Media law : cases, material and commentary [2 ed.] 0195598482, 9780195598483

Media Law: Cases Materials and Commentary is an engaging and accessible introduction to the dynamic area of media law. I

1,178 101 11MB

English Pages 832 [710] Year 2015

Report DMCA / Copyright

DOWNLOAD FILE

Polecaj historie

Media law : cases, material and commentary [2 ed.]
 0195598482, 9780195598483

Table of contents :
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31

Citation preview

DAVID ROLPH MATT VITINS JUDITH BANNISTER DANIEL JOYCE

MEDIA LAW

CASES, MATERIALS AND COMMENTARY

SECOND EDITION

DAVID ROLPH MATT VITINS JUDITH BANNISTER DANIEL JOYCE

MEDIA LAW

CASES, MATERIALS AND COMMENTARY

Copyright © 2015. Oxford University Press. All rights reserved.

SECOND EDITION

1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries. Published in Australia by Oxford University Press 253 Normanby Road, South Melbourne, Victoria 3205, Australia © David Rolph, Matt Vitins, Judith Bannister, Daniel Joyce 2015 The moral rights of the authors have been asserted. First published 2010 Second edition published 2015 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. National Library of Australia Cataloguing-in-Publication data

Copyright © 2015. Oxford University Press. All rights reserved.

Creator: Rolph, David, author. Title: Media law: cases, materials and commentary / David Rolph, Matt Vitins, Judith Bannister, Daniel Joyce. ISBN: 9780195598483 (paperback) Notes: Includes index. Subjects: Mass media—Law and legislation—Australia. Mass media—Law and legislation—Australia—Cases. Other Creators/Contributors: Vitins, Matt, author. Bannister, Judith, author. Joyce, Daniel, author. Dewey Number: 343.94099 Reproduction and communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 15, 233 Castlereagh Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 Email: [email protected] Edited by Jude Hunter Cover image by Getty Images/Ross M. Horowitz Cover design by Jennai Lee Fai Text design by Polar Design Typeset by diacriTech, Chennai, India Proofread by Natasha Broadstock and Greg Alford Indexed by Glenda Browne and Jon Jermey Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

v

Contents PREFACE ACKNOWLEDGMENTS TABLE OF CASES TABLE OF STATUTES

PART 1: INTRODUCTION

1

Chapter 1: The Social and Political Role of the Media

3

1.1 1.2 1.3

Social and political Sectors in Australian media The contents of this book

Chapter 2: Freedom of Expression 2.1 Freedom of expression 2.2 Rationales for freedom of expression 2.3 Express protections of freedom of expression 2.4 The implied freedom of political communication in the Australian Constitution 2.5 Media freedom and freedom of expression

Copyright © 2015. Oxford University Press. All rights reserved.

ix x xi xxx

3 5 12

15 15 17 23 26 37

PART 2: MEDIA REGULATION

41

Chapter 3: Print Media and Journalists

43

3.1 3.2 3.3 3.4 3.5

The Leveson Inquiry The Finkelstein Inquiry The Convergence Review The Australian Press Council Media Entertainment and Arts Alliance—Code of Ethics

Chapter 4: Broadcasting Services 4.1 Rationales and regulatory principles 4.2 Broadcasting services 4.3 The co-regulatory scheme 4.4 Commercial television broadcasting services 4.5 Commercial radio 4.6 Subscription television 4.7 Community broadcasting services 4.8 Class licensed services 4.9 International broadcasting services 4.10 Enforcement

44 47 53 54 57

60 61 64 69 71 77 84 87 89 89 90

vi

Contents

4.11 4.12

National broadcasting services Digital broadcasting

94 95

Chapter 5: Online Content

104

5.1 5.2 5.3

105 106 116

A brief history of online content regulation Online content scheme Safe harbours

Chapter 6: Media Ownership

119

6.1 Pluralism and diversity 120 The evolution of Australian media ownership laws 124 6.2 6.3 Ownership and control under the Broadcasting Services Act 125 132 6.4 Competition 6.5 Deregulation and re-regulation 142 6.6 Foreign investment 146

PART 3: DEFAMATION AND THE PROTECTION OF REPUTATION

149

Chapter 7: Liability for Defamation

151

7.1 Preliminary matters 7.2 Defamatory capacity and meaning 7.3 Identification 7.4 Publication

Copyright © 2015. Oxford University Press. All rights reserved.

Chapter 8: Defences to Defamation 8.1 Justification 8.2 The Polly Peck defence 8.3 Contextual truth 8.4 Absolute privilege Qualified privilege 8.5 8.6 Fair comment and honest opinion 8.7 Innocent dissemination 8.8 Triviality

Chapter 9: Remedies for Defamation 9.1 Damages 9.2 Injunctions 9.3 Offers of amends 9.4 Alternative remedies for defamation

Chapter 10: Injurious Falsehood, Negligence and Misleading or Deceptive Conduct 10.1 Injurious falsehood 10.2 Negligence 10.3 Misleading or deceptive conduct

151 172 202 214

221 221 225 230 236 238 253 257 263

268 269 279 284 286

289 289 298 312

Contents

PART 4: OPEN JUSTICE AND CONTEMPT

321

Chapter 11: The Principle of Open Justice

323

11.1

The principle of open justice

Chapter 12: Contempt of Court

358

12.1 12.2 12.3 12.4 12.5 12.6

359 368 371 397 410 424

What is a court? Sub judice contempt Types of conduct amounting to sub judice contempt Scandalising the court Other forms of contempt of court Penalties for contempt of court

PART 5: PRIVACY

427

Chapter 13: Privacy

429

13.1 The concept of privacy 13.2 Privacy as a human right 13.3 No common law right to privacy? 13.4 Privacy in comparative perspective 13.5 Indirect protection of privacy 13.6 Trespass to land 13.7 Private nuisance 13.8 Defamation

Chapter 14: Breach of Confidence

Copyright © 2015. Oxford University Press. All rights reserved.

323

14.1 The elements of the cause of action 14.2 The development of breach of confidence as a means of privacy ­protection in the ­United Kingdom 14.3 Case studies from Australian law

Chapter 15: Information Privacy 15.1 The Privacy Act 15.2 Interception 15.3 Surveillance

430 434 435 452 476 476 481 487

489 489 503 530

533 534 547 552

PART 6: OFFENSIVE PUBLICATIONS

565

Chapter 16: Offensive Publications

567

16.1 Classification and censorship 16.2 Obscenity 16.3 Blasphemy 16.4 Sedition 16.5 Racial, religious and homosexual vilification

568 578 580 583 589

vii

viii

Contents

PART 7: FREEDOM OF INFORMATION

613

Chapter 17: Freedom of Information

615

17.1 A history of secrecy 17.2 Rationales and objects 17.3 Official secrecy and information management 17.4 Proactive disclosure—disclosure logs 17.5 Right to access documents under FOI 17.6 Exemptions 17.7 Culture change—Information commissioners 17.8 Review of FOI decisions 17.9 Does FOI work for the media?

616 617 619 623 623 627 643 645 649

Copyright © 2015. Oxford University Press. All rights reserved.

INDEX 652

ix

Copyright © 2015. Oxford University Press. All rights reserved.

PREFACE The pervasiveness of ‘the media’ is a feature of contemporary life. The way in which we are informed about the world in which we live and the way in which we are entertained are largely mediated. Although, during the twentieth century, news and entertainment were provided predominantly by institutional media outlets, such as newspapers, radio and television, the twenty-first century has witnessed the emergence of technologies, platforms and formats that allow individuals to become not only consumers, but also creators, of media content—think of social media and the networks of public and semi-public communications that exist online. This has led to an exponential increase in the volume of media content being generated, which, in turn, has multiplied the opportunities for legal issues to arise. This means media law is no longer only of interest to the legal advisers of media corporations. This book seeks to provide an accessible introduction to media law. In one sense, ‘media law’, as a discipline, is difficult to define. As this book will demonstrate, ‘media law’ covers a range of legal principles and statutory provisions, which apply equally to non-media individuals and entities, but which have a particular application to ‘the media’. The focus of this book will clearly be upon the impact of these areas of law on the media’s daily operations. This book examines the basic principles of the main substantive areas of law that routinely arise for media outlets—for example, defamation, contempt of court, invasion of privacy, breach of confidence and freedom of information. It will also analyse the various regulatory frameworks within which media outlets operate. It will discuss the very different levels of content regulation that are applied to print media, broadcasting services and online content, and the sector-specific rules that affect the ownership and control of commercial television, commercial radio and metropolitan daily newspapers. It will explore several unifying themes within media law, notably the concepts of freedom of expression and freedom of the press and how these liberties are balanced against competing interests, such as the protection of reputation and the maintenance of the administration of justice. This book also seeks to challenge the commonplace characterisation of ‘the media’ as a monolithic, undifferentiated entity. Instead, it encourages the reader to consider whether it is more useful or more correct to think in terms of particular media outlets, particular media formats or particular media practices. Given the constraints of space, it has not been possible to cover all areas of law that may have an impact upon the operations of media outlets. In particular, a decision has been made not to attempt to cover copyright in this book. The reason for this is the authors’ view that this area of law is well served by a range of specialist intellectual property texts and the complexity of copyright law does not allow an adequate treatment within the limits of this book. The focus in this book is on the primary materials—the cases and the statutory provisions—with which a reader encountering media law for the first time should engage. It aims to introduce the reader to the important concepts of media law through relevant excerpts from cases and legislation and by placing these excerpts in context—both legal and media. The law in this book is current to 1 January 2015.

x

Copyright © 2015. Oxford University Press. All rights reserved.

ACKNOWLEDGMENTS David Rolph would like to thank Jackson Wherrett and Joanna Connolly for their excellent research assistance. Matt Vitins would like to thank, first among equals, Andrew Ailwood and Ian McGill, both terrific mentors and friends. Matt would also like to thank Lesley Hitchens and Jock Given for early and continuing inspiration, and Anna Lord, in general. Daniel would like to thank his co-authors, Lestey Hitchens, Kathy Bowrey, Catherine Bond and Katie Dyer. The authors and the publisher wish to thank the following copyright holders for reproduction of their material. Administrative Appeals Tribunal for decision extract; American Law Institute for extract from Restatement, Second, Torts copyright © 1979 by The American Law Institute. Reproduced with Permission. All rights reserved; Australian Law Reform Commission for extracts from For your Information: Privacy Law and Practice Report 2008, Serious Invasions of Privacy in the Digital Era discussion paper, Review of Secrecy Laws discussion paper 74 2009; Australian Press Council for extract from Statement of General Principles. www.presscouncil.org.au; Bloomsbury Publishing Plc for extract from Policy Rationales and Implications for Regulation in Broadcasting Pluralism and Diversity by Lesley Hitchens, Hart Publishing, 2006; Columbia University Press for extract from Hollywood’s Censor: Joseph I Breen and the Production Code Administration by Thomson Doherty; Commonwealth of Australia for extracts from Broadcasting Services Act 1992, Crimes Act 1914, Freedom of Information Act 1982, Evidence Act 1995, Privacy Act, Racial Discrimination Act 1975. This legislative material is reproduced by permission, but is not the official or authorised version. It is subject to Commonwealth of Australia copyright; Department of Communications, Commonwealth of Australia for extract from Convergence Review: Final Report, Report for the Independent Inquiry into the Media and Media Regulation; Federal Court of Australia for court extracts; Fredrick Schauer for extract from Free Speech in a World of Private Power, in Tom Campbell and Wojciech Sadurski (eds), Freedom of Communication (1994); Incorporated Council of Law Reporting (ICLR) for case extracts from Law Report Appeals Cases (AC), Law Report Queens Bench Division (QB); LexisNexis Australia for extracts from Australian Law Report (ALR), Intellectual Property Law Report (IPR), New Zealand Law Reports (NZLR), Victorian Law Report (VR); LexisNexis UK for extracts from All England Reports (All ER); Media Entertainment and Arts (MEAA) for extract from Code of Ethics; State of Victoria for extract from Racial and Religious Tolerance Act. COPYRIGHT © State of Victoria, Australia Copyright in all legislation of the Parliament of the State of Victoria, Australia, is owned by the Crown in right of the State of Victoria, Australia. This product or service contains an unofficial version of the legislation of the Parliament of State of Victoria. The State of Victoria accepts no responsibility for the accuracy and completeness of any legislation in this product provided through this service; Supreme Court Library Queensland for case extract from Queensland Court of Appeal (QCA); The State of Western Australia for case extracts; Thomson Reuters (Professional) UK LIMITED for extract from Entertainment and Media Law Reports UK (EMLR), European Human Rights Reports (EHRR); Thomson Reuters Professional Australia for extracts from Commonwealth Law Reports (CLR), Federal Court Reports (FCR), New South Wales Law Reports (NSWLR), www. thomsonreuters.com.au; United Nations for permission to include extract from United Nations Human Rights Committee, General Comment No 34, Article 19: Freedoms of opinion and expression, 2011; UNSW Law Journal for extract from The Government’s Regulatory Framework for Internet Content, 2000 by Richard Alston and The Limits of Constitutional Text and Structure Revisited (2005) by Adrienne Stone; Wolters Kluwer Asia Pacific for extract from Australian Torts Report. Every effort has been made to trace the original source of copyright material contained in this book. The publisher will be pleased to hear from copyright holders to rectify any errors or omissions.

xi

TABLE OF CASES Note: Cases in bold are extracted cases

Copyright © 2015. Oxford University Press. All rights reserved.

10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299  454 A v B plc [2003] QB 195  459, 500, 501, 503, 504, 507, 513, 514, 521 A v Hayden (1984) 156 CLR 532  528 ABC see Australian Broadcasting Corporation Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) [2008] WASCA 254  608, 609 Aboriginal Nations Pty Ltd v John Fairfax Publications Pty Ltd [1998] ACTSC 125 165 Abrams v United States 250 US 616 (1919) 19 Adam v Ward [1917] AC 309  241, 244, 252 Adultshop.com Ltd v Classification Review Board [2007] FCA 1871; [2008] FCAFC 79 575 Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1  313, 315 Advanced Medical Institute Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 793 268 Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206  229 Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] HCATrans 205  36, 418 Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928  277 Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2011] QB 497  292 Alexander v North Eastern Railway Co (1865) 6 B&S 340; 122 ER 1221  223 Alexander v The Queen (1980–1981) 145 CLR 395 384 Allen v John Fairfax & Sons Ltd (unreported, SC(NSW), 2 December 1988)  232 Alma v Nakir [1966] 2 NSWR 396  481 Alterskye v Scott [1948] 1 All ER 469  353, 355 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [2002] NSWCA 419  174, 179, 181–2, 199 Amalgamated TV v Foxtel (1996) 136 ALR 319 85

Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322  405 American Broadcasting Companies v Aereo 573 US ___ (2014)  67 Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20  218 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225  166, 275, 276 Annabel v Seven Network (Operations) Ltd [2005] ACTSC 54  268 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322  36 Argyll v Argyll [1967] 1 Ch 302  489, 490, 491, 492, 498, 499 Ashburton v Pape [1913] 2 Ch 469  498 Ashby v Commonwealth (No 2) (2012) 203 FCR 440  421 Ashby v White (1703) 2 Ld Raym 98; 92 ER 126 457 Associated Press v Walker 388 US 162 (1967) 24 Astaire v Campling [1966] 1 WLR 34  210 Attorney-General (NSW) v Bailey (1917) 17 SR (NSW) 170  359, 370, 401, 424 Attorney-General (NSW) v Dean (1990) 20 NSWLR 650  392 Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362; (1985) 6 NSWLR 695  387, 393, 394, 395 Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 362, 379–80, 381, 382 Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887  360, 390, 397, 400–2 Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (Court of Appeal, 15 September 1994, unreported) 382, 382–5, 391, 409 Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 372, 373–5, 377 Attorney-General (NZ) v Tonks [1939] NZLR 533 370 Attorney-General (Qld) v Lovitt [2003] QSC 279 397 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86  529

Copyright © 2015. Oxford University Press. All rights reserved.

xii

Table of Cases

Attorney-General v Associated Newspapers Ltd [2012] EWHC 2029 (Admin)  370 Attorney-General v British Broadcasting Corporation [1981] AC 303  378 Attorney-General v Dallas [2012] EWHC 156 415 Attorney-General v English [1983] 1 AC 116 387 Attorney-General v Fraill [2011] EWCA Crim 1570 416 Attorney-General v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545; [1990] 1 AC 109  26, 441, 492, 497, 498, 501, 502–3, 506, 527, 528, 529 Attorney-General v Hislop [1991] 1 QB 514  386, 387, 388 Attorney-General v Jonathan Cape Ltd [1976] QB 752  497 Attorney-General v Leveller Magazine Ltd [1979] AC 440  387, 411 Attorney-General v New Statesman and Nation Publishing Co Ltd [1981] QB 1 414–15 Attorney-General v News Group Newspapers Ltd [1987] QB 1  387 Attorney-General v Newspaper Publishing Plc [1988] Ch 333  413 Attorney-General v Punch Ltd [2003] 1 AC 1046 411 Attorney-General v PYA Quarries Ltd [1957] 2 QB 169  481, 486 Attorney-General v Times Newspapers Ltd [1974] AC 273; [1992] 1 AC 191 358, 363, 368, 370, 373, 374, 378, 386, 388, 389, 390, 391, 411–13 Attwood v The Queen (1960) 102 CLR 353  373, 374 Aubry v Éditions Vice-Versa Inc [1998] 1 SCR 591  516, 519 Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1  141 Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669  297 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98  387 Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510  166

Australian Broadcasting Corporation v Hanson [1998] QCA 306  268, 279 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 35, 439–48, 448, 449, 450, 451, 459, 507, 512, 517, 521 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 279, 280–4, 284, 287, 298 Australian Broadcasting Corporation v Parish (1980) 29 ALR 228  323, 332 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321  71 Australian Capital Television v Commonwealth (1992) 177 CLR 106  16, 27, 28–30, 30, 31, 32, 36, 409 Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 Fcr  91–4 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2013] HCA 7  559 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7  70 Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305  317 Australian Competition and Consumer Commission v Seven Network Limited (2007) 244 ALR 343  314 Australian Consolidated Press Ltd v Ettingshausen (unreported, CA(NSW), 13 October 1993)  435, 439, 444 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483  422–4 Australian Football League v The Age Company Ltd (2006) 15 VR 419 503, 527, 528, 529, 530 Australian Liquor, Hospitality and Miscellaneous Workers’ Union (Miscellaneous Workers’ Division) WA Branch v Mulligan (1996) 15 WAR 385 163 Australian Ocean Line Pty Ltd Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549 316 Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641  386

Copyright © 2015. Oxford University Press. All rights reserved.

Table of Cases

Bahonko v Sterjov [2007] FCA 1244  268 Balfour v Attorney-General [1991] 1 NZLR 519  299, 300 Ballina Shire Council v Ringland (1994) 33 NSWLR 680; [1999] NSWSC 11 159, 160–1, 161, 165, 291, 292 Banks v King Features Syndicate Inc 30 F Supp 352 (1939)  452 Barber v Time Inc (1942) 159 SW 2d 291 438 Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9  165, 181 Barnes & Co Ltd v Sharpe (1910) 11 CLR 462 166 Barrett v Associated Newspapers (1907) 23 TLR 666  297 Barrymore v News Group Newspapers Ltd [1997] FSR 600  493, 499 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 152, 238–9, 241 Bateman v Fairfax Media Publications Pty Ltd [2014] NSWSC 1380  230 Bathurst City Council v Saban (1985) 2 NSWLR 704  495 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618  281 Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521  298 Beesley v Australian Federal Police (2001) 111 FCR1 624 Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148  299, 300 Bell v Stewart (1920) 28 CLR 419  358, 359, 369, 378, 379, 381, 403 Bendle v United Kingdom Alliance (1915) 31 TLR 403  196 Berg v Minneapolis Star & Tribune Co 79 F Supp 957 (1948)  452 Bernstein v Skyviews & General Ltd [1978] QB 479  437, 478, 495 Bestobell Paints Ltd v Bigg [1975] FSR 421 279 Betfair Ltd v Nason [2006] ACTSC 11  229 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n  183 Bishop v New South Wales [2000] NSWSC 1042 173

Bjelke-Petersen v Warburton [1987] 2 Qd R 465 212 Bognor Regis Urban District Council v Campion [1972] 2 QB 169  159, 163 Bond v Barry (2008) 173 FCR 106  317 Bonnard v Perryman [1891] 2 Ch 269 279, 280, 281, 282 Botterill v Whytehead (1879) 41 LTNS  196 Bottomley v FW Woolworth & Co Ltd (1932) 48 TLR 521  258 Boucher v The King [1951] SCR 265  583 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449  188, 192, 194 Braddock v Bevins [1948] 1 KB 580  199 Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 456 Brandenburg v Ohio 395 US 444 (1969)  23 Bray v Ford [1896] AC 44  269 Bremridge v Latimer (1864) 12 WR 878  227 Brent Walker Group Plc v Time Out Ltd [1991] 2 QB 33; [1991] 2 WLR 772  254 Bricker v Campbell (1891) 21 Ontario R 204 162 Bride v KMG Hungerfords (1991) 109 FLR 256  290, 291, 292, 298 Briginshaw v Briginshaw (1938) 60 CLR 336 364 British Steel Corporation v Granada Television [1981] AC 1096  444 Broome v Cassell & Co Ltd [1972] AC 1027  268, 269, 270, 271, 277, 278 Bropho v Human Rights and Equal Opportunity Commission (2002) 72 ALD 321; (2004) 135 FCR 105; [2005] HCA Trans 9  589, 596–8, 598, 600, 606, 608, 609 Brown v Classification Review Board (1997) 145 ALR 464; (1997) 154 ALR 67  35, 36, 575, 576–7 Brown v Louisiana 383 US 131 (1966)  17 Brown v Palmer [2008] VSC 335  554 Browne v Associated Newspapers Ltd [2008] QB 103  501 Bryant v Queensland Newspapers Pty Ltd [1997] HREOCA 23  589 Bunt v Tilley & Ors [2007] 1 WLR 1243  215 Burns v Laws [2008] NSWADTAP 32 589, 608–10

xiii

xiv

Table of Cases

Copyright © 2015. Oxford University Press. All rights reserved.

Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267  589 Burns v Sunol [2012] NSWADT 246; [2014] NSWCATAD 2  610 Burrows v The King [1937] HCA 56  373 Burton v Crowell Pub Co, 82 F2d 154 (2d Cir. 1936) 195 Byrne v Deane [1937] 1 KB 818  180, 198, 214 Byrnes v Barry (2003) 151 ACTR 1  155 Byron v Johnson (1816) 2 Mer 29  438 C v Holland [2012] 3 NZLR 672  457, 466–70 Caccavo Daft [2006] TASSC 36  229 Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529  299 Calvet v Tomkies [1963] 1 WLR 1397  164 Campbell v MGN Ltd [2003] QB 633; [2004] 2 AC 457  454, 455, 469, 492, 501, 503, 504–22, 523 Cantwell v Sinclair [2011] NSWSC 1244  172, 275 Canwest Global Communications Corporation v Australian Broadcasting Authority (1997) 147 ALR 539  127, 147 Canwest Global Communications Corporation v The Treasurer (1997) 147 ALR 509  148 Caparo Industries Plc v Dickman [1990] 2 AC 605 308 Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741  174, 175, 180, 183, 188 Carr v Hood (1808) 1 Camp 355n; (1808) 170 ER 983  253 Carrier v Bonham [2002] 1 Qd R 474  477, 487 Carson v Here’s Johnny Portable Toilets Inc (1983) 698 F 2d 831  438 Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44 269, 272, 275 Cassidy v Daily Mirror Newspapers [1929] 2 KB 331  210 Castells v Spain (1992) 14 EHRR 445  38 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207  590, 592, 598, 600, 603–4, 605, 605–6, 608, 609 Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225  218 Central Queensland Cement Pty Ltd v Hardy

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519  173, 179, 189, 226–8, 228, 235 Chalmers v Payne [1835] 2 Cr M&R 156; [1835] EngR 38; (1835) 2 CrM & R 156; (1835) 150 ER 67  182, 183 Chan v Sellwood [2009] NSWSC 1335  450 Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 144  268 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245  254–5, 255–6 Channel Seven Perth Pty Ltd v ‘S’ (A Company) [2005] WASC 175; [2007] WASCA 122  557–9, 560–1 Chaplain v Shepherd (1315) 101 SS 46  153 Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181  173 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80–691  263, 264, 265, 266 Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153  279, 281, 283, 451 Charleston v News Group Newspapers Ltd [1995] 2 AC 65 176, 177–9 Chasemore v Richards 11 ER 140  485 Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Reports 80–101  480 Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344  279 Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25  435, 444 Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540  361–2, 363, 379, 380–2, 388–92 Clark v Ainsworth (1996) 40 NSWLR 463  276 Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389  598 Clay v Roberts (1863) 8 LT 397  198 Clover Bond Pty Ltd v Carroll [2004] WASC 216 157 Coco v AN Clark (Engineers) Ltd [1969] RPC 41  490–1, 492, 502, 506 Coco v R (1994) 179 CLR 427  477, 479 Coleman v Power (2004) 220 CLR 1  35, 36 Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554  386, 391 Commonwealth of Australia v Construction, Forestry, Mining and Energy Union (2000)

Copyright © 2015. Oxford University Press. All rights reserved.

Table of Cases

Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39  447, 497, 530, 621 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594  314 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 175, 202–3, 203, 204 Contostavlos v Mendahun [2012] EWHC 850 496 Cook v Batchellor (1802) 3 Bos & Pul 150; 127 ER 83  162 Cook v Ward (1830) 6 Bing 409; 130 ER 1338 195 Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380  117 Corby v Channel Seven Sydney Pty Ltd (unreported, SC(NSW), 20 February 2008) 232 Cornes v Ten Group Pty Ltd (2011) 114 SASR 1  275 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434  529 Corunna v West Australian Newspapers Ltd (2001) EOC ¶93–146  596 Coryton v Lithebye (1670) 2 Wms Saund 115 162 Cowell v Rosehill Racecourse Co (1937) 56 CLR 605  477 Cox Broadcasting Corporation v Cohn 420 US 469; 95 S Ct 1029 (1975)  453 Coyne v Citizen Finance Ltd (1991) 172 CLR 211  270, 275 Craftsman Homes Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 319, 480–1, 556 Craig v Harney 331 U.S. 367  378 Creation Records Ltd v News Group Newspapers Ltd (1997) 39 IPR 1  496 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 593 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 388 Cripps v Vakras [2014] VSC 279  169, 275 Crisp v Fairfax Media Ltd [2012] VSC 615 268 Cromwells Auctions and Appraisers Pty Ltd v John Fairfax Publications Pty Ltd [2002] NSWSC 948  268 Cross v Denley (1952) 52 SR(NSW)

Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80  223 Crowe and Department of the Treasury [2013] AICmr 69 637–40 Crowe v Graham (1968) 121 CLR 275  569, 578 Cruise v Southdown Press Pty Ltd (1993) 26 IPR 125  435, 439 CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB)  527 Cullen v White [2003] WASC 153  278 Cunliffe and Another v Commonwealth (1994) 182 CLR 272  32 Curtis Publishing Co v Butts 388 US 130 (1967) 24 Cutler v McPhail [1962] 2 QB 292  217 D & L Caterers Ltd v D’Ajou [1945] 1 KB 364 162 Dale v Veda Advantage Information Services and Solutions Ltd (2009) 176 FCR 456 301 Dalia v United States 441 US 238 (1979)  479 Dauncey v Holloway [1901] 2 KB 441  196 David Syme & Co Ltd v General-MotorsHolden’s Ltd [1984] 2 NSWLR 294  331, 529 David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 221, 228–9, 235 David Syme & Co v Canavan (1918) 25 CLR 234 212 Davis v Baillie 1 Ves 84  373, 376 Davis v Shepstone (1886) 11 App Cas 187 269 Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 1 NSWLR 16 164 De Libellis Famosis (1605) 5 Co Rep 125; (1605) 77 ER 250  153 Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2003] APP LR 06/05 338 Department of Justice v Osland (No 2) (2009) 25 VR 490  648 Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534  159, 160, 161, 163, 165, 167, 168, 455 Dering v Uris [1964] 2 QB 669  268

xv

Copyright © 2015. Oxford University Press. All rights reserved.

xvi

Table of Cases

Dietemann v Time Inc 449 F 2d 245 (1971) 452 Dietrich v The Queen (1992) 177 CLR 292 410 Director of Public Prosecutions v Wran (1986) 7 NSWLR 616 371, 372, 386 Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613  350 Dobson v Hastings [1992] Ch 394  350 Doe v Australian Broadcasting Corporation [2007] VCC 281  301, 449, 450 Doe v Yahoo! Pty Ltd [2013] QDC 181  450 Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570  443 Donoghue v Stevenson [1932] AC 562  308, 457, 484 Douglas v Hello! Ltd [2001] QB 967 510, 511, 522 Douglas v Hello! Ltd [2003] 3 All ER 996  522 Douglas v Hello! Ltd (No. 3) [2006] QB 125  454, 470, 496, 504, 522–4 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56  25, 151, 152, 214, 216–17, 218, 341 DPP v Francis (2006) 95 SASR 302  397 Drummond-Jackson v British Medical Association [1970] 1 All ER 1094  195–6 Duke of Brunswick v Harmer (1849) 14 QBD 185; (1849) 117 ER 75  215, 216 Duke of York v Oates (1684) 10 State Trials 125 154 Duke of York v Pilkington (1682) 90 ER 34 154 Duncan v Allen & Unwin [2004] NSWSC 1069 268 Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367 195 Dye v Commonwealth Securities Ltd [2010] FCA 720  450 E Hulton & Co v Jones [1910] AC 20  203, 207, 209, 224 Earl Spencer v United Kingdom (1998) 25 EHRR CD105  455 Eastwood v Holmes (1858) 1 F & F 347; (1858) 175 ER 758  212, 213 Eatock v Bolt (2011) 197 FCR 261 598–601 Echo Publications Pty Ltd v Tucker [2007] NSWCA 73  240 eDate Advertising and Others

Edelsten v Australian Broadcasting Corporation (1984) Aust Torts Reports 80–672 298 Edsall v Russell (1842) 4 Man & G 1090  196 Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1977] 1 QB 585  162 Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169  480 Emmens v Pottle (1885) 16 QBD 354  257, 258, 259, 260 Empire Typesetting Machine Co of New York v Linotype Co Ltd (1898) 79 LT 8  196 Encel v Department of Broadband Communications and The Digital Economy (2008) 47 AAR 215  625 English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440  176 Entick v Carrington (1765) 19 State Tr 1030; 95 ER 807  457, 495 Equiticorp Finance Ltd (In Liq) v Bank of New Zealand (1993) 32 NSWLR 50 388 Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) [1995] HCA 19  338, 354 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443  194–5 Evans v Finn (1904) 4 SR(NSW) 297  486 Evans v Harlow (1844) 5 QB 624  196 Ex parte Attorney-General; Re Truth & Sportsman Ltd [1961] SR (NSW) 484; (1961) 78 WN (NSW) 212  390 Ex parte Auld; Re Consolidated Press Ltd (1936) 36 SR (NSW) 596; 53 WN (NSW) 206  376, 382, 387 Ex parte Australian Iron & Steel Ltd (1959) SR (NSW) 119; 76 WN (NSW) 52  387 Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR(NSW) 242; 54 WN (NSW) 98; [1961] SR (NSW) 484  368–9, 373, 374, 386, 393 Ex parte Jones (1806) 18 Ves Jun 237; (1806) 26 ER 283  363, 370 Ex parte McCay; Re Consolidated Press Ltd (1936) 36 SR(NSW) 592  363, 379, 385 Ex parte Myerson; Re Packer and Smith’s Weekly Publishing Co (1922) 39 WN(NSW) 260  369

Table of Cases

Copyright © 2015. Oxford University Press. All rights reserved.

Ex parte Qantas Airways Ltd; Re Horsington (1969) 14 FLR 414  186 Ex parte The Queensland Law Society Incorporated [1984] 1 Qd R 166  328 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim 83 NSWLR 52  339–44, 344 Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 230, 233–4, 234 Falconer v Australian Broadcasting Corporation [1992] 1 VR 662  495 Falkenberg v Nationwide News Pty Ltd (unreported, SC(NSW), No 20832/94 172–3 Farquhar v Bottom [1980] 2 NSWLR 380 174, 175–6 Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417  157 Fielding v Variety Inc [1967] 2 QB 841  269, 270, 271 Fisse v Department of Treasury (2008) 48 AAR 131 629, 630–1, 634 Fisse v Secretary, Department of the Treasury (2008) 172 FCR 513  631–4, 634 Fleming v Newton (1846) 8 D 677; (1848) 6 Bell App 175  283 Fleming v Securities Commission [1995] 2 NZLR 514  299, 300, 311 Florida Star v BJF 491 US 524; 109 S Ct 2603 (1989) 453 Foaminol Laboratories v British Artid Plastics [1941] 2 All ER 393  298 Forsdike v Stone (1868) LR 3 CP 607  270 Forster v Lawson (1826) 3 Bing 452; 130 ER 587 162 Fowler v Lanning [1959] 1 QB 426  477 Foxtel Cable Television v Nine Network Australia and Australian Broadcasting Authority (1997) 73 FCR  86 Fraser v Evans [1969] 1 QB 349  279, 492, 528, 529 Fry v Bray (1959) 1 FLR 366  387 G v Day [1982] 1 NSWLR 24  495 Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210  301 Galea v Amalgamated Television Services Pty Ltd (unreported, SC(NSW), Levine J,

Gallagher v Durack (1983) 152 CLR 238 397, 402–5 Gardiner v John Fairfax & Sons Pty Ltd (1942) SR (NSW) 171  175, 188, 190 Gardner v Wallace (1995) 184 CLR 95  218 Gartside v Outram (1856) 26 LJ Ch 113  527, 528 Gates v Discovery Communications Inc 34 Cal 4th 679; 101 P 3d 552 (2004)  453 Gee v Burger [2009] NSWSC 149  450 Gertz v Robert Welch, Inc 418 US 323 (1974) 24 Gibbons v Duffell (1932) 47 CLR 520  237 Gill v Curtis Publishing Co 38 Cal 2d 273 (1952) 452 Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236  450, 496, 504, 529, 556 Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563  387 Gleaner Co Ltd v Abrahams [2004] 1 AC 628  271, 275 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82  314, 315, 315–6, 316 Godfrey v Demon Internet Service [2001] QB 201 215 Goldsborough v John Fairfax & Sons Ltd (1934) 34 SRNSW 524  254, 255 Goldsmith v Sperrings Ltd [1977] 1 WLR 478; [1977] 2 All ER 566  214, 258 Goodwin v The United Kingdom (1996) 22 EHRR 123  38 Google Spain v AEPD European Court of Justice, Case C-131/12 (13 May 2014) 543–7 Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6; (1973) 22 FLR 181  154, 218 Gray v Motor Accidents Commission (1998) 196 CLR 1  268, 271, 275, 276, 277, 278 Green v Bartram (1830) 4 C & P 308; (1830) 172 ER 717  477 Greene v Associated Newspapers Ltd [2005] QB 972  279 Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632  275 Griffiths v Benn (1911) 27 TLR 346  165, 196 Grobbelaar v News Group Newspapers Ltd [2002] 4 All ER 732; [2002] 1 WLR 3024 268

xvii

xviii

Table of Cases

Copyright © 2015. Oxford University Press. All rights reserved.

Grosse v Purvis (2003) Aust Torts Reports 81–706  448, 449, 450 GS v News Ltd (1998) Aust Torts Reports 81–466  300, 301, 435, 439 Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182  275 Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615  593 Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84  195, 290, 291, 297 Halliday v Nevill (1984) 155 CLR 1  479 Hambly v Trott (1776) 1 Cowp 371; (1776) 98 ER 1136  158 Hamersley Iron Pty Ltd v Lovell [2000] WASCA 208  354 Hammerton v Earl Dysart [1916] 1 AC 57 485 Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290  421 Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 240, 241–2, 245 Harbour Radio v ACMA (2012) 202 FCR 525 84 Harkianakis v Skalkos (1997) 42 NSWLR 22  363, 385, 386–8, 392, 393 Harman v Delany (1731) 2 Stra 898  196 Harman v Secretary of State for the Home Department [1983] 1 AC 280  350, 353, 354 Harms v Miami Daily News Inc 127 S 2d 716 (1961) 452 Harrigan v Jones (2001) Aust Torts Reports 81–621 263 Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298  529 Harrison v Bevington (1838) 8 C & P 708 162 Harrison v Galuszko (unreported, SC(WA), No 1490/91, Adams AM, 8 November 1991) 199 Harrison v Mirror Newspapers Ltd [1981] 1 NSWLR 620  181 Hart v Wrenn (1995) 5 NTLR 17  229 Hartley v Venn (1967) 10 FLR 151  218 Haynes v De Beck (1914) 31 TLR 115  258 Haythorn v Lawson (1827) 3 C & P 195  162 Healy v Askin [1974] 1 NSWLR 436  212 Hearn v O’Rourke (2003) 129 FCR 64  315, 319

Heartcheck Australia Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 555  268 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465  299, 307, 308 Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804  440, 496, 512, 528 Hemmes v Seven Network Ltd [2000] NSWSC 246  268 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 196, 197–8, 199, 232 Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254  277 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1  225, 229, 278 Hewitt v Pacific Magazines Pty Ltd [2009] SASC 323  418 Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440  162, 166 Higgins v Richards (1912) 28 TLR 202  369 Hill v Church of Scientology of Toronto (1995) 126 DLR (4th) 129  153 Hilton v Wells (1985) 157 CLR 57  551 Hinch v Attorney-General (Vic) (1987) 164 CLR 15  368, 372, 375–7, 386, 387, 394–5 Hitchcock v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports 81–500  492, 494 Hogan v Australian Crime Commission [2010] HCA 21; [2010] 240 CLR 651  329, 337, 338, 342 Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4  33, 36, 324, 327–9, 339, 342 Hogan v Koala Dundee Pty Ltd (1988) 20 FCR 314  454 Holley v Smyth [1998] QB 726  279 Holmes v Fraser [2008] NSWSC 570  172 Holmes v Mather (1875) LR 10 Exch 261 477 Home Office v Harman [1983] 1 AC 280 367 Honey v Australian Airlines Ltd (1990) 18 IPR 185 454 Hopkinson v Lord Burghley (1867) 2 LR 49 447 350 Horner v Goulburn City Council (unreported, SC(NSW), No 21287 of 1997)  199, 200, 201 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Pty Ltd (1978) 140 CLR 216  313, 314, 316 Horrocks v Lowe [1975] AC 135  250–2, 307

Table of Cases

Copyright © 2015. Oxford University Press. All rights reserved.

Hosking v Runting [2003] 3 NZLR 385; [2004] NZCA 34; [2005] 1 NZLR 1  456, 457–66, 469, 506, 516, 525–6 Hough v London Express Newspaper Ltd [1940] 2 KB 507  210 House v R [1936] HCA 40  338 Howden v ‘Truth’ and ‘Sportsman’ Ltd (1937) 58 CLR 416  223, 228 HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57  470, 490, 492, 501, 503, 504, 524 Hubbard v Vosper [1972] 2 QB 84  279, 492 Hunt Australia Pty Ltd v Davidson’s Arnhemland Safaris (2000) 179 ALR 738 165 Hunt v Clarke (1889) 61 LT 343  380 Hunter v Canary Wharf Ltd [1997] AC 655  449, 455, 481 Hutchence v South Sea Bubble Co Pty Ltd (1986) 64 ALR 330  454 Iberian Trust Ltd v Founders Trust and Investment Co [1931] 2 KB 87  422 In Re... see Re ... Industrial Registrar (NSW) v Uniting Church in Australia Property Trust (NSW) (2003) 131 IR 368  360 ING (Australia) Ltd v Muscat [2003] NSWSC 1133 268 Ingram v Lawson (1840) 6 Bing NC 212  196 Initial Services Ltd v Putterill [1968] 1 QB 396 528 Islamic Council of Victoria Inc v Catch the Fire Ministries Inc [2004] VCAT 2510  603 J Lyons & Sons v Wilkins [1899] 1 Ch 255  437, 483, 485 Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36  231–2 Jago v District Court of New South Wales (1989) 168 CLR 23  410 Jakudo Pty Ltd v South Australian Telecasters Ltd (1998) 69 SASR 440  279, 281 Jameel v Wall Street Journal Europe SprL [2007] 1 AC 359 166, 166–9 James v Faddoul [2007] NSWSC 821  298 James v Robinson (1963) 109 CLR 593 369, 370–1, 371, 373 Jennison v Baker [1972] 2 QB 52  367 Jockey Club v Buffham [2003] QB 462 

John Fairfax & Sons Pty Ltd v Foord (1988) 12 NSWLR (167) 706  181 John Fairfax & Sons Pty Ltd v Kelly (1987) 8 NSWLR 131  270 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351  360, 373, 376, 386, 390, 391 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465  328, 332, 333, 342 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 346 John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344  328, 337 John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 409, 409–10, 550–1 John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28  189, 190 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484  230 John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35  589 John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81–879  253 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77  174, 199, 201 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 349–50 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227  229, 252 John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108 229 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503  218, 219 John v Associated Newspapers Ltd [2006] EMLR 27  504 John v MGN Ltd [1997] QB 588  268, 270, 271, 275 Johns v Australian Securities Commission (1993) 178 CLR 408  492, 527 Johnson Tiles Pty Ltd v Esso Australia Ltd (No 3) (2000) 98 FCR 311  624 Jones v E Hulton & Co R. (1909) 2 KB 444 203 Jones v John Fairfax Publications Pty Ltd

xix

xx

Table of Cases

Copyright © 2015. Oxford University Press. All rights reserved.

Jones v Scully (2002) 120 FCR 243  590, 593, 594 Jones v Skelton (1963) 63 SR (NSW) 644; 80 WN 1061; [1964] NSWR 485  174, 175, 179, 232 Jones v Sutton (2004) 61 NSWLR 614  263–6, 267 Jones v Toben [2002] FCA 1150; [2009] FCAFC 104  589, 594, 595 Jones v Trad [2011] NSWADTAP 19; (2013) 86 NSWLR 241  589 Jones v Tsige (2012) ONCA 32  469 Joseph v Spiller [2011] 1 AC 852  253 Joyce v Sengupta [1993] 1 WLR 337  290, 291, 292, 297, 298 Kalaba v Commonwealth of Australia [2004] FCAFC 326  450 Kaplan v Go Daddy Group [2005] NSWSC 636  291, 297, 298 Kaye v Robertson [1991] FSR 62 435, 437–8, 525 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77  603 Kelly v Graham [2007] QSC 172  268 Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586  200 Kelly v Special Broadcasting Service [1990] VR 69  226 Kennett v Farmer [1988] VR 991 226, 240, 243–4 Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir R 577 43  175 Kerney v Optimus Holdings Pty Ltd [1976] VR 399  173 Kerr v Kennedy [1942] 1 KB 409  199 Kessing v R (2008) 73 NSWLR 22  620 Khashoggi v IPC Magazines Plc [1986] 3 All ER 577  230, 279 Khorasandjian v Bush [1993] QB 727  449, 455 Kiam v MGN Ltd [2003] QB 181  275 Kimber v Press Association Ltd [1893] 1 QB 65 245 King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305  264, 265, 266 King v Lake (1670) Hardres 470  157 Knupffer v London Express Newspapers Ltd [1944] AC 116 202, 212–13

Kolsky v Mayne Nickless Ltd [1970] 3 NSWR 511 218 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536  159, 193 Lamb v Cotogno (1987) 164 CLR 1  277, 278 Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245  386 Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408  175, 181, 186 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 21, 31–3, 34, 35, 36, 151, 247–9, 250, 409 Le Fanu v Malcomson (1848) 1 HLC 637; 9 ER 910  162 Lee v Wilson (1934) 51 CLR 276  205–6, 207 Letang v Cooper [1965] 1 QB 232  477 Levy v Victoria (1997) 189 CLR 579  17, 34, 35 Lewis v Daily Telegraph Ltd [1964] AC 234  163, 166, 167, 175, 176, 180, 181, 183, 186, 209, 210 Lewis v Levy EB&E 537  396 Ley v Hamilton (1935) 153 LT 384  157, 270 Li v Herald & Weekly Times Pty Ltd (2007) Aust Torts Reports 81–887  229 Lincoln Hunt (Australia) Pty Ltd v Willesee (1986) 4 NSWLR 457  442, 443, 444, 480, 495 Linotype Co Ltd v British Empire Typesetting Machine Co Ltd (1899) 81 LT 331  196 Lion Laboratories Ltd v Evans [1985] QB 526 528 Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 WN (Pt 1) 223; [1969] 1 NSWR 771  181 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 478 Lloyd v David Syme & Co [1986] 1 AC 350 212 Lord Ashburton v Pape [1913] 2 Ch 469  530 Lord Beauchamp v Sir Richard Croft (1497) 72 ER 182  154 Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103  504 Loukas v Young [1968] 3 NSWR 549  199 Loveday v Sun Newspapers Ltd (1938) 59 CLR 503  240–1, 241 Lovell v Lewandowski [1987] WAR 81 

Table of Cases

Copyright © 2015. Oxford University Press. All rights reserved.

