defendant.

(f) Whether a defendant would decide to plead common law defences in addition to those under the Act.

(g) The effect of the statutory damages “cap”.

96. As to whether damages evidence should be heard by the jury two cases in the Supreme Court of New South Wales in July 2008 were conducted on different lines. In Corby v Channel 7 the evidence of damages was not admitted before the jury but was reserved for the judge at a later stage. As it turned out the plaintiff was successful on liability and the matter settled before the damages hearing. In Davis v Nationwide News, the well known actor, Judy Davis, sued upon a newspaper publication. The trial judge ruled that all evidence, including damages, should be heard before the jury and assuming findings in favour of the plaintiff the judge when determining damages would take into account the evidence that had already been heard.

97. As to the sequence of evidence of justification the same two cases were conducted differently. In Corby the plaintiff relied substantially on the matter complained of for a case in chief. Thereafter the defendant presented its case on justification and the plaintiff followed with a case in reply. In Davis the plaintiff presented a full case in chief including on the question of justification followed by the defendant.

98. As to the scope of justification the New South Wales Court of Appeal has ruled that to make out the defence of truth, every material part of the imputation must be true: see Cross v Queensland Newspapers Pty Limited (7 May 2008) [2008] NSWCA 80. This was a case under the NSW Defamation Act 1974 but it is likely that this ruling will be applied in cases under the new Act.

99. As to qualified privilege, at common law the judge made the decision as to whether the matter was published on an occasion of qualified privilege taking into account any jury findings on contested questions of fact relating to that issue. Mallik v McGeown [2008] NSWSC 129 noted that whether a matter was published on an occasion of qualified privilege was historically a question for the judge. In Davis v Nationwide News a ruling was made to the effect that the trial judge must determine the reasonableness of the conduct of the defendant for the defence of qualified privilege.

The decision was based on the wording of the Act and a long line of authority to the effect that the conduct of the defendant for the purpose of a defence of qualified privilege was a matter for the judge. It may be anticipated that in future judges will make the decision on qualified privilege in light of the findings, if any, of a jury on any contested questions of fact relating to that issue.

100. Section 31 provides for a defence of honest opinion including cases where there is an expression of opinion of an employee or agent of the defendant. Section 31(4) provides that where a defence of honest opinion is established it is defeated only if the plaintiff proves that the opinion was not honestly held by the defendant or that the defendant did not believe that the opinion was honestly held by an employee or agent. Various complications and possible interpretations may yet arise in relation to this section. In the case of a purported comment by an employee or agent of a media defendant plaintiffs may have to consider, on a case by case basis, whether to join such a person as a defendant.

101. The array of statutory defences now available to defendants may lead to them considering, on a case by case basis, whether they need to plead additional common law defences.

102. As to damages and the statutory “cap”, previously a plaintiff could recover one sum for the total number of imputations conveyed by each separate publication. In other words, if in the one Statement of Claim a plaintiff sued on two or more publications, each containing a number of imputations, he or she could not recover a separate amount per imputation but could recover a separate amount for each publication. These would be added together to produce the final verdict for the plaintiff.

103. In the Davis case the judge ruled that the statutory “cap” (then $280,500) applied to the whole of the proceedings i.e. the whole case brought by the plaintiff even where a number of publications were included in the one Statement of Claim. It remains to be seen whether, in cases of multiple publications of the same matter or where there are different but related publications, plaintiffs will elect to issue separate Statements of Claim. If a plaintiff did not follow this course and pleaded all publications in the one Statement of Claim, the statutory “cap” would apply to the lot. It also remains to be seen how defendants will react if plaintiffs plead separate Statements of Claim and whether or not separate Statements of Claim would be ordered to be heard together or consolidated into one.

RECENT DEVELOPMENTS

104. Recently the Court of Appeal in NSW has delivered a judgment which appears to somewhat strengthen the defence of common law qualified privilege in non mass media cases. In Fraser v Holmes 253 ALR 538 (5th March 2009), the Court of Appeal reversed the primary judge’s finding of malice. The court then upheld a plea of qualified privilege where a Member of Parliament during an election campaign sent a letter to 629 residents who had identified their occupation as nursing, about an opposing candidate which included inaccurate assertions about the candidate but where the MP’s source was a parliamentary colleague whose honesty and integrity he had no reason to query and where he believed the assertions to be accurate and well founded.

105. In Radio 2UE v Chesterton [2009] HCA 16 (22 April 2009) the High Court reaffirmed the traditional standards by which allegedly defamatory imputations are to be judged and held that the standard applied generally to defamation cases with no separate category for business or professional reputation.

106. It may be expected that some of these issues will settle down with time. This area of law has long been attended by complications including those arising out of the different functions of judge and jury. At some stage the law reform authorities may decide to consider the question of whether the whole of a defamation action should be decided by either a jury or a judge alone.

PRIVACY

107. In the UK a right of privacy has been recognised pursuant to the application of European Human Rights law. In Canada a number of provinces have a statutory cause of action for invasion of privacy. In New Zealand the law recognises the existence of a common law tort of privacy. Although two lower court rulings in Australia have held there is such a tort there is no appellate court recognition and no statutory provision.

108. At time of writing the Australian Law Reform Commission has produced a report recommending a statutory right to sue for serious invasions of privacy where:

(a) the individual had a reasonable expectation of privacy; and

(b) the conduct complained about would be regarded as highly offensive to a reasonable person; and

(c) the public interest in privacy outweighs other matters of public interest – including the interests in informing the public about matters of public concern and in allowing freedom of expression.

109. Those who are against the recommendation have argued that it would have an adverse impact on freedom of speech and investigative journalism. The Chairman of the Commission has stated that the focus of the Commission was more on the private sphere than the mainstream media.

The consultation exercise had thrown up stories of people’s distress at invasions of their privacy such as photographic images being captured in toilets or dressing rooms with digital cameras or phones and then posted on internet sites. There was concern that new technologies will make the capture and dissemination of private personal images easier.

110. It remains to be seen whether this recommendation will be accepted by Australian Governments.

VOLUNTARY CONTRIBUTION TO LOSS OF PRIVACY

111. One emerging problem area is that of invasion of privacy by abusive material on the internet.

112. Search engines may collect material for one purpose but can be accessed and used for other purposes.

113. There have been reports of cases of school pupils allegedly involved in so- called cyber bullying.

114. If a student chooses to go on Face Book, My Space, Twitter or use mobile phones for similar purposes or as cameras it becomes possible for gossip sessions to become public events in cyberspace.

115. If people put up information about themselves it is virtually there forever. Likewise false, abusive, vicious or unseemly material sent to their site and to others is virtually there forever.

116. In New South Wales a Parliamentary Inquiry is looking into the effect of bullying, including bullying among schoolchildren and young people, and how it can be prevented.

117. Legislative responses, if any, will need to balance wide ranging social and technological issues.