26 August 2024
The law of defamation seeks to strike a balance between the protection of reputation and the protection of freedom of speech. To encourage freedom of speech and discourse on matters of public interest, the Stage 1 Review of the Model Defamation Provisions underlying each State and Territory’s defamation legislation recommended a new stand-alone ‘defence of publication of matter concerning issue of public interest’, described below as the ‘public interest defence’. The core of the defence is seen in s 29A(1) of the Defamation Act 2005 (NSW):
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter concerns an issue of public interest, and
(b) the defendant reasonably believed that the publication of the matter was in the public interest.
The defence has three elements. First, that the matter concerns an issue of public interest; secondly, that the publisher believed the publication of the matter was in the public interest; and thirdly, that the publisher’s belief that the publication of the matter in the public interest was reasonable. The third element depends on reasonableness and will be determinative of whether the defence applies in many cases.
The new defence was introduced in most Australian States and Territories in 2021.[1] Western Australia and the Northern Territory have yet to follow suit. However, given the national reach of many news media publications, the defence is of significance to defamation law throughout Australia.
The defence has received limited judicial consideration. It was addressed briefly in Lachlan Murdoch’s case, Murdoch v Private Media Pty Ltd [2022] FCA 1275, [55]–[86], as well as John Barilaro’s case, Barilaro v Google LLC [2022] FCA 650, [382]–[390]. But neither case considered the essential question of whether the defence was made out on the facts.
The first such decision by an Australian superior court was delivered on 16 October 2023: Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 (Russell v ABC). Heston Russell, a former member of the Australian Defence Force, brought an action against the ABC over two articles containing allegations that the platoon led by Mr Russell executed an unarmed prisoner in Afghanistan in 2012. Justice Lee ultimately ordered the ABC to pay $390,000 to Russell for the defamation.
Justice Lee found that the ABC had not established the new public interest defence and delivered reasons that will assist practitioners and media organisations in understanding the operation of the public interest defence in Australia going forward. His Honour’s guidance includes a detailed exposition of the history of and inspiration for the new defence: see [264]–[308].
The UK inspiration for the Australian public interest defence
The statutory meaning of the public interest defence depends in part on its text, context and purpose, which includes the history behind the creation of s 29A. The history matters because it fleshes out how Australian courts should approach ‘reasonableness’ as a determinative aspect of the defence in s 29A(1)(b).
The drafters of the public interest defence drew inspiration from the defence in s 4 of the Defamation Act 2013 (UK), called ‘publication on matter of public interest’. The core of that defence reads in s 4(1):
(1) It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.
Section 4(6) of the UK Act abolished what was known as the Reynolds defence, or ‘Reynolds qualified privilege’, following the House of Lords’ decision in Reynolds v Times Newspapers [2001] 2 AC 127. It did so because s 4 was intended to take the place of the Reynolds defence: see Economou v de Freitas [2018] EWCA Civ 2591, [86].
The Reynolds defence was summarised by Lord Nicholls in Bonnick v Morris [2003] 1 AC 300, [23] as follows:
Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have the benefit of the privilege journalists must exercise due professional skill and care.
Reynolds listed the following factors as significant in determining whether the importance of freedom of expression on matters of public concern justified protection of a statement as privileged (see [205]):
- The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
- The nature of the information, and the extent to which the subject-matter is a matter of public concern.
- The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
- The steps taken to verify the information.
- The status of the information. The allegation may have already been the subject of an investigation which commands respect.
- The urgency of the matter. News is often a perishable commodity.
- Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
- Whether the article contained the gist of the plaintiff’s side of the story.
- The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
- The circumstances of the publication, including the timing.
The Australian inspiration for the UK inspiration for the Australian public interest defence
While s 29A was modelled on s 4 of the UK Act, and s 4 of the UK Act was modelled on Reynolds, Reynolds also drew on Australian defamation law.
Delivering the judgment of the Court of Appeal in Reynolds, Lord Bingham considered (at 176) the Australian constitutional variety of common law qualified which was recognised in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Although the Court did not adopt the Australian defence, it formed part of the inspiration for what became the Reynolds defence: 176, 177.