Lubrano v Gollin and Co Pty Ltd (1919) 27 CLR 113  181 Lucas-Box v News Group Newspapers Plc [1986] 1 All ER 177; [1986] 1 WLR 147 225 Lyle-Samuel v Odhams Ltd [1920] 1 K.B. 135  418, 419 Maass v Gas Light and Coke Co LR (1911) 2 K. B. 543  419 MacDonald v The King [1947] SCR 90  374 MacIntosh v Lobel (1993) 30 NSWLR 441 477 Mafart v Television New Zealand Ltd [2006] 3 NZLR 534  456 Makin v Attorney-General (NSW) [1894] AC 57 373 Mallon v WH Smith & Son (1893) 9 TLR 627 258 Malone v Metropolitan Police Commissioner [1979] Ch 344  454, 492 Manchester Corporation v Williams [1891] 1 QB 94  159, 160 Manitoba Press v Nagy (1907) 39 SCR 340 297 Mann v O’Neill (1997) 191 CLR 204  236–7 Manock v Advertiser News-Weekend Publishing Co Ltd (2004) 88 SASR 495 235 Marsden v Amalgamated Television Services Pty Ltd (unreported, CA(NSW), Priestley, Handley and Cole JJA, 2 May 1996)  279 Martin v Benson [1927] 1 KB 771  268 Martin v Trustees of the British Museum (1894) 10 TLR 338  258 Martin v Trustrum [2003] TASSC 22  278 Maxwell v Director of Public Prosecutions [1935] AC 309  372, 373, 374, 376 Maynes v Casey [2011] NSWCA 156  450 McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86  271 McGlade v Lightfoot (2002) 124 FCR 106 590, 591, 592–5 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 37, 418–20 McHale v Watson (1964) 111 CLR 384  477 McKennitt v Ash [2008] QB 73  433, 454, 470, 501, 503, 504 McKinnon v Secretary, Department of Families, Housing, Community Services

and Indigenous Affairs (2008) 47 AAR 393 641–3 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423  641, 646 McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513; 92 WN 611  217 McLeod v St Aubyn [1899] AC 549  261, 359, 364, 397, 399, 401, 406 McMahon v John Fairfax Publications Pty Ltd [2013] NSWSC 933  276–7 McMullen v TCN Channel Nine Pty Ltd (2001) Aust Torts Reports 81–584  263 McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309  422 McPherson v McPherson [1936] AC 177 327, 329–31 McPhersons Ltd v Hickie (1995) Aust Torts Reports 81–348  257, 258, 260 McSweeney v Berryman [1980] 2 NZLR 168 279 McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394  312, 313, 314 Meissner v The Queen (1995) 184 CLR 132 388 Meldrum v Australian Broadcasting Company Ltd [1932] VLR 423  156, 157 Melvin v Reid (1931) 112 Cal App 285  452 Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247  298 Meriton Apartments Pty Ltd v SBS Corporation [2002] NSWSC 915  268 Metropolitan International Schools Ltd v Designtechnica Corp [2011] 1 WLR 1743 215 Metropolitan Saloon Omnibus Company (Ltd) v Hawkins (1859) 4 H & N 87; (1859) 157 ER 769  162, 163, 166 Miami Herald Pub Co v Tornillo 418 US 241 (1974) 16 Mickelberg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187  156, 157 Middendorp Electric Co Pty Ltd v Sonnenveld [2001] VSC 312  157, 268 Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323  163, 175 Miller v David (1874) LR 9 CP 118  180 Miller v Miller (1978) 141 CLR 269  551

xxi

Copyright © 2015. Oxford University Press. All rights reserved.

xxii

Table of Cases

Miller v TCN Channel Nine (1988) 36 A Crim R 92  556 Minister for Mineral Resources v Newcastle Newspapers Pty Ltd (1997) 40 IPR 403  497, 498 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273  25 Ministry of Housing and Local Government v Sharp [1970] 2 QB 223  308 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643  275, 276 Mirror Newspapers Ltd v Harrison (1982) 56 ALJR 808; 149 CLR 293; 42 ALR 487  181, 185–6, 186, 187, 197 Mirror Newspapers Ltd v World Hosts Pty Ltd (1978) 141 CLR 632  162, 164, 175, 181, 189 Monis v The Queen (2013) 249 CLR 92  36, 567 Monson v Tussauds Ltd [1894] 1 QB 671  172 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414  502 Moran v Schwartz Publishing Pty Ltd [2014] WASC 334  268 Morgan v Lingen (1863) 8 LT 800  195 Morgan v Odhams Press Ltd [1971] 1 WLR 1239  175, 203, 208–11 Moriarty v Brooks (1834) 6 C & P 684; (1834) 172 ER 1419  477 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418n  182–4 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749  232, 235, 252, 263, 264, 265, 266 Morris v Beardmore [1981] AC 446  477 Mosley v News Group Newspapers Ltd [2008] EMLR 20; [2008] EWHC 1777 (QB)  497, 501, 504 Mosley v United Kingdom (2011) 53 EHRR 30; [2012] EMLR 1  497 M’Pherson v Daniels (1829) 10 B & C 263; (1829) 109 ER 448  214 Munro v Southern Dairies Ltd [1955] VR 332 481 Murphy v Australian Consolidated Press Ltd [1968] 3 NSWR 200  176 Murray v Express Newspapers Plc [2008] 1 WLR 2846; [2008] 3 WLR 1360 470, 504, 525, 525 Myroft v Sleight (1921) 90 LJKB 883  180, 198

Nalpantidis v Stark (1995) 65 SASR 454  218 National Mutual Life Association of Australasia Pty Ltd v GTV Corporation Pty Ltd [1989] VR 747  226, 279, 281 National Union of General and Municipal Workers v Gillian [1946] KB 81  167–8 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314  229 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 27, 27, 35, 409 Nationwide News v Commonwealth (1992) 177 CLR 1  27, 30 Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 20  176, 183 New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300  160, 162, 165 New South Wales v Ibbett (2006) 231 ALR 485 275 New York Times Co v Sullivan 376 US 254 (1964)  21, 23, 24, 24, 158 New York Times Co v United States 403 US 714 37–8 New Zealand Mortgage Guarantee Co Ltd v Wellington Newspapers Ltd [1989] 1 NZLR 4  279 Newington v Windeyer (1985) 3 NSWLR 555 477 Newnham v Davis (No 2) [2010] VSC 94 234 Newstead v London Express Newspaper Ltd [1940] 1 KB 377  203, 205, 206, 207, 209 Newton-John v Scholl Plough (Australia) Pty Ltd (1986) 11 FCR 233  454 Nicholls v Director of Public Prosecutions (SA) (1993) 61 SASR 31  418 Nixon v Slater & Gordon (2000) 175 ALR 15 320 Norton v Hoare [No 1] (1913) 17 CLR 310 241 Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133  444 Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022  200 OBG Ltd v Allan [2008] 1 AC 1  504, 522 Office of the Premier v Herald and Weekly Times Pty Ltd (2013) 38 VR 684  624 O’Flaherty v City of Sydney Council (2013) 210 FCR 484  17 Ogle v Strickland (1987) 13 FCR 306  582

Table of Cases

Copyright © 2015. Oxford University Press. All rights reserved.

Onslow’s and Whalley’s Case (1873) LR 9 QB 219  371, 372 OPO v MLA [2014] EWCA Civ 1277  454, 487 Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) (2002) 120 FCR 191  289, 290, 292, 294–6 Orr v Isles [1965] NSWR 677  253 O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166  255 Osland v Secretary, Department of Justice (2005) 23 VAR 378; (2008) 234 CLR 275 616–17, 646, 647, 648 Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320  647–9 Osland v The Queen (1998) 197 CLR 316  647 O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210  649 Owen v Menzies [2013] 2 Qd R 327  590 P v D [2000] 2 NZLR 591  456, 458, 460, 461 Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553 454 Packer v Australian Broadcasting Corporation (1993) 116 FLR 306  276 Packer v Mirror Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 308  173 Packer v Peacock (1912) 13 CLR 577 373, 388, 395–6 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 289, 290–1, 291, 292, 292–4, 297 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 56 ALJR 715; (1982) 149 CLR 191  313, 314, 316 Parker v John Fairfax & Sons Ltd [1980] 2 NSWLR 225  175 Parmiter v Coupland (1840) 6 M and W 105  188, 195 Pavesich v New England Life Ins Co 50 SE 68 (1905) 452 Peatling and Department of Employment and Workplace Relations (2007) 44 AAR 494 625–6 Peck v Tribune Co., 214 US 185 (1909)  198 Peck v United Kingdom (2003) 36 EHRR 41; (2003) 36 EHRR 719  454, 455, 512, 516 Pedley v Cambridge Newspapers Ltd (1964) 1 WLR 988  180

Pell, Archbishop of Melbourne v Council of Trustees of National Gallery of Victoria [1998] 2 VR 391  578–80, 581–2 Pennekamp v Florida 328 U.S. 331 (1946) 378 Perkins v New South Wales Aboriginal Land Council (Badgery-Parker J, 15 August 1997, unreported)  264 Perre v Apand Pty Ltd (1999) 198 CLR 180 299 Petritsis v Helenic Herald Pty Ltd [1978] 2 NSWLR 174  195 Petrov v Do [2012] NSWSC 1382  172 PG and JH v United Kingdom (2001) Reports of Judgments and Decisions 2001–ix, p 195 516 Phillips v Eyre (1870) LR 6 QB 1  218, 219 Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Ltd (2013) 209 FCR 331  64–7 Plato Films Ltd v Speidel [1961] AC 1090  152, 232 Plenty v Dillon (1991) 171 CLR 635  477, 479, 486 Plymouth Mutual Co-operative and Industrial Society Ltd v Traders’ Publishing Association Ltd [1906] 1 KB 403 419 Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 221, 225–6, 227, 229, 235, 236 Polyukhovich v The Commonwealth (1991) 172 CLR 501  410 Potts v Moran (1976) 16 SASR 284  190, 223 Pozniak v Smith (1982) 151CLR 38  218 Praed v Graham (1889) 24 QBD 53  269, 270 Prince Albert v Strange (1849) 1 H & Tw 1; (1849) 1 Mac & G 25; (1849) 2 De G & Sm 652; (1849) 47 ER 1302  489, 490, 498, 509 Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175  253 R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289  350 R (on the application of Gaunt) v Office of Communications [2011] 1 WLR 2355  599, 600 R v Almon (1765) Wilm 243; (1765) 97 ER 94  359, 368

xxiii

Copyright © 2015. Oxford University Press. All rights reserved.

xxiv

Table of Cases

R v Broadcasting Standards Commission; Ex parte BBC [2000] 3 All ER 989; [2001] QB 885  432, 512 R v Castro; Skipworth’s Case (1873) LR 9 QB 230  358, 359, 368, 371, 372, 408 R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429  588 R v Clarke; Ex parte Crippen (1910) 103 LT 636 370 R v Clerk of Petty Sessions, Court of Petty Sessions Hobart; Ex parte Davies Brothers Ltd (1998) 8 Tas R 283  350 R v Close (1948) VLR 445  569 R v Curran [1983] 2 VR 133  551 R v Daily Mirror; Ex parte Smith [1927] 1 KB 845  358, 382 R v David Syme & Co Ltd [1982] VR 173  392, 393 R v Davies; Ex Parte Delbert-Evans [1945] K.B. 435  370, 378 R v Duffy; Ex parte Nash [1960] 2 All ER 891 386 R v Dunbabin; Ex parte Williams (1935) 53 CLR 434  397–400, 401, 402, 403 R v Editor of the New Statesman; Ex parte DPP (1921) 44 TLR 301  401 R v Ellis; Ex parte Baird (1889) 28 NBR 497 399 R v Firth (1938) 26 Cr App R 148  373 R v Fletcher; Ex parte Kisch (1935) 52 CLR 248  401, 403 R v General Television Corporation Pty Ltd [2009] VSC 84  332 R v Governor of Lewes Prison [1917] 2 KB 254  329, 331 R v Gray [1900] 2 QB 36  359, 363, 399, 401, 406 R v Hanson [2003] QCA 488  407–8 R v Henningham (1869) Mac (NZ) 712  399 R v Herald & Weekly Times Pty Ltd [2006] VSC 94; [2009] VSC 85; (2007) 19 VR 248  332, 370, 394 R v Hicklin (1868) LR 3 QB 360  569 R v Hinch [2013] VSC 520  332, 394 R v Hinch (No 2) [2013] VSC 554  332 R v Hoser [2001] VSC 443  408 R v Kessing [2007] NSWDC 138  620–2 R v Khan [1997] AC 558  454

R v Knape [1965] VR 469  373 R v Kwok (2005) 64 NSWLR 335  332 R v Lefroy (1873) LR 8 QB 134  359 R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1998] 3 WLR 925  339 R v Lemon see Whitehouse v Lemon R v Macnamara (1995) 1 VR 263  553 R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 359 R v Metropolitan Police Commissioner; Ex parte Blackburn (No. 2) [1968] 2 QB 150 401 R v Migliorini [1981] Tas R 80  551 R v Nicholls (1911) 12 CLR 280  400, 402, 406–7 R v Oliver (1984) 57 ALR 543  551 R v Padman (1979) 25 ALR 36  548 R v Paine (1696) 5 Mod R 163; (1696) 87 ER 584 214 R v Parke [1903] 2 KB 432  363, 369, 370 R v Ratcliff [2007] SASC 297  155 R v Richards; Ex parte Brown & Fitzpatrick (1955) 92 CLR 157  410 R v Rowton (1865) Le & CA 520  374 R v Shipley (1784) 4 Dougl. 73; 99 ER. 774  283, 284 R v Socialist Worker Printers and Publishers Ltd [1975] QB 637  347–8 R v Stanley [1965] 2 QB 327  580 R v The Evening News; Ex parte Hobbs [1925] 2 KB 158  394 R v Tibbits [1902] 1 KB 77  368 R v Wood (2008) 186 A Crim R 454  415 Ra v Nationwide News Pty Ltd (2009) 182 FCR 148  171 Raciti v Hughes (1995) 7 BPR 14  495 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460  189–91, 196 Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448  181 Radio Corporation Pty Ltd v Henderson [1960] NSWR 279  454 Rahman v Ashpole [2007] FCA 883  534 Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296  173 Rantzen v Mirror Group Newspapers Ltd [1994] QB 670  275

Copyright © 2015. Oxford University Press. All rights reserved.

Table of Cases

Ratcliffe v Evans [1892] 2 QB 524  156, 157, 164, 290, 291, 292, 293, 295, 297 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47  323, 332 Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 2641  630 Re Anderson and Department of Special Minister of State (1986) 4 AAR 436  633 Re Application for an Authorization (1984) 14 DLR (4th) 546; [1984] 2 SCR 697  479 Re Application of News Corp Ltd (1987) 15 FCR 222  127 Re Consolidated Press Ltd (1936) 36 SR (NSW) 592  376 Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority and 4 Seas Pty Ltd [2004] AATA 704; (2004) 82 ALD 163  112 Re F [1977] Fam 58  331, 332 Re Howard and the Treasurer (1985) 7 ALD 626  639, 640 Re Hudson and Department of the Premier, Economic and Trade Development (1993) 1 QAR 123  630 Re Johnson (1887) 20 QBD 68  358, 359 Re Lonrho plc [1990] 2 AC 154  390 Re Martin, The Times, 23 April 1986  388 Re McKinnon and Secretary, Department of the Treasury (2004) 86 ALD 138  639 Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169  133 Re Read and Huggonson (1742) 2 Atk 469; 26 ER 683  406 Re South Australian Telecasters Ltd (1998) 23 Fam LR 692  424 Re St. James’s Evening Post; Roach v Garvan (1742) 2 Atk. 461; 26 ER 683  358, 363, 364, 370, 387 Re Sublime IP Pty Ltd and Australian Communications and Media Authority [2010] AATA 353  110–23 Re Surveillance Devices Act; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246 560 Re William Thomas Shipping Co Ltd [1930] 2 Ch 368  387 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500  174, 179, 180, 187, 189, 190 Red Lion Broadcasting Co Inc v FCC 395 US

Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387  423 Reg v Martin (1848) 5 Cox CC 356  415 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491  219 Regina v... see R v... Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650  386 Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35  152 Reynolds v Godlee (1858) 4 K & J 88; (1858) 49 ER 37  350 Reynolds v Times Newspapers [1999] 4 All ER 609; [2001] 2 AC 127  37, 38, 506 Richardson v Hastings (1844) 7 Beav 354; (1844) 49 ER 1102  350 Riddick v Thames Board Mills [1977] QB 881  350, 351, 353, 355 Riding v Smith (1876) 1 Ex D 91  297 Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729  276 Rinehart v Welker [2011] NSWCA 403  336–9, 341, 342, 344 Rivkin v Amalgamated Television Services Pty Ltd [2002] NSWSC 496  200, 201 Roach v Garvan see Re St. James’s Evening Post Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42  117 Roadshow Films Pty Ltd v iiNet Ltd (No 3) (2010) 263 ALR 215  356 Roberts v Bass (2002) 212 CLR 1  250 Robertson v John Fairfax Publications Pty Ltd (2003) 58 NSWLR 246  160 Robinson v Laws [2003] 1 Qd R 81  229 Robinson v Quinlivan [2006] WASC 38  157 Rochfort v John Fairfax & & Sons Ltd [1972] 1 NSWLR 16  181, 186 Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch)  496 Rofe v Smith’s Newspapers Ltd (1924) 25 SR(NSW) 4  221 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 252, 273–4, 275 Rogers v Rajendro Dutt (1860) 13 Moo PC 209 485 Rogers v Whitaker (1992) 175 CLR 479  273 Ron West Motors Ltd v Broadcasting Corporation of New Zealand (No 2) [1989] 3 NZLR 520  279

xxv

xxvi

Table of Cases

Copyright © 2015. Oxford University Press. All rights reserved.

Rook v Fairrie [1941] 1 KB 507  269, 271 Rookes v Barnard [1964] AC 1129  271, 277, 278 Rose v Hvric (1963) 108 CLR 353  181 Roth v United States 354 US 476 (1957)  569 Russell v Russell (1976) 134 CLR 495 323, 324, 327 Ryan v Premachandran [2009] NSWSC 1186 275 Saad v Chubb Security Pty Ltd [2012] NSWSC 1183  450 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203  490, 491, 492, 527 Samuels v The Readers’ Digest Association Pty Ltd (1969) 120 CLR 1  316 Sands v Channel Seven Adelaide Pty Ltd (2005) 91 SASR 466  225 Sands v South Australia [2013] SASC 44  450 Sankey v Whitlam (1978) 142 CLR 1  638 Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32  299, 300 Schenck v United States 249 US 47 (1919)  23 Schering Chemicals Ltd v Falkman Ltd [1982] 1 QB 15  381, 390, 528 Scott v Sampson (1882) 8 QBD 491  192 Scott v Scott [1913] AC 417 323, 324–6, 327, 337, 348 Seager v Copydex Ltd [1967] 1 WLR 923; [1967] RPC 349  490, 492, 502 Secretary, Department of Justice v Osland (2007) 26 VAR 425  648 Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd (2001) 79 SASR 451  270 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 181, 186–7, 195 Seven Network (Operations) Ltd v Australian Broadcasting Corporation [2007] NSWSC 1289  450, 504 Seven Network v News Limited [2007] FCA 1062 133 Seymour v Butterworth (1862) 3 F & F 372; (1862) 176 ER 166  347, 451 Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225  299 Shapiro v La Morta (1923) 40 TLR 201  297 Shelfer v City of London Electric Lighting Co

[1895] 1 Ch 287  486 Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134  496 Shepherd v Walsh [2001] QSC 358  278 Shergold v Tanner (2002) 209 CLR 126  646 Shevill v Presse Alliance SA [1996] AC 959 168 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 112 Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199  279 Shulman v Group W Productions Inc 18 Cal 4th 200; 955 P 2d 469; 74 Cal Rptr 2d 843 (1998) 453 Sim v HJ Heinz & Co Ltd [1959] 1 WLR 313 279 Sim v Stretch [1936] 2 All ER 1237; (1936) 52 TLR 669  180, 188, 189, 190, 195, 198 Sims v Wran [1984] 1 NSWLR 317 217–8 Singleton v John Fairfax & Sons Ltd [No 1] [1983] 2 NSWLR  266 Skalkos v Assaf (2002) Aust Torts Reports 81–644  265, 266 Slatyer v Daily Telegraph Newspaper Co (1907) 7 SR (NSW) 488; (1908) 6 CLR 1  164, 175, 188, 189, 190, 198 Slim v Daily Telegraph Ltd [1968] 2 QB 157 176 Smith Kline & French Laboratories (Aus.) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73  529 Smith v Eric S Bush [1990] 1 AC 831  308 Smith v Harris [1996] 2 VR 335  350 Smith v Lakeman (1856) 26 LJ (NS) Ch 305  386, 387, 388 Smith v McGuiggan (1863) 2 SCR (NSW) 268 162 Smith v NBC Universal 524 F Supp 2d 315 (2007) 452 Snedden v Nationwide News Pty Ltd [2011] NSWCA 262  230 Snyder v New York Press Co Ltd 121 NYS 944 (1910)  195 Société Française des Asphaltes v Farrell (1885) Cab & El 563  196 Society for the Prevention of Cruelty to Animals New South Wales v Davies [2011] NSWSC 1445  169

Copyright © 2015. Oxford University Press. All rights reserved.

Table of Cases

Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 45  414 South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133  162, 163, 166, 167, 168, 196 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282  299, 300 South Suburban Co-operative Society v Orum [1937] 2 KB 690  418, 419 Spalla v St George Motor Finance Ltd [2004] FCA 1014  354 Spautz v Butterworth (1996) 41 NSWLR 1  276 Speight v Gosnay (1891) 60 LJQB 231  217 Sportsvision Australia Pty Ltd v Tallglen Pty Ltd [1998] NSWSC 221; (1998) 44 NSWLR 103  69, 89 Spring v Guardian Assurance Plc [1995] 2 AC 296  306–11, 311 Stanley v Powell [1891] 1 QB 86  477 Star Hotel Holdings Pty Ltd v Newcastle Newspapers Pty Ltd [2001] NSWSC 53 268 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348  175, 208 Stephens v Avery [1988] Ch 449  492, 493, 499 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211  21, 31, 35, 247, 409 Stewart v The King (1921) 29 CLR 234  374 Stirling v Associated Newspapers Ltd [1960] Sc LT 5  370 Stocker v McElhinney (No 2) [1961] NSWR 104  279, 281, 283 Stokes v Ragless [2014] SASC 56  268 Stubbs Ltd v Russell (1913) HL 266  176, 183 Sullivan v Moody (2001) 207 CLR 562 301, 302–3, 303, 304, 305, 306 Sullivan v Sclanders (2000) 77 SASR 419  492, 528, 529, 530 Sun Life Assurance Co of Canada v WH Smith & Son Ltd (1933) 150 LT 211  258, 261 Sunday Times v United Kingdom [1979] 2 EHRR 245  387, 389 Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6  290, 291

Sunkissed Bananas (Tweed) Ltd v Banana Growers’ Federation Co-operative Ltd (1935) (Unreported)  203 Sunol v Collier and Another (No 2) (2012) 260 FLR 414  590, 598, 608, 610 Sutcliffe v Pressdram Ltd [1991] 1 QB 153 275 Sutherland v Stopes [1925] AC 47 223, 223 Sutton v Jones [2005] HCATrans 966  266 Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172  158 Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796  298 T v Medical Board (SA) (1992) 58 SASR 382 551 Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177  314 Tajjour v New South Wales (2014) 88 ALJR 860  26, 36 Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444  454 Tame v New South Wales (2002) 211 CLR 317  299, 301, 303–6, 306 Tamiz v Google Inc [2013] 1 WLR 2151  215 Tassone v Kirkham [2014] SADC 134 at [35] 201 Tate v Duncan-Strelec [2013] NSWSC 1446 268 Taylor’s Case (1676) 1 Vent 293; 86 ER 189 582 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333  477, 480, 480 TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323  315, 319, 319, 480, 480–1 Television New Zealand Ltd v Rogers [2008] 2 NZLR 277  457 Templeton v Jones [1984] 1 NZLR 448  227 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 299 Terrapin Ltd v Builders’ Supply Co (Hayes) Ltd [1960] RPC 128  490 Terry v Persons Unknown [2010] EMLR 16 496 Texas v Johnston 491 US 397 (1989)  17 The ...  see under second word of case Theakston v MGN Ltd [2002] EMLR 22  496, 499, 500, 501, 504

xxvii

Copyright © 2015. Oxford University Press. All rights reserved.

xxviii

Table of Cases

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104  21, 30, 31, 36, 247, 249, 409 Thomas v Mowbray [2007] HCA 33  342 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574  257, 258, 259–61 Thompson v Hill (1995) 38 NSWLR 714  218 Thorley v Lord Kerry (1812) 4 Taunt 355; (1812) 128 ER 367  156 Time Inc v Hill 87 S Ct 534; 385 US 374 (1967) 453 Titelius v Public Service Appeal Board (1999) 21 WAR 201  350 Toben v Jones (2003) 129 FCR 515  589, 600 Todd v Swan Television and Radio Broadcasters Pty Ltd (2001) 25 WAR 284 162–5, 278 Tolley v J S Fry & Sons Ltd [1930] 1 KB 467  180, 198 Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044  239, 241 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461  188, 195, 196 Trad v Jones (No 3) [2009] NSWADT 318 589 Trad v Jones (No 7) [2014] NSWCATAD 225 589 Triggell v Pheeney (1951) 82 CLR 497  269, 276 Trkulja v Google Inc LLC (No 5) [2012] VSC 533 215 Trkulja v Yahoo! Inc LLC [2012] VSC 88 215 True Value Solar (SA) Pty Ltd v Seven Network Ltd [2011] SASC 91  268 Tucker v News Media Ownership Ltd [1986] 2 NZLR 716  456 Turner v Metro-Goldwyn Mayer Pictures Ltd [1950] 1 All ER 449  243 TV3 Network Services Ltd v Broadcasting Standards Authority [1992] 2 NZLR 724 460 TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129  279 TWT Ltd v Moore (1991) 105 FLR 350  226 Ultramares Corporation v Touche 174 NE

Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138  157 Unions NSW v New South Wales (2013) 88 ALJR 227  33, 34, 35, 36 United States v White, 401 US 745 (1971) 552 United Telecasters Sydney Pty Ltd v Hardy (1991) 23 NSWLR 323  359, 360, 363 Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531  314, 316 Uranga v Federated Publications Inc 138 Idaho 550; 67 P 3d 29 (2000)  453 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118  189, 270, 271–2, 275, 277, 278 Usill v Hales (1878) 14 Cox 61  396 Venables v News Group Newspapers Ltd [2001] Fam 430  492, 495 Versace v Monte (2002) 119 FCR 349  314, 315, 317 Viacom International Inc v YouTube Inc 676 F 3d 19 (2012)  118 Vickery v Nova Scotia Supreme Court (Prothonotary) [1991] 1 SCR 671  431 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479  435–7, 438, 444, 445, 446, 447, 448, 481, 482–5 Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25  377–9, 391 Victoria v Nine Network (2007) 19 VR 476  497, 501, 531, 531 Vidal-Hall v Google Inc [2014] EMLR 14 504 Vine Products Ltd v Green [1966] Ch 484  378 Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170  257, 258, 259, 260 Vogel v Bushnell 221 SW 819 (Mo 1920)  162 Von Hannover v Germany (2004) 40 EHRR 1  470–3, 474 Von Hannover v Germany (No 2) (2012) 55 EHRR 15 470, 474–6 Wade v Victoria [1999] 1 VR 121  300 Wainer v Rippon [1980] VR 129  157 Wainwright v Home Office [2004] AC , 469, 506, 509  454,

Copyright © 2015. Oxford University Press. All rights reserved.

Table of Cases

Wainwright v United Kingdom (2007) 44 EHRR 40  454 Walker v WA Pickles Pty Ltd [1980] 2 NSWLR 281  218 Wallersteiner v Moir [1974] 3 All ER 217; [1974] 1 WLR 991  279 Wanjurri v Southern Cross Broadcasting (Aus) Ltd (2001) EOC ¶93-147  589 Ward Locke & Co (Ltd) v Operative Printers’ Assistants’ Society (1906) 22 TLR 327 437 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58  275, 276 Watkin v Hall (1868) LT 3 QB 396  214, 227 Watkins v AJ Wright (Electrical) Ltd |1996| 3 All ER 31  353, 354 Watts v Hawke & David Syme & Co Ltd [1976] VR 707  390, 391 Webb v Bloch (1928) 41 CLR 331  214, 217 Weldon v ‘The Times’ Book Co Ltd (1911) 28 TLR 143  258 Weller v Associated Newspapers Ltd [2014] EMLR 24  496 West Australian Newspapers Ltd v Bond (2009) 40 WAR 164  418 West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387  229 Western Counties Manure Co v Laws Chemical Manure Co (1874) LR 9 Ex 218 297 Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513  527, 529 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89  235 White v Baycorp Advantage Business Information Services Ltd (2006) 200 FLR 125 291 Whitehouse v Lemon [1979] AC 617  581 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71  277 Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414  632, 633 Whitney v California 274 U.S. 357 (1927)  24 Wickham v Associated Pool Builders Pty Ltd (1988) 12 IPR 567  454

Wilkinson v Downton [1897] 2 QB 57  476, 486–7, 487 William Coulson & Sons v James Coulson & Co (1887) 3 TLR 846  279, 280 Williams v Milotin (1957) 97 CLR 465  477 Williams v Prince of Wales Life Co (1857) 23 Beav 338  352 Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496  387 Wilson v Nattrass (1995) 21 MVR 41  218 Wisdom v Brown (1885) 1 TLR 412  268 Witham v Holloway (1995) 183 CLR 525 364–8 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 106 FLR; (1992) 107 ACTR 1  225, 226, 235 Woodham v John Fairfax Publications Pty Ltd (2005) Aust Torts Reports 81–822 225 Woodward v Hutchins [1977] 1 WLR 760 528 Wotton v Queensland (2012) 246 CLR 1  36 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697  252 X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575  360, 361, 363 X v Y [1988] 2 All ER 648; (1987) 13 IPR 202  501, 528 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448  277, 278, 480 Young v Bella (2006) 261 DLR (4th) 516 300 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581  192–3, 193, 195, 269 Z v Finland (1997) 25 EHRR 371  510 Zacharia v Channel Seven Sydney Pty Ltd [2006] NSWSC 663  268 Zbyszko v New York American Inc 239 NYS 411 (1930)  195

xxix

xxx

TABLE OF STATUTES Commonwealth Administrative Appeals Tribunal Act 1975  360 s 63(1)   360 s 63(2)   360 s 63(3)   360 s 63(5)   360

Broadcasting (Ownership and Control) Act 1988  124 Broadcasting Act 1942   60, 67, 71, 124, 147 s 6(1)   64, 66 Pt IIID   28

Anti-Terrorism Act (No 2) 2005   585

Broadcasting and Television Act 1942   7

Archives Act 1983   629

Broadcasting and Television Amendment Act 1977  7

Australian Broadcasting Corporation Act 1983   7, 8, 94 s 6   7 ss 7–10   8 s 8(1)(b)   8 s 8(1)(e)   8, 94 s 9   8 s 12   8 s 12(1)   8 s 13   8 s 24F   8 s 24X   8 s 27   7 s 31   7 s 79   94 s 79A   70

Copyright © 2015. Oxford University Press. All rights reserved.

Broadcasting (Ownership and Control) Act 1987  124

Australian Consumer Law   312 s 18   312, 313, 315 s 19   317, 318 s 232   320 s 236   320 Australian Consumer Law (ACL) s 19   318 Australian Information Commissioner Act 2010   539, 644 s 12   539 s 14(1)   539 s 14(4)   539 Australian Securities and Investments Commission Act 2001   360 s 66(1)   360 s 200(1)   360 s 219(6)   360 s 220(1)   360 Australian Security Intelligence Organisation Act 1979 s 25A   549

Broadcasting Legislation Amendment (Convergence Review and Other Measures) Act 2013   75 Broadcasting Legislation Amendment (Digital Radio) Act 2007   100 Broadcasting Legislation Amendment (Online Services) Act 1999   105 Broadcasting Services Act 1992   12, 60, 62, 63, 64, 67, 68, 69, 70, 71, 75, 78, 84, 94, 97, 99, 100, 107, 116, 119, 121, 123, 124, 125, 126, 127, 130, 131, 142, 143, 146, 147, 318, 541 s 3   62 s 3(1)(a)   121 s 3(1)(c)   121 s 3(1)(d)   146 s 3(c)   87 s 3(e)   74, 87 s 4   63 s 4(1)   91 s 6   128, 129, 130 s 6(1)   78, 102, 125, 128 s 7   128 s 8AA   101 s 8AB   102 s 8AC(3)(a)   100 s 8AF   78 s 11A   69 s 13   68 s 13(5)   60 s 14   68 s 15   68 s 16   68 s 17   68 s 18   68 s 18A   68, 89

Copyright © 2015. Oxford University Press. All rights reserved.

Table of Statutes

s 18A(3)   89 s 21   69 s 22   69 s 35B   71 s 35C   77 s 35D   102 s 36   71, 77 s 37   77 s 37(2)   71 s 37A   71 s 40   71, 77 s 41   85 s 41(2)   71 s 41(3)   71 s 41A   99 s 41B   99 s 41C   99 s 41D(3)   102 s 42   77 s 43   70, 90 s 43B   77, 78 s 43B(3)   78 s 43B(4A)   78 s 43C   77 s 43C(2A)   78 s 43D   102 ss 46–47   71 s 47   77 s 48   147 s 52A   125 s 53(1)   126 s 53(2)   126 s 54   126 s 55   126 s 56   126 s 57   147 s 59   125 s 59(1)   132 s 61AA   125, 126 s 61AB   125, 126 s 61AC   125 s 61AEA   126 s 61AG   124, 125, 126, 132 s 61AH   124, 125, 126 s 61AJ   131 s 61AJ(5)   131 s 61AK(2)   131 s 61AMA   124, 126, 132 s 61AMB   124, 126 s 61AMC   131 s 61AMC(5)   131

s 61AMD(2)   131 s 61ANA   132 ss 61AU–61AZH   132 s 61C(AA)   78 s 61CA   78 s 61CB   78 s 61CE   78 ss 62–65B   132 s 66   132 s 67   131 s 67(5)   131 s 68   131 s 70   132 s 74   128, 131 s 75   132 s 76   132 s 77   141 s 80   87 s 84(1)   87 s 84(2)   87 s 85A   102 s 87   70, 90 s 87A   88 s 87A(1)   88 s 92J   70 s 96(1)   85 s 96(2)   85 s 98   85 s 99   90 s 99(2)   70 s 103B   86 s 109   147 s 115(1)   86 s 115(1AA)   86 s 115(1AB)   87 s 115(2)   86 s 117   89 ss 118–20   70, 90 s 120(1)(b)   89 s 121FA   89 s 121FB(1)   89 s 121FB(5)   89 s 121FD   89 s 121FE   89 s 121G   75, 99 s 121G(2)   75 s 122   70 s 122(9)   75 s 122(10)   75, 99 s 123   69 s 123(2)   69

xxxi

Copyright © 2015. Oxford University Press. All rights reserved.

xxxii

Table of Statutes

Broadcasting Services Act 1992 (cont.) s 123(2)(g)   79 s 123(2)(h)   90 s 123(3)   69 s 123(4)   69 s 125   91 s 125(1)   70 s 125(2)   70 s 129   73 s 130J   63 s 138   70 s 139   90 s 139(1C)   91 s 139(3)   91, 92 s 139(3C)   91 s 140A   90 s 140A(3)   91, 92 s 140A(7)   91 s 141   90 s 142   90 s 142A   90 s 143   91 s 146E   87 s 146G   87 s 146H   87 s 146L   87 s 147   90 s 148   90 s 148(c)   90 s 149   90 s 150   94 ss 150–53   60, 94 s 151   94 s 153(1)   94 s 153(2)   95 s 170   90 s 171   90 s 178   91 s 205F   91, 92 s 205F(1)   91 s 205F(3)   92 s 205F(4)   91 s 205G   91, 132 s 205Q   132 s 205W   90, 92, 132 Pt 5 Div 5C   77, 78 Pt 7 Div 2A   86 Pt 10A   87 Pt 14E   91 Sch 1 cl 2   129 Sch 1 cl 2(1)(a)   130 Sch 1 cl 2(4)   128 Sch 1 cl 2(b)(i)   128

Sch 1 cl 2(b)(ii)   129 Sch 1 cl 2(b)(iii)   129 Sch 1 cl 2(d)   129 Sch 1 cl 2(e)   129 Sch 1 cl 3(1)(a)   128 Sch 1 cl 3(1)(c)   130 Sch 1 cl 3(b)   129 Sch 1 cl 3(c)   129 Sch 1 cl 3(c)(v)   129 Sch 1 cl 6   129 Sch 1 Pt 1   128 Sch 1 Pt 3   129 Sch 1 Pt 4   129 Sch 2   70 Sch 2 cl 1(1)(b)   87 Sch 2 cl 2(2)(b)(i)   88 Sch 2 cl 2(2)(b)(ii)   88 Sch 2 cl 3   70 Sch 2 cl 3A   70 Sch 2 cl 4   70 Sch 2 cl 6   70 Sch 2 cl 7   71 Sch 2 cl 7(1)(a)   70 Sch 2 cl 7(1)(c)   71 Sch 2 cl 7(1)(g)   71 Sch 2 cl 7(1)(h)   70 Sch 2 cl 7(1)(k)–(nb)   71 Sch 2 cl 7(1)(m)   97 Sch 2 cl 7(1)(ga)   71 Sch 2 cl 7(1)(ha)   71, 87 Sch 2 cl 8(1)   92 Sch 2 cl 8(1)(a)   70 Sch 2 cl 8(1)(g)   70 Sch 2 cl 9(1)(a)   70 Sch 2 cl 9(1)(f)   70 Sch 2 cl 9(2)(e)   87 Sch 2 cls 9(3)–(5)   87 Sch 2 cl 10(1)(a)   70 Sch 2 cl 10(1)(e)   86 Sch 2 cl 10(1)(f)   85 Sch 2 cl 10(1)(g)   85 Sch 2 cl 10(1)(h)   70 Sch 2 cl 10(1)(j)   84 Sch 2 cl 10(2)(a)   85 Sch 2 cl 10(2)(b)   85 Sch 2 cl 11   85 Sch 2 cl 11(1)(a)   70 Sch 2 cl 11(1)(c)   70 Sch 2 Pt 2   70 Sch 4 cl 5A   99 Sch 4 cl 5A(2)   97 Sch 4 cl 6(3)   97 Sch 4 cl 8(2)   97

Copyright © 2015. Oxford University Press. All rights reserved.

Table of Statutes

Sch 4 cl 19(3)   97 Sch 4 cl 20(2)(a)   97 Sch 4 cl 23(2)   97 Sch 4 cls 37E–37H   97 Sch 4 Pt 4A   99 Sch 5   105, 106, 107 Sch 5 cl 3   106 Sch 5 cl 40(1)(a)   107, 114 Sch 5 cl 40(1)(b)   107, 113 Sch 5 cl 60(2)(d)   107, 113 Sch 5 cl 60(h)   107 Sch 5 cl 91   117, 118 Sch 5 cl 95(5)   115 Sch 6 cls 13–16   97 Sch 7   106, 107, 108 Sch 7 cl 2   108, 112 Sch 7 cl 3   108 Sch 7 cl 3(1)   112 Sch 7 cl 4   108, 112 Sch 7 cl 11   109 Sch 7 cl 20   108, 109 Sch 7 cl 20(1)(b)(ii)   109 Sch 7 cl 20(1)(c)   109 Sch 7 cl 20(1)(c)(ii)   109 Sch 7 cl 20(1)(d)   109 Sch 7 cl 20(1)(d)(ii)   109 Sch 7 cl 20(2)   109 Sch 7 cl 37   107 Sch 7 cl 37(4)   107 Sch 7 cl 41   107 Sch 7 cl 44   107 Sch 7 cl 47   109 Sch 7 cl 47(1)(b)   108 Sch 7 cl 47(1)(c)   109 Sch 7 cl 47(1)(d)   109 Sch 7 cl 47(1)(e)   109 Sch 7 cl 47(6)   109 Sch 7 cl 47(7)   109 Sch 7 cl 53(6)   109 Sch 7 cl 56   109 Sch 7 cl 56(1)(b)   108 Sch 7 cl 56(1)(c)   109 Sch 7 cl 56(1)(d)   109 Sch 7 cl 56(6)   109 Sch 7 cl 56(7)   109 Sch 7 cl 60(4)   109 Sch 7 cl 62   109 Sch 7 cl 62(1)   112 Sch 7 cl 62(1)(c)   108 Sch 7 cl 62(1)(d)   109 Sch 7 cl 62(1)(e)   109 Sch 7 cl 62(1)(f)   109 Sch 7 cl 62(6)   109

Sch 7 cl 62(7)   109, 111 Sch 7 cl 62(e)   112 Sch 7 cl 68(6)   109 Sch 7 cl 69(1)   114 Sch 7 cl 81(1)   109 Sch 7 cl 82(3)   107 Sch 7 cl 89(1)   110 Sch 7 cl 89(3)   110 Sch 7 cl 90   110 Sch 7 cl 106   109 Sch 7 cl 107   109 Sch 7 cl 108   110 Sch 7 cl 108(3)   110 Sch 7 cl 109   110 Sch 7 cl 110   110 Sch 7 Div 3   112 Sch 7 Div 5   112 Broadcasting Services Amendment (Digital Television) Act 2006   99 Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000   97 Broadcasting Services Amendment (Media Ownership) Act 2006   124, 146 Broadcasting Services (Subscription Television Broadcasting) Amendment Act 1992   86 Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Act 2014   577 Classification Act 1995   571, 576, 577 s 5   571 s 5B(1)   572 s 5B(2)   572 s 6   571 s 7   571, 572 ss 9–10   571 s 11   116 s 12   571 s 42(1)   571 s 42(2)   571 s 42(3)   571 Commonwealth Constitution   15, 26, 27, 28, 31, 32, 33, 247, 327, 409, 410, 575, 576, 582 s 7   27, 30, 32 s 24   27, 30, 32 s 51(v)   313, 551 s 51(xx)   313 s 116   582 s 128   27, 33 Communications Legislation Amendment (Content Services) Act 2007   106

xxxiii

xxxiv

Table of Statutes

Competition and Consumer Act 2010   53, 119, 132, 133, 134, 140, 141, 142, 312   see also Australian Consumer Law (ACL) s 4E   133 s 6(3)   313 s 50   132, 133, 134, 136, 140, 141 s 50(3)   132 s 50(6)   133 s 80   134 s 81   134 s 86C(2)(b)   320 s 86C(2)(c)   320 s 86C(2)(d)   320 s 87B   135, 139 s 95AC(2)   134 s 95AG   135 s 95AH   135 s 95AI   135 s 95AN   134 s 95AO   134 s 95AT   135 s 95AZH   135 s 111   135 Pt VII Div 3   134 Conciliation and Arbitration Act 1904   377 s 143   377

Copyright © 2015. Oxford University Press. All rights reserved.

Constitution of Australia   see Commonwealth Constitution

Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004   114 Criminal Code   329 s 80.2   585, 586, 587, 588 s 80.2(5)   587 s 80.2(7)   587 s 80.2(8)   587 s 80.2A   588 s 80.2B   588 s 80.2C   588 s 80.3   586, 588 s 80.4   588 s 80.6   585 s 473.1   114 s 473.4   116 s 474   116 s 474.19   114 s 474.22   114 s 474.25   114 s 474.26   114 s 474.27   114 Pt 5.1   587 Criminal Code Act 1995   114 Sch 1   see Criminal Code Customs (Prohibited Exports) Regulations 1958 r 3   568

Copyright Act 1968   117, 444 s 10(1)   444 ss 84–113   444 s 90   444 s 98   444 s 101(1A)   117 s 116AG   117 s 116AG(2)   117 s 116AH   117 s 196(1)   444 s 196(3)   444 Div 2AA   117

Customs (Prohibited Imports) Regulations 1956 r 4A   568

Copyright Act 1986 s 10(1)   117

Family Law Act 1975 s 97   327 s 97(1)   327 s 97(4)   327 Pt XIA   334

Corporations Act 1990   131 Corporations Act 2001   246 s 21   534 s 50   170 Crimes Act 1914   329, 585, 619 s 4AA   132, 541 s 20(1)(b)   622 s 70   619, 620 s 70(2)   620, 621

Customs Act 1901 s 50   568 s 112   568 Director of Public Prosecutions Act 1983  372 Do Not Call Register Act 2006   538 Evidence Act 1995 Pt 3   421

Federal Circuit Court of Australia Act 1999 Pt 6A   334 Federal Court of Australia Act 1976 s 17   337 s 39   171 s 40   171

Table of Statutes

s 50   329 Pt VAA   334 Federal Court Rules 2011 r 2.32   349

Copyright © 2015. Oxford University Press. All rights reserved.

Foreign Acquisitions and Takeovers Act 1975   119, 146, 147, 148 s 18(2)   147 s 18(2)(c)   148 s 18(4)   147 s 18(4)(b)   148 s 19(2)   147 s 19(2)(c)   148 s 19(4)   147 s 19(4)(b)   148 s 25(1A)   148 Freedom of Information Act 1982   615, 617, 634, 644, 645 s 3   636, 640 s 3(2)(b)   640 s 3A   627, 635, 636 s 4   624 s 7   627 s 8(2)(g)   623 ss 8–8D   618 s 8A   635 s 10   618 s 11   623 s 11(2)   624 s 11A)   635 s 11A(5)   636, 638, 640 s 11B   635 s 11B(3)   640 s 11B(4)   616 s 11B(4)(b)   640, 641 s 11B(4)(c)   640 s 11B(4)(d)   640 s 11C   623, 638 s 11C(6)   623 s 15AC   627 s 24   626 s 25   628 s 29(5)   626 s 29(5)(b)   626 s 31B   635 s 33A   641 s 34   629, 630, 631, 633, 634 s 34(1)   631 s 34(1)(a)   631, 633 s 34(1a)(a)   633 s 34(1a)(b)   633 s 34(1)(b)   633, 638 s 34(1)(c)   633

s 34(1)(d)   633 s 35   633 s 36   630, 634, 640, 641, 643 s 36(1)(a)   641 s 36(1)(b)   634, 641 s 37   633 s 38   638 s 40   641 s 42   633 s 42(1)   638 s 47A(2)(a)   638 s 47C   634, 637, 638, 639, 640 s 47J   628 s 54N   637 ss 90–92   622 s 93A   636 s 93A(2)   640 Pt IV   627 Pt IV Div 2   635 Pt IV Div 3   635 Sch 2   627 Sch 2 Div 1   541 Freedom of Information Amendment (Reform) Act 2010   618, 634, 644, 645 Freedom of Information (Removal of Conclusive Certificate and Other Measures) Act 2009   646 High Court Rules 2004 r 4.07   349 Human Rights and Equal Opportunity Commission Act 1986 s 46P   592 Judiciary Act 1903 s 40   247 Pt XAA   334 Migration Act 1958   200 National Broadcasting Legislation Amendment Act 2012   08 National Security Legislation Amendment Act (No 1) 2014   39, 588 Parliamentary Proceedings Broadcasting Act 1946  68 Political Broadcasts and Political Disclosures Act 1991   28 Privacy Act 1988   13, 44, 53, 104, 444, 533, 534, 536, 539, 540, 541 s 2A   535, 536 s 5B(1A)   534 s 5B(2)   534 s 5B(3)   534

xxxv

Copyright © 2015. Oxford University Press. All rights reserved.

xxxvi

Table of Statutes

Privacy Act 1988 (cont.) s 6   541 s 6(1)   534, 536, 537 s 6C   541 s 6C(1)   541 s 6D   541 s 7   541 s 7(1)(ee)   541 s 7(c)   541 s 7B(3)   541 s 7B(4)   55 s 7C   541 s 13(1)(a)   540 s 13(4)   540 s 13B(1)   541 s 13D   540 s 13G   541 s 16C   538 s 29   535 s 29(a)   536 s 36(1)   540 s 40   540 s 40(1A)   540 s 40A(1)   540 s 41   540 s 43(2)   540 ss 44–46   540 s 50   540 s 52(1)   540 s 52(1)(a)   540 s 52(1)(b)   540 s 52(1)(b)(iv)   540 s 55A   540 s 68   540 s 80W   541 Pt IV Div 2   539 Sch 1 APP 1.1   537 Sch 1 APP 1.2   537 Sch 1 APP 1.4   537 Sch 1 APP 3   538 Sch 1 APP 3.3   538 Sch 1 APP 3.5   538 Sch 1 APP 3.6   538 Sch 1 APP 6   538 Sch 1 APP 6.1   538 Sch 1 APP 6.2(a)   538 Sch 1 APP 7   538 Sch 1 APPs 7.1–7.4   538 Sch 1 APP 7.8   538 Sch 1 APP 8   538 Sch 1 APP 8.1   538 Sch 1 APP 8.2(a)   538 Sch 1 APP 11.1   539

Sch 1 APP 12   539 Sch 1 APP 13   539 Privacy Amendment (Enhancing Privacy Protection) Act 2012   534, 535, 536, 540 Privacy Amendment (Private Sector) Act 2000  444 Racial Discrimination Act 1975   590, 596 s 6A   589 s 18C   592, 593, 594, 595, 596, 597, 598, 599, 600, 601 s 18C(1)(a)   593 s 18C(2)(a)   591 s 18D   595, 596, 597, 598, 599, 601, 605 s 18D(b)   601 s 18D(c)(ii)   601 s 26   592 Radiocommunications Act 1992   65, 100 s 9C   101 s 31   96 s 98C   101 s 98D   101 s 102C   101 s 102C(5)   101 s 102D   101 s 102D(5)   101 s 102E   101 s 102F   101 s 118NQ   101 s 118NQ(2)   101 s 118NR   101 s 118NS   101 s 118NT(4)   102 s 118NT(6)   102 s 118NV   102 s 188NT   102 Spam Act 2003   538 Special Broadcasting Service Act 1991   07, 08, 94 s 3   08 ss 7–10   08 s 10(1)(a)   08 s 10(1)(j)   08, 94 s 17   08 s 28   08 s 29   08 s 45   94 s 45(2)   08 s 70   94 s 70A   70 s 70C   70

Table of Statutes

Surveillance Devices Act 2004   552 s 6   553, 554 Telecommunications (Interception) Amendment Act 2006   549

Copyright © 2015. Oxford University Press. All rights reserved.

Telecommunications (Interception and Access) Act 1979   13, 533, 548, 550, 551, 552 s 5   549 s 5(1)   548, 549 s 5F   548 s 6(2F)   549 s 6AA   549 s 7(1)   548 ss 7(2)(a)–(ab)   549 s 7(2)(b)   549 s 7(2)(c)   549 s 30   549 s 39   550 s 45   550 s 46   550 s 63   550 s 63(1)   550 s 63A   550 s 63B   550 s 64   550 s 65   550 s 108(1)   549 s 108(2)   549 s 108(2)(c)   549 s 133(1)   550 Pt 2-2   549 Pt 2-5   549 Telecommunications Act 1997   104, 549 s 5   117 s 7   108, 114 s 16   117 s 87   117 s 313   115 Pt 13   533 Telephonic Communications (Interception) Act 1960   547 Television Broadcasting Services (Digital Conversion) Act 1998   97 Tobacco Advertising Prohibition Act 1992  70 Trade Practices Act 1974   171, 238, 630 s 52   294, 296, 312, 313, 319 s 52(1)   316 s 65A   317 Pt IV   92 Workplace Relations Act 1996   200

Australian Capital Territory Civil Law (Wrongs) Act 2002 s 15(1)   159 s 15(2)   159 s 57   157 s 58   263 s 59   222 s 115(d)   284 s 116   172, 173, 222 s 118   155 s 119(2)   157 s 121   169 s 122   159 s 123   219 s 124   284 s 125   285 s 126   285 s 127   285 s 128   285 s 129   285 s 130(1)   285 s 130(2)   285 s 134   221 s 135   222 s 136   230 s 137   238 s 139   245 s 139A   252 s 139B   256 s 139C   262 s 139D   263 s 139E   274 s 139F(1)   274 s 139F(2)   276 s 139F(3)–(9)   274 s 139H   278 Ch 9   155 Pt 3.2   299 Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 Pt 2   573 Pt 3   572 Pt 4   573 Pt 6   573 Classification of Publications Ordinance 1983  569 Crimes Act 1900 s 439(1)   156 s 439(2)   156 s 439(3)   156 s 439(4)   156

xxxvii

xxxviii

Table of Statutes

Defamation Act 1901 s 3   157 Defamation Act 2001 s 14   157 Discrimination Act 1991   589 s 66   591 ss 66(1)(b)–(c)   606 s 66(1)(d)   606 s 66(2)   595 s 67   591 s 67(1)(d)(ii)–(iii)   606 s 67(1)(d)(iv)   606 Evidence (Miscellaneous Provisions) Act 1991 s 40   344 Evidence Act 2011 Div 3   421 Fair Trading Act 1992 s 12   312 s 31   317

Copyright © 2015. Oxford University Press. All rights reserved.

Fair Trading (Australian Consumer Law) Act 1992 s 7(1)   312 s 11(1)   313 Freedom of Information Act 1989   616 Dictionary  624 ss 7–8   618 s 9   618 s 10   623 s 13   627 s 23   626 s 24   628 s 77   622 s 78   622 Freedom of Information Amendment Act 2008  646 Health Records (Privacy and Access) Act 1997  533 Human Rights Act 2004   15, 434 s 12   434 s 16   434 Information Privacy Act 2014   533 Juries Act 1967 s 42C   415 Law Reform (Abolitions and Repeals) Act 1996 s 4   578, 580, 585 Limitation Act 1985 s 11(1)   170 s 16B   171 s 21B(1)   170

Listening Devices Act 1992   552, 553 s 4(1)   553 ss 4(2)–(3)   554 s 4(3)(b)(i)   557 s 5   559 s 6   559 Supreme Court Act 1933 s 22   171 Workplace Privacy Act 2011   552

New South Wales Aboriginal Land Rights Act 1983   160 Anti-Discrimination Act 1977   200, 589 s 4   607 s 20C   591, 603 s 20C(1)   603 s 20C(2)   595 s 20D   591 ss 38R–38T   606 s 49ZS   607 ss 49ZS–49ZTA   606 s 49ZT   607, 610, 611 s 49ZT(1)   610 s 49ZT(2)(c)   609, 611 ss 49ZXA–49ZXC   606 Children (Criminal Proceedings) Act 1987 s 15A   344, 346 s 15A(1)(e)   346 s 15C   345 s 15D   345 s 15E   346 Children and Young Persons (Care and Protection) Act 1998   346 Civil Liability Act 2002   274 s 72(1)   479 Pt 3   299 Classification (Publications, Films and Computer Games) Enforcement Act 1995 Pt 3   572 Pt 4   573 Commercial Arbitration Act 2010 s 1C   338 Court Information Act 2010   349 Court Security Act 2005   356 s 9   356 s 9A   357 Court Suppression and Non-Publication Orders Act 2010   334, 337 ss 1–5   334 s 6   337, 340

Table of Statutes

s 7   340, 342, 343 s 7(a)   340 s 8   337, 340, 341 s 8(1)   340, 341 s 8(1)(a)   340, 342, 344 s 9(2)(d)   337 s 11   336 s 12   336 s 16   336 s 46(4)   338 Crimes Act 1900 s 352(2)   186 s 412   374 s 529(3)   156 s 529(4)   156 s 529(5)   156 s 529(6)   156 s 529(7)   156 s 574   581 s 578A   344 s 578C   578 Criminal Procedure Act 1986 ss 291–291B   332 Pt 6 Div 3   345 Sch 3 cl 1   363

Copyright © 2015. Oxford University Press. All rights reserved.

Defamation Act 1958   154, 164, 291 s 5   162, 291 Defamation Act 1974   154 s 4(1)   291 s 4(2)   291 s 7A   200, 201 s 7A(1)   174 s 7A(3)   236 s 7A(4)(a)   269 s 8   157 s 9   161, 229 s 9(2)   173 s 9(2)(a)   180 s 9(5)   180 s 13   200, 263, 264, 265, 266, 267 s 15   222, 233 s 16   230, 233, 234, 235 s 22   200, 248, 249, 252 s 24   273 ss 32–34   256 s 46(3)(a)   278 Defamation Act 2005   155, 607 s 2   155 s 3(d)   284 s 4   172, 173, 222 s 6   155 s 6(2)   233

s 7(2)   157 s 8   233 s 9   169, 233 s 10   159 s 11   219 s 12   284 s 13   285 s 14   285 s 15   285 s 16   231, 232, 285 s 17   285 s 18(1)   285 s 18(2)   285 s 21(1)   171 s 22(2)   171 s 22(3)   171, 269 s 24   221 s 25   222 s 26   230, 233, 234 s 26(a)   234 s 26(b)   233 s 27   238 s 29   245 s 30   252 s 31   256 s 32   262 s 33   263 s 34   274 s 35(1)   274 s 35(2)   276 ss 35(3)–(7)   274 s 37   278 Defamation Amendment Act 2002 s 4   170 District Court Act 1973   356 s 76B   172 ss 177–179   356 Evidence Act 1995 s 126J   421 Pt 3   421 Pt 3.10 Div 1C   421 Fair Trading Act 1987   364 s 28(1)   312 s 32(1)   313 s 42   312 s 60   317 Freedom of Information Act 1989   616 Government Information (Public Access) Act 2009   616, 646 s 4   624 s 6   618 s 9   623

xxxix

xl

Table of Statutes

Government Information (Public Access) Act 2009 (cont.) s 10   627 s 12   628 s 15   616 s 15(d)   641 s 18   618 ss 23–24   618 ss 25–26   623 s 53(5)   626 s 60   626 ss 92–93   645 ss 113–115   622 Sch 1   628 Sch 1 cl 2(2)(b)   629 Sch 4 cl 12   624 Health Records and Information Privacy Act 2002  533 Independent Commission Against Corruption Act 1988   361 s 98(a)   361 s 98(b)   361 s 98(c)   361 s 98(d)   361 s 98(e)   361 s 99   361

Copyright © 2015. Oxford University Press. All rights reserved.

Industrial Relations Act 1996   160 Jury Act 1977   415 s 68   416 s 68A   416, 418 s 68B   417, 418 s 68C   417 s 68C(1)   342 s 68C(5)(b)   342 s 68C(5)(e)   342 s 72A   342 Justices Act 1902   186 s 23   186 s 59   186 Law Reform (Miscellaneous Provisions) Act 1944 s 2(1)   159 Limitation Act 1969 s 14(1)   170 s 14B   170 s 18A   171 s 56A   170 Medical Practice Act 1992 Sch 2 cl 6   300 Medical Practitioners Act 1938 s 27A   361

Privacy and Personal Information Protection Act 1998   533 Property (Relationships) Act 1984   200 Slander and Libel or Injuries to Character Act 1847  154 Supreme Court Act 1970   356 s 6   339 s 7   339 s 8   338 s 19(2)   338 s 86   172 ss 126–128   356 Supreme Court Rules 1970 Pt 65 r 7   352 Surveillance Devices Act 2007   552, 556 s 4   553, 554, 555 s 7(1)   553, 554 ss 7(2)–(3)   554 s 7(3)(b)(i)   557 s 8   554 s 8(1)   555 s 9(1)   555 s 9(2)   555 s 10   555 s 11   559 s 14   559 s 39   559 s 40   559 s 40(6)   560 Workplace Surveillance Act 2005   552

Northern Territory Classification of Publications, Films and Computer Games Act s 49   573 Pt 4   573 Pt 5   572 Pt 6   573 Consumer Affairs and Fair Trading Act 1990 s 27(1)   312 s 31(1)   313 s 42   312 s 60   317 Criminal Code Act ss 44–48   585 ss 203–208   156 Defamation Act 1938 s 2   157 Defamation Act 2006   155, 278 s 2(d)   284

Table of Statutes

Copyright © 2015. Oxford University Press. All rights reserved.

s 5   155 s 6(2)   157 s 8   169 s 9   159 s 10   219 s 11   284 s 12   285 s 13   285 s 14   285 s 15   285 s 16   285 s 17(1)   285 s 17(2)   285 s 21   221 s 22   222 s 23   230 s 24   238 s 26   245 s 27   252 s 28   256 s 29   262 s 30   263 s 31   274 s 32(1)   274 s 32(2)   276 ss 32(3)–(8)   274 Information Act   533, 616 s 4   624 s 10(2)   627 s 11   618 s 15   623 s 21(4)   628 s 24(3)   628 s 25   626 s 45(3)   629 s 50   616 s 50(2)(d)   641 s 60   646 s 60(2)   628 ss 151–153   622 Juries Act 1962 s 6A   171 s 49A   415 Law Reform (Miscellaneous Provisions) Act 1956 s 5(1)   159 s 5(2)   159 Limitation Act 1981 s 12(1A)   170 s 12(1)(a)   170

s 44A   170 Personal Injuries (Liabilities and Damages) Act 2003 s 27   274 s 28   274 Sexual Offences (Evidence and Procedure) Act 1983 s 6   344 Summary Offences Act s 53   578 Supreme Court Rules r 28.05   349 Surveillance Devices Act   552 s 3   555 s 4   553, 554, 555 s 11(1)   553 ss 11(1)–(2)   554 s 11(1)(a)   554 s 12   554 s 12(1)   554, 555 s 12(2)   555 s 13(1)   555 s 13(2)   555 s 14   555 s 15   559 s 15(2)(b)   560 s 15(2)(b)(ii)   560 s 16   559 s 43   557 s 44   557 s 46   560, 561 s 47   561 ss 51–54   559

Queensland Anti-Discrimination Act 1991   589 s 124A   589, 591, 601, 606 s 124A(2)   595 s 131A   589, 591, 601 Anti-Discrimination Amendment Act 2001  590 Civil Liability Act 2003 s 61   274 s 63   274 Classification of Computer Games and Images Act 1995 Pts 3–5   573 Classification of Films Act 1991 Pts 3–5   573

xli

xlii

Table of Statutes

Classification of Publications Act 1991 s 5   569 s 9   569 Pt 3   572 Contempt of Court Queensland Civil and Administrative Tribunal Act 2009   361 s 218(1)   361 s 218(1)(a)   361 s 218(1)(b)   361 s 218(1)(c)   361 s 218(1)(d)   361 s 218(1)(f)   361 Criminal Code Act 1899 ss 44–46   585 s 52   585 s 228   578 s 365(1)   156 s 365(3)   156 s 365(4)   156 s 365(5)   156 s 365(6)   156 s 365(7)   156 s 408C(1)(b)   407 s 408C(1)(f)   407 s 695A   344 Criminal Law (Sexual Offences) Act 1978 ss 6–10   344

Copyright © 2015. Oxford University Press. All rights reserved.

Defamation Act 1889   154 s 4   187 s 5   157 s 15   222 s 20   263 Defamation Act 2005   155 s 2   155 s 3(d)   284 s 4   172 s 4(1)   173, 222 s 6   155 s 7(2)   157 s 9   169 s 10   159 s 11   219 s 12   284 s 13   285 s 14   285 s 15   285 s 16   285 s 17   285 s 18(1)   285 s 18(2)   285 s 21(1)   171

s 22(2)   171 s 22(3)   171, 269 s 24   221 s 25   222 s 26   230 s 27   238 s 29   245 s 30   252 s 31   256 s 32   262 s 33   263 s 34   274 s 35(1)   274 s 35(2)   276 ss 35(3)–(8)   274 s 37   278 Sch 5   172 Defamation Law of Queensland 1889   291 Electoral Act 1992   407 Fair Trading Act 1989 s 16(1)   312 s 20(1)   313 s 38   312 s 51   317 Freedom of Information Act 1992   616 Information Privacy Act 2009   533 Invasion of Privacy Act 1971   552 s 4   553, 554 s 43   479 s 43(1)   553 s 43(2)(a)   554 s 44   559 s 45   559 s 45(2)(c)(i)   560 Jury Act 1995 s 69A   415 Limitation of Actions Act 1974 s 10(1)(a)   170 s 10AA   170 s 11   171 s 32A   170 Right to Information Act 2009   616, 646 s 4   627 s 12   624 ss 20–21   618 s 20(3)   618 s 23   623 s 41   626 s 41(3)   624 ss 48–49   628

Table of Statutes

s 55   628 ss 78–78B   623 ss 170–174   622 Pt 1   641 Sch 3   628 Sch 3 cl 2(1)   629 Sch 4 Pt 1   616 Succession Act 1981 s 66(1)   159 Uniform Civil Procedure Rules 1999 r 981   349

South Australia Civil Liability Act 1936 s 3   299 s 33   299 s 52   274 s 53   299 s 62(2)   479 s 73   591 s 73(1)   595 Classification (Publications, Films and Computer Games) Act 1995 s 16   569 s 17   569 Pt 4   573 Pt 5   572 Pt 6   573

Copyright © 2015. Oxford University Press. All rights reserved.

Classification of Theatrical Performances Act 1978  569 Criminal Law Consolidation Act 1935 ss 246–247   415 s 257(1)   156 s 257(2)   156 s 257(3)   156 s 257(4)   156 Sch 11 cl 1(26)   578, 585 Defamation Act 2005   155 s 2   155 s 3(d)   284 s 4   172, 173, 222 s 6   155 s 7(2)   157 s 9   169 s 10   159 s 11   219 s 12   284 s 13   285 s 14   285 s 15   285 s 16   285

s 17   285 s 18(1)   285 s 18(2)   285 s 22   221 s 23   222 s 24   230 s 25   238 s 27   245 s 28   252 s 30   256, 262 s 31   263 s 32   274 s 33(1)   274 s 33(2)   276 ss 33(3)–(8)   274 s 35   278 Evidence Act 1929 s 69A   333 s 71A   344 Fair Trading Act 1987 s 14(1)   312 s 18(1)   313 s 56   312 s 74   317 Freedom of Information Act 1991   616, 644 s 3(3)   627 ss 9–10   618 s 10(3)   618 s 12   623 s 18   626 s 23(3)   628 ss 50–52   622 Sch 1 cl 1(2)(b)   629 Freedom of Information (Miscellaneous) Amendment Act 2004   646 Juries Act 1927 s 5   171 Limitation of Actions Act 1936 s 35(c)   170 s 36   171 s 37(1)   170 Listening and Surveillance Devices Act 1972  552 s 3   553 s 4   553, 554 s 5   559 s 7(1)   557 s 7(1)(b)   557 s 7(3)(c)   560 s 43(2)   554

xliii

xliv

Table of Statutes

Classification (Publications, Films and Computer Games) Enforcement Act 1995 Pt 2   572 Pt 3   573 Pt 4   573

Defamation Act 2005   155, 159 s 2   155 s 3(d)   284 s 4   172, 173, 222 s 6   155 s 7(2)   157 s 9   169 s 11   219 s 12   284 s 13   285 s 14   285 s 15   285 s 16   285 s 17   285 s 18(1)   285 s 18(2)   285 s 20A(1)   170 s 21(1)   171 s 22(2)   171 s 22(3)   171, 269 s 24   221 s 25   222 s 26   230 s 27   238 s 29   245 s 30   252 s 31   256 s 32   262 s 33   263 s 34   274 s 35(1)   274 s 35(2)   276 ss 35(3)–(8)   274 s 37   278

Criminal Code 1924 s 119   580

Evidence Act 2001 s 194K   344

Criminal Code Act 1924 ss 66–67   585 s 138   578 s 196(1)   156 s 196(3)   156 s 196(4)   156 s 196(5)   156 s 196(6)   156

Fair Trading Act 1990 s 12   312 s 28   317

Damage by Aircraft Act 1963 s 3   479

Limitation Act 1974 s 4(1)(a)   170 s 5A   171

Racial Vilification Act 1996 s 4   591 Summary Offences Act 1953 s 33   578 s 35   578 Supreme Court Rules 2006 r 9B(3)   356 Survival of Causes of Action Act 1940 s 2(1)   159 s 2(2)   159

Tasmania Administration and Probate Act 1935 s 27(1)   159 Anti-Discrimination Act 1998   589 s 16   601 s 17   589, 601 s 19   589, 591, 601 s 19(b)   606 s 19(c)   606 Australian Consumer Law (Tasmania) Act 2010 s 6(1)   312 s 10(1)   313

Copyright © 2015. Oxford University Press. All rights reserved.

Civil Liability Act 2002 s 27   274 Pt 8   299

Defamation Act 1957   154 s 5   187 s 9   157 s 9(2)   263 s 15   222, 284

Freedom of Information Act 1991   616 Information Protection Act 2004   533 Juries Act 2003 ss 57–58   415

Listening Devices Act 1991   552 s 3(1)   553 s 5(1)   553 ss 5(2)–(3)   554

Table of Statutes

s 5(3)(b)(i)   557 s 10   559 Right to Information Act 2009   616, 646 s 5   624 s 7   623 s 12   627 s 19   626 s 22(4)   628 s 26(2)   629 ss 51–52   622 Sch 2   616, 641

Victoria Administration and Probate Act 1958 s 29(1)   159 Australian Consumer Law and Fair Trading Act 2012 s 8(1)   312 s 12(1)   313 Charter of Human Rights and Responsibilities Act 2006   15, 434 s 13   434 s 15   434 Pt 2   329 Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 Pt 2   573 Pt 3   572 Pt 4   573

Copyright © 2015. Oxford University Press. All rights reserved.

Crimes Act 1958 s 369AA   582 s 469AA   581 Defamation Act 2005   155 s 2   155 s 3(d)   284 s 4   172, 173, 222 s 6   155 s 7(2)   157 s 9   169 s 10   159 s 11   219 s 12   284 s 13   285 s 14   285 s 15   285 s 16   285 s 17   285 s 18(1)   285 s 18(2)   285

s 21(1)   171 s 22(2)   171 s 22(3)   171, 269 s 24   221 s 25   222 s 26   230, 234 s 27   238 s 29   245 s 30   252 s 31   256 s 32   262 s 33   263 s 34   274 s 35(1)   274 s 35(2)   276 ss 35(3)–(8)   274 s 37   278 Evidence Act 1928 s 17   418 s 19   418 Evidence Act 2008 Pt 3   421 Fair Trading Act 1999 s 9   312 s 32   317 Freedom of Information Act 1982   615 s 5   624 ss 7–8   618 s 8(1)   647 s 9   618 s 13   623 s 16   649 s 16(2)   627 s 25A   626 s 25A(4)   624 s 27(2)(b)   628 s 28   646, 647, 648 s 28(2)   629 s 28(4)   646 s 29A   646, 647, 648 s 30   648 s 31(3)   646, 647, 648 s 32   647 s 32(1)   648, 649 s 33   646, 647, 648 ss 49A(3)–(5)   645 s 50   647 s 50(4)   646, 648, 649 ss 62–63   622 Health Records Act 2001   533

xlv

xlvi

Table of Statutes

Judicial Proceedings Reports Act 1958 s 4   344 s 4(1A)   301, 449 Juries Act 2000 ss 77–78B   415

Civil Liability Act 2002 s 9   274 s 10   274 Pt 1B   299

Limitation of Actions Act 1958 s 5(1)(a)   170 s 5(1AA)   171 s 5(1AAA)   170 s 23B   170

Classification (Publications, Films and Computer Games) Enforcement Act 1996 Div 3   573 Div 4   573 Pt 7   572, 573

Open Courts Act 2013   334

Criminal Code ss 76–80F   591 s 345(1)   156 s 345(3)   156 s 345(4)   156 s 345(5)   156 s 345(6)   156

Privacy and Data Protection Act 2014   533 Racial and Religious Tolerance Act 2001   590, 604 s 3   602 s 7   602 ss 7–8   591 s 8   589, 601, 602, 603, 604 s 9   602 s 11   595, 602, 604, 605 s 24   591 s 25   589, 601 Serious Sex Offenders Monitoring Act 2005 s 42   327, 329 Summary Offences Act 1966 s 17   578 s 17(1)(b)   579 Supreme Court of Victoria (General Civil Procedure) Rules 2005 r 28.05   349 Copyright © 2015. Oxford University Press. All rights reserved.

Western Australia

Surveillance Devices Act 1999   552, 554 s 3   553, 554, 555 s 6(1)   553, 554 ss 6(1)–(2)   554 s 7   554 s 7(1)   554, 555 s 7(2)   555 s 8(1)   555 s 8(2)   555 s 9   555 s 11   559 s 11(2)(b)   560 s 12   559 Pt 2A   552 Wrongs Act 1958 s 28G   274 s 28H   274 s 30   479 Pt I   156 Pt XI   299

Criminal Code Act Compilation Act 1913 ss 44–46   585 s 52   585 s 202   578 Damage by Aircraft Act 1964 s 4   479 Defamation Act 2005   155 s 2   155 s 3(d)   284 s 4   172, 173, 222 s 6   155 s 7(2)   157 s 9   169 s 10   159 s 11   219 s 12   284 s 13   285 s 14   285 s 15   285 s 16   285 s 17   285 s 18(1)   285 s 18(2)   285 s 21(1)   171 s 22(2)   171 s 22(3)   171, 269 s 24   221 s 25   222 s 26   230 s 27   238 s 29   245 s 30   252 s 31   256 s 32   262

Table of Statutes

s 9   559 s 9(2)(vi)   560 s 9(3)(a)   560 s 26   557, 558 s 26(1)   558 s 26(2)   558, 559 s 27   557, 558 s 27(1)   558 s 27(2)   559 s 31   557, 560, 561 s 31(1)   560

s 33   263 s 34   274 s 35(1)   274 s 35(2)   276 ss 35(3)–(8)   274 s 37   278 Evidence Act 1906 ss 20A–20M   421 s 36C   344 Fair Trading Act 1987 s 10   312 s 63   317 Fair Trading Act 2010 s 19(2)   312 s 24(1)   313 Freedom of Information 1992 s 31   628 s 36   646 Sch 1 cl 1(4)   629 Freedom of Information Act 1992 Glossary cl 4   624 s 3(3)   627 s 10   623 s 10(2)   624 s 20   626 ss 94–97   618 ss 104–107   622

Copyright © 2015. Oxford University Press. All rights reserved.

Juries Act 1957 ss 56A–56E   415 Law Reform (Miscellaneous Provisions) Act 1941 s 4(1)   159 Limitation Act 2005 s 13(1)   170 s 14(1)   171 s 15   170 s 40   170 Surveillance Devices Act 1998   552, 553, 557 s 3   553, 554, 555, 558 s 5   558 s 5(1)   553 ss 5(2)–(3)   554 s 5(3)   558 s 5(3)(d)   557 s 6   554, 558 s 6(1)   554 s 6(2)   555 s 6(3)   555, 558 s 7(1)   555 s 7(2)   555

Canada Canadian Charter of Rights and Freedoms s 2   15 s 8   469 Judicature Ordinance of the North-West Territories s 5   330

European Community Charter of Fundamental Rights of the European Union (2010/C 83/02) Art 7   545, 547 Art 8   534, 545, 547 EU Directive 95/46   543 Art 6(1)(c)–(e)   546 Art 12(b)   543, 546, 547 Art 14   543, 546, 547 European Convention for the Protection of Human Rights and Fundamental Freedoms Art 8.1   513 Art 10.1   513 European Convention on Human Rights   434, 493, 503 Art 8   434, 454, 456, 470, 471, 473, 474, 497, 504, 506, 513, 515, 516, 521 Art 10   25, 26, 166, 167, 389, 434, 471, 474, 506, 513, 515, 516, 521, 523 Art 13   497

France Code Civil Art 9   523

New Zealand Bill of Rights Act 1990 (NZ)   469 s 5   463, 464, 466 s 14   15

xlvii

xlviii

Table of Statutes

Crimes Act 1961 (NZ) s 216H   467 Employment Relations Act 2000 (NZ)   460 Privacy Act 1993 (NZ) s 66   460

United Kingdom Act of Settlement 1701   279 Arbitration Act 1996 s 1   338 Common Law Procedure Act 1854   279 Contempt of Court Act 1981   390 Crimes and Courts Act 2013 c 22   397 s 33(1)   397 Data Protection Act 1998   455, 506 Defamation Act, 1952 s 5   231 Defamation Act 2013 c 26 s 11   172 Human Rights Act 1998   434, 435, 441, 454, 493, 503, 506, 513, 517 s 6   456 s 7   456 Judicature Act 1873   279 Official Secrets Act 1911   411 Protection from Harassment Act 1997   455 s 1   449 s 3   449 Copyright © 2015. Oxford University Press. All rights reserved.

Statute Law Revision Act 1887   154 Statute of Uses 1535   490

United States Communications Decency Act of 1996 47 USC § 230   118 Constitution of the United States (US)   403 First Amendment   15, 21, 23, 24, 25, 30, 32, 37, 294, 441, 453 Digital Millennium Copyright Act of 1998 (DMCA)  117 Restatement of Torts, 2nd § 625D   514 § 652A   453 § 652B   453 § 652C   453 § 652D   453, 507 § 652E   453

OECD Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data (1980)   534

United Nations International Covenant on Civil and Political Rights (ICCPR)   25, 39, 434, 458, 576 Art 17   446, 534 Art 19   25 Art 19.2   434 Art 19.3   434 Art 20   26 Universal Declaration on Human Rights  434 Art 19   434

PART 1 Introduction 1 The Social and Political Role of the Media

Copyright © 2015. Oxford University Press. All rights reserved.

2 Freedom of Expression

3 15

Copyright © 2015. Oxford University Press. All rights reserved.

The Social and Political Role of the Media

1

INTRODUCTION This chapter introduces some key concepts relating to the social and political role of the media. The chapter considers the ideas of the media as a public sphere and as the fourth estate of government. It also discusses the characteristics of the public, commercial and community sectors in Australian media, and the more recent importance of social media and the internet. The chapter finishes by introducing the contents of this book. In doing so, the concluding paragraphs comment on the regulatory and legal traditions that affect media institutions and how these carry through to contemporary media laws. This chapter surveys territory that has been the subject of intense academic exploration. What follows is a brief introduction to broad themes, but it provides a framework for thinking about media law and policy.

Copyright © 2015. Oxford University Press. All rights reserved.

1.1

Social and political

The media is often described as an ‘institution’. It is charged with social and political purposes that set it apart from most other types of enterprise. The media provides a forum for public debate. It provides the reporting, analysis and opinion necessary for citizens to make informed political decisions. At its best, it supports investigative journalism that holds powerful people and organisations to account on behalf of the public. The media can mobilise support or opposition around an issue and by doing so drive political action. All of this means the media plays an important role in a liberal democracy. A further purpose of the media is simply to entertain, but this is also important.1 The media we consume shapes our personal and cultural identity. Content that may not intend to be political still 1 As affectionately put by Leveson LJ in his report on the culture and ethics of the press: ‘It is not necessary or appropriate for the press always to be pursuing serious stories for it to be working in the public interest. Some of its most important functions are to inform, educate and entertain and, when doing so, to be irreverent, unruly and opinionated. It adds a diversity of perspective. It explains complex concepts that matter in today’s world in language that can be understood by everyone. In no particular order, it covers sports, entertainment, fashion, culture, personal finance, property, TV and radio listings and many other topics. It provides help lines and advice; it supports its readers in a wide variety of ways. It provides diversion in the form of crosswords, games, and cartoons. In short, it is a very important part of our national culture.’ Lord Justice Leveson, An Inquiry Into the Culture, Practices and Ethics of the Press, Executive Summary, November 2012, [9].

3

4

PART 1 Introduction

comments on our relationships with each other and how we behave. In this, the media can have ‘reality-defining effects’. The media is, accordingly, not just an institution, but a powerful one.

1.1.1

The public sphere

The concept of the media as a ‘public sphere’ traces back to the work of theorist Jurgen Habermas.2 According to Habermas, a public sphere developed in eighteenth-century Europe in which information about business, culture and politics was exchanged and elite citizens discussed questions of state policy and action.3 The public sphere mediated between society and the state. Habermas’s public sphere emerged in the coffee houses and salons of Europe, but the press was fundamentally important.4 Through the press, private opinions were transformed into public opinion. As explained by Habermas: With the growth of a general reading public that transcended the republic of scholars and the urban bourgeoisie and who no longer limited themselves to a careful reading and rereading of a few standard works but oriented their reading habits to an ongoing stream of new publications, there sprang from the midst of the private sphere a relatively dense network of public communication.5

Copyright © 2015. Oxford University Press. All rights reserved.

Habermas considered that the public sphere should be free from both state and private interests.6 Mass media was a distorting influence that manipulated and controlled mass opinion, in contrast to the early press, which had facilitated the formation and expression of organic, public opinion.7 As Habermas would have it, a healthy public sphere required small-scale media not motivated by commercial concerns.8 While mass-circulation press and broadcast media have moved away from Habermasian ideals, the understanding of the media as a forum for public debate and a mechanism for converting private opinions into public consensus (or something approaching it) remains powerful. The internet has also clearly affected the constitution and functioning of the public sphere, although both utopian and dystopian visions have been presented on the effects of the internet on the quality of public discourse.9 2 Jurgen Habermas, The Structural Transformation of the Public Sphere, translated by Thomas Burger with the ­assistance of Frederick Lawrence, Polity Press, Cambridge, 1992. 3 Habermas’s conception of the public sphere has been subject to heavy criticism, debate and controversy. Some notable criticisms relate to the exclusion from the public sphere of groups such as women or alternative cultures. See Nancy Fraser, ‘Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy’, in Craig Calhoun (ed), Habermas and the Public Sphere, MIT Press, Cambridge, 1992. A further argument is that there is no single public sphere but in fact multiple and alternative spheres. See T Gitlin, ‘Public Sphere or Public Sphericules?’, in Tamar Liebes and James Curran (eds), Media, Ritual and Identity, Routledge, London, 1998; Richard Butsch, ‘Introduction: How are Media Public Spheres?’, in Richard Butsch (ed), Media and Public Spheres, Palgrave Macmillan, New York, 2007, 4. 4 Habermas, above n 2, 181. 5 Jurgen Habermas, ‘Further Reflections on the Public Sphere’, in Calhoun (ed), above n 3, 425. 6 See Fraser, above n 3, 118. 7 James Curran, ‘Rethinking the Media as a Public Sphere’, in Peter Dahlgren and Colin Sparks (eds), Communication and Citizenship: Journalism and the Public Sphere, Routledge, London, 1993, 38–39. 8 Habermas, above n 2, 181–88. 9 A seminal utopian vision is provided in Nicholas Negroponte, Being Digital, Vintage Books, New York, 1995. Cass Sunstein argued, conversely, that the internet would lead to audience fragmentation and the destruction of common discourse: Cass Sunstein, Republic.com, Princeton University Press, Princeton, 2002. Yochai Benkler has written about the ‘networked public sphere’ and this has become a well-utilised theory for understanding the dynamics of online public discourse: Yochai Benkler, The Wealth of Networks, Yale University Press, New Haven and London, 2006, Chapter 7 (Political Freedom Part 2: Emergence of the Networked

CHAPTER 1 The Social and Political Role of the Media

1.1.2

The fourth estate

Aside from simply disseminating information and acting as a forum for public debate, the media has an institutional role in investigating and analysing public affairs and the actions of public figures. This adversarial investigative function is central to how the media (at first the press) has historically seen itself. When the printing press was invented it was quickly recognised as dangerous and became subject to strict governmental controls. The freedom of the press from prior licensing and government interference was bound up with the philosophical and political fights over the value of freedom of expression and, more generally, with progress towards liberal democracy. As the press asserted its importance to democracy it came to be referred to as the ‘fourth estate’ of government.10 The concept of the media as the fourth estate is sometimes used as shorthand for any public or democratic role played by the media.11 However, it can have a more specific meaning. At its most distilled, the fourth estate ideal holds that the media will act as a ‘watchdog’ sensitive to corruption and injustice and holding public institutions and actors to account. There are celebrated examples of investigative journalism that give the fourth estate ideal some weight, perhaps the most prominent being the Watergate scandal in the United States. This said, the aspirations of the fourth estate can also easily give way to commercial pressures and competing interests.12 The drift in news media towards more entertainment-driven and sensationalist content is often criticised as a betrayal of the fourth estate ideal. As noted by Schultz, ‘the gap between the rhetorical claims about the role of the media and reality, is huge’.13

Copyright © 2015. Oxford University Press. All rights reserved.

1.2

Sectors in Australian media

One of the strengths of Australian media is its sectoral diversity. Australian media can be drawn into three basic sectors: public, commercial and community, and all are well represented. The historical development and characteristics of each sector are discussed in the following paragraphs. We also discuss social media. It is a stretch to refer to social media as a sector with equivalent standing to the others mentioned. Social media does not have such clear boundaries or organising principles. The motivations for participating in social media may be public-, commercial- or community-minded, or may be something else. The terms of engagement between traditional media organisations and social media are still being negotiated. Nonetheless, social media and user-generated content are an increasingly important part of the overall media landscape. It is possible to make general statements about social media as distinct from the other sectors, and we do. 10 The other three estates were once the monarch, the clergy and the parliament; now the executive, the parliament and the judiciary: Julianne Schultz (ed), Reviving the Fourth Estate: Democracy, Accountability and the Media, Cambridge University Press, Melbourne, 1998, 47–48. See also R Finkelstein, Report of the Independent Inquiry into the Media and Media Regulation (Report to the Minister for Broadband, Communications and the Digital Economy, 28 February 2012), [2.41]–[2.46]. 11 There is a lot of cross-over between the concepts of the public sphere and media as fourth estate. As put by Gitlin, ‘“The public sphere”: the phrase has ballooned into the God-term of democratic discourse theory’: Todd Gitlin, ‘Public Sphere or Public Sphericules?’, in Tamar Liebes and James Curran (eds), Media, Ritual and Identity, Routledge, London, 1998, 169. Similarly, the term ‘the fourth estate’ can encapsulate a number of concepts relating to the media’s political role. See Schultz (ed), above n 10, 49. 12 As noted by Curran, ‘Even many, so called “news media” allocate only a small part of their content to public affairs—and a tiny amount to disclosure of official wrong doing’: James Curran, ‘Rethinking Media and Democracy’, in James Curran and Michael Gurevitch (eds), Mass Media and Society, London, Oxford University Press, 2000, 12. See also Schultz (ed), above n 10, 4. 13 Julianne Schultz, ‘Media Convergence and the Fourth Estate’, in Not Just Another Business: Journalists, Citizens

5

6

PART 1 Introduction

Copyright © 2015. Oxford University Press. All rights reserved.

1.2.1

Historical development

Press independence from government, in terms of both licensing and funding, was an important part of its claim to act as a check on state power. As a result, newspapers have tended to be almost exclusively commercial operations, or at least privately funded. When radio was introduced it was less clear that private interests should have a monopoly on public airwaves. The British emphasised a model of ‘public service broadcasting’, which held that broadcasting should be a state concern and a ‘cultural, moral and educative force for the improvement of knowledge, taste and manners’.14 The Americans, by way of contrast, were happy to see broadcasting developed by commercial organisations.15 Australia navigated a path somewhere between the British and the Americans, settling on a system that included both public and private broadcasting.16 A two-tier licensing scheme for radio was introduced in the early 1920s, which created a category of service financed by listener licence fees (‘Class A’ stations) and a category financed by advertising revenue (‘Class B’ stations). After an initial period of private ownership the Class A stations were nationalised and became the Australian Broadcasting Commission. The Class B stations were left alone and continued as a parallel commercial sector. In 1954, a Royal Commission recommended that television should be structured ‘on the same fundamental basis as has been so remarkably successful in respect of sound broadcasting’.17 In accordance with this recommendation, the ‘dual system’ of national and commercial broadcasters was carried into television. Community broadcasting emerged as a third sector in Australian media in the 1970s. In 1972, the Australian Broadcasting Control Board advocated for the creation of a new type of broadcasting service that ‘would be conducted on a non-profit basis to cater for the needs of educational, religious, professional, musical and other like interests …’.18 The outgoing Whitlam government endorsed a proposal to license 12 community radio stations in 1975.19 Since then, community media has progressed on a consistent trajectory of expansion to become a significant sector in Australian media. As this quick history indicates, each of the three primary sectors in Australian media were largely defined by government licensing of broadcasting services. However, organisations formed as public, commercial and community broadcasters have variously extended their activities into online and other services.

14 Paddy Scannell and David Cardiff, ‘Public Service Broadcasting’, in A Social History of British Broadcasting, B Blackwell, Oxford, 1991, 7. See also Elizabeth Jacka, ‘The Future of Public Service Broadcasting’, in Stuart Cunningham and Graeme Turner (eds), The Media and Communications in Australia, 2nd edn, Allen & Unwin, Crows Nest, NSW, 2006, 344–45. 15 For an account of how commercial interests came to dominate broadcasting in the United States, see Robert McChesney, Telecommunications, Mass Media and Democracy: The Battle for the Control of US Broadcasting, 1928–1935, Oxford University Press, New York, 1993. 16 Australia’s first attempt at a licensing scheme was something of a disaster involving ‘sealed sets’. The scheme had broadcasters selling radio sets that were fixed so that they could only receive one station. In theory, listeners were restricted to receiving only those radio stations to which they had subscribed. In practice, the sets were easily modified and many listeners illegally altered their sets so that they could receive other frequencies. The scheme gave way in 1924—about 12 months after it commenced. See Australian Heritage Council, ‘Radio and Television, 1905–1970’, in Linking a Nation: Australia’s Transport and Communications 1788–1970, Australian Heritage Commission, Canberra, 2003. 17 Report of the Royal Commission on Television (1954), as cited in Jock Given, Turning off the Television, UNSW Press, Kensington, NSW, 2003, 32. 18 Australian Broadcasting Control Board, Report on Frequency Modulation Broadcasting, June 1972. 19 Named the ‘Cass dirty dozen’ after Dr Moss Cass, who was Minister for Media in the Whitlam ­government in 1975.

CHAPTER 1 The Social and Political Role of the Media

1.2.2

Public service media

John Reith, the first Director General of the British Broadcasting Corporation (BBC), provided an early statement (later described as a ‘manifesto’) on the purpose of public service broadcasting in his book Broadcast Over Britain (1924). Reith’s vision of a public broadcasting system involved a non-profit enterprise providing national coverage. Reith was also concerned about the maintenance of standards in broadcasting. He wrote:

Copyright © 2015. Oxford University Press. All rights reserved.

As we conceive it, our responsibility is to carry into the greatest possible number of homes everything that is best in every department of human knowledge, endeavour and achievement, and to avoid the things which are, or may be hurtful. It is occasionally indicated to us that we are apparently setting out to give the public what we think they need – and not what they want, but few know what they want, and very few what they need … In any case it is better to over-estimate the mentality of the public, than to under-estimate it.20

A set of cultural and social purposes have become associated with public service broadcasting that remain essentially close to Reith’s philosophy. The basic values that public service broadcasting has come to represent include universal service, an educational function and an emphasis on ‘quality’ content—particularly content serving worthy but uncommercial minority or niche audiences. Public broadcasters are charged with a key role in maintaining the public sphere. In addition, public broadcasters are meant to support arts, culture and local content and, in doing so, develop a sense of national identity.21 In the words of a former Chair of the Board of Governors of the BBC, an enormous amount of a public broadcaster’s work is ‘social cement of one sort or another’.22 The public media sector in Australia amounts to services provided by the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS). The values of public service media are reflected in the respective charters of the ABC and SBS. The ABC charter is set out in the Australian Broadcasting Corporation Act 1983 (Cth). The ABC charter states that the functions of the ABC are (among other things) to provide innovative and comprehensive broadcasting services of a high standard; to broadcast programs that contribute to a sense of national identity; and to broadcast programs of an educational nature.23 Aside from these charter obligations, the Australian Broadcasting Corporation Act 1983 (Cth) requires that the ABC develop and maintain an independent news service and prohibits the ABC from broadcasting advertisements.24 The SBS was established in the 1970s in order to promote ethnic programming.25 The charter of the SBS is set out in the Special Broadcasting Services Act 1991 (Cth) and establishes the SBS as a multicultural 20 John Reith, Broadcast Over Britain, Hodder and Stoughton, London, 1924, 34. See also Scannell and Cardiff, above n 14, 7. 21 These values are neatly summarised in Department of Broadband Communications and the Digital Economy (DBCDE), ABC and SBS: Towards a Digital Future, Discussion Paper, October 2008, 5. See also Trine Syvertsen, ‘Challenges to Public Television in the Era of Convergence and Commercialisation’ (2003) 4(2) Television and New Media 155 at 157. 22 Sir Michael Swann, as cited in Scannell and Cardiff, above n 14, 10. 23 Australian Broadcasting Corporation Act 1983 (Cth) s 6 (Charter of the Corporation). 24 Australian Broadcasting Corporation Act 1983 (Cth) ss 27 and 31. Note that the restriction on broadcasting advertisements is subject to exceptions relating to ABC programming and activities; and does not affect international broadcasting services or non-broadcast media. 25 The SBS’s initial radio stations (2EA in Sydney and 3EA in Melbourne) commenced broadcasting in 1975. The SBS was constituted as a body through amendments made to the Broadcasting and Television Act 1942 (Cth) by the Broadcasting and Television Amendment Act 1977 (Cth).

7

8

PART 1 Introduction

broadcaster. In contrast to the ABC, the SBS operates on a ‘hybrid’ funding model and is allowed to broadcast advertisements during natural program breaks.26 Public service media is often positioned as an important counterbalance to commercial media. As it is supposedly free from both commercial conflicts of interest and the tyranny of ratings, public service media is able to act as a neutral public sphere and an uncompromised watchdog in the best traditions of the fourth estate. In catering for niche audiences, public service media creates deep loyalties and opportunities for community-wide engagement with public life.27 It is worth noting, however, that public service media is not incorruptible. As observed by Curran, there is no lack of international examples where public broadcasters have acted as little more than the mouthpieces of government.28 Independence from political interference is, accordingly, a critical issue for public service media. The corporate structures of the ABC and SBS, as set out in their respective Acts, are essentially similar. The ABC and SBS each have a board of directors responsible for their strategic direction and policies.29 These boards are specifically charged with maintaining the independence and integrity of each broadcaster.30 Further functions of the boards include appointing a managing director and developing codes of practice relating to programming.31 Appointments to the boards of the national broadcasters are generally made by the Governor-General acting on ministerial advice.32 In 2001, a Senate Committee reported a general perception that the appointment process, at least in respect of the ABC Board, had become politicised. The committee noted: The general view of submissions to the Committee suggests that the habit of appointing political sympathisers to the Board is as old as the ABC itself.33

Copyright © 2015. Oxford University Press. All rights reserved.

The Australian Broadcasting Corporation Act 1983 (Cth) and Special Broadcasting Service Act 1991 (Cth) were, some years later, amended to include more structured board appointment processes.34 However, this has not done much to depoliticise recent appointments.35 26 Special Broadcasting Service Act 1991 (Cth) s 45(2). 27 Georgie McClean, ‘Maintaining Relevance: Cultural Diversity and the Case for Public Service Broadcasting’ (2008) Record of the Communications Policy and Research Forum 255 at 261. 28 James Curran, ‘Rethinking Media and Democracy’, in James Curran and Michael Gurevitch (eds), Mass Media and Society, Oxford University Press, London, 2000, 125. For instance, the South African Broadcasting Corporation, modelled on the BBC, became an instrument of Apartheid: Elizabeth Jacka, ‘The Future of Public Service Broadcasting’, in Stuart Cunningham and Graeme Turner (eds), The Media and Communications in Australia, 2nd edn, Allen & Unwin, Crows Nest, NSW, 2006, 345. 29 Australian Broadcasting Corporation Act 1983 (Cth) ss 7–10 and 12(1); Special Broadcasting Service Act 1991 (Cth) ss 7–10 and 28. 30 Australian Broadcasting Corporation Act 1983 (Cth) s 8(1)(b); Special Broadcasting Service Act 1991 (Cth) s 10(1)(a). 31 Australian Broadcasting Corporation Act 1983 (Cth) ss 9, 13 and 8(1)(e); Special Broadcasting Service Act 1991 (Cth) ss 28, 29 and 10(1)(j). 32 Australian Broadcasting Corporation Act 1983 (Cth) s 12; Special Broadcasting Service Act 1991 (Cth) s 17. 33 Senate Environment, Communications, Information Technology and the Arts References Committee, Above Board? Methods of Appointment to the ABC Board, September 2001, [2.15]. 34 National Broadcasting Legislation Amendment Act 2012 (Cth), amending the Australian Broadcasting Corporation Act 1983 (Cth) and Special Broadcasting Service Act 1991 (Cth). Appointments are still basically a decision for the Minister. However, vacancies are to be advertised and a short-list of recommended candidates prepared by a nomination panel. Where the Minister intends to depart from the short-list, a statement of reasons is to be provided to both houses of parliament. The Prime Minister may also become involved in the appointment of the Chairperson of the ABC: Australian Broadcasting Corporation Act 1983 (Cth) s 24X. 35 Members of the nomination panel may be appointed by the Secretary of the Prime Minister’s Department: Australian Broadcasting Corporation Act 1983 (Cth) s 24F, Special Broadcasting Service Act 1991 (Cth) s 3 ­(definition of nomination panel). In July 2014 this power was used to appoint commentator Janet Albrechtsen and former deputy Liberal Party leader Neil Brown to the nomination panel, both of which were perceived to be political appointments: see Matthew Knott, ‘Janet Albrechtsen Appointed to ABC and SBS Board Appointments Panel’, Sydney Morning Herald, 2 July 2014.

CHAPTER 1 The Social and Political Role of the Media

Although both have developed alternative sources of revenue, the ABC and SBS are primarily financed through triennial government funding arrangements. As with board appointments, there is a risk of funding decisions being influenced by political considerations. The heavy decline in funding to the ABC in the late 1990s, for example, has been interpreted (rightly or wrongly) as a penalty imposed in response to its regular criticisms of the incumbent government.36 Current debates on funding cuts are similarly controversial. It has been argued that there is no longer a need for publicly funded media, or at least that the rationales supporting public service media need to be revised.37 One of the traditional rationales for public service media is that it corrects market failure by catering for minority audiences. Multichannel programming, the community media sector and the availability of new media services may have addressed this issue. Another complaint is that the emphasis on ‘quality’ in public service media skews programming towards middle-class preferences that do not need to be subsidised by taxpayers. In support of public service media, its objectives remain relevant even if partially addressed by the commercial and community media sectors. Further, publicly funded media is proving its relevance in new ways, including by taking a pioneering role in new media services.38

Copyright © 2015. Oxford University Press. All rights reserved.