In separate reasons (at 221), Lord Cooke of Thorndon considered Lange qualified privilege and said: ‘[t]he constitutional structures vary, but the pervading ideals are the same. Freedom of speech on the one hand and personal reputation on the other have the same importance in all democracies’.
The Court in Reynolds attached ‘considerable importance to [Lange’s] adoption of the reasonableness test’: 176. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 574, the High Court had the following to say about ‘reasonableness’:
Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing the imputation, 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. Furthermore, the defendant’s conduct will not be reasonable unless the defendant had sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.
Returning to s 29A, and one can see the echoes of Lange, Reynolds and s 4 of the UK Act in its terms. The s 29A defence articulates the same kinds of factors as relevant to the evaluative exercise required by both Reynolds privilege and the defence in s 4 of the UK Act:
(2) In determining whether the defence is established, a court must take into account all of the circumstances of the case.
(3) Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances—
(a) the seriousness of any defamatory imputation carried by the matter published,
(b) the extent to which the matter published distinguishes between suspicions, allegations and proven facts,
(c) the extent to which the matter published relates to the performance of the public functions or activities of the person,
(d) whether it was in the public interest in the circumstances for the matter to be published expeditiously,
(e) the sources of the information in the matter published, including the integrity of the sources,
(f) if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard),
(g) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person,
(h) any other steps taken to verify the information in the matter published,
(i) the importance of freedom of expression in the discussion of issues of public interest.
(4) Subsection (3) does not—
(a) require each factor referred to in the subsection to be taken into account, or
(b) limit the matters that the court may take into account.
With all of this legislative history in front of mind, in Russell v ABC, Justice Lee clarified how courts should approach the new s 29A defence
Russell v ABC
Justice Lee considered each of the three elements of the s 29A defence mentioned above
On the definition of public interest itself, Justice Lee states that the concept is not new and the categories of matters falling within the public interest are ‘not closed … [and] different minds will differ as to what is, or what is not, in the public interest’ before engaging with the tests required by the statute: [317].
Justice Lee found that the first element, that the matter concerns an issue of public interest, is objectively determined and sets out the framework by reference to UK authorities to include consideration of whether the publication relates to ‘matters relating to the public life of the community and those who take part in it’ or ‘the governance of public bodies, institutions and companies which give rise to a public interest in disclosure’, but ‘excluding matters which are personal and private, such that there is no public interest in their disclosure’: [319].
In respect of the second element, that the defendant reasonably believes the publication was in the public interest, Justice Lee found that this involves an enquiry as to the publisher’s state of mind and ‘what is essentially a value judgment as to whether the public would benefit from the subject being discussed publicly’. The Court puts the onus on the publisher to prove this element by adducing evidence that the publisher turned their actual or attributed mind to the issue and held the relevant belief: [320]–[322]. Where the publisher is a corporation, such as the ABC, the state of mind will be determined by the corporation’s agents responsible for the publication of the matter: see John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227, [12].
What Justice Lee called ‘the heart of the enquiry’, however, is whether the respondent’s belief that the matter was in the public interest was reasonable in all the circumstances: [324].
To assist in defining ‘reasonable’ in this context, Justice Lee addressed the following points:
- first, the publisher’s conduct may evidence subjective belief and the Court is tasked with tracing a publisher’s reasoning as it happened and to conduct an objective assessment from that position: [337];
- secondly, an important aspect is honest and reasonable belief in the truth of what is published: [339]; and
- thirdly, the public interest defence will offer no protection to the knowing publication of misinformation: [340].
Crucially, Justice Lee also found that publishers are tasked with proving that the publication of the entire matter (being an article, report or programme) was in the public interest rather than just the publication of the defamatory imputations themselves: [316]. This will assist publishers in establishing the defence as it will be much easier to establish the public interest in the publication of an entire article and the broad range of imputations conveyed in an article, rather than just the defamatory imputations within that article.
Application of the defence to the ABC’s reporting
On the first issue, Mr Russell did not challenge that the publication of the matter was objectively in the public interest which Justice Lee identifies as an inevitable concession due to the objective public interest around Australia’s military involvement in Afghanistan and the significant investigations into the criminal offences committed during Australia’s military campaign: [343]. Justice Lee also highlights the importance of the role of the media in bringing significant allegations to light and encouraging witnesses to come forward: [344].