1.2.3

Commercial media

In order to act as an effective watchdog and effectively report and critique the actions of the state, it was traditionally felt that some distance needed to be established between the media and the government through private media ownership.39 The nature of commercial media as a private enterprise with a public democratic purpose has its complications. While the commercial and social objectives of the media may coincide, often they do not. Highquality investigative journalism is expensive to produce and does not necessarily result in a commensurate increase in ratings or circulation. Commercial media is also subject to a range of corporate relationships and economic interests that have the potential to affect reporting. At worst, commercial media can become ‘corporate mercenaries’ deployed to further private interests. While it is worth noting the theoretical limitations of commercial media as a political institution, the dichotomy established between the public and private media and subsequent analysis of the democratic potential of each has its problems. The logic of media literature holds that government-funded media serves the government and privately owned media serves private interests. However, countervailing factors such as the professional concerns of journalists and the need to maintain legitimacy intervene.40 Tiffen concludes that ‘neither public service media nor private corporations can be seen as

36 See Jacka, above n 28, 348. 37 See, for example, James Murdoch, ‘The Absence of Trust’ (2009 Edinburgh International Television Festival MacTaggart Lecture, 28 August 2009); Ross Jones, ‘Does Australia Really Need the ABC’ (1997) 4(2) Agenda 253; Elizabeth Jacka, ‘“Democracy as Defeat”: The Impotence of Arguments for Public Service Broadcasting’ (2003) 4 Television & New Media 177; FOXTEL and ASTRA submissions to the Convergence Review, cited in Australian Government, Convergence Review, Final Report, March 2012, 85. 38 Note the ABC iView and BBC iPlayer as examples of early and very successful streaming services. 39 Curran, above n 28. 40 Ibid.

9

10

PART 1 Introduction

automatically enhancing the democratic cause’41—but it should be kept in mind that both are capable of doing so. The commercial models that underwrite many types of media have been and continue to be challenged by the internet. Online copyright infringement is also an issue that continues to affect revenues. Sympathy for media companies aside, there are good reasons for paying close attention to the business models that support the production of media content. The social functions of commercial media depend on sustainable revenue streams. Regulated policy objectives, such as local content quotas and children’s programming standards, are also dependent on assumptions about the profitability of mass media. It is not clear whether online business models will be capable of funding professional journalism and local content production to the same level, or in the same manner, as traditional mass media systems.

Copyright © 2015. Oxford University Press. All rights reserved.

1.2.4

Community media

In many respects community media continues the mission of public service broadcasting, but with greater emphasis on community participation in the production of content and the management of community media organisations. The guiding principles of community media, as stated in codes of practice for community radio, include working to contribute to an inclusive, cohesive and culturally-diverse Australian community; to enhance programming diversity; to develop local arts and music; and to increase community involvement in broadcasting.42 Community broadcasters are not-for-profit organisations licensed to serve specific community interests. Community media receives a nominal level of government funding. Community broadcasters can accept sponsorship and are allowed to transmit ‘sponsorship announcements’ (but not advertising) during natural program breaks. Aside from these sources of income, community media is supported through high levels of volunteer participation.43 The community sector makes a considerable contribution to the diversity of Australian media and the provision of local content.44 At time of writing, there are approximately 360 community radio services, three long-term licensed community television stations (broadcasting in Sydney, Melbourne and Brisbane), and two temporarily licensed community television stations (Perth and Adelaide).45 It is difficult to get accurate audience numbers,

41 Rodney Tiffen, ‘The Media and Democracy: Reclaiming an Intellectual Agenda’, in Julianne Schultz (ed), Not Just Another Business: Journalists, Citizens and the Media, Pluto Press, Sydney, 1994, 63–64. 42 Community Radio Broadcasting Codes of Practice, B: Guiding Principles (October 2008). Similar objectives can be found in the Community Television Codes of Practice (June 2011). 43 A census conducted on behalf of the Community Broadcasting Association of Australia (CBAA) reported 19,336 volunteers at community radio stations in 2011–12: McNair Ingenuity Research, Community Broadcasting Station Census: Survey of the Community Radio Sector for the 2011–12 Financial Year (December 2013), 42. 44 See Michael Meadows et al, ‘A Quiet Revolution: Australian Community Broadcasting Audiences Speak Out’ (2008) 129 Media International Australia 20. 45 ACMA, List of Community Radio Broadcasting Licensees, 14 November 2014 (No. of Licences: 359); ACMA, List of Community TV Broadcasting Licensees, 18 September 2012 (No. of Licences 81: aside from the ­permanent and temporarily licensed metropolitan community television stations, a number of remote Indigenous ­television services operate under community licences). See also Rhonda Jolly, ‘Media of the People: Broadcasting Community Media in Australia’ (Research Paper Series 2013–14, Parliamentary Library, Parliament of Australia, 2 April 2014) 17.

CHAPTER 1 The Social and Political Role of the Media

but community media clearly reaches many millions of Australians each week.46 It is one of the great success stories of Australian broadcasting.47

1.2.5

Social media

Copyright © 2015. Oxford University Press. All rights reserved.

The term ‘social media’ is conveniently broad. It covers a range of online services that involve networks of users creating and sharing content. A set of international social media sites such as Twitter, Facebook, YouTube, LinkedIn, Instagram and others have become quickly established and seemingly entrenched (even if online certainties can change quickly).48 At the start of this chapter we listed some of the social and political functions of the media. Social media clearly fulfils or enhances a number of these functions. Social media provides a public or semi-public forum for individual commentary and debate. It promotes dialogue by allowing a two-way engagement between audiences and media content (both user-generated and professional) and, in this, social media can be seen to have enhanced the public sphere.49 The designed emphasis of social media on assembling networks of likeminded people means that it is particularly good at mobilising support around an issue and coordinating political action.50 A lot of early reporting on the ‘Arab Spring’ uprisings in Tunisia, Syria, Egypt and elsewhere characterised these as a ‘Twitter revolution’ inspired and facilitated by social media. There is an ongoing debate as to the role social media played in the Arab Spring.51 However, it is an interesting and important part of the story. The relationship between social media and traditional media outlets is still being defined. However, there is research to suggest it can be symbiotic.52 In allowing users to share content through their networks, social media can act as an amplifier for traditional media content.53 This process can also work in reverse. In reporting on the events of the Arab Spring, news network Al Jazeera relied heavily on first-hand social media accounts. This television 46 Jolly notes the community radio sector has an estimated monthly national radio audience reach of more than nine million: Jolly, above n 45. A survey conducted in 2008 indicates that approximately 4.5 million people listen to community radio each week: McNair Ingenuity Research, Community Radio National Listener Survey, July 2008, 25. The reasons cited for listening to community radio mostly relate to the availability of specialist music programs and local news or information: 35. Or, as put by Jolly, ‘Audiences cite many reasons for listening to community radio, but most of these are punctuated by the word “local”’ (Jolly, above n 45, 18). 47 Australian Government, Convergence Review, Final Report, March 2012, 87. The most comprehensive ­available study of community media in Australia was published in 2007: Michael Meadows et al, Community Media Matters: An Audience Study of the Australian Community Broadcasting Sector (Griffith University, March 2007). 48 These sites count their users and usage statistics in tens and hundreds of millions and enjoy correspondingly high corporate valuations. We use the word ‘entrenched’ lightly, however. The first edition of this book included MySpace in the list. 49 See Clay Shirky, ‘The Political Power of Social Media: Technology, the Public Sphere, and Political Change’ (2011) 90(1) Foreign Affairs 28; Yochai Benkler et al, Social Mobilization and the Networked Public Sphere: Mapping the SOPA-PIPA Debate (July 19, 2013), Berkman Center Research Publication No. 2013, 16, available at SSRN: . 50 Shirky, above n 49, 32. 51 There is a lot of material on this subject. A number of articles discuss the central role social media played in the Arab Spring, for example: Merlyna Lim, ‘Clicks, Cabs, and Coffee Houses: Social Media and Oppositional Movements in Egypt 2004–11’ (2012) 62 Journal of Communication 231; Philip N Howard and Muzammil M Hussain, ‘The Role of Digital Media’ (2011) 22(3) Journal of Democracy 35. Others note that social media may be part of the story, but its role in the Arab Spring uprisings was far from uniform and dependent on political context: Gadi Wolfsfeld, Elad Segev and Tamir Sheafer, ‘Social Media and the Arab Spring: Politics Comes First’ (2013) 18 International Journal of Press/Politics 115. 52 Shirky, above n 49, 34. 53 Sitaram Asur et al, Trends in Social Media: Persistence and Decay (2011), available at .

11

12

PART 1 Introduction

coverage dramatically expanded the audience that might otherwise have been exposed to those tweets and their subject matter.54 This example relates to news, but similar processes can work for entertainment media. In short, social media and traditional media can play off each other. While these dynamics are not settled, they represent a significant departure from traditional methods of assembling a mass audience.

Copyright © 2015. Oxford University Press. All rights reserved.

1.3

The contents of this book

This book is concerned with media law. It looks at those laws that affect media organisations and, more generally, public communications. At its most reduced, the discipline of media law asks who can say what, to whom, through what channels, on what conditions and at what cost. These are intensely political and contested questions. As we have discussed, the media is a socially and politically powerful institution. It can influence our identity and our opinions. It can cause harm to reputation and can prejudice a fair trial. It can disclose material that should be private. It can offend and can vilify. How the media is, and should be, controlled is the subject matter of this book. As an institution that habitually oversteps lines, there is a natural instinct to control the media through law. Against this instinct, the media has the benefit of a developed philosophical defence based on the importance of freedom of expression (Chapter 2). Freedom of expression is a theme that runs through this book and is relevant to all aspects of media law. The extent to which freedom of expression should give way to other values (such as reputation or privacy) is a balancing act that calls for constant recalibration. Part 2 of this book deals with media regulation. This Part discusses the regulatory frameworks that apply to print media and journalists (Chapter 3), broadcasting services (Chapter 4) and online content (Chapter 5). Freedom of the press was hard won and this has meant that any attempt to regulate the press has been fiercely resisted. Although print media regulation has been the subject of a number of recent reports and various law reforms have been proposed, the press remains free from any specific licensing requirements and is subject only to a self-regulatory scheme in terms of content regulation. Broadcasting, by way of contrast, was heavily regulated from the outset. The Broadcasting Services Act 1992 (Cth) establishes a complex co-regulatory scheme comprised of statutory restrictions, regulatory standards and industry codes of practice, all of which affect the content of broadcast television and radio services. Online content services, coming from the ‘wildwest’ culture of the early internet, are not significantly regulated. Although online content services are nominally subject to a scheme under the Broadcasting Services Act 1992 (Cth), these many pages of legislation only rarely result in any regulatory action. The different levels of regulation applied to different media platforms have never been well rationalised. However, as processes of media convergence continue, and the distinctions between media platforms blur, these inconsistencies are becoming increasingly difficult to justify. Proposals to harmonise media regulation across platforms is a running theme of these chapters. The final chapter of this Part, Chapter 6 considers the sector-specific rules on media ownership that exist under the Broadcasting Services Act 1992 (Cth). These rules are designed to

54 Chris Stokel-Walker The Revolution Will be Tweeted? Lulu.com, 2011, Ch V.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 1 The Social and Political Role of the Media

ensure that broadcasting services represent a diverse set of interests and that no one media proprietor (or group) can acquire control of the airwaves. In the golden age of broadcasting, the case for media ownership laws was clear. As online services develop, however, some of the rationales that support sector-specific ownership regulation are becoming weaker. This chapter also reviews general competition laws that affect media acquisitions and the regulation of foreign investment in media assets. Part 3 deals in detail with one of the most significant causes of action affecting media outlets’ daily activities—defamation. Chapter 7 addressed the elements of liability for defamation; Chapter 8 canvasses the defences; and Chapter 9 deals with the remedies. Chapter 10 then examines other causes of action, such as injurious falsehood, misleading or deceptive conduct and negligent misstatement, which may provide additional protection for reputation or may impose liability for the publication of false statements. Part 4 deals with another substantive area of law, which has an impact on what media outlets can publish, particularly in relation to the reporting of crime. Chapter 11 concerns the principle of open justice, a fundamental feature of the common law. It examines the ways in which this principle manifests itself to constrain or facilitate what media outlets publish, most notably suppression and non-publication orders. Chapter 12 analyses the various forms of contempt of court and the ways in which they impose liability for interferences with the administration of justice. Part 5 deals with the different means by which Australian law protects (or does not protect) privacy. Unlike defamation law, which has protected reputation highly for centuries, it is still accurate to state that there is no direct, comprehensive right to privacy under Australian law. Chapter 13 examines the current state of Australian privacy law and questions whether courts or legislatures might develop some direct, general privacy protection. It also considers developments to protect privacy more effectively in the United Kingdom, New Zealand and the European Union. Chapter 14 then considers the utility of the existing equitable cause of action for breach of confidence to protect personal privacy. It particularly focuses the adaptation of this cause of action to achieve this end under English law. Chapter 15 focuses on the protection of personal information under the Privacy Act 1988 (Cth), the protection of stored and real-time communications under the Telecommunications (Interception and Access) Act 1979 (Cth) and restrictions on the use of surveillance devices under state and territory legislation. In Part 6, Chapter 16 examines the regulation of offensive publications. This involves consideration of classification laws and censorship practices, as well as of common law developments regarding obscenity, blasphemy and sedition. This historical common law  approach to offensive publication sits alongside more recent statutory frameworks regarding vilification, counter-terrorism and discrimination. This chapter necessarily then explores the limits to freedom of expression and challenges, both descriptively and normatively, the various rationales adopted for placing such limits. In Part 7, Chapter 17 considers freedom of information (FOI). This is somewhat different to the chapters that precede it because it concerns rights of access to information, rather than legal restrictions upon what may be published and the restraints imposed by industry regulation. State and federal FOI legislation grants rights of access to documented information held by governments, subject to a range of exemptions. The system is founded upon democratic principles: that governments must be open and accountable for their

13

14

PART 1 Introduction

decisions and actions. The media plays an important role in this process by publishing information obtained under FOI, and by challenging the exemptions that governments seek to rely upon to avoid disclosure.

QUESTIONS 1 Is it possible to talk about ‘the media’ as a homogenous entity? 2 Is there a single public sphere? Or multiple public spheres? If you take the view there are many public spheres, consider how these public spheres interact. How has the internet affected the public sphere (or spheres)? 3 What are some recent examples of investigative journalism? To what extent is the ‘fourth estate’ role of the press still relevant? Does the existence of bodies such as the Independent Commission Against Corruption diminish the need for the media as fourth estate? How have social media and outlets such as WikiLeaks affected this role? 4 What content have you recently shared through social media? Was it news reporting or entertainment? User-generated or professionally produced? To what extent is user-generated content a substitute for professionally produced content?

Copyright © 2015. Oxford University Press. All rights reserved.

FURTHER READING Curran, James, ‘Rethinking the Media as a Public Sphere’, in Peter Dahlgren and Colin Sparks (eds), Communication and Citizenship: Journalism and the Public Sphere, Routledge, London, 1993, Ch 1. Dahlgren, Peter and Olsson, Tobias, ‘From Public Sphere to Civic Culture: Young Citizens’ Internet Use’, in R Butsch (ed), Media and Public Spheres, Palgrave Macmillan, New York, 2007, Ch 16. Finkelstein, R, Report of the Independent Inquiry into the Media and Media Regulation (Report to the Minister for Broadband, Communications and the Digital Economy, 28 February 2012). Jacka, Elizabeth, ‘“Democracy as Defeat”: The Impotence of Arguments for Public Service Broadcasting’ (2003) 4 Television & New Media 177. Lord Justice Leveson An Inquiry Into the Culture, Practices and Ethics of the Press, Executive Summary, November, 2012. Papacharissi, Zizi, ‘The Virtual Sphere 2.0: The Internet, the Public Sphere and Beyond’, in A  Chadwick and P Howard (eds), Routledge Handbook of Internet Politics, Routledge, New York, 2008, 230–45. Schultz, Julianne, ‘The Idealised Watchdog Estate’, in Reviving the Fourth Estate: Democracy, Accountability and the Media, Cambridge University Press, Melbourne, 1998, Ch 3. Shirky, Clay ‘The Political Power of Social Media: Technology, the Public Sphere, and Political Change’ (2011) 90(1) Foreign Affairs 28.

2 Freedom of Expression INTRODUCTION

Copyright © 2015. Oxford University Press. All rights reserved.

Freedom of expression is a unifying theme in media law. Press freedom was an important part of the European Enlightenment and movements towards democratic government. These traditions inform contemporary debates on media. This chapter reviews some of the rationales that support specific legal protection for freedom of expression. It then considers the level of protection afforded to freedom of expression in law. Particular attention is paid to the implied freedom of political communication in the Australian Constitution. The implied freedom is a complex area and any resulting protections for media freedom have been mixed to date. Notwithstanding the practical problems with the mechanism of the implied freedom following the promise of the early cases, constitutional scholar Adrienne Stone notes that it has entrenched protection for an especially Australian free speech tradition: [a] consistent observation in the High Court’s decisions in this area is that Australian political debate is properly considered to be unruly and raucous and may involve unpleasantness and insult … This conception of public discourse will naturally lend some protection to protest as well as conscientious public discussion, to activists, provocateurs and radicals as well as respected commentators and mainstream ideas.1

2.1

Freedom of expression

Freedom of expression is considered to be essential to a free society and a necessary counterpart to democratic government. Contention in this area tends to surround the extent, rather than the existence, of legal protections. The Commonwealth Constitution does not explicitly protect freedom of expression.2 However, the High Court has held that an implied freedom of political communication exists as an indispensable incident of the system of representative government created by the Constitution. Constitutional documents in other jurisdictions often contain clearer free speech protections.3 1 Adrienne Stone, ‘“Insult and Emotion, Calumny and Invective”: Twenty Years of Freedom of Political Communication’ (2011) 30 University of Queensland Law Journal 79 at 80. 2 Although note: Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2004 (ACT). 3 For example: the First Amendment to the Constitution of the United States; New Zealand Bill of Rights

15

16

PART 1 Introduction

Although freedom of expression is sometimes expressed as an absolute right, it is always balanced against competing interests. The most hardline defence of freedom of expression would admit at least some exceptions. Minimum rules on where and when people speak are generally considered to be appropriate.4 Privacy, reputation, fraud, incitement, intellectual property rights and national security are among other important considerations that may reasonably limit absolute free speech. In addition, community standards accept varying levels of censorship, whether for moral reasons or otherwise. These are shifting social values that impact on the extent to which freedom of speech is privileged in law.

2.1.1 Freedom The concept of ‘freedom’ is flexible here. Freedom of expression was classically conceived as a negative liberty that prevented government interference with speech. However, positive intervention may be justifiable, if not necessary, to support freedom of expression. For instance, a rule requiring broadcasters to provide airtime for a ‘right of reply’ could enhance freedom of expression by democratising access to channels of mass communication.5 The question of whether or not it is reasonable to ‘manage’ public debate in order to enhance balance and quality has been described as ‘the deepest and most fundamental schism in modern free speech theory’.6 A level of regulation could be appropriate to limit distortions in communication or to promote a more neutral public sphere. Alternatively the risks of distortion caused by non-ideal governments could be necessarily and systematically greater than the risks of distortion caused by disparities of power in an unregulated communicative environment.7

2.1.2

Speech and expression

Copyright © 2015. Oxford University Press. All rights reserved.

‘Freedom of expression’ and ‘freedom of speech’ are terms capable of conveying different meanings, but are often interchanged. ‘Speech’ in the context of discussions on free speech is sometimes used to describe a range of actions that would not be considered speech in the ordinary sense of the word. In the United States, ‘speech’ has been taken to include 4 As explained by Meiklejohn: ‘When self-governing men demand freedom of speech they are not saying that every individual has an unalienable right to speak whenever, wherever, however he chooses. They do not declare that any man may talk as he pleases, when he pleases, about what he pleases, about whom he pleases, to whom he pleases. The common sense of any reasonable society would deny the existence of that unqualified right. No one, for example, may without consent of nurse or doctor, rise up in a sickroom to argue for his principles or his candidate … The First Amendment, then, is not the guardian of unregulated talkativeness …’ Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People, Harper, New York, 1960, 25–26. 5 See Red Lion Broadcasting Co Inc v FCC 395 US 367 (1969). Cf Miami Herald Pub Co v Tornillo 418 US 241 (1974). 6 Adrienne Stone, ‘The Limits of Constitutional Text and Structure Revisited’ (2005) 28 University of New South Wales Law Journal 842 at 850. See also Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 374. 7 Frederick Schauer, ‘Free Speech in a World of Private Power’, in Tom Campbell and Wojciech Sadurski (eds), Freedom of Communication, Dartmouth, Aldershot, 1994, 9. The High Court commented on this issue in Australian Capital Television v Commonwealth, but not conclusively. Mason CJ suggested: ‘A distinction should perhaps be made between restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted … Generally speaking, it will be extremely difficult to justify restrictions imposed on free communication which operate by reference to the character of the ideas or information … On the other hand, restrictions imposed on an activity or mode of communication by which ideas or information are transmitted are more susceptible of justification.’ Australian Capital Television v Commonwealth (1992) 177 CLR 106 at 143 per Mason CJ. See also McHugh J at 234–35; Dawson and Toohey JJ at 169.

CHAPTER 2 Freedom of Expression

expressive acts such as flag burning and silent protests.8 Similarly, in Levy v Victoria all members of the High Court that commented on the issue were willing to hold that expressive conduct could be within the scope of the implied freedom of political communication in the Australian Constitution.9 In O’Flaherty, a case relating to the Occupy Sydney protest in Martin Place, Sydney, Katzmann J similarly held that occupation of the protest site was such expressive conduct.10 In ‘A Theory of Freedom of Expression’ Scanlon defines ‘acts of expression’ in the following terms: … any act that is intended by its agent to communicate to one or more persons some proposition or attitude. This is an extremely broad class. In addition to many acts of speech and publication it includes displays of symbols, failures to display them, demonstrations, many musical performances, and some bombings, assassinations and self-immolations. In order for any act to be classified as an act of expression it is sufficient that it be linked with some proposition or attitude which it is intended to convey.11

Scanlon’s point is that a wide range of activities could theoretically be considered ‘expression’, and the point is well made. Freedom of speech and freedom of expression are best understood as terms of art that could refer to any method of communicating facts, ideas, opinions or even aesthetics.12

Copyright © 2015. Oxford University Press. All rights reserved.

2.2

Rationales for freedom of expression

Freedom of expression is an area where law and philosophy are hard to separate. The rationales that support freedom of expression are the subject of long debates, which are not settled. While there appears to be a broad consensus that—to a greater or lesser extent— freedom of expression is valuable, the reasons why are hard to pin down. As noted by one writer, freedom of expression has ‘suspiciously many rationales’.13 Aside from intellectual clarity, the rationales for freedom of expression are important as they determine the scope of the concept and what it protects. Decisions as to whether or not forms of expression such as literature, art, science, commercial speech and political communications should be privileged over competing interests rest on philosophical foundations.14 8 9 10 11

12

13 14

Brown v Louisiana 383 US 131 (1966) (silent protest); Texas v Johnston 491 US 397 (1989) (flag burning), as cited in Levy v Victoria (1997) 189 CLR 579 at 594 per Brennan J. (1997) 189 CLR 579; Michael Chesterman, ‘Delicately Planted: Constitutional Freedom for Political Communication’, in Freedom of Speech in Australia: A Delicate Plant, Ashgate, Aldershot, 2000, 36. O’Flaherty v City of Sydney Council (2013) 210 FCR 484 at 494. After arriving at this broad definition of what actions might be protected as expression, Scanlon concluded: ‘It could be, and I think is, the case that the theoretical bases of the doctrine of freedom of expression are ­multiple and diverse, and while the net effect of these elements taken together is to extend to some acts a certain ­privileged status, there is no theoretically interesting (and certainly no simple and intuitive) d ­ efinition of the class of acts which enjoys this privilege.’ T Scanlon, ‘A Theory of Freedom of Expression’, in Ronald Dworkin (ed), The Philosophy of Law, Oxford University Press, London, 1977, 155–56. It may be the case, however, that free speech principles are more tentatively extended to protect acts as opposed to words. In Levy v Victoria, Brennan CJ commented: ‘while the speaking of words is not inherently dangerous or productive of a tangible effect that might warrant prohibition or control in the public interest, non-verbal conduct may, according to its nature and effect, demand legislative or executive prohibition or control …’ ((1997) 189 CLR 579 at 595). Tom Campbell, ‘Rationales for Freedom of Communication’, in Tom Campbell and Wojciech Sadurski (eds), above n 7, 17. Martin Redish, ‘The Value of Free Speech’ (1982) 130 University of Pennsylvania Law Review 591.

17

18

PART 1 Introduction

Although there are others, three basic rationales are commonly discussed in free speech literature (the ‘classic trio’).15 These are: • arguments concerned with the discovery of truth (the truth rationale); • that freedom of expression is necessary for representative government (the democratic rationale); and • theories that free speech is an aspect of self-realisation and individual autonomy (the self-determination rationale). These rationales are interdependent. The argument that free speech supports the discovery of truth is often an implicit part of the argument that free speech supports representative government.16 Similarly, it has been suggested that the discovery of truth and the ability to make ‘life affecting decisions’ (including political decisions) are aspects of self-realisation.17

2.2.1 Truth The classic liberal defence of freedom of expression asserted that truth would best emerge through open discussion and unrestricted competition between opposing viewpoints. Freedom of expression was considered to support processes of deliberation that naturally progress towards truth. True opinion would be identified as such. False ideas will be exposed through criticism. Perhaps the most influential statement of the rationale that freedom of expression is necessary to the discovery of truth is contained in John Stuart Mill’s 1859 essay ‘On Liberty’.18 Mill argued that potentially true ideas should not be suppressed, as to do so would amount to an assumption of infallibility by the censor. Almost certainly false ideas should not be suppressed as the truth will be refreshed through resisting challenge and thereby avoid being ‘held as a dead dogma’.19

Copyright © 2015. Oxford University Press. All rights reserved.

John Stuart Mill, ‘On Liberty’, 1859, in John Gray (ed), On Liberty and Other Essays, Oxford University Press, Oxford, 1998 II Of the liberty of thought and discussion The time, it is to be hoped, is gone by, when any defence would be necessary of the ‘liberty of the press’ as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear … speaking generally, it is not, in constitutional countries, to be apprehended that the government, whether completely responsible to the people or not, will often attempt to control the expression of opinion,

15 Campbell, above n 13. 16 One of the incarnations of the ‘representative government’ rationale is that free speech assists in ‘the discovery and spread of “political truth”’. See Redish, above n 14 at 598. 17 Redish, above n 14 at 594. 18 In another classic defence of freedom of expression, John Milton argued in Areopagitica (1644): ‘And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?’ 19 John Stuart Mill, ‘On Liberty’, in John Gray (ed), On Liberty and Other Essays, Oxford University Press, Oxford, 1998, 40.

CHAPTER 2 Freedom of Expression

except when in doing so it makes itself the organ of the general intolerance of the public. Let us suppose, therefore, that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice. But I deny the right of the people to exercise such coercion, either by themselves or by their government. The power itself is illegitimate. The best government has no more title to it than the worst. It is as noxious, or more noxious, when exerted in accordance with public opinion, than when in opposition to it. If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that person than if he, if he had the power, would be justified in silencing mankind. Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error … We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.

Another influential articulation of the truth rationale, or a variation on the theme, was delivered in a dissenting opinion of Justice Oliver Wendell Holmes in the United States Supreme Court. The metaphor of a ‘marketplace of ideas’ has since proven to be powerful and is often traced back to Holmes’s dissent in Abrams v United States.

Abrams v United States

Copyright © 2015. Oxford University Press. All rights reserved.

250 US 616 (1919)

JUSTICE HOLMES (dissenting) (at 630): Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out …

The principal criticisms of the truth rationale relate to the questionable premise that truth will necessarily succeed in an ‘open encounter with falsehood’.20 The rationale depends on an Enlightenment faith in reason and deliberation that is less strongly held in modern thought. In the following extract it is argued that there are likely to be inequalities in the ‘marketplace of ideas’ that could justify a level of regulation in order to enhance public discourse. Such positive intervention would be inconsistent with pure forms of the truth rationale, which call for unrestricted freedom of expression. 20 As put by Dean Wellington, responding to the language of Milton’s Areopagitica: ‘it is naïve to think that truth will always prevail over falsehood in a free and open encounter, for too many false ideas have captured the imagination of men’. Dean Wellington, as cited in Redish, above n 14 at 617.

19

20

PART 1 Introduction

Frederick Schauer, ‘Free Speech in a World of Private Power’ in Tom Campbell and Wojciech Sadurski (eds), Freedom of Communication, Dartmouth, Aldershot, 1994, 6–8

Copyright © 2015. Oxford University Press. All rights reserved.

I do not intend to argue that discussion, deliberation, discourse and the exchange of ideas are bad. I do intend to show, however, that treating these processes as entitled to special immunity from official intervention rests on at least one of several assumptions, some seemingly highly questionable, about just what a communicative environment—or a public deliberation—looks like when the government remains uninvolved … One possible assumption is what we might call the assumption of equality. Not entirely unrelated to the Habermasian ideal-speech situation, the assumption of equality presumes that, in the absence of governmental intervention, all of the participants in an exchange of views are of roughly similar ability to speak and roughly similar ability to understand; that neither the making nor the understanding of communications is distorted by bias; and that all of the participants in the deliberation will evaluate with care and sympathy the utterances of all others. In this context, we might assume, truth could indeed be most likely to emerge. Without this assumption, however, it seems initially that the instrumental optimism surrounding the standard arguments for open discussion is in need of an explanation not to be found in existing literature. One of the most obvious things to notice about the assumption of equality, of course, is that it is false. As the context of political campaigning and advertising makes stunningly clear, to say nothing of advertising in general, resources matter and more resources matter more. Moreover, not all speakers are equally articulate or persuasive, and not all listeners are equally understanding. Perhaps more controversially, issues of race, gender, class and many others can hardly be thought of as irrelevant in a communicative environment, nor irrelevant in determining who talks, who listens and who gets listened to. In terms of who actually speaks and of who actually listens, and of what a listener actually takes away from the speaker’s speech, therefore, there seems little a priori reason to believe that all of the inequalities of society in general are not replicated when speakers who are unequal, for any number of different reasons, enter into the process of dialogue or discourse. If this is so, then it seems strange to believe that the process of discourse is any more likely to ameliorate than to exacerbate the existing inequalities in a society, and equally strange to believe that this process is one deserving of special solicitude (as compared, for example, to more controlled communicative environments) in the search for moral, political or factual truth.

Even assuming that deliberative processes ultimately reveal the truth of a matter, the short-term acceptance of false opinion can be damaging. It is also impractical to test the veracity of each claim encountered in modern society.21 Misleading and deceptive conduct is prohibited by consumer protection laws precisely because truth does not always present itself in time to be useful. A further criticism of the truth rationale is that it would allow possibly true, or even demonstrably false, opinions to be promoted, whatever the social cost. As noted by Barendt, the rationale assumes that the publication of a possibly true statement is the highest public good; but there are many circumstances where legal systems privilege other values over expression.22 In summary, the truth rationale does not adequately explain when freedom of expression might be limited.

21 See Eric Barendt, ‘Why Protect Free Speech?’, in Freedom of Speech, Oxford University Press, Oxford, 2nd edn, 2005, 13. 22 For example, hate speech may reasonably be banned in order to preserve racial harmony. For a general critique of the truth rationale, see Barendt, ibid, 7–13.

CHAPTER 2 Freedom of Expression

2.2.2

Democratic—political and government integrity

Freedom of expression is thought to be essential to a properly functioning democracy. The electorate would be incapable of making any meaningful assessment of a candidate for office or their policies if communications concerning political matters were restricted. The argument that freedom of expression is necessary for representative government is most closely associated with the writings of American scholar Alexander Meiklejohn.

Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People, Harper, New York, 1960, 75–77

Copyright © 2015. Oxford University Press. All rights reserved.

The First Amendment is not, primarily, a device for the winning of new truth, though that is very important. It is a device for the sharing of whatever truth has been won. Its purpose is to give to every voting member of the body politic the fullest possible participation in the understanding of those problems with which citizens of a self-governing society must deal. When a free man is voting, it is not enough that the truth is known by someone else, by some scholar or administrator or legislator. The voters must have it, all of them. The primary purpose of the First Amendment is, then, that all the citizens shall, so far as possible, understand the issues which bear upon our common life. That is why no idea, no opinion, no doubt, no belief, no counterbelief, no relevant information, may be kept from them …

The democratic rationale is popular. The High Court has consistently returned to basically this line of reasoning in developing the implied freedom of political communication in Australia. Where the democratic rationale informs freedom of expression principles, political communication will be afforded a high level of protection. Criticism of public institutions and actors should be fearless, and therefore granted special dispensation from legal repercussions.23 It follows from this rationale, however, that ‘non-political’ forms of expression such as art, science and literature do not warrant protection—or rather, the democratic rationale provides no explanation for why such works should be protected.24 A number of the criticisms levelled at the truth rationale also apply to the democratic rationale. Distortions and inequalities in a communicative environment are no less present when the subject of the communication is politics. A further logical inconsistency in the democratic rationale is that, if freedom of expression is maintained purely to support democracy, it is difficult to argue against the regulation or suppression of speech by a democracy acting through its elected representatives.25

23 See Michael Chesterman, ‘Delicately Planted: Constitutional Freedom for Political Communication’, in Freedom of Speech in Australia: A Delicate Plant, Ashgate, Aldershot, 2000, 23. See also, generally, New York Times Co v Sullivan 376 US 254 at 270 (1964); Theophanous v Herald & Weekly Times (1994) 182 CLR 104; Stephens v West Australian Newspapers (1994) 182 CLR 211; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560. 24 As noted in the Adrienne Stone extract below at 2.4, Meiklejohn ultimately adopted a definition of ­‘political speech’ that was almost unlimited such that a voter could acquire the ‘intelligence, integrity, sensitivity and ­generous devotion to the general welfare … that casting a ballot is assumed to express’. In this, Meiklejohn’s arguments become very difficult to distinguish from rationales relating to self-determination or self-development. 25 Barendt, above n 21, 19.

21

22

PART 1 Introduction

2.2.3 Self-determination

Copyright © 2015. Oxford University Press. All rights reserved.

The truth rationale and democratic rationale are both instrumental; freedom of expression is seen as a means to an end (truth or an effective democracy). A third rationale sees freedom of expression as having an inherent value. The ability to relate our thoughts and experiences is asserted to be an intrinsic part of being human. Restrictions on expression therefore inhibit self-fulfilment and individual autonomy. Freedom of expression, according to this rationale, is a fundamental human right founded on claims to dignity, equality and respect.26 A variation of the self-determination rationale put forward by Scanlon stresses that expression should not be restricted if it would limit the ability of autonomous people to access ideas and information necessary to make up their own minds as to what they believe and what they should do.27 If people are to be respected as ‘equal, autonomous, rational agents’ the government cannot suppress speech simply because it may cause its audience to form harmful beliefs or perform harmful acts.28 Scanlon is willing to allow speech to be restricted on other grounds. Speech that is physically harmful may legitimately be restricted. Speech may also be restricted in circumstances of ‘diminished rationality’. For instance, falsely shouting fire in a crowded theatre may be restricted as it is an act of expression in conditions where rational deliberation and the exercise of individual autonomy is practically impossible.29 Freedom of expression should not be limited, however, for paternalistic reasons that are inconsistent with respect for individual autonomy. Theories relating to self-determination would protect a range of expressive acts. It is consistent with these rationales that artistic expression and non-political speech would be privileged. At a stretch, pornography and commercial communications may also be entitled to a level of protection. A difficulty with rationales based on self-determination is that they are hard to separate from general libertarian claims to freedom from interference.30 Furthermore, the assertion that freedom of expression is a fundamental human right gives little guidance on how it should be balanced against other rights.

QUESTIONS 1 Will truth emerge from unregulated public debate? 2 Does political speech deserve greater protection than other forms of expression? 3 Should forms of expression such as commercial speech or pornography come within the scope of free speech principles? 4 Do you agree with Scanlon’s view that governments should not intervene to protect citizens from forming harmful beliefs?

26 Ibid 14. 27 Thomas Scanlon, ‘A Theory of Freedom of Expression’, in Ronald Dworkin (ed), The Philosophy of Law, Oxford University Press, London, 1977, 163 and 167. 28 Ibid 160 and 162; Barendt, above n 21, 12. 29 Scanlon, above n 27, 166. 30 See Frederick Schauer, ‘Must Speech be Special?’ (1983) 78 Northwestern University Law Review 1284;  Frederick Schauer, Free Speech: A Philosophical Enquiry, Cambridge University Press, Cambridge, 1982, Ch 4.

CHAPTER 2 Freedom of Expression

2.3

Express protections of freedom of expression

Different legal systems, even those from a common source, can differ significantly from each other in their treatment of freedom of expression. These differences may conflict more readily in a globalised world. The extensive reach of internet technologies and the ability of such technologies to transcend territorial and jurisdictional borders increase the opportunities for legal systems with differing approaches to the regulation of freedom of expression to come into contact and to conflict. How such conflicts are to be resolved is a live issue and is arguably one of the most pressing confronting the media in a globalised world.

2.3.1

The First Amendment

The most absolute constitutional protection of free speech is set out in the First Amendment to the Constitution of the United States.

Constitution of the United States, Amendment I, 1791 Congress shall make no law … abridging the freedom of speech or of the press …

The most startling aspect of the text of the First Amendment is that it is unqualified. Read literally, no limitations may be placed on freedom of speech. The Supreme Court has always interpreted the First Amendment as subject to some restrictions, however.

Schenck v United States

Copyright © 2015. Oxford University Press. All rights reserved.

249 US 47 (1919)

PER CURIAM (at 52): The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. It does not even protect a man from injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

The clear and present danger test held a dominating influence on First Amendment opinions and decisions until it was refined in Brandenburg v Ohio. The later case established that speech could be restricted without contravening the First Amendment where it is likely to incite or produce imminent lawless action.31 In New York Times Co v Sullivan32 the Supreme Court held that defamation law should be subject to the principles of the First Amendment. The effect of this decision was that criticism of public officials and public figures will not give rise to liability in an action for 31 As stated in Brandenburg: ‘the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’. Brandenburg v Ohio 395 US 444 at 447 (1969). See also Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People, Harper, New York, 1960, 33. 32 376 US 254 (1964).

23

24

PART 1 Introduction

defamation in the United States, unless ‘actual malice’ can be proved against the defendant.33 Aside from being important in its own right, the opinion of the Supreme Court in Sullivan quoted some prominent statements on the nature and importance of the First Amendment, which are reproduced in the following extract.

New York Times Co v Sullivan 376 US 254 (1964)

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people’ … The First Amendment, said Judge Learned Hand, presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all.

Mr Justice Brandeis, in his concurring opinion in Whitney v California gave the principle its classic formulation:

Copyright © 2015. Oxford University Press. All rights reserved.

Those who won our independence believed … that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials … The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

In a subsequent decision, Gertz v Robert Welch, Inc, the Supreme Court held that the First Amendment protection afforded to criticism of public officials and public figures should not be extended to defamatory statements made in relation to private individuals.34 It was considered that public figures ‘invite attention and comment’. Private individuals, by way of contrast, ‘have not accepted public office or assumed an influential role in ordering

33 New York Times Co v Sullivan 376 US 254 (1964) defined the standard of constitutional protection available to a public official; the constitutional protection was extended to ‘public figures’ in Curtis Publishing Co v Butts 388 US 130 (1967) and Associated Press v Walker 388 US 162 (1967); see also Gertz v Robert Welch, Inc 418 US 323 (1974). 34 Gertz v Robert Welch, Inc 418 US 323 at 341–46.

CHAPTER 2 Freedom of Expression

society’.35 Even so, the competition between freedom of expression and other interests is clearly resolved under the First Amendment in a manner that sincerely favours speech.36

2.3.2

The European Convention

The European Convention on Human Rights includes a right to freedom of expression. In contrast to the First Amendment, the right is subject to a detailed list of possible exceptions.

European Convention for the Protection of Human Rights and Fundamental Freedoms Article 10—Freedom of expression 1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Copyright © 2015. Oxford University Press. All rights reserved.

2.3.3

The International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations in 1966.37 Australia ratified the ICCPR in 1980. The ICCPR has not been incorporated into Australian domestic law in a manner that creates an enforceable right to freedom of expression. However, when interpreting legislation Australian courts will favour a construction consistent with Australia’s international obligations.38 Interestingly, in protecting forms of art and ‘ideas of all kinds’, the ICCPR adopts an explicitly broad understanding of freedom of expression. As per the European Convention, the ICCPR acknowledges freedom of expression alongside competing rights and interests.

International Covenant on Civil and Political Rights 1966 (ICCPR) Article 19 1 Everyone shall have the right to hold opinions without interference. 2 Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

35 36 37 38

Ibid at 345. Note comments by Callinan J in Dow Jones v Gutnick (2002) 210 CLR 575 at 652. UN Gen Ass Res 2200A (XXI) 6 ILM 368 (16 December 1968). Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

25

26

PART 1 Introduction

3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 20

4 Any propaganda for war shall be prohibited by law. 5 Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

QUESTIONS 1 What are the implications of having an absolute statement protecting freedom of expression as opposed to a more qualified right? Which approach do you prefer? 2 Should ‘vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials’ be constitutionally protected in Australia? Should such attacks on public figures also be protected?

2.4

The implied freedom of political communication in the Australian Constitution

Freedom of expression is free in the sense that ‘everybody is free to do anything, subject only to the provisions of the law’.39 Reflecting this understanding of press freedom, Blackstone wrote:

Copyright © 2015. Oxford University Press. All rights reserved.

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints on publications, and not in the freedom from censure for criminal matter when published.40

Recent jurisprudence suggests that the common law protection for freedom of expression, especially in light of the interpretive principle of legality, may be more robust than the minimalist traditional conception of it being a ‘residual liberty’. French CJ in Tajjour states: ‘Even absent entrenchment by express or implied constitutional guarantee, freedom of speech on public affairs at common law is more than a particular application of the general principle that anybody is free to do anything which is not forbidden by law. In order to displace it, the Parliament must have chosen clear language which permits no other outcome.’41 Media law scholar Andrew Kenyon has also called into question the ‘negative’

39 It is interesting to note the similarities between Article 10 of the European Convention on Human Rights and the common law approach to freedom of expression. Lord Goff took the view that there was, in principle, very little difference between the two: ‘whereas Article 10 of the Convention, in accordance with its avowed ­purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.’ The Convention recognises f­ reedom of expression as a general right, but allows exceptions. In other words, freedom of expression is the rule and ­regulation of speech is the exception requiring justification. Attorney General v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545 at 659 per Lord Goff; see also at 626 per Bingham LJ. 40 Blackstone Commentaries Book 4 (1791) at 151–52, as cited in Michael Chesterman, ‘Finding Free Speech in the Law’, in Freedom of Speech: A Delicate Plant, Ashgate, Aldershot, 2000, 6. 41 Tajjour v New South Wales (2014) 88 ALJR 860 at 873–74 [28] per French CJ.

CHAPTER 2 Freedom of Expression

view of freedom of expression from a conceptual perspective, observing that ‘[t]here are substantial analyses arguing that government has an obligation to act for free speech. In part this arises because the rationales said to underlie free speech appear to involve more than a negative right.’42 A level of constitutional protection of freedom of expression was established in Australia through two decisions delivered by the High Court in 1992. In both Nationwide News Pty Ltd v Wills (Nationwide News) and Australian Capital Television Pty Ltd v Commonwealth (ACTV), which were handed down together, the majority of the High Court held that an implied freedom of political communication exists as an incident of the system of representative government established by the Commonwealth Constitution.43

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (footnotes omitted)

Copyright © 2015. Oxford University Press. All rights reserved.

[Nationwide News v Wills concerned federal legislation that made it an offence, by writing or by speech, to use words ‘calculated … to bring a member of the (Industrial Relations) Commission … into disrepute’. The legislation purported to suppress all criticism likely to bring the commission into disrepute, including accurate or otherwise reasonable criticism—the legislation made no provision for defences such as justification or fair comment.44 It was alleged that Nationwide News committed an offence by publishing an article attacking the independence and integrity of the commission. In response, Nationwide argued that the law was beyond the legislative powers of the Commonwealth Parliament.] BRENNAN J (at 47): To sustain a representative democracy embodying the principles prescribed by the Constitution freedom of public discussion of political and economic matters is essential: it would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments. (48) … where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of that form of government. Once it is recognized that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution (49) expressly ordains … (50) … the representative democracy ordained by our Constitution carries with it a … freedom for the Australian people and that freedom circumscribes the legislative powers conferred on the Parliament by the Constitution. No law of the Commonwealth can restrict the freedom of the Australian people to discuss governments and political matters unless the law is enacted to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose … DEANE AND TOOHEY JJ (at 71): In implementing the doctrine of representative government, the Constitution reserves to the people of the Commonwealth the ultimate power of governmental control. It provides for the exercise of that ultimate power by two electoral processes. The first is the election of the members of the Parliament in which is vested the legislative power of the Commonwealth … The second is … the amendment of the Constitution itself. Under the Constitution, those ultimate powers which the Constitution reserves to the people of the Commonwealth are exercisable by direct vote (72) (ss 7, 24, 128) … The people of the Commonwealth would be unable responsibly to discharge and exercise the powers of governmental control which the Constitution reserves to them if each person was an island, unable to communicate with any other person. The actual discharge of the very function of voting in an election 42 Andrew T Kenyon, ‘Assuming Free Speech’ (2014) 77 Modern Law Review 379 at 379. 43 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television v Commonwealth (1992) 177 CLR 106. 44 Nationwide News v Commonwealth (1992) 177 CLR 1 at 24 per Mason CJ; at 67 per Deane and Toohey JJ.

27

28

PART 1 Introduction

or referendum involves communication. An ability to vote intelligently can exist only if the identity of the candidates for election or the content of a proposed law submitted for the decision of the people at a referendum can be communicated to the voter. The ability to cast a fully informed vote in an election of members of the Parliament depends upon the ability to acquire information about the background, qualifications and policies of the candidates for election and about the countless number of other circumstances and considerations, both factual and theoretical, which are relevant to a consideration of what is in the interests of the nation as a whole or of particular localities, communities or individuals within it. Moreover, the doctrine of representative government which the Constitution incorporates is not concerned merely with electoral processes. As has been said, the central thesis of the doctrine is that the powers of government belong to, and are derived from, the governed, that is to say, the people of the Commonwealth. The repositories of governmental power under the Constitution hold them as representatives of the people under a relationship, between representatives and represented, which is a continuing one. The doctrine presupposes an ability of represented and representatives to communicate information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf. It follows from what has been said above that there is to be (73) discerned in the doctrine of representative government which the Constitution incorporates an implication of freedom of communication of information and opinions about matters relating to the government of the Commonwealth …

Australian Capital Television v Commonwealth

Copyright © 2015. Oxford University Press. All rights reserved.

(1992) 177 CLR 106 (footnotes omitted)

[The Political Broadcasts and Political Disclosures Act 1991 (Cth) introduced a new Part IIID into the Broadcasting Act 1942 (Cth). Part IIID set out a regime regulating the broadcasting of political advertisements during an election period. Advertisements containing matter intended or likely to affect voting in an election were prohibited. This prohibition extended to advertisements placed by government, on behalf of government and to a person other than a government or government authority. Part IIID established a scheme administered by the Australian Broadcasting Authority that would have required broadcasters to make airtime available free of charge to political parties contesting the election. The amount of airtime each party was allocated was to be in accordance with the principle that the time granted to each party should be proportionate to the total number of votes obtained by that party at the previous election. The scheme also provided for a party’s policy launch to be broadcast. News, current affairs and talkback radio programming were unaffected. The Commonwealth argued that the legislation was intended to safeguard the integrity of the political system by reducing the need to raise funds for political advertising and thereby reducing the need for, and influence of, those who donate to political campaign funds. In addition, the legislation would ‘level the playing field’ by ensuring equality of access to television and radio, and would minimise the ‘trivialising’ of political debate that resulted from the transmission of very brief political advertisements. Mason CJ, Deane, Toohey and Gaudron JJ held that the law was contrary to an implied freedom of political communication in the Australian Constitution and was invalid. The majority considered that some restrictions on the broadcasting of political advertisements could be justifiable; however, the legislation in question gave preferential treatment to existing political parties and candidates standing for re-election and was beyond the legislative powers of the Commonwealth.45 McHugh J came to a similar conclusion, but on a narrower understanding of the implied freedom. Brennan J held that the operative provisions of the law were proportionate to the object of minimising political corruption. Dawson J held that there was no implied freedom of political communication in the Australian Constitution.]

45 Australian Capital Television v Commonwealth (1992) 177 CLR 106 at 132 per Mason CJ; at 175 per Deane and Toohey JJ; at 229 per Gaudron J.

CHAPTER 2 Freedom of Expression

MASON CJ (at 138): … the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act.

Freedom of communication as an indispensable element in representative government Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of (139) and respond to the will of the people. Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgments on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative. Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community. That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion. In truth, in a representative democracy, public participation in political discussion is a central element of the political process …

Copyright © 2015. Oxford University Press. All rights reserved.

(142) The indivisibility of freedom of communication in relation to public affairs and political discussion The concept of freedom to communicate with respect to public affairs and political discussion does not lend itself to subdivision. Public affairs and political discussion are indivisible and cannot be subdivided into compartments that correspond with, or relate to, the various tiers of government in Australia. Unlike the legislative powers of the Commonwealth Parliament, there are no limits to the range of matters that may be relevant to debate in the Commonwealth Parliament or to its workings. The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have a primary or immediate connection with the affairs of a State, a local authority or a Territory and little or no connection with Commonwealth affairs. Furthermore, there is a continuing inter-relationship between the various tiers of government. To take one example, the Parliament provides funding for the State governments, Territory governments and local governing bodies and enterprises. That continuing inter-relationship makes it inevitable that matters of local concern have the potential to become matters of national concern. That potential is in turn enhanced by the predominant financial power which the Commonwealth Parliament and the Commonwealth government enjoy in the Australian federal system. MCHUGH J (at 231): If the institutions of representative and responsible government are to operate effectively and as the Constitution intended, the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability at the ballot box. The electors must be able to ascertain and examine the performances of their elected representatives and the capabilities and policies of all candidates for election. Before they can cast an effective vote at election time, they must have access to the information, ideas and arguments which are necessary to make an informed judgment as to how they have been governed and as to what policies are in the interests of themselves, their communities and the nation …

29

30

PART 1 Introduction

Copyright © 2015. Oxford University Press. All rights reserved.

It follows that the electors must be able to communicate with the candidates for election concerning election issues and must be able to communicate their own arguments and opinions to other members of the community concerning those issues. Only by the spread of information, opinions and arguments can electors make an effective and responsible choice in determining whether or not they should vote for a particular candidate or the party which that person represents. Few voters have the time or the capacity to make their own examination of the raw material concerning the business of government, the policies of candidates or the issues in elections even if they have access to that material … The words ‘directly chosen by the people’ in ss 7 and 24 [of the Constitution], interpreted against the background of the institutions of representative government and responsible government, are to be read, therefore, as referring to a process—the process which commences (232) when an election is called and ends with the declaration of the poll. The process includes all those steps which are directed to the people electing their representatives—nominating, campaigning, advertising, debating, criticising and voting. In respect of such steps, the people possess the right to participate, the right to associate and the right to communicate. That means that, subject to necessary exceptions, the people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting in an election for the Senate or the House of Representatives. Moreover, that right must extend to the use of all forms and methods of communication which are lawfully available for general use in the community. DAWSON J (at 182): the Australian Constitution, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by constitutional restrictions upon the exercise of governmental power. The choice was deliberate and based upon a faith in the democratic process to protect Australian citizens against unwarranted incursions upon the freedoms which they enjoy … Thus the Australian Constitution, unlike the Constitution of the United States, does little to confer upon individuals by way of positive rights those basic freedoms which exist in a free and democratic society. They exist, not because they are provided for, but in the absence of any curtailment of them. Freedom of speech, for example, which is guaranteed in the United States by the First Amendment to the Constitution, is a concept which finds no expression in our Constitution, notwithstanding that it is as much the foundation of a free society here as it is there. The right to freedom of speech exists here because there is nothing to prevent its exercise and because governments recognize that if they attempt to (183) limit it, save in accepted areas such as defamation or sedition, they must do so at their peril. Not only that, but courts recognize the importance of the basic immunities and require the clearest expression of intention before construing legislation in such a way as to interfere with them. The fact, however, remains that in this country the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve for itself its own shared values.

The precise nature of the implied freedom of political communication was not entirely clear following Nationwide News and ACTV. Mason CJ had described the implied freedom as a ‘freedom of communication in relation to public affairs and political discussion’.46 Brennan J referred to the ‘freedom of the Australian people to discuss governments and political matters’.47 Deane and Toohey JJ considered that ‘the Constitution’s implication of freedom of communication extends to all political matters, including matters relating to other levels of government within the national system’.48 McHugh J, by way of contrast, offered the narrowest interpretation of the implied freedom, which focused closely on the

46 Ibid at 142 per Mason CJ. 47 Nationwide News v Commonwealth (1992) 177 CLR 1 at 50 per Brennan J. 48 Australian Capital Television v Commonwealth (1992) 177 CLR 106 at 169 per Deane and Toohey JJ. The preceding examples are drawn from Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 121 per Mason CJ, Toohey and Gaudron JJ.

CHAPTER 2 Freedom of Expression

requirements of specific sections of the Constitution.49 McHugh J argued that the ‘people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting in an election for the Senate or the House of Representatives’.50 These divisions were broadly maintained in the next High Court decisions on point.51 In Theophanous v Herald & Weekly Times Ltd and Stephens v West Australian Newspapers Ltd the High Court reinterpreted the law on defamation in light of the implied freedom of political communication.52 These decisions created a ‘constitutional defence’ to defamation occurring in the context of political debate (discussed further in Chapter 8). In this, the majority considered the implied freedom of political communication to be quite a broad guarantee.53 The High Court retreated from the position adopted in Theophanous and Stephens when it decided Lange v Australian Broadcasting Corporation (Lange).54 In Lange the High Court unanimously asserted that the implied freedom of political communication does not confer any personal rights to freedom of speech, but operates as a constraint on legislative and executive power.

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

PER CURIAM (at 559):

Copyright © 2015. Oxford University Press. All rights reserved.

Freedom of Communication Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be ‘directly chosen by the people’ of the Commonwealth and the States, respectively. At federation, representative government was understood to mean a system of government where the people in free elections elected their representatives to the legislative chamber which occupies the most powerful position in the political system. As Birch points out, ‘it is the manner of choice of members of the legislative assembly, rather than their characteristics or their behaviour, which is generally taken to be the criterion of a representative form of government’. However, to have a full understanding of the concept of representative government, Birch also states that: we need to add that the chamber must occupy a powerful position (560) in the political system and that the elections to it must be free, with all that this implies in the way of freedom of speech and political organization.

Communications concerning political or government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors

49 See Adrienne Stone, ‘The Limits of Constitutional Text and Structure’ (1999) 23 Melbourne University Law Review 668 at 672–74. 50 Australian Capital Television v Commonwealth (1992) 177 CLR 106 at 232 per McHugh J. 51 Mason CJ, Toohey and Gaudron JJ stated that the implied freedom protected ‘political discussion’, broadly defined. McHugh J, in dissent, argued: ‘nothing in the text, structure or history of the Constitution supports the proposition that the Constitution confers a general private right to defame public or p ­ olitical figures’. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 121–23 per Mason CJ, Toohey and Gaudron JJ; at 195 per McHugh J. 52 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211. 53 See Theophanous v Herald & Weekly Times Ltd at 121–23 per Mason CJ, Toohey and Gaudron JJ. 54 (1997) 189 CLR 520.

31

32

PART 1 Introduction

themselves were central to the system of representative government, as it was understood at federation. While the system of representative government for which the Constitution provides does not expressly mention freedom of communication, it can hardly be doubted, given the history of representative government and the holding of elections under that system in Australia prior to federation, that the elections for which the Constitution provides were intended to be free elections in the sense explained by Birch. Furthermore, because the choice given by ss 7 and 24 must be a true choice with ‘an opportunity to gain an appreciation of the available alternatives’, as Dawson J pointed out in Australian Capital Television Pty Ltd v The Commonwealth, legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election. That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous, they are ‘a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a “right” in the strict sense’. In Cunliffe v The Commonwealth, Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said:

Copyright © 2015. Oxford University Press. All rights reserved.

The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.

(561) If the freedom is to effectively serve the purpose of ss 7 and 24 and related sections, it cannot be confined to the election period. Most of the matters necessary to enable ‘the people’ to make an informed choice will occur during the period between the holding of one, and the calling of the next, election. If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election … However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is (562) that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end … (566) … the Constitution gives effect to the institution of ‘representative government’ (567) only to the extent that the text and structure of the Constitution establish it. In other words, to say that the Constitution gives effect to representative government is a shorthand way of saying that the Constitution provides for that form of representative government which is to be found in the relevant sections. Under the Constitution, the relevant question is not, ‘What is required by representative and responsible government?’ It is, ‘What do the terms and structure of the Constitution prohibit, authorise or require?’ Moreover, although it is true that the requirement of freedom of communication is a consequence of the Constitution’s system of representative and responsible government, it is the requirement and not a right of communication that is to be found in the Constitution. Unlike the First Amendment to the United States, which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communication or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution. To the extent that the requirement of freedom of communication is an implication drawn from ss 7, 24, 64, 128 and related sections of the Constitution, the implication can validly extend only so far as is

CHAPTER 2 Freedom of Expression

necessary to give effect to these sections. Although some statements in the earlier cases might be thought to suggest otherwise, when they are properly understood, they should be seen as purporting to give effect only to what is inherent in the text and structure of the Constitution …

The High Court’s emphasis on the ‘text and structure’ of the Constitution is generally thought to have restricted the scope of the implied freedom.55 However, in the decision of Hogan v Hinch, French CJ stated that the ‘range of matters that may be characterised as “governmental and political matters” for the purpose of the implied freedom is broad. They are not limited to matters concerning the current functioning of government. They arguably include social and economic features of Australian society.’56 The implications of the ‘text and structure’ approach are discussed in the following extract. Adrienne Stone argues that the approach is only superficially limiting and a clearer philosophical rationale guiding the application of the implied freedom needs to be developed.

Adrienne Stone, ‘The Limits of Constitutional Text and Structure Revisited’

Copyright © 2015. Oxford University Press. All rights reserved.

(2005) 28 University of New South Wales Law Journal 842

(842) … The text and structure method in Lange requires that we pay close attention to the specific institutions of representative and responsible government identifiable in the text and structure of the Constitution—the election of the Parliament, the function of responsible government and the referendum procedure contemplated by s 128. The freedom of political communication is a necessary implication from, and exists to support, these specific institutions and only these institutions. The text and structure method appears to provide two kinds of limits. First it confines our attention to the specific institutions of representative and responsible government identifiable in the text rather than a more general or ‘free standing’ principle of representative government. Secondly, the text and structure method invokes the concept of ‘necessity’. Judges are not required to consider what would be desirable for the operation of representative and responsible government. The freedom of political communication is a minimum requirement protecting only communications without which representative and responsible government at the federal level would falter. Taking these matters into account, freedom of political communication seems markedly narrower than a general guarantee of freedom of speech or expression and narrower even than a guarantee of freedom of political expression … (847) … At first sight, it seems that the text and structure method tightly constrains the category of communication that can count as ‘political’. It is not enough that a communication is on a matter of general public interest or that it can be described in some vague way as political. Protected communications must be necessary to ensure that the people can exercise a true electoral choice. For that reason, it might seem that the category of political communication extends only to explicit discussion of actual and proposed policies of government and opposition (at the federal level), the public conduct of members of the federal Parliament and of candidates for that parliament. However, it requires only a little thought to see that much else is relevant to the formation of political opinions and electoral choice. Public issues not currently on the legislative agenda are obviously

55 See Ronald Sackville, ‘Let Truth and Falsehood Grapple: Milton as a Dubious Guide to Some Questions about Free Speech’, Australia’s Right to Know, Australian Journalism Review, 2009, 107; Michael Chesterman, ‘Delicately Planted: Constitutional Freedom for Political Communication’, in Freedom of Speech in Australia: A Delicate Plant, Ashgate, Aldershot, 2000, 17–18. 56 Hogan v Hinch (2011) 243 CLR 506 at 544 per French CJ. A wide view was also taken by French CJ, Hayne, Crennan, Kiefel and Bell JJ in Unions NSW v New South Wales (2013) 88 ALJR 227 at 232–34.

33

Copyright © 2015. Oxford University Press. All rights reserved.

34

PART 1 Introduction

relevant since the failure to adopt a policy may be just as revealing as a decision to act. Added to these are communications on many matters that are not themselves explicitly political. A  brief glance at the issues raised [in] federal politics in recent years—the detention of asylum seekers, same sex marriage, the availability of IVF, the legitimacy of war and torture, the appropriate response to terrorism—demonstrates the point. Voters’ understanding of, and attitudes towards, questions like these, and ultimately their vote at a federal election, might depend upon their capacity to communicate about religion, moral philosophy, history, medical science and sociology, at least as much as they depend on explicitly political communication. It has also proved difficult to draw a distinction between state and federal political matters, given the integration of these levels of government. The necessity element of the text and structure method also fails to provide much in the way of limitations. In this regard, it is helpful to consider the conception of political speech developed by Alexander Meiklejohn, one of the most prominent free speech theorists of the last century. The category of ‘political speech’ on which he ultimately settled was extraordinarily broad, encompassing education, science, philosophy, art and literature. At first sight, Meiklejohn’s category of political speech appears to include precisely the kind of communication that the text and structure method excludes—speech that might be desirable in a democratic system but is hardly necessary to ensure the functioning of particular institutions. But Meiklejohn is not focussed on a general idea of an enriched, critical citizenry or on a very broad conception of democratic government. Rather, he is concerned with what is necessary to carry out one’s duty as a voter. Freedom of speech helps the voter ‘acquire the intelligence, integrity, sensitivity and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express’. In short, he argued, ‘the people do need novels and dramas and paintings and poems, because they will be called upon to vote’. Thus the method underlying Meiklejohn’s argument is strikingly similar to the one required by the text and structure method. It is only a very short step from his argument to the argument that a true choice in a federal election requires the protection of a similarly broad range of communication. Without the opportunity to acquire ‘intelligence, sensitivity and generous devotion to public welfare’ citizens cannot really gain a full appreciation of the alternatives before them. Of course, one may wish to reject Meiklejohn’s arguments. Apart from anything else, it seems to enlarge the category of political communication to the point that it is almost meaningless. But the text and structure method itself provides no principled limits on the category of political communication and little guidance for the resolution of particular cases … … In applying the freedom of political communication, choices must be made between competing visions of the freedom of political communication and those choices require reference to some set of values or other criteria not found in the text and structure of the Constitution.

2.4.1

Scope of the implied freedom

In the result, the scope of the implied freedom of political communication has not been finally settled—although the unanimous decision in Lange has provided a considerably greater level of certainty than existed prior to the decision. The implied freedom operates negatively and limits the imposition of statutory and common law rules that interfere with political communication.57 Even then, the implied freedom is not absolute. Limitations that are compatible with representative and responsible government will be valid.

57 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560; Levy v Victoria (1997)189 CLR 579 at 622 per McHugh J. For further discussion, see Adrienne Stone, ‘The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 374 at 400–17. See further Unions NSW v New South Wales (2013) 88 ALJR 227 at 236 [36] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.

CHAPTER 2 Freedom of Expression

Lange established a two-level test to determine whether a law will infringe the implied freedom. As slightly modified by McHugh J in Coleman v Power the test is as follows: First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of … the system of government prescribed by the Constitution … If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.58

Applying this test, the High Court found in Levy v Victoria (Levy) that a regulation prohibiting entry into a hunting area was reasonably appropriate and adapted to the protection of individual or public safety.59 In the same decision, Brennan J commented: ‘Bonfires may have to be banned to prevent the outbreak of bushfires, and the lighting of a bonfire does not escape such a ban by the hoisting of a political effigy as its centrepiece.’60 As to the types of communication that might be within the scope of the implied freedom, it has been held that:

Copyright © 2015. Oxford University Press. All rights reserved.

Signs, symbols, gestures and images are perceived by all and used by many to communicate information, ideas and opinions. Indeed, in an appropriate context any form of expressive conduct is capable of communicating a political or government message to those who witness it.61

As to subject matter, in ABC v Lenah Game Meats it was held that discussion of animal welfare is a legitimate matter of governmental and political concern.62 In Lange, the High Court was willing to accept the possibility that ‘by reason of geography, history, and constitutional and trading arrangements … the discussion of matters concerning New Zealand may often affect or throw light on government or political matters in Australia’.63 By extension, it could be argued that discussions on foreign affairs or international politics may often be within scope. It is also reasonably clear that the implied freedom covers communications in relation to all levels of Australian government.64 It would seem, however, that there is no implied freedom of revolutionary speech. An article entitled ‘The Art of Shoplifting’ was considered not to concern ‘political or government matters’ in Brown v Classification Review Board,65 despite the arguments of counsel that writers from Oscar Wilde to Proudhon have

58 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567; as slightly modified in Coleman v Power (2004) 220 CLR 1 at 50 per McHugh J; Sackville, above n 55. Members of the High Court have ­continued to tweak the wording of both limbs of the test, though with little change in substance since McHugh J’s adjustment. 59 Levy v Victoria (1997) 189 CLR 579 at 595. See also Coleman v Power (2004) 220 CLR 1, in which a majority of the High Court read down a legislative provision that prohibited the use of insulting words in public, consistent with the implied freedom of political communication. 60 Levy v Victoria (1997) 189 CLR 579 at 595 per Brennan J. 61 Levy v Victoria (1997) 189 CLR 579 at 622–23 per McHugh J. 62 ABC v Lenah Game Meats (2001) 208 CLR 199 at 288 per Kirby J. 63 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 576. 64 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 73–75 per Dean and Toohey JJ; ABC v Lenah Game Meats at 281–82 per Kirby J; Lange v Australian Broadcasting Corporation at 571; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211. Cf Levy v Victoria at 596 per Brennan J, at 626 per McHugh J. See further Unions NSW v New South Wales (2013) 88 ALJR 227. 65 (1997) 154 ALR 67 (the ‘Rabelais case’).

35

36

PART 1 Introduction

advocated theft either as an appropriate means of reallocating resources or as a central tenet of Anarchist theory.66 Heerey J commented: All this may be in one sense politics, but the constitutional freedom of political communication assumes—indeed exists to support, foster and protect— representative democracy and the rule of law. The advocacy of law breaking falls outside this protection and is antithetical to it.67

On the basis of ACTV, laws affecting political advertisements may be invalidated as contrary to the implied freedom. However, it is unlikely that commercial speech or advertising in general would be protected.68 In Theophanous, the High Court indicated that entertainment would not ordinarily be political—but accepted that entertainment could comment on political matters and thereby attract constitutional protection.69 Following the adjustment of the two-level test in Coleman v Power successful challenges on the basis of the implied freedom have been few and far between, with the major hurdle being the second limb of the test, which is said to involve some degree of proportionality (or balancing) analysis.70 Decisions have tended to be rather technical in their focus and have not generally involved media-related facts.71 Recent decisions of the High Court have grappled with the application of the test and achieved a degree of agreement as to the approach to be adopted.72 The second limb has been further modified by a majority of the Court to help to explain the process to be undertaken in answering the second Lange question, namely: whether the provision is reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner which is compatible with the maintenance of the prescribed system of representative government. The enquiry whether a statutory provision is proportionate in the means it employs to achieve its object may involve consideration of whether there are alternative, reasonably practicable and less restrictive means of doing so.73

Copyright © 2015. Oxford University Press. All rights reserved.

Hayne J has stated that the ‘relevant inquiry is about how the law relates to the identified end or object and about the nature and extent of the burden the law imposes on political communication.’74 The implied freedom remains a work in progress.

66 Brown v Classification Review Board (1997) 154 ALR 67 at 87 per Heerey J; at 98 per Sundberg J. French J found it was arguable that some aspects of the article would fall within a broad understanding of the implied freedom (at 80). All members of the Court held that the national classification scheme was enacted for a ­legitimate end, and reasonably appropriate and adapted to achieving that end. 67 Ibid at 87–88 per Heerey J. 68 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; Chesterman, above n 55, 46–47. 69 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 123 per Mason, Toohey and Gaudron JJ. 70 Unions NSW v New South Wales (2013) 88 ALJR 227 at 237 [44] per French CJ, Hayne, Crennan, Kiefel and Bell JJ; Tajjour v New South Wales (2014) 88 ALJR 860 at 875–76 [35]–[36] per French CJ; at 888 [110], 890 [127], [130] per Crennan, Kiefel and Bell JJ; at 893 [149], 895–96 [163] per Gageler J. 71 Exceptions include: The Age Company Ltd v Liu (2013) 82 NSWLR 268; Hogan v Hinch (2011) 243 CLR 506; Wotton v Queensland (2012) 246 CLR 1. 72 See, for example, the important case Monis v The Queen (2013) 249 CLR 92. 73 Unions NSW v New South Wales (2013) 88 ALJR 227 at 237 [44] per French CJ, Hayne, Crennan, Kiefel and Bell JJ. 74 Tajjour v New South Wales (2014) 88 ALJR 860 at 884 [82] per Hayne J; cf at 887 [103]–[104] per Crennan, Kiefel and Bell JJ.

CHAPTER 2 Freedom of Expression

QUESTIONS 1 Should art, literature and philosophy be protected as forms of political speech? 2 Was it necessary for the High Court to tie the implied freedom to the text and structure of the Constitution? 3 Does freedom of expression need to be explicitly protected in Australian law (for instance, in a Bill of Rights)? 4 Are the media adequately protected in Australia?

Copyright © 2015. Oxford University Press. All rights reserved.

2.5

Media freedom and freedom of expression

Media freedom and freedom of expression are closely related but arguably distinct. The First Amendment to the Constitution of the United States prevents laws being made that abridge freedom of speech or freedom of the press. On certain understandings of freedom of expression the second limitation is redundant. Freedom of the press simply amounts to the exercise of free expression by journalists, editors, presenters and proprietors. The concepts of media freedom and freedom of expression may be drawn into conflict, however. Media ownership laws, for example, are common in Western democracies at least in part to prevent media proprietors from being able to dominate public debate. Such laws could be seen as enhancing freedom of expression at the expense of media freedom.75 The same analysis can apply to positive freedom of expression rights such as media access provisions, or to rules that limit political advertising. These laws reflect the view that media freedom is instrumental, and important to the extent that the media promotes freedom of expression in general. Any interference with media freedom, however, has the potential to sincerely strike at freedom of expression. As the media is capable of exposing and amplifying ideas, controlling the media is an effective method of suppressing speech, or at least limiting its effects. To quote Lord Nicholls: ‘Without freedom of expression by the media, freedom of expression would be a hollow concept’.76 The institutional role of the media in the exchange of ideas and the maintenance of the public sphere has led to suggestions that it could even be entitled to a higher level of protection from interference than individuals or other organisations.77 On this view, media freedom is still an instrumental good that supports freedom of expression, but the defence of freedom of expression concentrates on media freedom as its front line. The importance of the institutional role of the media has been acknowledged in First Amendment jurisprudence, the House of Lords and the European Court of Human Rights.

New York Times v United States 403 US 714 (1919)

PER CURIAM (at 717): Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

75 For a discussion of European jurisprudence on this issue, see Eric Barendt, ‘Free Speech in Liberal Legal Systems’, in Freedom of Speech, 2nd edn, Oxford University Press, Oxford, 2005, 69–70. See further Jan Oster, ‘Theory and Doctrine of “Media Freedom” as a Legal Concept’ (2013) 5 Journal of Media Law 57. 76 Reynolds v Times Newspapers [1999] 4 All ER 609 at 622. 77 The issue of whether the media is entitled to any special treatment in law was considered by the High Court in McGuinness v Attorney-General (Vic) (1940) 63 CLR 73. In that case it was asserted, as an aspect of press freedom, that an editor should not be compelled to reveal the source of a news item. The claim for a media/ informant privilege failed. See in particular Rich J at 86–87.

37

38

PART 1 Introduction

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.

Reynolds v Times Newspapers [1999] 4 All ER 609

LORD STEYN (at 635): It is true that in our system the media have no specially privileged position not shared by individual citizens. On the other hand, it is necessary to recognise the ‘vital public watchdog role of the press’ as a practical matter: see Goodwin v The United Kingdom (1996) 22 EHRR 123, 143, para 39. The role of the press, and its duty, was well described by the European Court of Human Rights in Castells v Spain (1992) 14 EHRR 445, 476, para 43 in the following terms: … the pre-eminent role of the press in a state governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.

Copyright © 2015. Oxford University Press. All rights reserved.

2.5.1

Media freedom in Australia

Media freedom is not something that can be taken for granted. The changes in the media landscape provide both an opportunity for citizen and alternative forms of media, often online, and yet also may increase governmental secrecy, suppression orders, surveillance and difficulties for the media associated with the protection of journalistic sources.78 These challenges are also faced by the traditional players in the media, but questions arise in a digital media environment as to whether citizen journalists and organisations such as WikiLeaks are also deserving of ‘media freedom’, if they too are beginning to play a role similar to the traditional public watchdog function associated with the press.79 Issues associated with media freedom will arise in many of the chapters to follow as traditional concerns regarding freedom of expression and media freedom migrate into online contexts, most notably the internet. The internet will not guarantee media freedom in Australia, though it undoubtedly contributes to it in terms of opening access to global information flows, reducing the costs of engaging in media publication and providing new and powerful platforms for expression and exchange. But such changes have also seen governments, including our own, respond with legislative restrictions and burdens upon media freedom in the name of national security, 78 See further Media Entertainment and Arts Alliance, Secrecy and Surveillance: The Report into the State of Press Freedom in Australia in 2014, 2014. 79 See further Charlie Beckett with James Ball, WikiLeaks: News in the Networked Era, Polity Press, Cambridge, 2012.

CHAPTER 2 Freedom of Expression

border control, the administration of justice or simply media regulation.80 The media does have a special claim to freedom of expression protections, but we need to begin to think both about the limitations of those protections in the Australian context and also about ways of translating traditional protections for digital and transnational media. The imprisonment of Australian journalist Peter Greste in Egypt for simply doing his job is just as much an issue for Australian media freedom as are proposals for data retention laws and increasingly sophisticated forms of secrecy and surveillance from both governments and the private sector.81 Speech matters more not less, now that the internet and digital technologies have increasingly shaped our public sphere and political communications.82 Kath Gelber sees part of the solution as lying with our political culture and challenges ‘everyday Australians to generate in themselves and their communities a more robust commitment to this fundamental freedom, and in doing so to liberate freedom of speech from the strictures in which it is currently entangled’.83 It may be that these changes call attention to the ongoing significance of the claim for media freedom both here in Australia and elsewhere and to our shared responsibility in ensuring its protection. As the media scholar Roger Silverstone recognised, ‘[a] responsible and accountable media culture … depends on a critical and literate citizenry’.84 In 2011 the United Nations Human Rights Committee issued its revised general comment on Article 19 of the ICCPR taking particular care to note the connection between freedom of expression, the media and the internet.

United Nations Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression UN Doc CCPR/C/GC/34 (12 September 2011) (footnotes omitted)

Copyright © 2015. Oxford University Press. All rights reserved.

Freedom of expression and the media 13. A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output. 14. As a means to protect the rights of media users, including members of ethnic and linguistic minorities, to receive a wide range of information and ideas, States parties should take particular care to encourage an independent and diverse media.

80 See further Keiran Hardy and George Williams, ‘Terrorist, Traitor, or Whistleblower? Offences and Protections in Australia for Disclosing National Security Information’ (2014) 37 University of New South Wales Law Journal 784. 81 See, for example, National Security Legislation Amendment Act (No. 1) 2014 (Cth). 82 For a powerful critique of the rhetoric of ‘internet freedom’ see Evgeny Morozov, The Net Delusion: How Not to Liberate the World, Allen Lane, London, 2011. 83 Katharine Gelber, Speech Matters: Getting Free Speech Right, University of Queensland Press, St Lucia, 2011, 166–67. 84 Roger Silverstone, Media and Morality: On the Rise of the Mediapolis, Polity Press, Cambridge, 2007, 165.

39

40

PART 1 Introduction

15. States parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto. 16. States parties should ensure that public broadcasting services operate in an independent manner. In this regard, States parties should guarantee their independence and editorial freedom. They should provide funding in a manner that does not undermine their independence.

Freedom of expression is foundational to media law, but many challenges remain to ensure its ongoing protection in Australian law, not the least of which is for our law to comply with such international standards.

Copyright © 2015. Oxford University Press. All rights reserved.

FURTHER READING Australian Law Reform Commission, Secrecy Laws and Open Government in Australia, Report 112 (2010). Barendt, Eric, ‘Why Protect Free Speech?’, in Freedom of Speech, 2nd edn, Oxford University Press, Oxford, 2005, Ch 1. Beckett, Charlie with Ball, James, WikiLeaks: News in the Networked Era, Polity Press, Cambridge, 2012. Campbell, Tom, ‘Rationales for Freedom of Communication’, in Tom Campbell and Wojciech Sadurski (eds), Freedom of Communication, Dartmouth, Aldershot, 1994, Ch 2. Chesterman, Michael, ‘Delicately Planted: Constitutional Freedom for Political Communication’, in Freedom of Speech in Australia: A Delicate Plant, Ashgate, Aldershot, 2000, Ch 2. Gelber, Katharine, Speech Matters: Getting Free Speech Right, University of Queensland Press, St Lucia, 2011. Kenyon, Andrew T, ‘Assuming Free Speech’ (2014) 77 Modern Law Review 379. Media Entertainment and Arts Alliance, Secrecy and Surveillance: The Report into the State of Press Freedom in Australia in 2014, 2014. Meiklejohn, Alexander, Political Freedom: The Constitutional Powers of the People, Harper, New York, 1960. Morozov, Evgeny, The Net Delusion: How Not to Liberate the World, Allen Lane, London, 2011. Moss, Irene, Report of the Independent Audit into the State of Free Speech in Australia, 31 October 2007. Oster, Jan, ‘Theory and Doctrine of “Media Freedom” as a Legal Concept’ (2013) 5 Journal of Media Law 57. Redish, Martin, ‘The Value of Free Speech’ (1982) 130 University of Pennsylvania Law Review 591. Sackville, Ronald, ‘Let Truth and Falsehood Grapple: Milton as a Dubious Guide to Some Questions about Free Speech’, Australia’s Right to Know, Freedom of Speech Conference, Keynote Address, 24 March 2009. Scanlon, Thomas, ‘A Theory of Freedom of Expression’, in Ronald Dworkin (ed), The Philosophy of Law, Oxford University Press, London, 1977, Ch 8. Schauer, Frederick, Freedom of Speech: A Philosophical Inquiry, Cambridge University Press, Cambridge, 1982. Stone, Adrienne, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 374. Stone, Adrienne, ‘“Insult and Emotion, Calumny and Invective”: Twenty Years of Freedom of

PART 2

Copyright © 2015. Oxford University Press. All rights reserved.

Media Regulation 3 Print Media and Journalists

43

4 Broadcasting Services

60

5 Online Content

104

6 Media Ownership

119

Copyright © 2015. Oxford University Press. All rights reserved.

3 Print Media and Journalists

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION The press is subject to general laws affecting media, such as defamation and contempt, but is self-regulated. This stands in contrast to the co-regulatory schemes that apply to electronic media (discussed in Chapters 4 and 5). The Australian Press Council (APC) has been responsible for developing standards for the print media and responding to complaints from the public since the 1970s. The APC is a private association, composed of an independent Chair, and representatives from the public, media organisations and independent journalists. It is funded by its constituent bodies (Fairfax Media, News Corp, and other publishers of newspapers and magazines). The Standards of Practice issued by the APC apply to all material published by its constituent bodies in newspapers, magazines and associated digital outlets.1 Although the APC describes its Standards of Practice as binding and the APC has established avenues for the public to complain about a breach of these Standards, the complaints process is not supported by any kind of legislative sanction and the APC does not have the power to formally discipline a media organisation. The Media, Entertainment and Arts Alliance (MEAA) has also published a Code of Ethics for journalists. Concerned citizens may complain to the MEAA if they feel an MEAA member has breached the Code and the MEAA may impose some limited penalties on its members. However, it does not often do so. In 2011 and 2012, a series of reviews on press regulation were conducted in Australia and the United Kingdom. The Leveson Inquiry in the United Kingdom was prompted by concerns about the culture of the British press and, in particular, the ‘phone-hacking scandal’. Although the practice of phone-hacking was not identified in Australia, the government of the day took the opportunity to issue terms of reference to Ray Finkelstein QC to consider the regulation of the press. At roughly the same time, the ‘Convergence Review’ of Australian media and communications regulation also made recommendations on the subject. These reviews all considered the adequacy of press self-regulation and all proposed strengthening existing frameworks. Their proposals varied, however, on how a new regulatory body should 1 See . The APC’s members include most major ­metropolitan and regional newspaper publishers: the only major newspaper which is not published by a ­constituent body is The West Australian.

43

44

PART 2 Media Regulation

be constituted and funded, how to preserve the independence of the new regulator from both industry and government, and the extent to which any new scheme should be based on, or supported by, legislation. The Finkelstein Inquiry and the Convergence Review were also particularly interested in how to harmonise the regulation of news and commentary across different media platforms. In response to the Finkelstein Inquiry and the Convergence Review, the Australian Government proposed a legislative reform package that would have created a statutory office with the power to declare independent self-regulatory bodies for news media.2 Although membership of such regulatory bodies would be voluntary, only organisations that were members of a declared body would have the benefit of the media organisation exception under the Privacy Act 1988 (Cth). In this way, the scheme aimed to encourage news media organisations to become members of new industry bodies that would set standards dealing with privacy, fairness, accuracy and professional conduct and that would handle complaints. This proposal failed to gain sufficient support in parliament and was ultimately withdrawn. This chapter reviews the recommendations of Leveson, Finkelstein and the Convergence Review on print media regulation. The chapter concludes by outlining the Standards of Practice issued by the APC and the Code of Ethics issued by the MEAA—that is, the current regulatory codes that apply to print media and journalists.

Copyright © 2015. Oxford University Press. All rights reserved.

3.1

The Leveson Inquiry

In mid-2011, following revelations that journalists at the News of the World (a London newspaper owned by News Corp) had hacked the phones of celebrities, politicians, and crime victims, the British Prime Minister established an inquiry into the culture, practice and ethics of the press. The inquiry was chaired by Lord Justice Leveson. The Final Report of the Leveson Inquiry, published in November 2012, recommended the United Kingdom’s Press Complaints Commission (PCC) be replaced with a voluntary, independent, industry-regulated and funded body responsible for establishing a code of standards and a fair, quick and inexpensive complaints procedure, with powers to investigate serious or systemic breaches and impose sanctions. A statutory framework would provide incentives to publishers to join the body, including consequences in relation to the costs of litigation in privacy, defamation and other media cases. Lord Justice Leveson recognised that there was little enthusiasm for any statutory provision to ensure comprehensive coverage of the scheme (that is, to compel media organisations to become members of the independent body) but acknowledged this may be necessary.3 While the Final Report stopped short of recommending statutory compulsion, it said that the government should be ready to consider the need for a statutory backstop.4 Lord Justice Leveson commented: ‘if some or all of the industry are not willing to participate in effective independent regulation, my own concluded view is to reject the notion that they should escape regulation altogether. I cannot, and will not, recommend another last chance saloon for the press.’5

2 The Public Interest Media Advocate Bill 2013 and the News Media (Self-Regulation) Bill 2013. 3 Lord Justice Leveson, An Inquiry Into the Culture, Practices and Ethics of the Press, Final Report, November 2012, Volume IV, Part K, Chapter 7, [3.34]. 4 Ibid. 5 Ibid [3.33].

CHAPTER 3 Print Media and Journalists

The following extract is drawn from the Executive Summary of the Leveson Inquiry Final Report. It sets out Lord Justice Leveson’s comments on the PPC and proposal on an independent self-regulatory body.

Lord Justice Leveson, An Inquiry Into the Culture, Practices and Ethics of the Press Executive Summary, November 2012 (footnotes omitted)

Introduction 1. For the seventh time in less than 70 years, a report has been commissioned by the Government which has dealt with concerns about the press. It was sparked by public revulsion about a single action – the hacking of the mobile phone of a murdered teenager. From that beginning, the scope of the Inquiry was expanded to cover the culture, practices and ethics of the press in its relations with the public, with the police, with politicians and, as to the police and politicians, the conduct of each. It carries with it authority provided personally by the Prime Minister. It requires me to consider the extent to which there was a failure to act on previous warnings as to the conduct of the press, the way in which the press has been regulated (if it has) and, in any event, how regulation should work in the future. …

Copyright © 2015. Oxford University Press. All rights reserved.

The Press Complaints Commission 41. … I unhesitatingly agree with the Prime Minister, the Deputy Prime Minister and the Leader of the Opposition who all believe that the PCC has failed and that a new body is required. Mr Cameron described it as “ineffective and lacking in rigour” whilst Mr Miliband called it a “toothless poodle”. The Commission itself unanimously and realistically agreed in March 2012 to enter a transitional phase in preparation for its own abolition and replacement. 42. The fundamental problem is that the PCC, despite having held itself out as a regulator, and thereby raising expectations, is not actually a regulator at all. In reality it is a complaints handling body. Scarcely any less profound are the numerous structural deficiencies which have hamstrung the organisation. It lacks independence. The Editors’ Code Committee which sets the rules is wholly made up of serving editors and is separate from the PCC. Its members are appointed by the Press Standards Board of Finance (‘PressBoF’), itself entirely made up of senior industry figures, which also controls the PCC’s finances and the appointment of the PCC Chair. Financially, the PCC has been run on a tight budget and without the resources to do all that is needed. 43. Voluntary membership and the concentration of power in relatively few hands has resulted in less than universal coverage. Whatever the reasons and whether or not justified, the departure of Northern & Shell was a major blow to the purpose and credibility of the PCC. The absence of Private Eye from membership, however, is the understandable consequence of the organisation’s lack of independence from those so often held to account by that publication. Furthermore, in reality, its powers are inadequate, especially regarding the right to conduct an effective investigation: the PCC is at the mercy of what it is told by those against whom complaint was made. 44. In any event such powers as the PCC has appear to have been under-utilised. Further, even when complaints are upheld, the remedies at its disposal are woefully inadequate and enforceable only by persuasion. In the light of all that I heard during Module One, I do not consider that the power to issue adverse adjudications holds quite the fear that the editors suggest (save, perhaps, only to their pride). I have already referred to the lack of disciplinary action against journalists following criticism by the PCC but neither is there any comeback or criticism of the editors who are ultimately responsible for what is published. 45. In practice, the PCC has proved itself to be aligned with the interests of the press, effectively championing its interests … When it did investigate major issues it sought to head off or minimise criticism of the press. It did little in response to Operation Motorman; its attempts to investigate phone hacking allegations, which provided support for the News of the World, lacked any credibility: save for inviting answers to questions, no serious investigation was undertaken at all. It may be that no serious investigation could be undertaken: if that was right, it was of critical importance that the PCC said so.

45

46

PART 2 Media Regulation

46. The PCC has not monitored press compliance with the Code and the statistics which it has published lack transparency. Even what the organisation undoubtedly was able to do well, namely complaints handling and anti-harassment work, was restricted by a lack of profile and a reluctance to deal with matters that were the subject of civil litigation. That latterly high profile complainants almost invariably turned to the courts instead of using the PCC speaks volumes. …

Copyright © 2015. Oxford University Press. All rights reserved.

The future: press regulation 57. … An independent regulatory body should be established, with the dual roles of promoting high standards of journalism and protecting the rights of individuals. That body should set standards, both through a code and in relation to governance and compliance. The body should: hear individual complaints against its members about breach of its standards and order appropriate redress while encouraging individual newspapers to embrace a more rigorous process for dealing with complaints internally; take an active role in promoting high standards, including having the power to investigate serious or systemic breaches and impose appropriate sanctions; and provide a fair, quick and inexpensive arbitration service to deal with any civil law claims based upon its members’ publications. 58. The appointment of the Chair, and other members, of the body must be independent. In the Report I recommend that this should be achieved through the establishment of an independent appointments panel (which could include one current editor but with a substantial majority demonstrably independent of the press), and I provide detailed criteria for ensuring sufficient independence from both the Government and the industry. This high degree of demonstrable independence from both political and commercial interests is crucial to a self-regulatory system achieving the public trust that is required. 59. The critical feature of the body which I propose is that its Board and Chair should all be appointed by fair and open process, comprise a majority that are independent of the press, include a sufficient number of people with experience of the industry who may include former editors and senior or academic journalists, but shall not include any serving editor or member of the House of Commons or Government. Funding would have to be agreed between the new body and the industry with security of funding over a reasonable planning period. Funding should take account of the cost of fulfilling the obligations of the regulator and the commercial pressures on the industry which are not as great for a number of the larger publishers as they are for the smaller, regional press. 60. It is not my role to seek to establish a new press standards code or to seek to be determinative about the way in which the independent self-regulatory body goes about its business. There are, however, a number of recommendations that I make to that body. First, a Code Committee would have to be established on which, I believe serving editors have an important part to play although not one that is decisive. The Code Committee should advise the new body which itself would take ultimate responsibility for its content and promulgation. In that regard, I recommend that the new body (through its Committee) engage with the public in an early review of the code. 61. Second, I encourage the new body to be open to being able to deal with complaints even where legal action is a possibility, and to equip itself to be able to deal with complaints alleging discrimination. I urge it to continue to provide warning notifications to the press in respect of those who are the subject of unwanted press intrusion, and to ensure that newspapers are held accountable for all material they print wherever it is sourced from. 62. Third, bearing in mind the concerns that have been raised about the different interpretations of the public interest that different editors have, I encourage the new independent self-regulatory body to issue guidance on interpretation of the public interest in the context of the code and to be clear that it would expect to see an assessment of the public interest, where relevant, being recorded as decisions are made. I also suggest that it considers offering a purely voluntary pre-publication advice service to editors who want support on how the public interest might be interpreted in a specific case before a decision is reached on publication without notice to the subject of the story. 63. Fourth, I suggest that the body should consider encouraging the press to be as transparent as possible in relation to sources and source material for its stories. This is not in any way to undermine the importance of protecting journalists sources, but where information is in the public domain there is no

CHAPTER 3 Print Media and Journalists

reason why the press should not actively help their readers to find it if they want to; neither is there any reason not to be as clear as is consistent with the protection of sources about where a story comes from. 64. Finally, I was struck by the evidence of journalists who felt that they might be put under pressure to do things that were unethical or against the code. I therefore suggest that the new independent selfregulatory body should establish a whistle-blowing hotline and encourage its members to ensure that journalists’ contracts include a conscience clause protecting them if they refuse.

In September 2014, the PCC was wound up and replaced by the Independent Press Standards Organisation (IPSO). The founding members of the IPSO have said that it delivers ‘all the key elements’ of the Leveson Inquiry’s recommendations. However, the body has been criticised on the basis that it is not sufficiently independent of the newspaper industry and is too similar to the PCC.6 Notably, important British print media outlets including The Guardian and the Financial Times have not joined the IPSO.

Copyright © 2015. Oxford University Press. All rights reserved.

3.2

The Finkelstein Inquiry

In September 2011 the Australian Government asked former Federal Court judge Ray Finkelstein QC to conduct an inquiry into certain aspects of the media and media regulation. The terms of reference required Finkelstein to investigate the effectiveness of current media codes of practice, the impact of technological change on the business model that supported investment in journalism, and ways of strengthening the independence and effectiveness of the APC. The Final Report of the Finkelstein Inquiry noted ‘general distrust of the media’ and ‘strong evidence of problems with the reporting of political issues’.7 It further noted ‘wrongful harm to individuals and organisations by unreliable or inaccurate reporting, breach of privacy, and the failure to properly take into account the defenceless in the community’ and that self-regulation had ‘not been successful in dealing with irresponsible reporting’.8 The Final Report recommended the establishment of an independent statutory body—the News Media Council (NMC)—to take over the relevant functions of the APC and Australian Communications and Media Authority (ACMA) (which regulates broadcasting and online services) in establishing and enforcing news media standards.9 The report envisaged a government-funded body comprised of community, industry and professional representatives with jurisdiction across print, online and broadcast platforms.

6 ‘IPSO: Is New Newspaper Regulator a “Sham”?’, The Week, 8 September 2014; Gordon Ramsey, The Independent Press Standards Organization – A Genuinely Independent Alternative to the PCC, or More of the Same? (15 November 2013), London School of Economics Media Policy Project Blog . 7 R Finkelstein, Report of the Independent Inquiry into the Media and Media Regulation (Report to the Minister for Broadband, Communications and the Digital Economy, 28 February 2012), [11.7], [11.9]. 8 Ibid [11.10], [11.12]. 9 Note that the Commonwealth does not have any express legislative power with respect to print media. As such, there is a constitutional question as to whether the type of scheme proposed by Finkelstein (or, indeed, the Convergence Review) could be implemented by the Federal Government: Paul Kildea and George Williams ‘The Constitution and Commonwealth Proposals for New Media Regulation’ (2013) 18 Media and Arts Law Review 2.

47

48

PART 2 Media Regulation

The proposed complaint-handling process would remain focused on conciliation, with an option for adjudication, but with power to require a news media outlet to publish an apology, correction or retraction, or afford a person a right to reply.

R Finkelstein, Report of the Indepdendent Inquiry into the Media and Media Regulation (Report to the Minister for Broadband, Communications and the Digital Economy, 28 February 2012) (footnotes omitted)

What options should be rejected? 11.22 Ordinarily, the preferred option would be self-regulation. But in the case of newspapers, self-regulation by code of ethics and through the APC has not been effective. 11.23 To do nothing in these circumstances is merely to turn a blind eye to what many see as a significant decline in media standards. Australian society has a vital interest in ensuring that media standards are maintained and that there is public trust in the media. 11.24 Put more directly, the problems identified in this report have not occurred because the media have been unregulated—to the contrary, both the press and broadcast media have been and are regulated in Australia. That the problems persist provides clear evidence that the current regulatory arrangements need strengthening to improve their effectiveness. 11.25 Doing nothing, therefore, is not a road to success. It would simply perpetuate a self-regulation system that is only marginally effective and has not adequately measured up to community expectations. 11.26 Licensing the press should also be rejected, because in a democratic society the government should not be involved in controlling who should publish news. Nor should it be involved in setting and evaluating press practices. These would be the inevitable consequences of licensing, which could eventually end up being just a dressed-up version of censorship. Whatever may be the justification for licensing broadcasters (and many hold the justifications to be false), it cannot be transported to the press.

Copyright © 2015. Oxford University Press. All rights reserved.

Factors that should influence the choice of a better model 11.27 The mechanism needs to have the backing of law to be effective. Any group that wields, or has the potential to wield, enormous power should be required to observe appropriate standards without provision to ‘opt out’. In this respect the media, like any social institution, should be accountable for its performance, as are most other powerful groups in society. 11.28 Publishers and editors naturally fear that any enforcement mechanism that is not self-imposed is a restriction on a free press or, if it is not an immediate restriction, would be the first step on the path to curtailing press freedom. Those fears can be accommodated with the development of an appropriate regulatory mechanism not involving risks to free speech or to an independent press. 11.29 That is, statutory intervention need not be ‘a hallmark of authoritarianism [that] risks undermining democracy’, contrary to the view of the House of Commons Culture, Media and Sport Select Committee in its 2007 report on the same issue. Rather, the setting of obligatory minimum standards for a free functioning press will better serve society and will enhance democracy. 11.30 As Sir Louis Blom-Cooper QC, a former Chair of the British Press Council, put it as recently as 29 November 2011: it is ‘a total nonsense’ to suggest that regulation of the press should be non-statutory. ‘It all depends on what the statute seeks to achieve and what it contains.’ 11.31 Does effective regulation need to be enforceable? Experience on this is mixed, and the answer is: ‘It depends’. There is some evidence that simply having a regulatory requirement can, independently from enforcement, lead to improved standards and that scrutiny, with no further regulatory action, may also lead to some, albeit small, improvement on performance. But experience also shows that with little or no enforcement, regulatory requirements are routinely ignored. Thus, commonly, adequate enforcement is an important component of a robust regulatory regime.