Justice Lee also considered that although the public interest is engaged at a broader level than the granular detail of the particular incident the subject of the reporting, this should not be mistaken to mean there is some sliding scale which means the greater the public interest in the matter, the greater the margin for error in the publication allowed: [345]–[346].
On the second issue, the Court ultimately found that the ABC subjectively believed that the publication of the impugned matters was in the public interest. It did so by considering the states of mind of the journalists responsible for the publications.
Most of Justice Lee’s application of the public interest defence concerned the third issue: whether the ABC’s belief that the publication of the matter in the public interest was reasonable. His Honour held that it was not, considering the non-exhaustive factors in s 29A(3).
Justice Lee was persuaded by the following features of the case:
- first, the journalists drew conclusions as to the existence of an investigation into the relevant military platoon that could not be reasonably or safely made from the materials available to the journalists. The Court found that the reasonable conclusion that should have been drawn was that the conduct of the Department of Defence had pointed to the possibility of an investigation rather than Department of Defence had confirmed the existence of an investigation as stated in the articles: [366], [402];
- secondly, the relevant journalist did not ‘take a wide range of steps to be careful to distinguish between what was known and what was not known … , interrogate and explain to readers the integrity of his sources … , accurately convey (or attempt to ascertain) Mr Russell’s side of the story … and justify the concealment of [the protected person’s] identity’, including by only making ‘limp requests’ to interview other persons on these issues: [370]–[372]; and
- thirdly, Mr Russell was not made aware of the precise allegations to be made in the articles before publication and the journalists’ excuses for not engaging properly with Mr Russell were found not to be sufficient. The fact that Mr Russell had already publicly denied the allegations on large platforms did not exculpate the journalist from the responsibility to fairly procure and convey Mr Russell’s response: [391]–[398].
Justice Lee also emphasised that although it is not the case ‘that journalists can only publish matters of which they are sure’, it was a problem that one of the journalists had expressed with certainty matters which were not certain and in doing so conveyed serious imputations in respect of Mr Russell and failed to distinguish between suspicion, allegation and fact: [399], [402].
The future of the public interest defence
The future of the public interest defence in s 29A will depend on how courts evaluate ‘reasonableness’ when considering whether a publisher’s stated belief that publication of matter was in the public interest was reasonable.
In this respect, its future may follow the path of the Lange and Reynolds decisions before it. Lange in particular demonstrates that what courts consider to be ‘reasonable’ may be far removed from what many publishers, and even experienced investigative journalists, consider to be ‘reasonable’.
The subject of the ‘reasonable belief’ required by s 29A(2) is that ‘the publication of the matter was in the public interest’. The Russell case shows that the publication may be about a very important topic, but the belief will still not be ‘reasonable’ unless the publisher conducts themselves in a way that courts consider to be reasonable.
While the matter was determined by judge alone in this case, s 29A(5) provides that the availability of the public interest defence will be determined by a jury in defamation cases of trial by jury. Plaintiff lawyers who want to avoid jury views on reasonableness may be persuaded to continue litigating in the Federal Court, as Mr Russell did, in order to exploit the Federal Court’s disposition to jury trials that some State Supreme Courts lack. Section 29A may further entrench the phenomenon of ‘Federal Court forum shopping’.
Whatever the forum for future cases on s 29A, those cases will often involve news media organisations and raise questions of journalistic standards and good practice. The s 29A defence recognises that errors will inevitably happen in the course of journalists’ work. As Justice Lee stated, ‘even Homer nods, let alone journalists within ABC Investigations’: [512]. While the defence will provide some greater protection for publishers than that afforded by the pre-existing law, it will still require publishers to take great care in their work when publishing very serious imputations.
[1] Civil Wrongs Act 2002 (ACT) s 139AA; Defamation Act 2005 (NSW) s 29A; Defamation Act 2005 (Qld) s 29A; Defamation Act 2005 (SA) s 27A; Defamation Act 2005 (Tas) s 29A; Defamation Act 2005 (Vic) s 29A.
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