CHAPTER 3 Print Media and Journalists

11.32 Giving due weight to the importance of freedom of expression and freedom of the press, a move to full governmental regulation would be a step too far. A sufficient improvement would be an independent system of regulation that allows the regulated parties to participate in the setting and enforcement of standards (as is presently the case), but with participation being required, rather than voluntary. This may be termed enforced self-regulation. 11.33 Enforced self-regulation has the following benefits: • It has no state involvement in appointing members of the regulatory body, in the setting of standards or in decisions regarding breach of standards, thus minimising the risk of potential attempts for state interference with, or control of, speech. • It retains almost all the benefits of self-regulation, but ensures a more robust and effective operation of the system. • Governmental funding of the statutory body (which is ordinarily what would follow) ensures adequacy of funding, which promotes independence from those it regulates. 11.34 Another aspect of a new model of regulation flows from the internet-induced convergence of industries involved in the production of news, which is creating disparity in the regulatory treatment of competitors using different delivery platforms. In this environment, there are considerable benefits for media organisations, consumers and government in the establishment of a ‘one stop shop’ regulatory arrangement that applies to all news producing media, regardless of delivery platform: • It is fairer that all providers of news and public affairs content be subject to a single set of standards consistently administered by the same body and with the same sanctions (allowing for some minor variations to accommodate platform-specific differences). • It is more satisfactory for consumers to have one body to which they may complain regardless of the platform concerned. • It is a more efficient use of government resources to set up and maintain a single regulator for news and current affairs reporting standards than to have different regulators for different entities. …

A strengthened APC would not be sufficient

Copyright © 2015. Oxford University Press. All rights reserved.

11.39 Some of the existing problems could be addressed by strengthening the APC. 11.40 To create a more effective APC the following steps would be required. Some would involve new legislation and others amendments to existing legislation: • The APC constitution would have to be amended so that membership would be open to any provider of news, regardless of platform. • To encourage all publishers of print and online news to become members of the APC, legal privileges offered to providers of news under Federal legislation, including exemption from privacy and consumer legislation, and possibly protection of journalists’ sources, should only be available to members or those employed by members. • To ensure that broadcasters become members a condition to that effect would need to be included in their broadcast licences. • ACMA’s power to supervise the news and current affairs standards of broadcasters would need to be removed. • If members of the APC do not agree to provide sufficient funding, the shortfall would need to be met by government. To prevent members deliberately withholding the necessary funds, government funding should be recovered by a levy on members. • The APC’s constitution would need to be amended to give it proper powers of investigation and enforcement. These powers would be enforceable by private law action. • The APC should have express power to institute own motion investigations. • The APC should be given statutory power to require the production of documents from third parties and the attendance of persons to appear and answer questions.

49

50

PART 2 Media Regulation

11.41 However, there would still be several significant disadvantages with this option. The most obvious is that while membership of the APC can be ‘encouraged’ it cannot be guaranteed. Most likely many publishers of news, especially publishers on the internet, will remain outside the system or, as in the past, will leave it when convenient. Second, many of the necessary changes depend on the will of the APC members to implement them. The submissions made to the Inquiry suggest it is unlikely that all the suggested changes would be adopted. 11.42 Providing government funding to, and enhancing the jurisdiction and powers of, the APC, would not be effective by itself: • While a positive step, simply providing government funding to the APC would not by itself be adequate to ensure that the APC is in fact able properly to carry out its functions. It also requires greater powers. • While conferring statutory powers on a private entity might give the ‘toothless tiger’ some teeth, it is  fraught with legal difficulties in the Australian constitutional system and for that reason is not desirable. 11.43 Indeed, a strengthened APC would be an odd mixture of a private body with some statutory powers being partly funded by government. This hybrid is not the preferred option, although it would be preferable to the status quo.

Copyright © 2015. Oxford University Press. All rights reserved.

The recommended model 11.44 To rectify existing and emerging weaknesses in the current regulatory structures it is recommended that there be established an independent statutory body which may be called the ‘News Media Council’, to oversee the enforcement of standards of the news media. It is envisaged that the body would take over the functions of both the APC and the news and current affairs standards functions of ACMA. 11.45 The News Media Council should be free from the influence of the executive. This will require certain structural arrangements. 11.46 There should be an independent body to appoint the members of the News Media Council. Currently appointments to the APC are made by the council itself. That is not a particularly independent process. On the other hand, appointments made by an independent committee—that is, a committee that is independent from government—would be, and would be seen to be, independent. The committee could, for example, consist of three senior academics from tertiary institutions appointed by the Australian Vice-Chancellors Committee (now called Universities Australia) the Commonwealth Ombudsman and the Solicitor-General for the Commonwealth. 11.47 The News Media Council should consist of a full-time independent chair and 20 part-time members. 11.48 One half of the members appointed to the News Media Council should be selected from the public at large, being persons who have not had previous connection with the media. Public advertisements should call for candidates. The other half should be appointed from the media or from those who have worked in the media. The media representatives should exclude managers, directors and shareholders of media organisations. The candidates should be nominated by the media and MEAA. 11.49 One half of the members should be men and one half should be women. 11.50 The chair should be a retired judge or other eminent lawyer. That person need not be a practising lawyer. 11.51 Members should be entitled to reasonable remuneration. 11.52 Standards of conduct which would govern the news media should be developed by the News Media Council. The standards could be based on already existing codes which have been developed either by the media or in consultation with the media. Two kinds of standards should be developed: non binding aspirational principles and more detailed standards that are similar to the MEAA’s code and the APC’s standards. While the setting of standards should be left to the News Media Council, they should incorporate certain minimum standards, such as fairness and accuracy. The same standards need not apply across delivery platforms. Some aspects will need to be platform specific. The standards should be reviewed at least every three years to ensure that they are working as intended and that they remain current and appropriate to the changing media environment.

CHAPTER 3 Print Media and Journalists

11.53 Funding should be by the government out of the consolidated revenue and not be recovered through a levy on the media. This is preferable to funding from the industry. One of the concerns identified by the APC is that it is not seen to be independent of the press because it is funded by the press. This is not an unreasonable view. …

General Structure 11.58 The jurisdiction of the News Media Council is an important issue. As noted, not all news media are currently regulated. Moreover, there are several regulators (self and statutory) that overlap in the platforms they oversee. The News Media Council should have supervision of the standards of all news media on all platforms. In an era of media convergence, where many organisations transmit the same story on more than one platform, it is logical that there be consistent regulation affecting them all. It would also have the advantages of promoting consistency, providing more predictability for journalists and news organisations, and also building expertise and experience among the persons who oversee the regulation. 11.59 It is not easy to define who should be ‘the media’ that ought to be the subject of the News Media Council’s jurisdiction. It is no longer enough to say, as one might have in the past, that the news media consists of newspapers, magazines and broadcasters. New technology makes it necessary to reassess this understanding. … 11.65 The [NZLC] has suggested its own definition of ‘news media’ which is found in Section 8 of this report. It is worth repeating: For the purposes of the law the “news media” includes any publisher, in any medium, who meets the following criteria:

Copyright © 2015. Oxford University Press. All rights reserved.

• a significant proportion of their publishing activities must involve the generation and/or aggregation of news, information and opinion of current value; • they disseminate this information to a public audience; • publication must be regular; • the publisher must be accountable to a code of ethics and a complaints process.

This is a useful definition which could be adapted with changes. 11.66 The first change should be to remove the requirement that the publisher be accountable to a code of ethics. The point of the proposed News Media Council is to create that accountability. 11.67 The second change arises from the fact that there are many newsletter publishers and bloggers, although no longer part of the ‘lonely pamphleteer’ tradition, who offer up-to-date reflections on current affairs. Quite a number have a very small audience. There are practical reasons for excluding from the definition of ‘news media’ publishers who do not have a sufficiently large audience. If a publisher distributes more than 3000 copies of print per issue or a news internet site has a minimum of 15 000 hits per annum it should be subject to the jurisdiction of the News Media Council, but not otherwise. These numbers are arbitrary, but a line must be drawn somewhere. …

Complaints-handling procedures 11.70 The News Media Council should deal with complaints, in the following manner. • A complainant should be required to waive any possible future action they might have arising out of the grievance. – It is desirable that the News Media Council not deal with complaints in which litigation is pending or which may ultimately be presented to a court. This will encourage parties to deal sensibly with complaints. • There should be a filtering process carried out by a senior officer of the News Media Council. The process is to determine whether or not a complaint is frivolous or vexatious. If it is, it need not be pursued. It may be appropriate to allow for an appeal to the chair by a complainant whose complaint is not to be pursued.

51

52

PART 2 Media Regulation

• The News Media Council should, in the first instance, attempt to resolve a complaint through discussions with the media outlet. This can be done informally and, ordinarily, the process should commence immediately upon receipt of the complaint. – It is not proposed that the complainant should first present his/her complaint to the media outlet. That may sometimes be an effective means of resolving a complaint, but it would take time and often a complainant is at a disadvantage when dealing with an experienced editor. – However, if the organisation has an effective internal complaints handling procedure, the Council should have a discretion whether to refer a complainant to the organisation in the first instance. Specifically, the ABC and SBS have dedicated complaints handling sections and one newspaper has a readers’ editor. • If not resolved informally, complaints should be dealt with by a complaints panel consisting of one, three or, only in exceptional cases, five members of the News Media Council. The chair should have power to select the panel for any given complaint (and may, where appropriate, select himself/herself). • Complaints should, as a general rule, be dealt with on the papers and not by a hearing. • There should be a strict timetable for handling complaints. Timetables ought to be designed to ensure a resolution within days or weeks, not months. For example, there could be a requirement that the media outlet concerned has two days to respond to a complaint and the panel then has a further two days to resolve the complaint and make a decision. These timeframes could be extended by the chair where appropriate. • The panel should have power to require the production of documents and call for the attendance of persons to provide information. • Privilege should attach to all information provided to the panel; • The panel should not go behind the confidentiality of a journalist’s source of information. • There should be no requirement for the panel to provide reasons for a decision although it would likely ordinarily do so. …

Remedial powers

Copyright © 2015. Oxford University Press. All rights reserved.

11.74 The News Media Council should have the following remedial powers for complaints and own-motion investigations: • • • • •

To require publication of a correction. To require withdrawal of a particular article from continued publication (via the internet or otherwise). To require a media outlet to publish a reply by a complainant or other relevant person. To require publication of the News Media Council’s decision or determination; To direct when and where publications should appear.

11.75 When a media outlet publishes a correction, apology, reply or determination as required by the News Media Council both it and the News Media Council should be protected from legal proceedings based on the publication—in other words, a form of privilege should attach to the publication. 11.76 There should be no power to impose fines or award compensation. Powers of this kind are likely to involve constitutional difficulties. In any event, inevitably they will make the complaints-handling process more complex and time-consuming. One of the main advantages of the proposed News Media Council will be lost. The incentive to resolve a complaint quickly will also be lost.

Enforcement of determinations 11.77 It is necessary, if the News Media Council is not to be a ‘toothless tiger’, to have a means of enforcing its decisions. There should be a legal requirement that if a regulated media outlet refuses to comply with a News Media Council determination the News Media Council or the complainant should have the right to apply to a court of competent jurisdiction for an order compelling compliance. Any failure to comply with the court order should be a contempt of court and punishable in the usual way. This will be both a deterrent to breaching standards and, in the event of a complaint being made, will act as an incentive for media outlets to resolve the complaint through discussion. …

CHAPTER 3 Print Media and Journalists

Other attributes of the proposed model 11.80 The proposed News Media Council will be an independent body that would not compromise editorial independence and would provide an effective means of resolving disputes between members of the public and the media. It would, in addition, foster democratic institutions by improving the quality of information that is available to the public. 11.81 An advantage of the proposed News Media Council is that it will provide a detached and  independent appraisal of claims that the media has acted unfairly or breached applicable standards.

Copyright © 2015. Oxford University Press. All rights reserved.

3.3

The Convergence Review

The Final Report of the Convergence Review was published in March 2012, shortly after Finkelstein. The Convergence Review Committee accordingly had an opportunity to consider and respond to Finkelstein’s recommendations. The recommendations of the Convergence Review were consistent with Finkelstein in many respects, but there were some important differences. The Convergence Review Committee recommended that direct statutory mechanisms for regulating news standards be considered ‘only after the industry has been given the full opportunity to develop and enforce an effective, cross-platform self-regulatory scheme’.10 The Convergence Review recommended the establishment of two new regulatory bodies: a statutory communications regulator to replace the ACMA and an independent self-regulatory body to oversee standards for news and comment that would replace the relevant functions of the APC (press) and ACMA (broadcasting and online services). In this, the Convergence Review sought to harmonise regulatory standards on news and comment across print and other media platforms (including television, radio and online services). The Convergence Review recommended that the news standards body be empowered to impose ‘credible sanctions’ and to order members to publish its findings ‘prominently and appropriately’. It would also be able to refer persistent or serious code breaches to the statutory communications regulator, making the scheme somewhat co-regulatory on matters of enforcement. Notably, content service enterprises (being significant media enterprises that deal in professional content) would be required to be members of the news standards body— membership would not be voluntary. Smaller media outlets dealing in news and commentary would be encouraged to join, and membership of the news standards body would be a condition to retaining legal privileges concerning dealings with personal information under the Privacy Act 1988 (Cth) and concerning misleading and deceptive statements under the Competition and Consumer Act 2010 (Cth). The proposals on the news standards body were informed by the recommendations of the Finkelstein Inquiry, but there were differences. The following extract from the Convergence Review draws out those differences between the proposals put forward by the Convergence Review and by Finkelstein.

10 Australian Government, Convergence Review, Final Report (March 2012), 156.

53

54

PART 2 Media Regulation

Australian Government, Convergence Review, Final Report March 2012, Appendix I (footnotes omitted)

Key differences from Independent Media Inquiry approach

Copyright © 2015. Oxford University Press. All rights reserved.

… The Convergence Review approach is consistent with the Independent Media Inquiry approach to the extent that it proposes that an all-media body be established to promote standards for news and commentary, adjudicate complaints, and provide timely remedies. The Convergence Review differs from the Independent Media Inquiry approach in the key areas outlined below. • The news standards body proposed by the Convergence Review would not be a statutory authority. Instead, content service enterprises would be required to join an industry self-regulatory body. The Review considers that an industry-led approach could be implemented more effectively, with more immediate results, and with the potential for better long-term outcomes. • In the Convergence Review approach, the news standards body would cover only content service enterprises as defined in this report, rather than the much lower threshold for news providers as recommended by the Independent Media Inquiry. The Review has recommended that media enterprises should be subject to content standards where they have control of the professional content they provide, have a large number of Australian users of that content, and have a high level of revenue derived from supplying that content to Australians. • In the Convergence Review approach, the news standards body would be majority funded by its members, rather than being fully funded by the government. As it is in the public interest that the news standards body be adequately funded, there would be provision for the government to make a funding contribution. This would provide flexibility in determining how and to what extent government support is required. For example, funding could be provided to meet a shortfall in operational funding or to contribute to an agreed project. • For clarity, in the Convergence Review approach the ABC and SBS should be able to operate effectively under their own statutory charters and should not be subject to the rules of the news standards body. • In the Convergence Review approach, the news standards body would be expected to have an effective range of remedies and sanctions which would be contractual. In contrast, the Independent Media Inquiry proposed legislative complaints procedures and enforcement mechanisms. • In the Convergence Review approach, there would be no requirement to give up other legal remedies as a condition of having a complaint investigated. The Convergence Review is concerned that a requirement of this kind would place unfair pressure on complainants who might not be in a position to make an informed decision on whether to take separate legal action at the time the complaint is made. • The Convergence Review approach provides for direct statutory mechanisms to be considered only after the industry has been given the full opportunity to develop and enforce an effective, cross-platform selfregulatory scheme.

3.4

The Australian Press Council

While Finkelstein and the Convergence Review Committee were undertaking their investigations, the APC launched its own review of journalism standards—the Standards Project. The Standards Project resulted in the publication of the APC’s revised Statement of Principles in July 2014.11 In response to the Finkelstein Report, APC members pledged 11 Australian Press Council, The Standards Project (available at ). Note that Seven West Media, publisher of the West Australian newspaper and Pacific Magazines, defected from the APC to set up its own independent oversight body.

CHAPTER 3 Print Media and Journalists

to double their funding and introduce a four-year notice period for members wishing to leave the Council. The APC’s Standards of Practice now comprise a Statement of General Principles, a Statement of Privacy Principles, and a series of Specific Standards of Practice which apply to specific areas of media practice. The APC also publishes a range of nonbinding Advisory Guidelines, covering issues such as how journalists refer to persons who arrive in Australia by boat without a visa, and reporting on elections and opinion polls. The APC commenced a second phase of the Standards Project in August 2014, under which it will release further Specific Standards regarding online media, conflict of interest and judicial processes, as well as revise its Advisory Guidelines. Under the second phase of the Standards Project, the APC has proposed to undertake systemic monitoring of compliance with the Standards, including assessing compliance in particular areas, issues or types of publications over a specified period.12

3.4.1

The APC’s Statement of General Principles and Statement of Privacy Principles

The APC’s Statement of General Principles applies to material published on or after 1 August 2014. The Statement of General Principles creates an exception for breaching privacy or causing harm where the publication is ‘sufficiently in the public interest’. The explanatory notes to the Statement of General Principles describe the test as ‘proportionate to the gravity of the potential breach of the Principles’ and set out the following relevant factors to consider:

Copyright © 2015. Oxford University Press. All rights reserved.

(a) ensuring everyone has genuine freedom of expression and access to reliable information; (b) protecting and enhancing independent and vigorous media; public safety and health; due administration of justice and government, personal privacy, and national security; (c) exposing or preventing crime, dishonesty and serious misconduct or incompetence (especially by public figures).13

The APC’s Statement of Privacy Principles deals with the collection, disclosure and security of personal information. The standards assert that all persons who provide information to media organisations are entitled to seek anonymity, and that the identity of confidential sources should not be revealed, and where it is lawful and practicable, that any personal information which it maintains derived from such sources does not identify the source.14 The Privacy Principles serve a further purpose in that the Privacy Act 1988 (Cth) creates an exemption for the media that is dependent on a public commitment to observing standards that deal with privacy in the context of the activities of a media organisation.15 The Privacy Principles are published by the APC to secure this exemption. 12 Ibid. 13 Australian Press Council, Statement of General Principles (available at ). 14 Australian Press Council, Statement of Privacy Principles (available at ), Privacy Principle 7. 15 Privacy Act 1988 (Cth) s 7B(4).

55

56

PART 2 Media Regulation

Australian Press Council, Statement of General Principles Publications are free to publish as they wish by reporting facts and expressing opinions, provided they take reasonable steps to comply with the following Principles and the Council’s other Standards of Practice.

ACCURACY AND CLARITY 1. Ensure that factual material in news reports and elsewhere is accurate and not misleading, and is distinguishable from other material such as opinion. 2. Provide a correction or other adequate remedial action if published material is significantly inaccurate or misleading.

FAIRNESS AND BALANCE 3. Ensure that factual material is presented with reasonable fairness and balance, and that writers’ expressions of opinion are not based on significantly inaccurate factual material or omission of key facts. 4. Ensure that where material refers adversely to a person, a fair opportunity is given for subsequent publication of a reply if that is reasonably necessary to address a possible breach of General Principle 3.

PRIVACY AND AVOIDANCE OF HARM 5. Avoid intruding on a person’s reasonable expectations of privacy, unless doing so is sufficiently in the public interest. 6. Avoid causing or contributing materially to substantial offence, distress or prejudice, or a substantial risk to health or safety, unless doing so is sufficiently in the public interest.

INTEGRITY AND TRANSPARENCY

Copyright © 2015. Oxford University Press. All rights reserved.

7. Avoid publishing material which has been gathered by deceptive or unfair means, unless doing so is sufficiently in the public interest. 8. Ensure that conflicts of interests are avoided or adequately disclosed, and that they do not influence published material.

3.4.2

The APC’s Specific Standards

The APC issued its first Specific Standard in 2011, relating to coverage of suicide. It requires, among other things, that publications do not give reports of suicide undue prominence through explicit headlines or images and not describe the method and location of suicide in detail, bearing in mind the risk of causing further suicides. It also requires material relating to suicide to be accompanied by information about 24-hour crisis support services or other sources of assistance.16 The second Specific Standard, on contacting patients in hospital and residential care facilities, was issued in August 2014. It requires a journalist to obtain informed consent before making contact with a patient in hospital, to obtain permission from the hospital to visit the patient (unless it is a matter of public importance which has been approved at a senior editorial level) and to cease contact with the patient when asked or if the patient is not aware of what the contact involves and its consequences.17 16 See . 17 Ibid.

CHAPTER 3 Print Media and Journalists

Copyright © 2015. Oxford University Press. All rights reserved.

3.4.3

The complaints-handling process

The APC will accept complaints about any Australian publication—but its adjudications are only binding on members.18 A breach of the APC’s Standards of Practice (the Statement of General Principles, the Statement of Privacy Principles or the Specific Standards) may form the basis of a complaint to the APC. The APC will make an initial assessment of the complaint to decide if the complaint should proceed to informal consideration (Level 1) or be discontinued. A complaint may be discontinued if, for example, the APC determines that it is highly unlikely that a breach of the Council’s Standards of Practice has occurred or the possible breach is not sufficiently serious. If a complaint proceeds to informal consideration, possible outcomes include an informal expression of regret by the publication, the publication of balancing material, a correction, clarification or apology, amendment or removal of electronic material or a commitment about future coverage. Most complaints are resolved at this stage. If the complaint is not resolved it may be referred to the Adjudication Panel (Level 2). A complaint that proceeds to adjudication may be upheld, in whole or in part, or dismissed. Where a complaint is upheld, the APC may issue a reprimand or censure, and may call for (but not require) remedial action by the publisher including an apology, retraction, or measures to prevent a recurrence of the breach.19 Adjudications must be printed in the publication concerned, and also appear on the APC website and in its annual report. A publication must print any APC adjudication concerning it with due prominence, within 7  days for daily publications, or in the first issue following the adjudication for periodicals.20 It must not be accompanied by any editorial comment.21 The APC will not ordinarily consider complaints if legal proceedings have been commenced, unless a delay would be unfairly detrimental to the complainant. If proceedings have commenced, or may commence, the publisher may request the APC not to consider the complaint until any related legal proceedings have been concluded or there is no longer a reasonable possibility that they will be commenced. Alternatively the publisher may request that the complainant meet certain conditions for the complaint to proceed, such as requiring that communications be made ‘without prejudice’, that the complainant signs a confidentiality agreement or waiver, or that the matter not be referred to the Adjudications Panel.22

3.5

Media Entertainment and Arts Alliance—Code of Ethics

The most prominent self-regulatory code for journalists is that of the Media Entertainment and Arts Alliance (MEAA). Internal codes have also been developed by some media companies.23 The MEAA is a union for journalists and people working in the media, entertainment, sports or the arts. The Code of Ethics maintained by the MEAA was established as a self-regulatory mechanism in the 1940s and was most recently revised in 1999. 18 See generally Australian Press Council, The Complaints System: an Overview Fact Sheet, available at . 19 Ibid. 20 Australian Press Council, Publication of Adjudications Fact Sheet, cls 3–5 (available at . 21 Ibid cl 2. 22 Australian Press Council, Legal Proceedings Fact Sheet, available at . 23 See R Finkelstein, Report of the Independent Inquiry into the Media and Media Regulation (Report to the Minister for Broadband, Communications and the Digital Economy, 28 February 2012), Annexure J—Extracts

57

58

PART 2 Media Regulation

Media Entertainment and Arts Alliance, Journalists’ Code of Ethics Respect for truth and the public’s right to information are fundamental principles of journalism. Journalists describe society to itself. They convey information, ideas and opinions, a privileged role. They search, disclose, record, question, entertain, suggest and remember. They inform citizens and animate democracy. They give a practical form to freedom of expression. Many journalists work in private enterprise, but all have these public responsibilities. They scrutinise power, but also exercise it, and should be accountable. Accountability engenders trust. Without trust, journalists do not fulfil their public responsibilities. Alliance members engaged in journalism commit themselves to: Honesty Fairness Independence Respect for the rights of others

Copyright © 2015. Oxford University Press. All rights reserved.

Journalists will educate themselves about ethics and apply the following standards: 1. Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do not suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply. 2. Do not place unnecessary emphasis on personal characteristics, including race, ethnicity, nationality, gender, age, sexual orientation, family relationships, religious belief, or physical or intellectual disability. 3. Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances. 4. Do not allow personal interest, or any belief, commitment, payment, gift or benefit, to undermine your accuracy, fairness or independence. 5. Disclose conflicts of interest that affect, or could be seen to affect, the accuracy, fairness or independence of your journalism. Do not improperly use a journalistic position for personal gain. 6. Do not allow advertising or other commercial considerations to undermine accuracy, fairness or independence. 7. Do your utmost to ensure disclosure of any direct or indirect payment made for interviews, pictures, information or stories. 8. Use fair, responsible and honest means to obtain material. Identify yourself and your employer before obtaining any interview for publication or broadcast. Never exploit a person’s vulnerability or ignorance of media practice. 9. Present pictures and sound which are true and accurate. Any manipulation likely to mislead should be disclosed. 10. Do not plagiarise. 11. Respect private grief and personal privacy. Journalists have the right to resist compulsion to intrude. 12. Do your utmost to achieve fair correction of errors.

GUIDANCE CLAUSE Basic values often need interpretation and sometimes come into conflict. Ethical journalism requires conscientious decision-making in context. Only substantial advancement of the public interest or risk of substantial harm to people allows any standard to be overridden.

The Media Alliance Code of Ethics applies to journalists who are members of the Journalists section of the MEAA. This leaves many journalists beyond the reach of the Code: membership is declining and journalists working in senior editorial positions are exempt from membership.24 Written complaints identifying the journalist and the action thought 24 R Finkelstein, Report of the Independent Inquiry into the Media and Media Regulation (Report to the Minister

CHAPTER 3 Print Media and Journalists

to be unethical can be sent to the MEAA and will be considered by a Judiciary Committee. The Judiciary Committee consists of experienced journalists who are elected to the Committee every two years by members of the Journalists section of the MEAA in each state.25 The Committee will determine whether a complaint should be upheld or dismissed, whether further information should be sought from the parties or whether the complaint should proceed to a hearing. Parties to any hearing are not entitled to legal representation, but the Committee follows the rules of natural justice. If the complaint is upheld, the journalist involved may be censured or rebuked, fined up to $1,000 or expelled from membership of the MEAA.26 The MEAA National Secretary told the Independent Media Inquiry that since the revised Code was adopted in 1999 only three members had been censured or rebuked, and none had been expelled since the 1970s.27 Unlike the APC, the MEAA does not publish its adjudications online.

QUESTIONS 1 Should print media and journalists be subject to more formal regulation? 2 Would co-regulatory arrangements (‘enforced self-regulation’, as Finkelstein proposed) be appropriate, or would this amount to unacceptable interference with press freedom? 3 Should journalist privilege apply to news reporting by ‘citizen’ or non-professional journalists, such as bloggers?

FURTHER READING

Copyright © 2015. Oxford University Press. All rights reserved.

Finkelstein, R, Report of the Independent Inquiry into the Media and Media Regulation (Report to the Minister for Broadband, Communications and the Digital Economy, 28 February 2012). Lord Justice Leveson, An Inquiry Into the Culture, Practices and Ethics of the Press, Final Report, November 2012. Rosen, Jay, Jay Rosen’s Pressthink: . Silverstone, Roger, Media and Morality: On the Rise of the Mediapolis, Polity Press, Cambridge, 2007. Ward, Daniel, ‘Breaking News: An Assessment of the Finkelstein Report’s News Media Council’ (2012) 17 Media and Arts Law Review 337.

25 See . 26 Ibid. 27 See Finkelstein, above n 43, [7.21].

59

60

4 Broadcasting Services

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION This chapter looks at the regulation of broadcasting services. The principal legislation governing broadcasting in Australia is the Broadcasting Services Act 1992 (Cth). This legislation has looked tired for a few years now. As technology has developed the Act has had a number of schedules added to deal with online content and to provide for the transition to digital broadcasting. The Act also represents years of political compromises and concessions over broadcasting policy, going back to the Broadcasting Act 1942 (Cth) and before. The development of Australian broadcasting law, and certain parts of the Broadcasting Services Act 1992 (Cth), can be impossible to understand divorced from their political context. In 2012, the Federal Government published the final report of the ‘Convergence Review’, a broad review of Australian communications and media legislation, including the Broadcasting Services Act 1992 (Cth).1 Although the Report of the Convergence Review has not as yet led to any substantive amendments to Australian broadcasting laws, it could form the basis of future law reform. The chapter starts by looking at the rationales for regulating broadcasting services and the principles that underpin the Broadcasting Services Act 1992 (Cth). It then considers the definition of a broadcasting service and how this has been challenged by online services. The chapter continues by describing the co-regulatory regime established under the Broadcasting Services Act 1992 (Cth). We spend some time in this chapter running through notable aspects of the codes, standards and licence conditions that apply to each category of broadcasting service. We then discuss how these are enforced. The national broadcasters (the ABC and SBS) are not generally subject to the regulatory regime set out in the Broadcasting Services Act 1992 (Cth), but are primarily governed by their own legislation.2 This legislation and codes that apply to the national broadcasters are considered later in the chapter. We also discuss the regulation of digital television and digital radio broadcasting services.

1 2

Australian Government, Convergence Review, Final Report (March 2012). See also Chapter 3. Broadcasting Services Act 1992 (Cth) s 13(5). The only provisions of the Act that are specifically stated to apply to the ABC and SBS are ss 150–53, which deal with the investigation by the Australian Communications and Media Authority (ACMA) of public complaints that the ABC or SBS has acted contrary to a code of practice notified to the ACMA.

CHAPTER 4 Broadcasting Services

4.1

Rationales and regulatory principles

Broadcasting is more heavily regulated than other types of media. While the press has traditionally been self-regulated and subject only to laws of general application, broadcasting services operate within a detailed, sector-specific regulatory regime. In contrast with the press and online content platforms, broadcasters require a licence before commencing service. These licences often carry conditions designed to further public policy objectives at the expense of the licensee. As a result, the content delivered by broadcasting services is shaped by regulation in a manner that does not apply to other forms of media. Some of the standard reasons advanced for this differential regulatory treatment are described in the following extract.

Lesley Hitchens, ‘Policy Rationales and Implications for Regulation’

Copyright © 2015. Oxford University Press. All rights reserved.

in Broadcasting Pluralism and Diversity, Hart Publishing, Oxford, 2006, 45–49 (footnotes omitted)

Although others can be identified, four of the justifications or rationales explaining the need for specific broadcasting regulation are presented here … The first rationale to be discussed here arises because broadcasting is dependent upon the use of a public resource: the airwaves. As such, its right to use those airwaves will be subject to such terms and conditions as government, or a relevant regulatory authority, considers appropriate. There are, however, some difficulties with this justification. As Barendt has argued, it confuses the opportunity to regulate with whether it is right to do so. Nor is it so clear that the airwaves are necessarily a public resource. This is a regulatory choice, and other options, such as the sale of the frequencies, would be possible. One might argue that regulation of frequencies is necessary to avoid interference. Hence, in order to ensure that the broadcasting signal of one broadcasting station does not interfere with the signal of another, regulation will be required to control the allocation of frequencies. Whilst this may be a valid reason for regulation, it does not explain all of the different aspects of broadcasting regulation, such as content regulation. Spectrum scarcity has offered a particularly strong claim for regulation. It is argued that, because of limited spectrum, access to broadcasting is limited, and therefore those who have been allocated, through licensing, the privilege of broadcasting must share this with others. Hence, the opportunity for speech must be shared. This could, for example, lead to rules which require broadcasters to present a balanced set of programmes or views. Although an influential rationale, there are weaknesses. For example, does this scarcity arise naturally or is it created? Governments have tended to allocate a certain number of frequencies for broadcasting, whilst reserving frequencies for other purposes, and at times even leaving frequencies unallocated. This weakens the argument that scarcity justifies regulation. Secondly, the rationale focuses on one particular type of scarcity—physical scarcity. Another type of scarcity might be economic. If the concept of scarcity is broadened to include economic scarcity, then it is even less clear that the case can be made for regulation of broadcasting alone. It may now be as difficult in terms of cost to establish a newspaper as it is to start up a broadcasting station or channel. More importantly, the spectrum scarcity argument has become less relevant with the development of alternative delivery platforms, such as cable and satellite and new technological applications like digital which have opened up the possibility of numerous radio stations and television channels. It may be that there are new forms of scarcity, but physical scarcity appears less tenable. Another influential rationale has been related to the perceived power of broadcasting. Regulation has been justified because broadcasting has been seen as likely to exert more influence on its viewers and listeners compared with the press and its readers. This argument is even more relevant to television, because of its visual impact, and helps to explain the differences in regulation between television and radio. Broadcasting has also been seen as more influential because of its intrusive nature, coming, it is argued, into the home uninvited—although it is hard to see what difference there is between a person’s ability to decide to buy a newspaper or to switch on the television or radio. This rationale helps to explain restrictions

61

Copyright © 2015. Oxford University Press. All rights reserved.

62

PART 2 Media Regulation

over certain types of content such as sexually explicit programming, or what can be broadcast in the hours when children might be watching. It can also be relevant to diversity measures, such as rules requiring news and current affairs programmes to provide a balanced range of views. However, a justification for regulation based on the influential and intrusive nature of broadcasting assumes a rather passive and gullible audience. This might, possibly, have been appropriate in the early days of broadcasting, but it is more difficult to accept in the modern multimedia environment when viewers and listeners can access images and sounds from a variety of sources. On the other hand, there may still be some relevance to this argument, although the audio and visual sound impact may be felt in different ways. For example, new communication technologies have bought an immediacy to reporting which was not always possible, and this very immediacy, which can allow the audience to witness international events as they happen, such as the fall of the Berlin Wall or the conflict in Iraq, might mean that broadcasting provides a different quality of impact or influence, one which the press probably continues to lack. The debate over television’s influence could also take on a new dimension given current fashions for extremely large screens and home cinemas. Finally, an explanation for the differential treatment has been given by Bollinger. Bollinger suggests that although there is no real difference between the press and broadcasting, they have been perceived differently, and this different perception has led to the regulation of broadcasting as the new and more different technology. In this respect Bollinger is probably right, and the differences in regulatory treatment can be more easily explained by history than by coherent theory. There has always been a predisposition for governments to control new technologies. But, ‘newness’ does not provide a very reliable basis for regulation, particularly for broadcasting, which can hardly still be characterised as new. Bollinger’s argument goes on to suggest that this differential treatment can be further justified on the grounds that regulation of one media can make up for the lack of regulation of another media: regulation of broadcasting can compensate for the failings of the press. For anyone wishing to make a case for regulation of broadcasting, this is not an attractive argument. There is no guarantee that regulation can be designed in a way which will redress the deficiencies of one media, and it hardly seems good governance to expect one industry to bear the regulatory costs, whilst leaving the targeted industry free of the regulatory burden. Bollinger’s attempt at rationalising the different treatment of press and broadcasting is not satisfactory, and it is not one advanced in policy discussions. However, in highlighting the lack of coherence in the regulatory treatment of media, it serves as a warning that … it is important to avoid assuming that the lack of regulation of the press justifies the removal of regulation of broadcasting. Indeed … the issue may really be not why broadcasting is regulated, but why the press is not. These rationales then have the limits to their validity. The scarcity and influence rationales have had the mileage, and they may still play some role, but they present no convincing basis for justifying the different regulation of broadcasting and the press … However, unsatisfactory as they may be, it is contended that the rationales (and the scarcity rationale especially) continue to have an important influence on media regulation debates and drives for reform. For those advocating reform, it is convenient to point to these rationales, and their declining relevance, as making the case for change, thereby obscuring any positive or normative case for regulation. The problem with these rationales is that they are negative and reactive in nature; they arise out of a need to explain why broadcasting is treated differently from the press, in other words, to give coherence where there may be none.

As noted above, the principal legislation regulating broadcasting services in Australia is the Broadcasting Services Act 1992 (Cth). The philosophical foundations of the Act are set out at the front of the legislation in sections that state its objects and regulatory policy. The objects of the Act list a number of cultural and economic aims.3 The Act aims to promote the role of broadcasting services in developing a sense of Australian identity, character and cultural diversity; and the availability of programs about matters of local significance. The Act is also meant to ensure that the industry is competitive and that there is diversity in 3

Broadcasting Services Act 1992 (Cth) s 3 (Objects of this Act).

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 4 Broadcasting Services

control of the more influential categories of service. The Act aims to encourage broadcasters to respect community standards in the provision of program material, and to ensure that broadcasters place a high priority on the protection of children from exposure to material which may be harmful. Importantly, the Act aims to encourage the provision of means for addressing complaints about broadcasting services. In addition to these objects, statements of regulatory policy in the Act provide overarching principles that inform the structure and application of the Act.4 In particular, that Parliament intends that different levels of regulatory control be applied across the range of broadcasting services, according to the degree of influence that different types of broadcasting services are able to exert in shaping community views in Australia; and that broadcasting services should be regulated in a manner that will readily accommodate technological change. A further statement of policy comes later in the Act, and says that ‘Parliament intends that bodies or associations that the ACMA is satisfied represent sections of the industry should develop codes (industry codes) that are to apply to participants in that section of the industry in relation to the industry activities of the participants’.5 It is worth expanding on some of these statements of regulatory policy. The concept of regulating services according to their ‘degree of influence’ is an organising principle of the Act. The Act assumes that free-to-air commercial television is the most influential category of service and on this basis makes it the most heavily regulated. As a general regulatory philosophy the degree of influence principle is problematic.6 The relative influence of different media is fluid and is a difficult concept to define and measure.7 Radio and newspapers may be more important than television in setting news agendas. Subscription television, community media and, in particular, online services, have all become steadily more influential in a manner that has not necessarily been carried into the regulatory regime. The statement that the regulatory regime should ‘readily accommodate technological change’ reflects an underlying principle that the Broadcasting Services Act 1992 (Cth) should be technologically neutral. The principle of technological neutrality establishes that services should not be regulated according to their technical method of delivery or means of reception. For instance, the same rules should apply to a subscription television service whether delivered by cable or satellite. In this manner, technology may evolve without creating a need to constantly amend legislative definitions. The statement that industry bodies should be responsible for developing codes of practice sets the foundations for the co-regulatory regime established by the Act.

QUESTIONS 1 What principles should inform broadcasting regulation? 2 Is there a case for regulating broadcasting services more heavily than other types of media? If not, or if there is not a strong case, does this mean we should deregulate? Or should we continue notwithstanding the philosophical problems? 3 Should more influential types of media be more heavily regulated than other media? How should influence be measured? 4 5 6 7

Broadcasting Services Act 1992 (Cth) s 4 (Regulatory policy). Broadcasting Services Act 1992 (Cth) s 130J. Although it was endorsed by the Convergence Review as ‘still a critical consideration’: Australian Government, Convergence Review, Final Report, March 2012, 7. Productivity Commission, Broadcasting, Report No. 11 (March 2000), 448.

63

64

PART 2 Media Regulation

4.2

Copyright © 2015. Oxford University Press. All rights reserved.

4.2.1

Broadcasting services

The definition of ‘broadcasting service’

Only services that conform to the definition of a broadcasting service will be regulated as such. The definition of a broadcasting service is therefore important in determining the scope and application of the Broadcasting Services Act 1992 (Cth). The precise wording of the definition became particularly important as online services developed and the lines around broadcasting started to blur. A broadcasting service, for the purposes of the Act, means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service.8 This definition was intended to be technologically neutral. It does not depend on the type of equipment used to receive a broadcasting service, or how it is delivered. The  definition is subject to some important exclusions, however. A service that makes programs available ‘on demand on a point-to-point basis’ is excluded. A service that provides video on demand (VOD) is, accordingly, likely to be providing a point-to-point service and not a broadcasting service. A service that provides programming according to a timetable determined by the service provider, such that other persons are receiving the same program simultaneously, will not be considered a point-to-point service.9 Accordingly, as audiovisual content services started to appear online, there was some uncertainty as to whether a service that streamed audiovisual content over the internet could be a broadcasting service. The  Minister sought to resolve this uncertainty by determining that a service that makes available television and radio programs using the internet is not a broadcasting service, unless it uses the broadcasting services bands (that is, radiofrequency spectrum designated for broadcasting).10 This was a slightly awkward formulation, but it made it tolerably clear that most streaming services were outside the scope of the Broadcasting Services Act 1992 (Cth). It also seriously undermined the extent to which the Broadcasting Services Act 1992 (Cth) could claim to be technologically neutral. The streaming determination was considered in detail by the Full Federal Court in Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Ltd.11 The issue here was whether members of Commercial Radio Australia (CRA) had to pay an additional licence fee for providing an online simulcast of their offline broadcasts, or if this was all one service covered by the ‘broadcast’ licence granted by the Phonographic Performance Company of Australia (PPCA).

Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Ltd (2013) 209 FCR 331.

THE COURT (at 332): [4] Under s 6(1) of the Broadcasting Act, broadcasting service means, relevantly, a service that delivers radio programs to persons having equipment appropriate for receiving that 8 Broadcasting Services Act 1992 (Cth) s 6(1). 9 Explanatory Memorandum to the Broadcasting Services Bill 1992 at 16. 10 Determination under Paragraph (c) of the Definition of ‘Broadcasting Service’ (No. 1 of 2000); Department of Communications, Information Technology and the Arts, Report to Parliament: Review of Audio and Video Streaming over the Internet, July 2000. 11 (2013) 209 FCR 331.

CHAPTER 4 Broadcasting Services

service, but does not include, relevantly, a service that the Minister determines not to fall within the definition. On 12 September 2000, the Minister made a determination under that provision (the Ministerial Determination) that a class of services described in the Ministerial Determination does not fall within the definition. [5] The effect of the definition, as affected by the Ministerial Determination, is that broadcasting service means, relevantly, a service that delivers radio programs to persons having the equipment appropriate for receiving that service, where the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include a service that makes available radio programs using the internet, other than a service that delivers radio programs using the broadcasting services bands. Thus, the Ministerial Determination excludes some services from the definition of broadcasting service, but then excepts some services from that exclusion. [6] From 2001, at the latest, some CRA members have, simultaneously with transmission using the broadcasting services bands, streamed radio programs on (333) the internet that include the Sound Recordings. The content of the radio program made available using the internet is identical to the content of the radio program delivered using the broadcasting services bands. The phrase broadcasting services bands means, relevantly, that part of the radiofrequency spectrum that is designated under the Radiocommunications Act 1992 (Cth) as being primarily for broadcasting services. The question in the appeal is whether the making available of radio programs using the internet in those circumstances is within the licence granted by PPCA  under the Member Agreement. PPCA contends that it is not. CRA, on behalf of its members, contends that it is. …

Copyright © 2015. Oxford University Press. All rights reserved.

(334) AGREED FACTS [16] The parties agreed on three instances where one of the Sound Recordings was simulcast by a CRA member. It is convenient to deal only with the first instance, which related to the Sound Recording “Foreign Land” by Eskimo Joe, which was made in Australia and first published in Australia in 2009 (the Foreign Land Recording). A radio program that included the Foreign Land Recording was simulcast by DMG Radio (Australia) Pty Limited (DMG), a CRA member. DMG operates a commercial radio service known as Nova FM in the Sydney metropolitan area, under the call sign 2SYD. [17] Copyright subsists in the Foreign Land Recording under the Copyright Act. (335) That copyright includes the right to communicate the Foreign Land Recording to the public, including the right to broadcast the Foreign Land Recording within the meaning of the Copyright Act. Warner Music Australia Pty Limited (Warner), the owner of the copyright in the Foreign Land Recording, has entered into an agreement with PPCA under which it granted to PPCA non-exclusively the right to grant licences of the right to broadcast the Foreign Land Recording and to communicate the Foreign Land Recording to the public, as part of its simultaneous transmission of a broadcast over the internet. DMG has been granted a licence by PPCA in respect of the Foreign Land Recording, in terms of the Member Agreement. [18] At 4.17 pm on 12 January 2010, in the course of operating its commercial radio service, DMG broadcast the Foreign Land Recording using the broadcasting services bands and simultaneously caused the sounds of the Foreign Land Recording to be streamed over the internet in a manner that was accessible from the website URL http://www.novafm.com.au/nova969/Streaming.aspx (the Nova URL). The sounds of the Foreign Land Recording were unaltered. A person using a device with internet access, who had connected to the Nova URL and was still connected at 4.17 pm on 12 January 2010, would have been able to hear the sounds of the Foreign Land Recording. Thereby, DMG communicated the Foreign Land Recording to the public within the meaning of the Copyright Act. DMG was not licensed to broadcast the Foreign Land Recording or to communicate it to the public, except to the extent that it was licensed to do so under the licence granted to it in terms of the Member Agreement. …

65

66

PART 2 Media Regulation

Copyright © 2015. Oxford University Press. All rights reserved.

THE PARTIES’ CONTENTIONS [19] CRA’s primary contention is that, where there is a simulcast in the manner described above, there is a communication to the public delivered by a broadcasting service within the meaning of s 6(1) of the Broadcasting Act, as affected by the Ministerial Determination. That is to say, it contends that, where there is a broadcast delivered by a service that delivers radio programs, and the delivery uses the radiofrequency spectrum, cable or optical fibre or other means, or a combination of such means, the communication to the public is not delivered by a service that makes the radio programs available using the internet. Alternatively, CRA contends that, if the communication to the public is delivered by a service that makes radio programs available using the internet, it is a service that delivers radio programs using the broadcasting services bands. Either way, it says, the communication of its radio program to the public is delivered by a broadcasting service. Therefore, it says, the communication to the public is within the licence granted to it in terms of the Member Agreement. [20] CRA says that the word service relates to a particular channel and not the means of delivery of that channel. CRA’s contention is that DMG’s radio program, which includes the Foreign Land Recording, is broadcast by DMG and that the delivery or making available of that radio program is a broadcast service, irrespective of the platform or means whereby it is delivered or made available to the public. It says that its program is not a service in the sense of being defined, and confined, by the means of delivery identified in the exclusion, namely, making available using the internet. [21] The essence of CRA’s contention is that the broadcasting service of DMG is the radio program itself, including the Foreign Land Recording, as delivered by various means, including using the broadcasting services bands and using the (336) internet by means of coaxial cable and the like. It says that the means by which the radio program is delivered is irrelevant and that the broadcasting service is the provision of the radio program, by whatever means. [22] PPCA, on the other hand, contends that the communication of the Foreign Land Recording to the public was not delivered by a broadcasting service, because the service that delivered the sound recording, by making it accessible through the Nova URL, was a service that made available the radio program, including the Foreign Land Recording, using the internet and that service is not a service that delivers radio programs using the broadcasting services bands. PPCA contends, specifically, that the word service, as used in the Ministerial Determination, is directed to that which is actually being delivered by DMG, being the radio program wrapped up in a delivery mechanism, and received by a member of the public, who receives it either by means of a radio receiver or through a device connected to the internet. Thus, it says, the provisions of the Ministerial Determination are concerned, in essence, with the platform or method of delivery of the communication in question. It says that the radio program made available by DMG using the internet is delivered by a service that makes radio programs available using the internet and that it is not delivered using the broadcasting services bands. [23] In effect, PPCA contends that the making available by DMG of its radio program using the internet is a different service from the delivery of that radio program using the broadcasting services bands. Thus, PPCA says, DMG, in the circumstances described, is making communications to the public that are delivered by two quite distinct broadcasting services. One of those services delivers DMG’s radio programs using the broadcasting services bands. The other service makes its radio programs available using the internet, which will involve cable and optical fibre or other means or a combination of those means. The first service, it says, is within the definition, in that it falls within the preamble of the definition. The second service, it says, is not a broadcasting service, because it falls within the exclusion in the Ministerial Determination, and it is not within the exception to that exclusion. … (347) [69] A broadcasting service is the delivery, in a particular manner, of a radio program, consisting of matter intended to entertain, educate or inform. Thus the delivery of the radio program by transmission from a terrestrial transmitter is a different broadcasting service from the delivery of the same radio program using the internet. …

CHAPTER 4 Broadcasting Services

[71] Clearly, a service that makes radio programs available using the internet will (348) not be a broadcasting service for the purpose of the Broadcasting Act unless the service that makes radio programs available using the internet also uses the broadcasting services bands. That is to say, a service might: • be delivered by the use of any means, including the broadcasting services bands; • be delivered or made available using the internet; or • be delivered or made available using the internet and the broadcasting services bands.12 The first and third categories are broadcasting services. The second category is not a broadcasting service. One of DMG’s services is in the first category. Another of DMG’s services is in the second category. None of the services provided by DMG is in the third category. Only the service provided by DMG that is in the first category is a broadcasting service and only that service is within the licence granted by the Member Agreement. DMG’s service that is in the third category is not within the licence. The streaming of the sounds of the Foreign Land Recording by DMG on 12 January 2010 was not within the licence granted under the Member Agreement.

Copyright © 2015. Oxford University Press. All rights reserved.

Aereo The Supreme Court of the United States recently decided a case concerning the online distribution of offline broadcasts.13 The issue here again related to copyright licensing. Aereo, the service provider, had assembled many thousands of tiny antennas in a data centre. When a user logged in to the system, Aereo would assign an antenna to that user and the user would have control of the antenna. The user could use the antenna to receive a free-toair television broadcast signal and could record that signal to a remote digital video recorder on Aereo’s servers. The user could then access a stream of the broadcast signal from Aereo’s servers as it recorded (near live) or could watch the recording later. Aereo argued that all it was doing here was providing personal reception equipment. Any transmission of programming was private and was actuated by the individual user. As such, Aereo was not engaged in any relevant public performance of works for the purposes of the Copyright Act. A further consequence of this position was that Aereo would not require any statutory retransmission licence or need to negotiate any commercial licences with rights owners. A majority of the Supreme Court found that this was unpersuasive— that ‘by selling its subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as the programs are broadcast over the air’, Aereo had publicly performed the relevant underlying works.14

12 What the Court is referring to here is not a simulcast, but a service that combines internet and broadcast ­delivery methods. This third category only makes sense in the context of digital television policy in the late 1990s. A new category of service called ‘datacasting’ was defined in the Broadcasting Services Act 1992 (Cth). It  was thought that datacasters (using the broadcasting services bands) could also provide point-to-point ­internet access to end-users. As explained elsewhere in the above judgment: ‘it was envisaged, at the time, that the proposed new datacasting services may be a type of service in which a particular communication could be made using both the internet and the broadcasting services bands’ (at 344 [54]). 13 American Broadcasting Companies v Aereo, 573 US ___ (2014). 14 Ibid at 1 (majority opinion).

67

68

PART 2 Media Regulation

QUESTIONS 1 What should be regulated as a broadcasting service? 2 How should online simulcasts be treated? Is there a principled basis for differently regulating the online and offline transmission of the same programming service? 3 Consider the Aereo decision. Was Aereo simply extending the transmission of free-to-air television to an audience entitled to receive the signal? Or was it unfairly affecting copyright licensing opportunities? Would your view change depending on whether Aereo confined its service to the relevant free-to-air licence area or provided international access to local signals?

Copyright © 2015. Oxford University Press. All rights reserved.

4.2.2

Categories of Broadcasting Service

The Broadcasting Services Act 1992 (Cth) defines the following categories of broadcasting service. • National broadcasting services. Broadcasting services provided by the Australian Broadcasting Corporation (ABC), Special Broadcasting Service (SBS) or broadcasting services provided under the Parliamentary Proceedings Broadcasting Act 1946 (Cth).15 • Commercial broadcasting services. Broadcasting services that can be received by commonly available equipment, are made available for free to the general public, are usually funded by advertising revenue, and are operated for profit or as part of a profitmaking enterprise.16 • Community broadcasting services. Broadcasting services that can be received by commonly available equipment, are made available for free to the general public, are provided for community purposes, and are not operated for profit or as part of a profitmaking enterprise.17 • Subscription broadcasting services. Broadcasting services that provide programs intended to appeal to the general public, and are made available to the general public only on payment of a subscription fee (whether periodic or otherwise).18 • Subscription narrowcasting services. Broadcasting services whose reception is limited by being targeted to special interest groups, intended only for limited locations or provided during a limited period or to cover a special event, or that provide programs of limited appeal, and are made available only on the payment of subscription fees (whether periodic or otherwise).19 • Open narrowcasting services. Broadcasting services whose reception is limited by being targeted to special interest groups, intended only for limited locations or provided during a limited period or to cover a special event, or that provide programs of limited appeal.20 • International broadcasting services. Broadcasting services that are targeted, to a significant extent, to audiences outside Australia.21

15 16 17 18 19 20 21

Broadcasting Services Act 1992 (Cth) s 13. Ibid s 14. Ibid s 15. Ibid s 16. Ibid s 17. Ibid s 18; see also ACMA, Narrowcasting Services on Television: Guidelines and Information, May 2007. Broadcasting Services Act 1992 (Cth) s 18A.

CHAPTER 4 Broadcasting Services

With the exception of international broadcasting services, these categories are mutually exclusive. The Broadcasting Services Act 1992 (Cth) operates on the assumption that each service can be allocated to one category and one category only.22 Where categorisation is difficult, avenues are available to apply to the ACMA for a ‘category-of-service’ opinion.23 The category of service that describes a particular broadcasting service is important as it determines how the service is regulated.

4.3

The co-regulatory scheme

The Broadcasting Services Act 1992 (Cth) establishes a co-regulatory regime under which primary responsibility for ensuring that programs reflect community standards, and for handling complaints about program content, rests with broadcasters themselves. This is managed through codes of practice developed by representative industry bodies. The scheme is co-regulatory in that the ACMA may become involved in resolving complaints that are escalated to it, or in determining program standards to address particular areas of concern that are not adequately covered by registered codes of practice. As a result, there is no single document that sets out the rules applying to a particular broadcasting service. Broadcasting regulation is effected through a combination of provisions in the Broadcasting Services Act  1992 (Cth), applicable licence conditions, standards determined by the ACMA and codes of practice developed by representative industry bodies. The particular combination of codes, standards, licence conditions and law that apply to a particular broadcasting service depends on how that service is categorised.

Copyright © 2015. Oxford University Press. All rights reserved.

4.3.1

Codes of practice

The co-regulatory framework allows organisations representing different sectors of the broadcasting industry to develop codes of practice in consultation with the ACMA. Section  123 of the Broadcasting Services Act 1992 (Cth) provides guidance as to subject matter, suggesting that codes of practice may relate to classification, protecting children from harmful material, complaints handling, and accuracy and fairness in news and current affairs.24 In  developing codes of practice, industry groups are to consider community attitudes regarding the portrayal of physical and psychological violence, sexual conduct and nudity, offensive languages, drug use (including alcohol and tobacco), and any material that encourages hatred or vilification.25 The ACMA must register a code of practice if it is satisfied the code contains appropriate community safeguards, the code is endorsed by the majority of service providers in the relevant category, and the public have been given adequate opportunity to comment.26 Registered codes of practice are periodically reviewed.

22 Sportsvision Australia Pty Ltd v Tallglen Pty Ltd [1998] NSWSC 221 (22 May 1998) at 64 per Bryson J. The exception that international broadcasting services can also fall into another category of service is contained in s 11A of the Broadcasting Services Act 1992 (Cth). 23 Broadcasting Services Act 1992 (Cth) s 21. Section 22 of the Act provides a list of matters to be considered in providing a ‘category-of-service’ opinion. 24 Ibid s 123(2). 25 Ibid s 123(3). 26 Ibid s 123(4).

69

70

PART 2 Media Regulation

4.3.2

Program standards

If the ACMA considers that a code of practice is not operating to provide appropriate community safeguards it can determine a program standard addressing its concerns.27 The ACMA, for example, determined standards for commercial radio on the disclosure of commercial agreements that have the potential to affect current affairs programs following the ‘cash for comment’ scandal in the late 1990s (discussed at 4.5.3).28 In addition, some public interest obligations developed prior to the enactment of the Broadcasting Services Act 1992 (Cth) have been carried forward into the existing regime as program standards. The ACMA must determine program standards for commercial  television  broadcasting services relating to children’s programming and Australian content.29

4.3.3

Licence conditions

Copyright © 2015. Oxford University Press. All rights reserved.

The Broadcasting Services Act 1992 (Cth) requires broadcasting services to be licensed.30 Almost all categories of broadcasting licence are subject to certain basic licence conditions.31 These include conditions relating to the identification of political material,32 the advertising of tobacco (which is prohibited),33 the advertising of therapeutic goods (which is restricted), and a requirement that the licensee must not use a broadcasting service in the commission of an offence.34 These basic licence conditions are set out in Schedule 2 to the Broadcasting Services Act 1992 (Cth), along with further conditions that apply to each category of service. It is important to note, however, that Schedule 2 does not set out an exhaustive list of licence conditions. Additional conditions are specified elsewhere in the Act and in certain  circumstances the ACMA can impose conditions either on a specific licensee or generally.35

27 Ibid s 125(1). Program standards may also be determined by the ACMA where no codes of practice have been developed for a particular sector of the broadcasting industry: s 125(2). 28 Australian Broadcasting Authority, Commercial Radio Inquiry, August 2000; Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012 (which replaced the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000). 29 Broadcasting Services Act 1992 (Cth) s 122; Children’s Television Standards 2009; Australian Content Standard 2005; Television Program Standard 23—Australian Content in Advertising. 30 If the ACMA is satisfied that a person is providing a broadcasting service without a licence the ACMA may direct them to cease the service. Failure to comply with such a direction amounts to an offence under s 138 of the Broadcasting Services Act 1992 (Cth). 31 Broadcasting Services Act 1992 (Cth) Sch 2, Part 2 sets out ‘special’ standard conditions that apply to most broadcasting services. These conditions do not apply to international broadcasting services or the national broadcasters. 32 Broadcasting Services Act 1992 (Cth) Sch 2, cls 3, 3A and 4. Similar conditions are imposed on the ABC and SBS: Special Broadcasting Service Act 1991 (Cth) ss 70A, 70C; Australian Broadcasting C ­ orporation Act 1983 (Cth) s 79A. 33 As defined in the Tobacco Advertising Prohibition Act 1992 (Cth); Broadcasting Services Act 1992 (Cth) Sch 2, cls 7(1)(a) (commercial television broadcasters), 8(1)(a) (commercial radio), 9(1)(a) (community broadcasters), 10(1)(a) (subscription television) and 11(1)(a) (class licensed services). 34 Broadcasting Services Act 1992 (Cth) Sch 2 cl 6. On the use of a broadcasting service in the commission of an offence, see: Broadcasting Services Act 1992 (Cth) Sch 2, cl 7(1)(h), 8(1)(g), 9(1)(f), 10(1)(h), 11(1)(c). See also Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7. 35 Broadcasting Services Act 1992 (Cth) ss 43 (commercial broadcasters), 87 (community broadcasters), 92J ­(temporary community services), 99(2) (subscription television) and 118–20 (class licensed services).

CHAPTER 4 Broadcasting Services

4.4

Commercial television broadcasting services

Commercial broadcasters are considered to be the most influential type of broadcasting service and, consistent with the degree of influence principle, are the most heavily regulated category of service under the Broadcasting Services Act 1992 (Cth). Commercial television broadcasters are subject to a detailed code of practice, certain public interest program standards and a number of specific licence conditions affecting programming.

Copyright © 2015. Oxford University Press. All rights reserved.

4.4.1

Licensing and licence conditions

Commercial television broadcasting licences are nominally allocated by the ACMA.36 However, it has been difficult for governments to leave this power to the regulator. The Broadcasting Services Act 1992 (Cth) was amended in 2006 so that the ACMA could not issue any new commercial television broadcasting licences unless directed to do so by the Minister.37 The Act was amended again in 2013, this time repealing the requirement for a ministerial direction, but providing that the ACMA may not allocate more than three commercial television broadcasting licences in a licence area.38 This resolved one of the long-running policy questions in Australian broadcasting of whether to license a fourth commercial television network. Commercial broadcasting licences (both television and radio) are granted for a term of five years and renewal is basically automatic. The ACMA must renew a commercial broadcasting licence unless it considers there is a significant risk the licensee would fail to comply with applicable licence conditions or the Broadcasting Services Act 1992 (Cth).39 In determining whether there is a serious risk of such a failure, the ACMA is to take into account a series of suitability criteria set out in the Act. These include the business record and ‘record in situations requiring trust and candour’ of the company and each person who would be in a position to control the licence.40 Commercial television licensees are subject to a number of licence conditions.41 Elements of ownership regulation and digital television policy gain traction through the licence conditions set for commercial television broadcasters.42 Commercial television broadcasting licensees must comply with the ‘anti-hoarding’ rule (discussed below at 4.6.5).43 Commercial television broadcasters must not broadcast material that has been classified RC or X18+, and must not air R18+ films unless they have been modified for broadcast.44 36 Broadcasting Services Act 1992 (Cth) s 36 (where the service utilises the broadcasting services bands); s 40 (services that do not use the broadcasting services bands). The test under the former Broadcasting Act 1942 (Cth) (now repealed) was whether someone was a ‘fit and proper person’ to hold the licence. See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The cases decided under the Broadcasting Act 1942 (Cth) on the ‘fit and proper person’ test, are likely to be relevant in any consideration of suitability under the Broadcasting Services Act 1992 (Cth). 37 Broadcasting Services Act 1992 (Cth) s 35B (now repealed). 38 Ibid s 37A. 39 Ibid ss 41(2), 46–47. 40 Ibid s 41(3). The ACMA is not required to consider suitability before allocating a licence, but may do so: s37(2). 41 Ibid Sch 2, cl 7. 42 See, for example, Broadcasting Services Act 1992 (Cth) Sch 2, cl 7(1)(c) (articles of association to include ­provisions supporting ownership rules); and Sch 2, cl 7(1)(k)–(nb), which effect (now mostly historical) requirements relating to digital television. 43 Broadcasting Services Act 1992 (Cth) Sch 2, cl 7(1)(ha). 44 Ibid Sch 2, cls 7(1)(g) and (ga).

71

72

PART 2 Media Regulation

The ACMA must have in place, at all times, a licence condition that requires regional commercial television broadcasting licensees to broadcast a minimum level of material of local significance.45 This condition was imposed following an investigation into the adequacy of local news services on commercial television in regional and rural Australia prompted by the closure of a number of regional news bureaus.46 The material of local significance licence condition works on a points system. Points are calculated according to the minutes of locally relevant news, or other relevant local material broadcast during particular time periods. Licensees need to secure a certain number of points per week to comply with the licence condition. As a rough guide, 45 minutes per week of news that directly relates to the local area would accumulate sufficient points to satisfy the condition.47

4.4.2

Commercial Television Industry Code of Practice

The Commercial Television Industry Code of Practice (2010) was developed by Free TV Australia, a representative industry body, and has been registered by the ACMA.48 The Code of Practice includes provisions on classification, advertising and complaints.49 The Code broadly adopts the classification categories set by the national classification scheme (see Chapter 16), although some additional categories are established for Children (C) and Preschool Children (P) and for programming containing Adult Violence (AV).50 The Code then establishes ‘classification zones’, during which certain material may not be broadcast.51 The Code sets hourly limits for non-program matter (including advertising and program promotions).52 These limits are intended to ensure that ‘there is a reasonable balance between program and non-program matter broadcast by a licensee, having regard to the interests of viewers in uncluttered program presentation, and the commercial interests of advertisers and stations’.53 The Code also includes sections that are intended to ensure that news and current affairs programs are presented accurately, fairly and impartially.54

Copyright © 2015. Oxford University Press. All rights reserved.

4.4.3

Commercial television—public interest standards

There are three important ‘public interest’ standards determined by the ACMA that apply to commercial television broadcasters: • the Children’s Television Standards 2009; • the Broadcasting Services (Australian Content) Standard 2005; and • Television Program Standard 23—Australian Content in Advertising. 45 Ibid s 43A; Broadcasting Services (Additional Television Licence Condition) Notice 2014. 46 Australian Broadcasting Authority, Adequacy of Local News and Information Programs on Commercial Television Services in Regional Queensland, Northern NSW, Southern NSW and Regional Victoria (Aggregated Markets A, B, C and D), August 2002, 9. 47 Broadcasting Services (Additional Television Licence Condition) Notice 2014, Sch 2. 48 As we go to print, Free TV Australia is reviewing the current code of practice for commercial television and has issued a proposed Commercial Television Code of Practice 2015 for public comment. 49 Commercial Television Industry Code of Practice (2010) ss 2, 5 and 7. 50 Ibid ss 2.3–2.5, Appendix 4: Television Classification Guidelines. 51 Ibid ss 2.6–2.17; see also Appendix 6: Multi-Channel Appendix. 52 Ibid s 5. These hourly restrictions do not apply to licensees’ digital multichannels: s 5.10. 53 Ibid s 5.1.1. 54 Ibid s 4.1.

CHAPTER 4 Broadcasting Services

The Children’s Television Standards The Children’s Television Standards 2009 (CTS) aim to ensure that children have access to high-quality programming made specifically for them, and to protect children from the possibly harmful effects of television (including advertising).55 The CTS reflect a concern that commercial broadcasters do not have a good economic case for pressing quality children’s programming. In addition, children are thought to be easily influenced and in need of special protection from advertising and promotions aimed at them.56 The CTS require commercial television services to air at least 260 hours of C classified (children’s) programming, and 130 hours of P classified (preschool children’s) programming per year.57 Such programming must be shown during specified C and P time bands.58 All P classified programming has to be Australian.59 At least 50 per cent of broadcast C programming needs to be first-release Australian C programs.60 C and P material must be classified as such by the ACMA, which is a departure from the usual practice of broadcasters classifying their own content.61 In another departure from usual classification practices, C and P programming need to meet qualitative criteria.62 For a program to be classified C or P (and before counting towards children’s television quotas) it needs to be one that:

Copyright © 2015. Oxford University Press. All rights reserved.

• is made specifically for children of school age (or preschool children); • is entertaining; • is well produced using sufficient resources to ensure a high standard of script, cast, direction, edition, shooting, sound and other production elements; • enhances the understanding and experience of children of school age (or pre-school children); and • is appropriate for Australian children of school age (or preschool children).63 The CTS include a range of provisions directed at advertising within children’s programming. No advertisements at all may be shown during P periods, and only limited amounts of advertising may be shown during C periods.64 Even where advertisements are allowed, the CTS impose some conditions. Advertisements and sponsorship announcements must be clearly distinguishable as such,65 and the same advertisement cannot be broadcast more than twice in a 30-minute period.66 Advertisements cannot be designed to put pressure 55 Revised Explanatory Memorandum to the Broadcasting Services Bill 1992 (Cth), 61–62. 56 Elizabeth Handsley, ‘What’s in it for Children? Dedicated Channels and the Effectiveness of Regulation’, in Andrew Kenyon (ed), TV Futures: Digital Television Policy in Australia, Melbourne University Press, ­Carlton, Vic, 2007, 387. 57 Children’s Television Standards 2009, CTS 8. Note that the Children’s Television Standards 2009 were amended by the Children’s Television Standards Variation 2011 (No. 1) and the Children’s Television Standards Variation 2014 (No. 1). 58 Children’s Television Standards 2009, CTS 5(1) (definitions of ‘C band’ and ‘P band’), CTS 8. 59 Broadcasting Services (Australian Content) Standard 2005 s 15. 60 Ibid s 14. 61 The Broadcasting Services Act 1992 (Cth) provides that the ACMA is not allowed to determine a ­program standard that requires programs to be approved before broadcast except in relation to programs for ­ children: s 129. 62 In the early 1990s, for instance, Fat Cat and Friends was judged to have fallen short of the regulator’s ­expectations as to quality and lost its P classification: Handsley, above n 55, 389. 63 Children’s Television Standards 2009, CTS 6. 64 Ibid CTS 26, 27. 65 Ibid CTS 28.

73

74

PART 2 Media Regulation

on parents.67 A popular character, including a character from a C or P program, cannot be used to promote a product or service.68 The CTS requirements do not mean that all programming directed at children meets qualitative requirements or will have advertising restrictions in place—just that there will be at least 390 hours per year of programming where such standards apply. Still, this is quite remarkably prescriptive content regulation.

Australian content Australian content requirements for commercial television were introduced in 1960, shortly after television broadcasting commenced.69 In a review conducted in 1977, the Australian Broadcasting Tribunal noted some of the policy considerations relevant to Australian content quotas, before proposing a scheme broadly resembling current arrangements.

Copyright © 2015. Oxford University Press. All rights reserved.

Australian Broadcasting Tribunal, Self-regulation for Broadcasters? A Report on the Public Inquiry into the Concept of Self-regulation for Australian Broadcasters, 1977 8.2. An Australian television service which looks unmistakably Australian has long been regarded as a highly desirable ideal. However, the means of ensuring the production and preservation of Australian programs of a quantity and quality necessary to achieve a distinctly Australian look for television has proved to be a most difficult problem. This is not surprising in view of the fact that an Australian look involves an inherent conflict between the extremely sensitive and highly complex issues of station profitability, employment opportunities for creative Australians and the program preferences of viewers. 8.3. It is a fact of life in this country that the cost to our stations of rights to televise expensively produced first class imported programs is a fraction of the cost of producing equivalent quality material in Australia. There is an enormous pressure, therefore, on stations to use the relatively inexpensive overseas program in preference to the local product. This is particularly true in the case of drama. 8.4. An obvious truism worth re-stating is that stations should not be forced into bankruptcy through insistence on unattainable levels of Australian content. Neither should the situation be allowed to be developed whereby the majority of programs televised by Australian stations do not adequately reflect the Australian way of life …. 8.26. The Tribunal believes that it is of paramount importance to ensure that the persuasive medium of television is used to show Australia to Australians; to reinforce Australian values and to reflect Australian attitudes and life styles. We firmly believe that our television service should have a distinctly Australian look—one which would convince a visitor from overseas that he was indeed in Australia.

The Broadcasting Services (Australian Content) Standard 2005 aims to promote the role of commercial television broadcasters in developing and reflecting a sense of Australian identity, character and cultural diversity.70 The Standard requires that a minimum level of Australian programming be shown on commercial television, and establishes quotas for first-release Australian drama and Australian documentaries.71 As a rough summary, 55 per cent of what is shown on commercial television between 6 am and midnight needs to 67 Ibid CTS 31. 68 Ibid CTS 35. 69 Australian Broadcasting Tribunal, Self-regulation for Broadcasters? A Report on the Public Inquiry into the ­Concept of Self-regulation for Australian Broadcasters, 1977, Ch 8. 70 Broadcasting Services (Australian Content) Standard 2005 s 4; Broadcasting Services Act 1992 (Cth) s 3(e). 71 Broadcasting Services (Australian Content) Standard 2005 s 5.

CHAPTER 4 Broadcasting Services

be Australian programs.72 In addition, licensees have to broadcast 20 hours of first-release Australian documentaries each year.73 The quotas set for Australian drama are more complicated. Compliance is determined according to a mathematical formula that allocates points depending on how regularly a series is shown and how much it cost to license (if independently produced).74 In order to comply with the Australia New Zealand Closer Economic Trade Agreement, programming from New Zealand is treated as Australian for the purposes of the Standard.75 In 2013, the Broadcasting Services Act 1992 (Cth) was amended to directly impose certain Australian content transmission quotas on commercial television licensees—giving the Australian Content Standard 2005 some statutory support.76 These amendments extended Australian content requirements to digital multichannels.77 However, the amendments also allowed commercial television broadcasting licensees to meet applicable sub-quotas under the Australian Content Standard (for example, relating to Australian drama, documentary or children’s programs) or the Children’s Television Standards by broadcasting such programming on any channel they provide—whether their primary channel or a digital multichannel.78

Australian content in advertising The Australian Content in Advertising Standard requires that 80 per cent of the total advertising time broadcast on commercial television between 6 am and midnight be occupied by advertisements that are Australian produced.79 An Australian-produced advertisement is one that is either wholly produced, filmed and post-produced in Australia or New Zealand, or where Australians or New Zealanders have exercised creative and administrative control over all stages of production.80

Copyright © 2015. Oxford University Press. All rights reserved.

The future of public interest standards The public interest standards described in this section were all implemented when commercial television broadcasters experienced much less competition from digital media and other sources. As commercial television broad­casters had privileged access to a mass audience (and advertising revenue) they could wear the costs of public policy objectives. It remains to be seen how these public interest obligations will be carried across into new media as the market conditions that supported them continue to change.81

72 73 74 75 76

Ibid s 9(2). Ibid s 16. Ibid ss 10 and 11. Ibid Part 11. Broadcasting Legislation Amendment (Convergence Review and Other Measures) Act 2013 (Cth). The Australian content transmission quotas are set out in s 121G of the Broadcasting Services Act 1992 (Cth). The ACMA may not determine a standard that increases the Australian content transmission quotas: s 122(9). 77 Broadcasting Services Act 1992 (Cth) s 121G(2). The legislation took a staged approach, requiring 730 hours of Australian programs in 2013; 1095 hours in 2014; and 1460 hours in 2015 and each year after that. Only material broadcast between 6 am and midnight counts towards the transmission quota. 78 Broadcasting Services Act 1992 (Cth) s 122(10). 79 Television Program Standard 23—Australian Content in Advertising s 5. 80 Ibid s 6. 81 See Jason Bosland, ‘Regulating for Local Content in the Digital Audiovisual Environment’ (2007) 18(3) Entertainment Law Review 103. See also Productivity Commission, Broadcasting, Report No. 11 (March 2000), 318.

75

76

PART 2 Media Regulation

Australian Government, Convergence Review Final Report (March 2012), 65–66 (footnotes omitted)

Are the existing distribution measures appropriate?

Copyright © 2015. Oxford University Press. All rights reserved.



Existing measures are too narrowly focused on the main commercial free-to-air broadcast channels. While the main channels attract large audiences, their audience share is likely to continue to fragment over time as digital multichannels and other services evolve and gain in popularity. Unless the scope of Australian content measures is broadened to include a wider range of platforms, the amount of Australian content consumed will diminish as users move to other services. There is also a strong equity argument for broadening the current reach of Australian content obligations. Australian content can be expensive to produce; the cost of producing some high-quality drama exceeds $1 million per hour. While the commercial free-to-air networks currently bear the brunt of this investment, the increasing diversity of the media landscape indicates that other content service enterprises also need to contribute if Australian content levels are to be maintained in the medium to longer term. Non-broadcast platforms employ a range of content delivery models, including linear models (programmed content with a programmed schedule) and non-linear models (which deliver content at the request of the viewer). If the principle of regulatory parity is to be observed, content rules should apply to content service enterprises irrespective of the content delivery model used. However, the current quota system does not suit non-linear content delivery models, and it does not easily suit those enterprises that have no production capability, capacity or expertise to invest in or commission new work. The minimum program expenditure model that applies to subscription television is more suitable in a converged environment as it adapts to an enterprise’s financial capacity. However, a minimum expenditure model is also unsuitable for enterprises that offer non-linear services. It does not take into account new approaches to acquiring programming rights, such as revenue-sharing agreements, which make program expenditure a difficult number to quantify. A model based on investing a percentage of revenue in Australian content overcomes these issues by providing a measure that is consistent with all businesses and content delivery models. Governments in other countries are increasingly including new media services that provide non-linear content within the ambit of regulation. For example, in Canada—a country with content challenges similar to Australia’s—the Canadian Radio-television and Telecommunications Commission requires video-on-demand services to ensure that minimum levels of local content are available and to contribute to a Canadian program production fund. The European Union’s Audiovisual Media Services Directive includes video-on-demand services within its framework and a requirement to promote ‘European works’ on these services. It is reasonable to expect that non-linear content such as video-on-demand will increasingly attract regulatory obligations globally as consumer patterns shift and new media services continue to compete with traditional linear content services for audiences.

Proposals for reform—distribution measures The Review recommends that, in the longer term, the existing requirements based on quotas and minimum expenditure be abolished and a new uniform content scheme be developed. The scheme would require all content service enterprises that provide drama, documentary and children’s programs and that meet the scale and service criteria to either: • invest a percentage of their Australian market revenue from professional television-like content in new Australian drama, documentary and children’s content (investment option), or • contribute to a central converged content production fund (contribution option).

CHAPTER 4 Broadcasting Services

The two options recognise the range of business models used to provide content services and the reality that not all content service providers have the desire or expertise to invest in Australian content production. In the longer term, the Review anticipates that most content service enterprises will choose to directly invest in content due to the greater benefits inherent in the investment option. The contribution option would support Australian content indirectly through the proposed converged content production fund.

QUESTIONS 1 Are the policy objectives of promoting children’s television and Australian content still relevant? 2 Are there any other categories of content that should be promoted instead of these? On what basis? Education? Moral instruction? 3 How should worthy, but uncommercial, content be promoted in a media system? Consider direct production incentives (for example, grants or tax credits) as well as schemes such as those established by the Children’s Television Standards and Australian Content Standard. 4 Who should bear the costs of promoting socially valuable content? Is this something that properly falls to commercial media services?

4.5

Commercial radio

The nature of radio as a medium for audio (as opposed to audiovisual) content means it has less capacity to carry offensive content. As such, radio is not subject to the comprehensive restrictions on programming classification and time zones experienced by television broadcasters. The classification categories established by the national classification scheme do not extend to radio programming. Commercial radio is, nonetheless, subject to some detailed content regulation. This reflects the assumption that commercial radio is a highly influential form of media. Commercial radio has also been particularly good at generating public controversy and a regulatory response.

Copyright © 2015. Oxford University Press. All rights reserved.

4.5.1

Licensing and licence conditions

Commercial radio licences are allocated on the same basis, and under the same sections of the Broadcasting Services Act 1992 (Cth), as commercial television broadcasting licences.82 Commercial radio licensees are, accordingly, subject to the same ‘suitability’ requirements as commercial television broadcasters.83 Regional commercial radio broadcasting licensees are subject to a licence condition requiring the broadcast of certain minimum levels of ‘material of local significance’.84 In certain circumstances, regional commercial radio broadcasters may also become subject to statutory obligations relating to local news and information and a licence condition that they maintain existing levels of ‘local presence’.85 These licence conditions and statutory 82 Broadcasting Services Act 1992 (Cth) ss 36 and 40. Although note that the ACMA was required not to license any new digital commercial radio broadcasting services for a period of six years after the ‘digital radio start-up day’ for the licence area (the digital radio moratorium): s 35C. The digital radio start-up day declared by the ACMA for metropolitan areas was 1 July 2009. 83 Broadcasting Services Act 1992 (Cth) ss 37, 42 and 47. 84 Broadcasting Services (Regional Commercial Radio M ­ aterial of Local Significance) Licence Condition 2014; Broadcasting (Hours of Local Content) Declaration No. 1 of 2007; Broadcasting Services Act 1992 (Cth) s 43C. 85 Broadcasting Services Act 1992 (Cth) ss 43B and Part 5, Division 5C.

77

78

PART 2 Media Regulation

requirements were introduced as an aspect of amendments to media ownership regulation in 2006. They were designed to preserve local content under liberalised ownership rules and acknowledged concerns about metro-regional media consolidation and declining local and regional news.86 These licence conditions and statutory obligations apply to regional commercial radio broadcasters (as defined), other than remote area licensees or regional racing services.87 In summary, the ‘material of local significance’ licence condition requires regional commercial radio broadcasters to broadcast three hours of local content, during the day, on most business days.88 Programming counts as ‘material of local significance’ where it is produced, is hosted or relates to a local licence area.89 The licence condition supplements provisions of the Broadcasting Services Act 1992 (Cth), which provide that regional commercial radio broadcasters must maintain minimum levels of local news and information following a trigger event.90 A trigger event occurs where a regional commercial radio licence is affected by a change of control.91 The local news and information obligations activated by a trigger event require the affected regional commercial radio licensee to broadcast a certain number of local news bulletins, local weather bulletins, local community service announcements and emergency warnings.92 The second consequence of a trigger event is that the incoming broadcaster becomes subject to a licence condition that it maintain at least existing levels of ‘local presence’.93 This is measured by reference to local staffing levels and the use of local studios and production facilities.94

4.5.2

Commercial Radio Codes of Practice

Copyright © 2015. Oxford University Press. All rights reserved.

The Commercial Radio Codes of Practice & Guidelines, September 2013, developed by Commercial Radio Australia, have been registered with the ACMA. Although they are less prescriptive than codes of practice for commercial television, these Codes maintain some detailed content restrictions. Programming on commercial radio must not offend ‘generally accepted standards of decency’.95 Commercial radio licensees must not broadcast a feature program that has an explicit sexual theme except during certain hours, and audio of actual

86 See Jock Given, ‘Cross-Media Ownership Laws: Refinement or Rejection’ (2006) 30 University of New South Wales Law Journal 258; Broadcasting Services Amendment (Media Ownership) Bill 2006 Second Reading Speech, Sen Sandy MacDonald, Commonwealth Senate, Hansard, No. 10 (14 September 2006). 87 Parallel definitions of ‘regional commercial radio broadcasting licence’ are set out in each of the Broadcasting Services (Regional Commercial Radio M ­ aterial of Local Significance) Licence Condition 2014; Broadcasting Services (Regional Commercial Radio—Local Presence) Licence Condition 2014; and in s 61CA of the Broadcasting Services Act 1992 (Cth). See ss 6(1) and 8AF of the Broadcasting Services Act 1992 (Cth) for definitions of ‘remote area service radio licence’ and ‘regional racing service radio licence’. These are ­ exempt from relevant requirements under ss 43B(4A) (local presence), 43C(2A) and 61CAA (local news and information). 88 The quota drops to 30 minutes for small broadcasters (that is, those services that broadcast to less than 30,000 people): Broadcasting Services (Regional Commercial Radio M ­ aterial of Local Significance) Licence Condition 2014 s 8; Broadcasting (Hours of Local Content) Declaration No. 1 of 2007 s 4. 89 Broadcasting Services (Regional Commercial Radio M ­ aterial of Local Significance) Licence Condition 2014 s 6. 90 Broadcasting Services Act 1992 (Cth) Part 5, Division 5C. 91 As defined in further detail in Broadcasting Services Act 1992 (Cth) s 61CB. 92 Broadcasting Services Act 1992 (Cth) s 61CE. 93 Ibid s 43B; Broadcasting Services (Regional Commercial Radio—Local Presence) Licence Condition 2014. 94 Broadcasting Services Act 1992 (Cth) s 43B(3); Broadcasting Services (Regional Commercial Radio—Local Presence) Licence Condition 2014, s 9. 95 Commercial Radio Codes of Practice & Guidelines, September 2013, code 1.3(a).

CHAPTER 4 Broadcasting Services

sex may not be broadcast.96 The Codes aim to promote fairness and accuracy in news reporting and current affairs.97 The Codes include special provisions relating to live hosted entertainment programs. A licensee must not broadcast a program which treats participants (especially children) in a demeaning or exploitative manner.98 These provisions were introduced following an investigation by the ACMA, which noted community concern about the treatment of participants in certain commercial radio segments, and recommended amendments to applicable industry codes.99

ACMA, Live Hosted Entertainment Radio Programs: Adequacy of Community Safeguards for the Protection of Participants, January 2010, 6–7 Case Study: The Kyle and Jackie O Breakfast Show—29 July 2009 On 29 July 2009, the Kyle and Jackie O Breakfast Show aired, live, a stunt in which a 14 year old participant was asked questions by her mother about her sexual history and truancies while attached to a lie-detector. After the girl was asked whether or not she had ‘had sex’, she stated that she had been raped. The broadcast was concluded shortly thereafter. In assessing whether the broadcast was compliant with the licensee’s obligations under the Codes, the ACMA made a number of observations about the content, including: the key participant was a child; the key participant was put in a vulnerable position, over which she did not appear to have control; and the key participant stated that she was ‘scared’ at the commencement of the segment. The ACMA concluded that the broadcast breached the Codes stating: the ordinary reasonable listener, being reasonably tolerant and accepting of diversity and taking account of the audience of the licensee’s service who may have an even more tolerant or liberal approach, would consider that the content offended against contemporary standards of decency’.

The ACMA further noted that interviewing a child about sexual activity is not indecent per se, however in this instance: it was the manner of the segment that offended against contemporary standards of decency… including the purported use of a lie detector to sensationalise and render as mere entertainment what might in a different context be an acceptable topic for a radio broadcast. Copyright © 2015. Oxford University Press. All rights reserved.

(footnotes omitted)

Commercial radio is not subject to any mandatory standards on Australian content. However, the Broadcasting Services Act 1992 (Cth) states that the Codes for commercial radio may address the broadcasting of Australian music.100 The Commercial Radio Codes of Practice & Guidelines, September 2013, accordingly require a certain amount of music played on radio to be Australian. The required percentage changes according to the ‘predominant format’ of the radio station. For a station that plays mainstream rock, top 40 or contemporary hits, for example, at least 25 per cent of the music played needs to be Australian. At the other end of the spectrum, the relevant percentage for jazz and nostalgia stations is only 5 per cent.101 96 97 98 99

Ibid codes 1.4 and 1.5. Ibid code 2. Ibid code 9. ACMA, Live Hosted Entertainment Radio Programs: Adequacy of Community Safeguards for the Protection of Participants, January 2010. 100 Broadcasting Services Act 1992 (Cth) s 123(2)(g). 101 Commercial Radio Codes of Practice & Guidelines, September 2013, code 4.

79

80

PART 2 Media Regulation

4.5.3

Commercial radio standards

Commercial radio broadcasting licensees are subject to the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012. The first version of this standard was determined in response to the ‘cash for comment’ scandal and subsequent Commercial Radio Inquiry conducted by the Australian Broadcasting Authority (a predecessor organisation to the ACMA).102 The Standard responded to a public concern that undisclosed commercial agreements were affecting the content of influential commercial radio current affairs programs. The following paragraphs are taken from the Commercial Radio Inquiry. The Commercial Radio Inquiry covered a number of presenters and commercial radio broadcasting licensees, although the extracted paragraphs focus on the relationship between John Laws and the Australian Bankers’ Association. This particular relationship prompted an episode of the ABC’s Media Watch that led to the Commercial Radio Inquiry. The extract gives a sense of the issues considered in the Commercial Radio Inquiry, and the circumstances in which the ACMA will determine a standard to provide community safeguards over and above applicable industry codes of practice.

Australian Broadcasting Authority, Commercial Radio Inquiry, August 2000

Copyright © 2015. Oxford University Press. All rights reserved.

TALKBACK RADIO IN AUSTRALIA

… Talkback radio, also known as open-line, generally consists of a mix of telephone calls from listeners, pre-arranged interviews (often with politicians and others involved directly in issues of current interest), editorials, station or program promotions, commentary, advertisements, regular segments, newsbreaks and music. … While one of the primary purposes of talkback-oriented programs is to entertain, this does not preclude such programs from also being informative. The Authority has always taken the view that talkback programs can properly be regarded as current affairs programs, that is, programs focussing on social, economic or political issues of current relevance to the community. The personalities and opinions of talkback presenters tend to dominate the programs they host. Their success depends largely on their ability to talk easily on a wide range of issues and topics (including those of a social, political and economic nature), to engage their audiences and to elicit responses from on-line callers and other people who appear on their programs. Other factors that may contribute to the success of talkback radio format include: • the opportunity provided by talkback radio for people directly and (usually) anonymously to express themselves to a large audience; • the perception that talkback radio is spontaneous and unpredictable; and • talkback radio’s ability to provide a sense of companionship and keep people in touch with the views of others on topical issues and events. The opinions of talkback announcers carry considerable weight with many listeners, particularly regular ones. Generally speaking, advertisements read live-to-air by these announcers (especially if the advertisement includes an explicit personal endorsement from the announcer) are worth more to advertisers than prerecorded advertisements, because of the perceived authority of the presenter when talking about the

102 The Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012 replaced the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000.

CHAPTER 4 Broadcasting Services

product being advertised. For example, during the 2UE hearing, one witness testified that ‘I don’t think you can underrate the importance of the live reads’. As indicated above, talkback is a significant element within the current affairs program format across commercial radio in Australia. Taken as a whole, current affairs programming (including talkback) is broadcast daily across metropolitan, regional and rural Australia and is a significant source of information and opinions for the entire community. It is for this reason that the Authority takes particular interest in breaches of Codes in the areas of news and current affairs or advertising. …

Mr Laws and the Bankers Association In May 1998, Mr Christopher Stewart (who had recently commenced working for the Bankers’ Association), wrote to Mr Laws suggesting that he may have a potential sponsor for a series of short radio scripts on Australian historical topics which Mr Stewart had written. Mr Tony Aveling, Chief Executive of the Bankers’ Association subsequently proceeded to promote to the Bankers’ Association Council the idea of sponsoring key media opinion leaders to assist in the improvement of the banks’ image and also of sponsoring a John Laws radio project for the next year. Independently, Mr Bob Miller (Managing Director of the advertising agency Australia Street Consulting Pty Limited; ‘Australia Street Consulting’) had initiated negotiations with Mr Stewart in September 1998 to determine whether the banks might wish to do some advertising using Mr Laws. Mr Miller was seeking to become the agent for the Bankers’ Association in an advertising arrangement on 2UE. Negotiations between the Bankers’ Association, Australia Street Consulting and 2UE continued throughout October, November and December 1998. In February 1999, Mr Aveling wrote to the Bankers’ Association Council and to non-member retail banks, reporting that negotiations had been completed for a package (split between Mr Laws and 2UE) costing $1.35 million. The Bankers’ Association Council subsequently met and approved the deal. The agreement between Australia Street Consulting and Radio 2UE included a total of 150 live reads by Mr Laws over 40 weeks, to be broadcast over the 74 stations in the network, for a total fee of $707,550. The final written agreement between the Bankers’ Association and Australia Street Consulting included:

Copyright © 2015. Oxford University Press. All rights reserved.

• Mr Laws recording of 150 advertising spots under the name ‘The Whole Story’; and • The granting to very senior bank and Bankers’ Association executives the opportunity to discuss ‘their side of the story’ on particular issues with Mr Laws on-air. Mr Laws was not, during the course of the agreement, to broadcast any advertisement that denigrated Australian banks or the Australian banking industry. Nor was there any obligation to pay Australia Street Consulting if the Bankers’ Association considered that Mr Laws had brought the reputation of its members into disrepute during 1999. It appears that the terms of the agreements between Australia Street Consulting and the Bankers’ Association, and Australia Street Consulting and Mr Laws may have been wider than those expressed in the written documents. It appears that the agreements also included a regular practice of referring listener complaints to the Bankers’ Association or individual banks for their response, and Mr Laws, on at least some occasions, putting those responses to air. In mid-February 1999, Mr Aveling made a pre-arranged (and scripted) telephone call to Mr Laws on-air, referring to Mr Laws’ comments on Australian history the previous day, and offering the banks as a sponsor for a history series. Between March and July 1999, Mr Laws performed live reads for the Bankers’ Association four times per week as part of the ‘Whole Story’ campaign. The segment involved Mr Laws reading a script about a historical event or character, written by Mr Stewart. Part way through the script, Mr Laws would break from the story and read a script provided by the Bankers’ Association, usually concerning a topical issue in banking. On 19 July 1999 the Bankers’ Association Council decided to terminate its agreement with Mr Laws through its contractual agreements with Australia Street Consulting. The termination of the agreement resulted from the pressure of negative publicity resulting from the allegations raised on the ABC program ‘Media Watch’ on 12 July 1999.

81

82

PART 2 Media Regulation

[EXECUTIVE SUMMARY – FINDINGS] The Authority is concerned about a number of practices in the commercial radio broadcasting industry evidenced by its investigation. These include: • undisclosed commercial relationships between presenters and third parties including advertisers; and • undisclosed commercial arrangements between licensees and advertisers (including agreements for the use of outside broadcasts in advertising campaigns). The Authority has concluded that these practices have influenced the content of programs—in some cases, directly. In relation to the licensees investigated by the Authority, these practices have, in some instances, breached the Codes … The Authority has also concluded that there has been a significant failure in the system of co-regulation in these matters. The evidence before the Authority indicates that the effort made by the licensees examined to ensure compliance with the Codes has been inadequate.

Copyright © 2015. Oxford University Press. All rights reserved.

The need for disclosure to listeners of relevant commercial agreements between presenters of current affairs programs and their sponsors. … The purpose of Code 2 is ‘to promote accuracy and fairness in news and current affairs programs’. Code 2.2 (b) requires that ‘… material is not presented in a misleading manner … by withholding relevant available facts’. 2UE submitted that the Code was not meant to cover such commercial agreements as ‘relevant available facts’. The Authority rejected this argument but accepted that this could have been made clearer in the text of Code 2. While the Code requires disclosure of these agreements, the precise mechanism for disclosure is not covered, and the requirement for disclosure could be made more directly. The way in which this Code was operating at 2UE, 6PR and 5DN was not such that adequate disclosure of these agreements was being made. In the Authority’s view, this was a serious shortcoming of the Code and the way in which the relevant licensees administered it. Listeners are entitled to know who is seeking to persuade them. This principle is fundamental to full and open public discourse on matters of current relevance to the community. Disclosure of these agreements to listeners was important in letting listeners form their own views in this vital area of current affairs. Given the seriousness of this issue, the Authority is of the view that Code 2 was clearly not operating to provide appropriate community safeguards in relation to this matter. Currently nine commercial radio stations have identified their format as being ‘talk’ or ‘news/talk’. As part of this inquiry the Authority has investigated four of the six of these stations that are located in metropolitan markets. In three of the four stations that the Authority investigated, the Code was not providing appropriate community safeguards for this issue. The John Laws and Alan Jones shows rate highly in the Sydney market and are syndicated by Sky Radio Pty Ltd throughout Australia to both commercial and community radio stations. As at 3 May 2000, 67 commercial radio stations broadcast the John Laws show, with seven of those also broadcasting the Alan Jones show. This degree of coverage represents 29 per cent of the total number of commercial radio stations in Australia. In the Authority’s view, this is a sufficiently large sector of the industry and a sufficiently large number of breaches to allow the Authority to draw the conclusion that there is convincing evidence of the failure of Code 2 to provide appropriate community safeguards in relation to this matter.

Proposed Regulatory Action The Authority considers that community safeguards in relation to disclosure of relevant commercial agreements between presenters of current affairs programs and their sponsors should be strengthened. There are two regulatory options for providing the required level of appropriate community safeguards. The first is for [Commercial Radio Australia] to amend industry Code 2. The second is for the Authority to determine a standard requiring the necessary level of disclosure.

CHAPTER 4 Broadcasting Services

Copyright © 2015. Oxford University Press. All rights reserved.

The Authority’s preliminary view is that it should determine a standard in relation to this matter … The Explanatory Memorandum of the [Broadcasting Services Act 1992 (Cth)] acknowledges that conflict is likely between the public interest and broadcasters’ commercial imperatives. The serious deficiencies in the operation of self-regulation in current affairs programs as exposed in this investigation, clearly locates the issue of presenters’ commercial agreements within such a conflict. These presenters are highly rating and widely syndicated. The value of these presenters to their stations is such that the interests of the licensees and presenters weigh heavily on the side of the commercial, rather than the public, interest. … The findings of the Authority’s investigations have clarified the full scope and meaning of the requirements of the current Code. In particular, the Authority has found that the Code requires disclosure of presenters’ agreements with sponsors. It is also true that the Code, while requiring disclosure of these agreements as relevant facts, is not an explicit statement of the obligation to disclose. Nevertheless, it is not clear to the Authority that an amended Code would provide appropriate community safeguards. … The Authority has no direct sanction for breach of a code. It can only commence a process to make the code a licence condition. Breach of a standard, however, is a breach of a licence condition that can be met immediately with an Authority notice to take action to remedy the breach or to suspend or cancel the licence. Breach of an Authority notice is an offence under the Act. In the event of a breach, access to these remedies by the Authority provides greater community safeguards. The Authority is less able to act immediately to restore community safeguards in the case of a licensee breaching a code requirement. The form in which an obligation in a code is expressed represents only one half of what is needed to provide appropriate community safeguards. The other half is the necessary commitment of licensees to comply fully with both the wording and spirit of the code. An effective industry code (that is, a code that affords appropriate protection to audiences) requires a high level of licensee responsibility, ownership and commitment. The Authority views with great seriousness the lack of an adequate sense of ownership of, responsibility for, or commitment to the Code by licensees as disclosed by its investigations into four major talk format stations from across the country. Even the most explicit code requirement must be supported in the first instance by the voluntary commitment of licensees. If that commitment is not strong or sufficiently genuine, community safeguards are not provided by the code. In this case, where strong commercial pressures and the integrity of public discourse are involved, the Authority’s view is that it is unreasonable to expect the Australian community to tolerate any possibility of a recurrence of undisclosed ‘cash for comment’ in current affairs programs on commercial radio.

After the Commercial Radio Inquiry, the Australian Broadcasting Authority determined three standards relating to the disclosure of commercial agreements, distinguishing advertising from other programs and compliance with applicable program rules.103 The standards relating to advertising and compliance have since been revoked.104 The Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012 continues the requirement that commercial radio broadcasting licensees disclose (on air) any commercial agreement that may affect the content of a current affairs program.105 This standard survived an administrative challenge relating to the implied freedom of political communication in

103 Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000; Broadcasting Services (Commercial Radio Advertising) Standard 2000; Broadcasting Services (Commercial Radio Compliance Program) Standard 2000. 104 The Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012 revoked the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000 and the Broadcasting Services (Commercial Radio Compliance Program) Standard 2000. The Broadcasting Services (Commercial Radio Advertising) Standard 2000 was separately revoked (a year or so later) by the Broadcasting Services (Commercial Radio Advertising) Standard Revocation 2013.

83

84

PART 2 Media Regulation

Harbour Radio v ACMA, with the Federal Court holding that the Standard only incidentally restricts political communication and is reasonably appropriate and adapted to achieve a legitimate end.106

4.6

Subscription television

Attempts to introduce subscription television in Australia were resisted by successive governments concerned about its effect on the viability of free-to-air television.107 In 1982, the Australian Broadcasting Tribunal recommended that ‘Australia introduce cable television and radiated subscription television services as soon as practicable’.108 The legal foundations for subscription television were not set in place until the Broadcasting Services Act 1992 (Cth). It was not until 1995 that services actually became available. Delays attributable to political will, technical standards and the licence auction process all conspired to slow the introduction of subscription television.109 As put by one commentator,

Copyright © 2015. Oxford University Press. All rights reserved.

The actual history of introducing subscription television in Australia was far more protracted than expected in 1982 … The eventual launch of subscription television in the mid-1990s was preceded by ‘a sorry story’ of ‘detailed recommendations which were never acted on and mostly sank without a trace, of wheels reinvented, of initiatives not taken, of sensible courses of action ignored—usually for political expediency.110

There are a couple of important differences between subscription television and freeto-air services that affect how both are regulated. Subscription television services tend to be delivered by cable and satellite and, as such, do not compete with other broadcasting services for spectrum.111 This means that some of the rationales for regulating over-the-air broadcasting services (spectrum scarcity, privileged use of public airwaves) do not translate to subscription television services. In addition, and as the subscription television industry itself is quick to highlight, the nature of the relationship between a service provider and subscriber is different. The industry codes of practice refer to subscription television as ‘in the nature of an invited guest, brought into the home in the full and prior knowledge of the guest’s character’.112 This status as an invited guest has allowed subscription television to claim comparatively permissive treatment in terms of content regulation and under applicable codes of practice. Subscription television is, however, subject to certain statutory obligations concerning local drama expenditure and the ‘anti-siphoning scheme’ (which affects the acquisition of rights to broadcast certain sporting events).

106 Harbour Radio v ACMA (2012) 202 FCR 525 at 554–55 [105] per Griffiths J. 107 Productivity Commission, Broadcasting, Report No. 11 (March 2000), 292. 108 Australian Broadcasting Tribunal, Cable and Subscription Television Services for Australia, August 1982, ­Recommendation 3. 109 Productivity Commission, above n 106, 293. 110 ‘The Sorry History of Pay TV Policy 1977–1992’, Communications Update (October 1992), as cited in Andrew Kenyon, ‘Changing Channels: Media Studies, Copyright Law and Communications Policy’, in TV Futures: Digital Television Policy in Australia, Melbourne University Press, Carlton, 2007, 2. 111 Subscription television services may not be provided using the broadcasting services bands: Broadcasting Services Act 1992 (Cth) Sch 2 cl 10(1)(j). 112 Subscription Broadcast Television Codes of Practice 2013, 3.

CHAPTER 4 Broadcasting Services

4.6.1

Licensing and licence conditions

A subscription television licence can be sought at any time from the ACMA upon written application.113 Licences are allocated on the basis of one licence per service, that is, one licence per programming stream (or channel).114 The licence is not limited to a particular geographic area (as is the case for spectrum-dependent broadcasting services). A subscription television broadcasting licensee must be, and must remain, a ‘suitable’ licensee.115 Subscription television service providers were initially prohibited from broadcasting advertising. This prohibition was lifted in 1997. However, subscription television licensees remain subject to a licence condition that subscription fees, rather than advertising, will be their main source of revenue.116 A subscription television broadcasting licensee may not broadcast content that has been classified RC or X18+.117 The transmission of R18+ content on subscription services is restricted. However, the operation of this restriction is complicated (if not a little unclear). A licence condition applies to subscription television broadcasters which says that R18+ content may not be broadcast until ‘the ACMA has completed extensive, Australia-wide qualitative and quantitative research on community standards of taste and decency in relation to classifications for pay television and on what levels of violence and depiction of sex should be allowed’.118 No such report, recommendation or resolution has been published. The licence conditions for narrowcast subscription television services, however, do not specifically prohibit R18+ programming.119 Accordingly, as a matter of practice, subscription television services transmit R18+ content as narrowcast services.

Copyright © 2015. Oxford University Press. All rights reserved.

4.6.2

Subscription Broadcast Television Codes of Practice

The Subscription Broadcast Television Codes of Practice 2013, developed by the Australian Subscription Television and Radio Association, have been registered with the ACMA. As noted, subscription television’s status as an ‘invited guest’ has allowed it to claim comparatively permissive treatment in terms of content regulation under relevant codes of practice. Subscription services are not subject to the time zone restrictions that affect free-to-air broadcasters. In terms of program classification, the Subscription Broadcast Television Codes of Practice 2013 adopt the national classification scheme categories and guidelines. The codes of practice also contain a number of provisions on advertising, including limitations on advertising to children.120

4.6.3

Local drama expenditure

Subscription television broadcasting licensees are not generally subject to local content quotas, but subscription television broadcasting services that predominantly carry drama 113 Broadcasting Services Act 1992 (Cth) s 96(1). 114 Broadcasting Services Act 1992 (Cth) s 96(2); see also Amalgamated TV v Foxtel (1996) 136 ALR 319 at 322. 115 Broadcasting Services Act 1992 (Cth) s 98, Sch 2 cl 10(2)(a). The suitability criteria are similar to the criteria that apply for commercial broadcasting licensees under section 41 of the Act. 116 Ibid Sch 2 cl 10(2)(b). 117 Ibid Sch 2 cl 10(1)(f). 118 Ibid Sch 2 cl 10(1)(g).­ 119 Broadcasting Services Act 1992 (Cth) Sch 2 cl 11 sets out the standard licence conditions for class-licensed services (including subscription narrowcast services). These licence conditions prohibit the broadcast ­ of RC and X18+ content, but do not prohibit the broadcast of R18+ content on a subscription television ­narrowcasting service. 120 Subscription Broadcast Television Codes of Practice 2013, code 6.

85

86

PART 2 Media Regulation

programs are required under the Broadcasting Services Act 1992 (Cth) to ensure that at least 10 per cent of total program expenditure on drama is applied to new eligible drama programs from either Australia or New Zealand.121 An eligible drama program is one produced under the creative control of Australians or New Zealanders, or is an Australian official co-production.122 The local drama expenditure requirement is designed to support the role of local drama in shaping a sense of Australian identity, character and cultural diversity, and reflects the view that the economics of local production, and the cost difference between Australian and foreign programs, means that drama programming is particularly susceptible to import replacement.123

Copyright © 2015. Oxford University Press. All rights reserved.

4.6.4

The anti-siphoning scheme

When subscription television was introduced it was thought that, in the absence of government intervention, subscription providers would quickly move to secure exclusive rights to significant sporting events. The anti-siphoning scheme was accordingly designed to ensure that sporting events of national importance and cultural significance would continue to be shown on free-to-air television, rather than being ‘siphoned off’ to subscription services.124 The Broadcasting Services Act 1992 (Cth) allows the Minister to gazette a list of events that, in the Minister’s opinion, should be available on free-to-air television.125 This is referred to as the ‘anti-siphoning list’.126 The current list features, for example, the Olympic and Commonwealth Games, the Melbourne Cup, all Australian Rules Football Premiership and Rugby League Premiership matches, as well as rugby union, cricket, soccer, tennis, netball, golf and motorsports events. The anti-siphoning scheme provides no assurances that listed events will actually be broadcast on free-to-air-television. Free-to-air networks are not obliged to acquire the rights to listed events, nor are they compelled to broadcast an event where rights have been secured. However, the scheme in effect gives free-to-air networks a first right of refusal over listed events. Subscription television licensees are not allowed to acquire rights to televise events on the anti-siphoning list unless one of the national broadcasters or a commercial television network covering half the Australian population has the right to televise the event.127 The Minister has the discretion to de-list an event, but this discretion is normally only exercised where it can be demonstrated that the free-to-air networks have declined to obtain broadcast rights.128 An automatic de-listing mechanism applies 12 weeks prior to an event to allow subscription television licensees to have sufficient time to promote and program an event where broadcast rights have not been acquired by free-to-air services.129 The Minister can 121 Broadcasting Services Act 1992 (Cth) Pt 7 Div 2A. 122 Ibid s 103B; Australian Content Standard 2005. 123 Department of Communications, Information Technology and the Arts (DCITA), Review of Australian and New Zealand Content on Subscription Television Broadcasting Services, February 2005. 124 Broadcasting Services (Subscription Television Broadcasting) Amendment Act 1992 (Cth). For discussion, see Foxtel Cable Television v Nine Network Australia and Australian Broadcasting Authority (1997) 73 FCR 429. 125 Broadcasting Services Act 1992 (Cth) s 115(1) 126 Broadcasting Services (Events) Notice (No 1) 2010. 127 Broadcasting Services Act 1992 (Cth) Sch 2 cl 10(1)(e). In Foxtel v Nine Network Australia and Australian Broadcasting Authority (1997) 73 FCR 429 the Federal Court held that ‘the right to televise’ in this context means the right to televise an event as it happens, or as soon thereafter as is technically feasible. In other words, it is not sufficient if the free-to-air network has rights to provide a delayed telecast. 128 Ibid s 115(2). 129 Ibid s 115(1AA).

CHAPTER 4 Broadcasting Services

override the automatic de-listing if satisfied that any of the free-to-air networks have not had a reasonable opportunity to acquire rights to the event.130

4.6.5 Anti-hoarding Anti-hoarding rules apply to commercial television broadcasting licensees as a counterpoint to the anti-siphoning scheme.131 The anti-hoarding provisions attempt to deal with the problem of free-to-air networks acquiring exclusive rights to events that they do not televise.132 The anti-hoarding rules provide that where a commercial television licensee has acquired exclusive rights to a designated event, but does not intend to televise a substantial part of the event live, they must offer the right to televise either all or part of the event to either the ABC or SBS for nominal consideration.133 Where the ABC or SBS have acquired exclusive rights that they do not intend to use, they must offer the rights to each other.134

4.7

Community broadcasting services

Community broadcasting makes an important contribution to the sectoral diversity in Australian broadcasting. Community services support the objects of the Broadcasting Services Act 1992 (Cth) of developing and reflecting a sense of Australian identity, character and cultural diversity, and promoting the availability of locally significant programming.135

Copyright © 2015. Oxford University Press. All rights reserved.

4.7.1

Licensing and licence conditions

Community broadcasting licenses are allocated on merit rather than price. Where spectrum is available for a community service, aspirant community broadcasters may apply to the ACMA for a broadcasting licence.136 In assessing an application, the ACMA is required to consider how well the proposed service would meet the needs of the community in the licence area, the nature and diversity of interests in that community, and the capacity of the applicant to provide the service.137 The Minister may direct the ACMA to prioritise particular community interests when allocating community licenses.138 A set of standard licence conditions applies to community broadcasters generally (both radio and television). Advertisements are prohibited on community services.139 Community services may broadcast sponsorship announcements during natural program breaks, but must not be operated for profit.140 A fine, but consequential, dividing line exists between 130 Ibid s 115(1AB). 131 Ibid Part 10A. Commercial television licensees are subject to a licence condition requiring compliance with the anti-hoarding rules: Broadcasting Services Act 1992 (Cth) Sch 2 cl 7(1)(ha). The anti-hoarding provisions are also known as the ‘must offer’ rules. 132 See Senate Environment, Communications, Information Technology and the Arts Legislation Committee, Inquiry into the Provisions of the Broadcasting Services Amendment (Anti-Siphoning) Bill 2004, March 2005, 1.24. 133 Broadcasting Services Act 1992 (Cth) ss 146E, 146G, 146H. 134 Ibid s 146L. 135 Ibid s 3(c), (e). 136 Ibid s 80. 137 Ibid s 84(2). 138 Ibid s 84(1). 139 Ibid Sch 2 cl (1)(b). 140 Ibid Sch 2 cls 9(2)(e), 9(3)–(5).

87

88

PART 2 Media Regulation

sponsorship announcements and advertising. Sponsorship announcements may include the name, address and a description of the general nature of the sponsor’s business.141 Announcements may also promote the sponsor’s activities, events, products or services.142 However, the focus of a sponsorship announcement should be an acknowledgment of financial or in-kind support given by a sponsor.143 Community television licensees are subject to additional statutory conditions restricting the sale of access to airtime.144 These restrictions are designed to balance the need for community services to raise revenue with the not-for-profit nature of the sector and the intention that community television should not operate in the same way as commercial television.145

Copyright © 2015. Oxford University Press. All rights reserved.

4.7.2

Community Broadcasting Codes of Practice

The Community Radio Broadcasting Codes of Practice 2008 and Community Television Broadcasting Codes of Practice 2011 have been registered with the ACMA. These Codes were developed by the Community Broadcasting Association of Australia and the Australian Community Television Alliance, respectively. They both include provisions on corporate governance and emphasise the importance of community access and participation in the provision of services.146 The Codes both aim to promote fairness and accuracy in news and current affairs.147 On program classification and timing, the Community Television Broadcasting Codes of Practice 2011 adopt the classification categories of the national classification scheme and set out classification time zones similar to those which apply to commercial television broadcasters.148 On Australian content, the Community Radio Broadcasting Codes of Practice 2008 provide that 25 per cent of music played on community stations will be Australian, reducing to 10 per cent for ethnic and classical music stations.149 The Community Television Broadcasting Codes of Practice 2011 provide that a ‘significant proportion’ of all programs broadcast be Australian, with each licensee aiming for the highest practicable level of local content.150 The codes for both radio and television set out provisions on sponsorship, including statements that community broadcasters should not allow sponsorship to determine access to broadcasting time or influence programming.151

141 Ibid Sch 2 cl 2(2)(b)(i). 142 Ibid Sch 2 cl 2(2)(b)(ii). 143 ACMA, Community Broadcasting Sponsorship Guidelines 2008, June 2008, 13–14. See also, for example, ACMA Investigation Report No. 2710 (9 March 2012), discussing whether particular programming broadcast on Channel 31 Melbourne constituted advertising (it did). 144 Broadcasting Services Act 1992 (Cth) s 87A; Broadcasting Services (Additional Conditions—CTV Licence) Determination 2005. 145 Broadcasting Services Act 1992 (Cth) s 87A(1). 146 Community Radio Broadcasting Codes of Practice 2008, Codes 1 and 2; Community Television Broadcasting Codes of Practice 2011, Code 1. 147 Community Radio Broadcasting Codes of Practice 2008, Code 3.6; Community Television Broadcasting Codes of Practice 2011, Codes 3.11–3.14. 148 Community Television Broadcasting Codes of Practice 2011, Code 4. 149 Community Radio Broadcasting Codes of Practice 2008, Code 5.2(a), (b). 150 Community Television Broadcasting Codes of Practice 2011, Code 2.4. 151 Community Radio Broadcasting Codes of Practice 2008, Code 6; Community Television Broadcasting Codes of Practice 2011, Code 6.

CHAPTER 4 Broadcasting Services

4.8

Class licensed services

A class licence is a standing authority for any operator to commence a service provided they have legitimate access to spectrum (or some other method of delivering the service) and comply with the conditions of the class licence. In contrast to other licence categories, it is not necessary to apply for a class licence, or even to notify the regulator prior to commencing service.152 Class licences have been determined for: subscription radio broadcasting services; subscription narrowcast services; and open narrowcast services.153 Codes of practice have been registered with the ACMA for subscription narrowcast radio, open narrowcast radio, subscription narrowcast television and open narrowcast television.154 The ACMA has also determined standards affecting terrorist broadcasts on narrowcast television. The standards state that narrowcast television services may not broadcast programming that could be construed as recruiting or soliciting funding for a terrorist organisation or advocating a terrorist act.155

4.9

International broadcasting services

Copyright © 2015. Oxford University Press. All rights reserved.

International broadcasting services are those which are targeted, to a significant extent, to audiences located outside Australia, but which are transmitted from equipment based within Australia.156 International broadcasting services do not include those provided by the ABC or SBS, or those which are transmitted from outside Australia to an earth station that immediately retransmits the signal to a satellite.157 A person may apply to the ACMA for a licence to provide an international broadcasting service.158 Applications for an international broadcasting licence need to be referred to the Minister for Foreign Affairs before being allocated by the ACMA.159 The licence may be allocated if the Minister does not object on the grounds that allocation would be contrary to Australia’s national interest.160 The usual scheme of standards, licence conditions and codes of practice does not apply to international broadcasting services. A minimum level of content regulation is effected through the Broadcasting Services (International Broadcasting) Guidelines 2005, published by the ACMA.161 The Guidelines deal with issues such as offensive material, classification

152 The exception to this rule is that narrowcast radio services that use technical equipment capable of reaching a large audience are required to provide the ACMA with a statement explaining how reception of the service is limited: Broadcasting Services (Additional Conditions Open Narrowcasting Radio Services) Notice 2002, made by the ACMA under s 120(1)(b) of the Broadcasting Services Act 1992 (Cth). 153 Broadcasting Services Act 1992 (Cth) s 117; Australian Broadcasting Authority, Determination of Class Licences, 1 October 1992. On the distinction between a ‘broadcast’ and a ‘narrowcast’ service, an AFL subscription television channel has been held to be a narrowcast service: Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103; as has a music video service: Australian Broadcasting Authority, Opinion of Category of Broadcasting Service—Australia Media Limited, 1996. 154 Subscription Narrowcast Radio Codes of Practice 2013; Open Narrowcast Radio Codes of Practice; Subscription  Narrowcast Television Codes of Practice 2013; Open Narrowcast Television Codes of Practice 2009. 155 Broadcasting Services (Anti-terrorism Requirements for Open Narrowcasting Television Services) ­Standard 2011; Broadcasting Services (Anti-terrorism Requirements for Subscription Television N ­ arrowcasting Services) Standard 2011. 156 Broadcasting Services Act 1992 (Cth) s 18A. 157 Ibid s 18A(3). 158 Ibid s 121FA. 159 Ibid ss 121FB(1) and 121FB(5). 160 Ibid ss 121FD and 121FE. 161 Broadcasting Services (International Broadcasting) Guidelines 2005.

89

90

PART 2 Media Regulation

categories and timing, children’s programming, accuracy and fairness in news and current affairs, advertising standards and complaints.

4.10 Enforcement

Copyright © 2015. Oxford University Press. All rights reserved.

4.10.1 ACMA enforcement powers The co-regulatory scheme established by the Broadcasting Services Act 1992 (Cth) is complaints driven. A person may complain directly to the ACMA about a breach of the Act itself, or a breach of a licence condition.162 However, more commonly complaints will relate to matters dealt with in industry codes of practice (such as program classification and broadcast times). The co-regulatory scheme is structured so that complaints regarding a breach of industry codes are first made to the broadcaster itself, before involving the regulator.163 The hope is that managing public complaints will cause licensees to maintain a strong and direct responsibility for (and awareness of) consumer concerns.164 If a person complains to a broadcaster and does not receive an adequate response, they may escalate the complaint to the ACMA.165 The ACMA is obliged to investigate the complaint if it is not frivolous or vexatious and has been made in good faith.166 The ACMA may also investigate a matter on its own initiative, or at the direction of the Minister.167 A breach of applicable codes of practice does not amount to a breach of the Broadcasting Services Act 1992 (Cth). If an investigation by the ACMA finds a relevant code of practice has been breached it has a limited range of responses available. The ACMA may accept an enforceable undertaking from the broadcaster that it will take a particular action, or refrain from taking a particular action, to comply with the applicable code.168 Alternatively, the ACMA may impose a licence condition that requires the broadcaster to comply with the codes of practice.169 Associated formalities mean the process of imposing such a condition can take some months. However, converting compliance with codes of practice into a licence condition is not just paperwork. The intention of the co-regulatory scheme is to have a series of graduated steps leading up to the imposition of a penalty, and a broader range of enforcement mechanisms follow from a breach of a licence condition or a standard determined by the ACMA. A breach of an applicable standard is both an offence and a contravention of a civil penalty provision—as is a breach of most (but not all) licence conditions.170 It remains open to the ACMA to impose further licence conditions and accept undertakings.171 In addition, the ACMA may: issue a remedial direction;172 pursue a civil penalty order in the Federal 162 163 164 165 166 167 168 169 170

Broadcasting Services Act 1992 (Cth) s 147. Ibid s 123(2)(h) and 148. See: ACMA, Reality Television Review, March 2007, 10. Broadcasting Services Act 1992 (Cth) s 148(c). Ibid s 149. Ibid ss 170 and 171. Ibid s 205W. Ibid ss 43, 87, 99, 118–20. Ibid ss 139 and 140A. Note that broadcasters are subject to a licence condition that they comply with ­applicable standards—a breach of a standard can therefore be enforced as a breach of a licence condition. 171 Ibid ss 43, 87, 99, 118–20, 205W. 172 Ibid s 141. Breach of a remedial direction issued by the ACMA is an offence (s 142) and attracts civil liability (s 142A).

CHAPTER 4 Broadcasting Services

Court;173 refer the matter for prosecution as an offence;174 or, for certain categories of service, suspend or cancel the broadcaster’s licence.175

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY v RADIO 2UE SYDNEY PTY LTD (No. 2) (2009) 178 FCR 199

RARES J (at 202): [1] The Australian Communications and Media Authority has applied for orders that Radio 2UE Sydney Pty Ltd pay pecuniary penalties pursuant to s 205F(1) of the Broadcasting Services Act 1992 (Cth) in respect of 13 breaches of a condition in Radio 2UE’s commercial radio broadcasting licence and for declarations recording each contravention. Each breach contravened s 140A(3) of the Act and attracted liability for a civil penalty: s 140A(7). Each contravention attracted a maximum civil penalty of 500 penalty units, a total of $55,000: see ss 139(3), 140A(3) and 205F(4). The breaches occurred over the course of 2 months in late 2007 when the well-known broadcaster, John Laws, failed to make disclosure announcements that he was sponsored by businesses at the time and as part of the broadcasts in which his sponsors’, or their products’ or services’, names were mentioned during the course of his morning radio program, The John Laws Morning Show … Mr Laws was paid very large sums of money by these businesses for their sponsorship. [2] The authority had made a program standard known as the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000 (203) pursuant to s 125 of the Act. The disclosure standard commenced in January 2001. It had been made following a report of the authority’s predecessor, the Australian Broadcasting Authority, called the “Commercial Radio Enquiry”. That had enquired into a broadcasting practice colloquially referred to as “cash for comment”. The purpose of the disclosure standard was to require commercial radio licensees to ensure that whenever one of the station’s presenters mentioned the name of a sponsor, or its products or services, the presenter made a disclosure announcement about his or her commercial relationship with the sponsor. Radio 2UE had to comply with the disclosure standard because this was a condition of its commercial radio broadcasting licence by force of cl 8(1)(b) in Sch 2 of the Act. …

Copyright © 2015. Oxford University Press. All rights reserved.

(208) THE PURPOSE AND SCOPE OF SS 140A AND 205F [26] The grant of the licence is a privilege to use the public resource of the radio spectrum. Abuse of the privilege, by breaching a condition of a licence, attracts liability under ss 139(3) and 140A(3). The primary purpose of s 140A(3) is to protect the public by holding licensees to the standard of conduct that their licence requires them to observe. The disclosure standard addresses a particular, and insidious, means of abusing the privilege of a commercial radio broadcasting licence. That standard recognised the significant degree of influence current affairs presenters could exert in shaping community views in Australia (see s  4(1)). The more prominent the presenter, the greater the potential he or she has to exert influence in shaping community views. [27] The spoken word is the vehicle used to shape views on radio current affairs programs. The identity of the speaker, if known to the audience, can itself (209) influence their receptivity to what he or she says; as can the speaker’s oratorical style and manner of delivery. And, because of its orality, publication in a radio broadcast conveys a transient message. The listener may tune in or turn on the radio part way through a program; he or she may have missed an earlier disclosure announcement by the presenter when he or she returns to a topic that attracts an obligation to make such an announcement. If it is not made, that new listener will not be aware of what the disclosure standard, and the licence, require be conveyed contemporaneously, namely the presenter’s sponsorship. Additionally, listeners may not always be 173 Ibid ss 205F and 205G. For commercial broadcasters, the ACMA may issue a civil penalty notice ­without going to court in certain circumstances. See Broadcasting Services Act 1992 (Cth) ss 139(1C), (3C) and Part 14E. 174 Ibid s 178. 175 Ibid s 143.

91

92

PART 2 Media Regulation

attentive to what is being broadcast on radio and may miss the significance, or indeed the occurrence, of an earlier disclosure statement in the same program. That can affect the meaning which the listener understands to have been conveyed by what he or she hears the presenter saying later … [28] Thus, the transience both of what is spoken on-air during a radio broadcast and of the listening audience (who may tune in or out at any time and, when tuned in, may pay closer or lesser degrees of attention) underlie the policy behind the disclosure standard’s insistence on the presenter making a disclosure announcement contemporaneously each time one of his or her sponsor’s name, products or service is mentioned. [29] The liability in s 140A(3) corresponds to, but is distinct from the criminal liability imposed by s 139(3). The conduct proscribed by each section is the same, namely a breach of a condition of a licence set out in cl 8(1) of Sch 2, including a breach of the disclosure standard. But the objects of the two sections are not the same. One object of s 140A(3) is to create a civil, not criminal, liability so as to enable the Authority  to  secure  compliance with important provisions in the Act more readily than through criminal proceedings. … (211): [42] The disclosure standard was a key instrument to ensure transparency in current affairs radio broadcasting. Failures to disclose could violate the public’s ability to trust in the quality and nature of information conveyed in programs such as Mr Laws’. Unlike the regulation of economic behaviours provided in Pt IV of the Trade Practices Act, the Act creates the right to hold a licence but regulates the licensee’s exploitation of that right for its own benefit, by imposing limitations crafted in, and to secure, the public interest. A commercial (212) radio broadcasting licence confers an economic privilege on a licensee exercisable in accordance with the Act, standards and the conditions of the licence … [43] For these reasons, I am of opinion that it is relevant to include, in the amount of a pecuniary penalty fixed under s 205F, in an appropriate case, some element of punishment of or retribution against, or stigmatisation of, a licensee which, in the course of conducting its business using the licence for its own profit, contravenes an important condition of the licence or the Act. The contravention of s 140A(3) by a failure to comply with the disclosure standard can amount to a violation of the public trust reposed in a licensee …

Copyright © 2015. Oxford University Press. All rights reserved.

(220) THE CONTEXT IN WHICH THE ENFORCEABLE UNDERTAKING WAS GIVEN [56] The background circumstances to the enforceable undertaking referred to in the agreed facts (at [8]–[11]) involved a previous substantial failure of Mr Laws to make proper disclosure of his sponsorship arrangements. This background is relevant for the purposes of determining the pecuniary penalty under s 205F(3) of the Act.

(216): [55] The Statement of Agreed Facts … The Enforceable Undertakings 8. On 31 August 2006, 2UE’s ultimate holding company, Southern Cross Broadcasting (Australia) Limited reported suspected breaches of the Disclosure Standard to ACMA which allegedly occurred on the Show. 9. On 12 October 2006, ACMA commenced an investigation into 2UE’s compliance with the Disclosure Standard and other programming standards. 10. On 25 September 2007, ACMA published a report of its findings from the investigation (2007 Report) that ACMA had undertaken. In that investigation ACMA found two (2) breaches of the Disclosure Standard by 2UE during a broadcast of the Show on 28 August 2006. One (1) of those breaches of the Disclosure Standard involved a failure by 2UE to cause a "disclosure announcement" to be broadcast during the Show at the time of and as part of a broadcast of material in which the name, products or services of a sponsor of John Laws were mentioned. 11. After these findings were made 2UE offered ACMA an enforceable undertaking pursuant to s 205W of the Act, which ACMA accepted on 24 September 2007 (Enforceable Undertaking). 2UE undertook to do certain things in relation to its compliance with the Disclosure Standard, including:

CHAPTER 4 Broadcasting Services

11.1. to implement an effective administrative system for monitoring each broadcast of the Show to ensure compliance with cl 7 of the Disclosure Standard. This is to include a mechanism to ensure that, in the event that a disclosure announcement (of the kind described in cl 7(3) of the Disclosure Standard) is not made, 2UE will: 11.1.1. take action to cause such a disclosure announcement to be made at the earliest opportunity in that program; and 11.1.2. report to ACMA in writing within 72 hours of such failure to comply with the Disclosure Standard providing details of the non-compliance and the action taken; 11.2. to appoint an independent person to review at least four programs per fortnight of the Show, who will also prepare a report on compliance with cl 7 of the Disclosure Standard to ACMA within 14 days of each fortnight; and 11.3. to provide ACMA with five half-yearly reports in accordance with a timetable set out in the Enforceable Undertaking, indicating what action 2UE has taken in the period covered to ensure that ACMA is notified as required by cl 11 of the Disclosure Standard of any additional commercial agreements or variations to commercial agreements, entered into by 2UE’s presenters or their associates.]

[THE CIRCUMSTANCES OF THE 13 CONTRAVENTIONS] (225): [80] In the case of contraventions 7 and 8, a disclosure announcement of sorts relating to them was broadcast on 29 October 2007 at approximately 9.11am when Mr Laws said the following: “Remember ‘Stormin’ Norman’ last week? Norman was the caller that rang us on Wednesday howling against just about everything we do on this program. He didn’t like my alleged bias … I don’t know what bias he referred to … he didn’t like the fact that I’d been reasonably successful and he didn’t like the fact that I’m an ambassador for Hamilton Island. As you know Hamilton Island are sponsors of mine and I think in the heat of the moment … maybe we didn’t mention that the other day, but of course we live in this environment of total terror and we have to say that Hamilton Island are sponsors of mine in order to appease the Nazis and also to appease the terrified management of this broadcasting station. I hope you (226) are now all duly appeased. We can get on with our lives. At least just for four more weeks, JUST LEAVE ME ALONE (cuts to music).”

Copyright © 2015. Oxford University Press. All rights reserved.

(Emphasis in the Authority’s report.)

[81] It is obvious from the above extract, that Mr Laws had been told he had failed to make a disclosure announcement and had been required to make the disclosure later. I will return to the content of that statement below. In fact, Mr Ruhfus had written to the Authority late in the afternoon of 26 October 2007, the day of the broadcast on which contravention 8 occurred, drawing its attention to Mr Laws’ failure to make a disclosure. I do not consider that statement to have been sufficiently close in time to have any palliative effect. [82] The final contravention (13) occurred at approximately 11.25 am on Mr Laws’ last 35 minutes of presenting before his retirement was to occur. He had just finished talking to the well known singer, Normie Rowe, who had mentioned Byron Bay Beer. Mr Laws said: And of course I’ve got to say Byron Bay Beer are sponsors of mine.

As shown in the Authority’s report, Mr Laws then went on to say: How bloody stupid. When are you people going to get over it? Never? What are you going to do next week when you don’t have to sit around and listen to me all day in case I say Toyota? [pause] Oh did you hear that, Alice? He said Toyota! God! Boring old bastards! 13 13 32 is our telephone number. [pause] No, not our people here, the people at the … whatever you call it, what do you call it? ACMA. As I said yesterday, it sounds like a skin ailment.

… (238): [144] Mr Laws was a professional presenter. But, he was a recidivist with respect to complying with the standard. His statement, when he made his announcement (239) on 29 October 2007, that “maybe we didn’t mention” the name of the sponsor on the previous occasion is not evidence I would accept of any carelessness. The terms of Mr Laws’ purported disclosure announcement made on 29 October 2007

93

94

PART 2 Media Regulation

should have raised concerns for the management at Radio 2UE about, first, his continuing resentment of having to comply with the disclosure standard and, secondly, whether the monitoring system would be effective. There was no evidence to explain the circumstances in which the announcement of 29 October 2007 came to be made (other than the inference that Mr Ruhfus, having sent the letter to the Authority, asked Mr Laws to make it) or, what, if anything, was done after it to ensure compliance by Mr Laws. [145] And, contravention 13 was not careless; it was a deliberate contravention made with the intention of bringing the disclosure standard into contempt. [146] Radio 2UE committed the contraventions because it allowed Mr Laws to present his program and to make the statements that he did without any proper control to stop him. When he was broadcasting, Mr Laws was Radio 2UE for the purpose of the disclosure standard. … (247): [184]  In my opinion, these contraventions should be marked with severe and substantial pecuniary penalties. [The Court ordered that penalties totalling $360,000 be imposed on Radio 2UE].

Copyright © 2015. Oxford University Press. All rights reserved.

4.11 National broadcasting services The national broadcasters, the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS), are affected by some provisions in the Broadcasting Services Act 1992 (Cth) but are primarily regulated under their own legislation.176 The Australian Broadcasting Corporation Act 1983 (Cth) and Special Broadcasting Service Act 1991 (Cth) both require the development of codes of practice dealing with programming matters. The ACMA does not play a role in developing or registering the ABC or SBS codes of practice.177 However, the ABC Code of Practice 2011 and SBS Codes of Practice 2014 have been notified to the ACMA. The codes cover issues such as classification, complaints handling and cultural sensitivity and apply across broadcast radio, television and online services. The SBS Codes of Practice 2014 include provisions dealing with advertising and sponsorship.178 In addition to the ABC Code of Practice the ABC has published the ABC Editorial Polices 2011. This document outlines certain principles and standards that apply to content produced or acquired by the ABC. The complaints process for a breach of the ABC or SBS codes of practice is broadly consistent with the process for other categories of broadcasting service. Concerned citizens should first complain to the relevant broadcaster.179 If the complainant considers that the broadcaster’s response is inadequate, the complaint can be referred to the ACMA to investigate.180 However, the action that can be taken by the ACMA in relation to the national broadcasters is quite restricted. The ACMA may recommend that the ABC or SBS take action to comply with the relevant code of practice, and may report to the Minister if the recommendation is not followed.181 The Minister must table the report 176 Australian Broadcasting Corporation Act 1983 (Cth) s 79; Special Broadcasting Service Act 1991 (Cth) s 70; Broadcasting Services Act 1992 (Cth) ss 150–53. 177 Australian Broadcasting Corporation Act 1983 (Cth) s 8(1)(e); Special Broadcasting Service Act 1991 (Cth) s 10(1 (j). 178 Special Broadcasting Service Act 1991 (Cth) s 45; SBS Codes of Practice 2014, code 5. 179 Broadcasting Services Act 1992 (Cth) ss 150. 180 Ibid s 151. 181 Ibid s 153(1).

CHAPTER 4 Broadcasting Services

in parliament.182  In  contrast to the remedies available to deal with other categories of broadcasting service, the ACMA is not able to take further disciplinary action.

Copyright © 2015. Oxford University Press. All rights reserved.

4.12 Digital broadcasting In one sense, digital broadcasting is only a technical upgrade to analogue systems. However, the conversion to digital was capable of upsetting settled regulatory and economic balances in broadcasting. As it is more efficient, digital broadcasting allows a lot more content to be transmitted through the airwaves. This further waters down the scarcity rationale that has traditionally supported broadcasting laws. It means additional digital channels are possible, affecting audience numbers, advertising markets and the economics of content production and acquisition. It raises an immediate question of who should be allowed to broadcast using this newfound capacity. In Australia the answer to that question was, essentially, that incumbent broadcasters should simply be allowed to broadcast more. However, this was not inevitable. A different set of policy choices could have seen new entrants in Australian broadcasting markets. Digital television was implemented in Australia as a replacement technology. On a fixed date, region by region, analogue television broadcasting stopped. Ahead of ‘switchover’ the viewing public needed to adopt new reception equipment or lose access to television services. The prospect of dark television screens across the country and a general re-ordering of the television broadcasting industry meant that the conversion to digital television was politically sensitive and generated a lot of policy and law. The switchover to digital television was completed towards the end of 2013. This provided some closure on a very average, if not scandalously bad, chapter in Australian broadcasting. The scheme implemented for digital radio was also significant, but less controversial. Australian radio is currently broadcast in both analogue and digital and this is expected to continue for a long time, if not indefinitely. In addition, the characteristics of radio are such that radio broadcasters were already dealing with competing online services by the time digital radio launched in 2009. While certainly important for the radio industry, the introduction of digital radio in Australia has not had such a dramatic public impact as the conversion to digital television. In the following sections we provide a short history of digital television in Australia before discussing the current regulatory treatment of digital television channels. We then outline the regulatory framework for digital radio.

4.12.1 Digital television The term ‘digital television’ refers to an encoded and compressed television signal. Audio and video signals are encoded into a stream of ones and zeros and this avoids a loss of quality between the transmitter and receiver. Digital television offers a technically better television experience with additional channels, sharper picture and sound, improved reception and the ability to more easily store, manipulate and manage content. As the signal is compressed, more content can be transmitted allowing either high-definition television or additional streams (channels) of programming. Digital television is not tied to a particular delivery 182 Ibid s 153(2).

95

96

PART 2 Media Regulation

method and may be transmitted by cable, satellite or terrestrial broadcast (over the air).183 The policy debates on digital television in Australia, however, focus on digital terrestrial television broadcasting. In other words, over-the-air broadcasts through the specrum frequency bands planned for broadcasting services (the ‘broadcasting services bands’).184 Australian television is broadcast through 7 MHz channels of spectrum.185 This corresponds to either a single stream of analogue television, or a usable digital bit rate capable of carrying multiple streams of digital television. A program stream can consume more or less of this bit rate depending on the quality of the broadcast. The highest quality high-definition programming will take up most of the capacity of a channel. Standard definition television requires a much lower bit rate. Within a single channel allocation it is possible to ‘multichannel’ four or five separate standard definition streams. The technical characteristics of digital television therefore create some options for broadcasters and policy-makers. FIGURE 4.1 Picture formats in a 7 megahertz channel HD

HD 1080i HD

HD 720p HD 576p

HD SD1

SD 576i 0

SD2

SD SD1

SD2

SD3

SD4

7 MHz = 19.35 Mbits/sec

19.35

Copyright © 2015. Oxford University Press. All rights reserved.

Source: Productivity Commission, Broadcasting, Report No 11 (March 2000), 228

Another reason why Australian and international governments were anxious to convert to digital, and exclusively digital, television as quickly as possible relates to spectrum efficiency. Spectrum is a finite, instantly renewable natural resource. It is finite in the sense that the possibility of interference (caused by other users’ signals) allows only a limited number of services to operate at a particular time, in a particular geographic area. Competition for spectrum means that it is very valuable. A range of different services require an allocation of spectrum in order to operate. Aside from television and radio, mobile phone networks, wireless broadband services, satellite broadcasters and aeronautical, maritime, space and military communications, systems all occupy spectrum space.186 Switching off analogue broadcasting released a ‘digital dividend’ of radiofrequency spectrum. This digital dividend spectrum was auctioned ahead of switchover and realised approximately $2 billion.187 It is likely to be used for 4G mobile services.

183 184 185 186

See Productivity Commission, Broadcasting, Report No. 11 (March 2000), 222. The broadcasting services bands are planned under s 31 of the Radiocommunications Act 1992 (Cth). America operates on 6 Mhz channels, Europe uses an 8 Mhz standard. See generally Alisdair Grant, ‘Spectrum Management’, in Australian Telecommunications Regulation, 3rd edn, 2004, 205. 187 ACMA, Digital Dividend Auction—Results, Media Release, 27/2013, 7 May 2013.

CHAPTER 4 Broadcasting Services

Copyright © 2015. Oxford University Press. All rights reserved.

Initial policy The initial regulatory framework for digital television was set through amendments to the Broadcasting Services Act 1992 (Cth) made in 1998 and 2000.188 Free-to-air television networks were required to commence broadcasting in digital on 1 January 2001 or give back spectrum granted for that purpose.189 To ensure a minimum level of disruption to the viewing public, a transitional period was defined in which free-to-air networks were required to broadcast both analogue and digital signals (the simulcast period). The simulcast period was designed to give viewers time to migrate across to digital without losing access to television services. The initial policy framework was drafted on the assumption that high-definition television would be a key driver of take-up. However, the government also considered that audiences could be more easily persuaded to convert to digital if they could forego some quality and purchase a simple standard-definition television receiver, rather than more expensive high-definition equipment.190 The regime included highly restrictive provisions on multichannelling. When digital television was introduced, subscription television had only just launched and was some years away from being profitable. In order to protect the subscription television industry, commercial free-to-air networks were prevented from launching any digital multichannels.191 This prohibition suited the commercial networks, who were not inclined to disaggregate their audiences and advertising revenues.192 The ABC and SBS were allowed to multichannel, but with significant genre restrictions.193 When all of these objectives were translated into law, free-to-air networks were required to simulcast a minimum quota of high-definition programming alongside a continuous standard definition signal.194 However, these could not provide any multichannels carrying different programming to the main channel. In effect this required a ‘triple cast’ while the highdefinition signal was being transmitted—Australian free-to-air networks had to broadcast the same programming in three different formats. The contradictory goals of providing new digital content on television, without introducing any new television services, then saw datacasting defined in the Broadcasting Services Act 1992 (Cth). Datacasting was defined in very general terms as a type of digital broadcasting service, but was subject to a range of genre restrictions so that it would not resemble television.195 Datacasters were, and continue to be, prohibited from broadcasting 188 Television Broadcasting Services (Digital Conversion) Act 1998 (Cth); Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 (Cth); Commercial Television Conversion Scheme 1999; National Television Conversion Scheme 1999. 189 Broadcasting Services Act 1992 (Cth) Sch 4 cls 6(3), 8(2), 19(3), 20(2)(a) and 23(2). 190 Commonwealth, House of Representatives, Hansard (10 May 2000), 16123 (Mr McGauran) (Second Reading Speech). 191 Broadcasting Services Act 1992 (Cth) Sch 2 cl 7(1)(m). 192 See Jock Given, Turning Off the Television: Broadcasting’s Uncertain Future, UNSW Press, Sydney, 2003, 178; Jason Bosland, ‘Digital -Television and Multichannelling: Changes under the Broadcasting Legislation Amendment (Digital Television) Act 2006’ (2006) 11 Media & Arts Law Review 440. 193 Subclause 5A(2) of Sch 4 to the Broadcasting Services Act 1992 (Cth) (now repealed) provided a list of m ­ aterial that could be broadcast on a multichannel provided by a national broadcaster—national news, drama, m ­ ovies, sport and comedy were prohibited by omission. 194 Broadcasting Services Act 1992 (Cth) Sch 4 cls 37E–37H. 195 The genre restrictions on datacasting are set out in cls 13–16 of Sch 6 to the Broadcasting Services Act 1992 (Cth).

97

98

PART 2 Media Regulation

most categories of commercially viable content.196 This makes datacasting a strange creature of legislation. All early policy documents refer to datacasting as capable of supporting ‘new and innovative’ services—but it was never very clear what these might be.197 The Minister at the time suggested electronic mail, interactive games and parliamentary broadcasts.198 A  channel-flick survey of current services provided under a datacasting licence indicates that the accepted wisdom on how to profitably run a datacasting service is to focus on homeshopping and infomercials. It is hard to explain the regulatory framework into which digital television was launched except as a series of political concessions. The policy decisions largely regulated the value out of digital broadcasting. The triple cast requirement destroyed spectrum efficiencies. High-definition programming was mandated before people could afford high-definition equipment. Commercial multichannelling was prohibited. The initial framework was heavily criticised both at the time and in subsequent analysis. When first announced The  Australian Financial Review wrote a caustic editorial.199 Shortly afterwards, the Productivity Commission questioned whether government should continue to so awkwardly intervene in Australian media systems.200 In his book on digital television, academic Jock Given wrote: … it was hard to resist the conclusion that something had gone terribly wrong at a key moment in Australian media policy. A significant opportunity to adapt some of the structures of electronic communications had descended into a nightmare of deals, small and large, which future observers—not a decade off, but tomorrow, next month, next year—would look at and wonder, simply, ‘What were they thinking?’.201

Digital television policy—round II

Copyright © 2015. Oxford University Press. All rights reserved.

In 2006, the government acknowledged that take-up rates of free-to-air digital television had not progressed at a level or pace to allow the switchover to commence in 2008 as originally 196 At the time, Senator Alston explained the reasons for the datacasting restrictions as follows: ‘The new ­definition will focus on the kinds, or ‘genres’, of programs and services which datacasters are allowed to ­provide. There are some services which datacasters will be allowed to provide without any restrictions. These will include: information programs where the sole or dominant purpose is to provide information on products, services and activities; interactive home shopping; banking and bill paying; internet web sites (other than ones designed to carry TV programs); electronic mail; education services; interactive games; and Parliamentary broadcasts. However, when it comes to traditional television programs, datacasters will face restrictions. After all, datacasting is different to television broadcasting. So it would not be right for datacasters to be able to show the same kinds of programs that we are used to seeing on television. Datacasters will not be allowed to show programs such as drama, current affairs, sporting programs and events, music programs, infotainment and lifestyle programs, comedy programs, documentaries, ‘reality’ television programs, children’s programs, light entertainment and variety programs, compilation programs, quiz programs and games shows.’ Senator Richard Alston, Digital Television And Datacasting, 21 December 1999. 197 See, for example, Explanatory Memorandum to the Broadcasting Services Amendment (Digital Television and Datacasting) Bill 2000, 18. 198 See above n 196. 199 Editorial, ‘Information Age Mockery’, Australian Financial Review, 25 March 1998. See also Editorial, ‘Senator Alston Should Resign’, Australian Financial Review, 11 May 1998. 200 Productivity Commission, Broadcasting, Report No. 11 (March 2000), 251–54: ‘Participants emphasised how broadcasting policy is a structure built by quid pro quos: barriers to entry are balanced against programming obligations; free to air networks are prohibited from multichannelling to help subscription services which in turn are disadvantaged by restrictions on advertising and antisiphoning rules; free to air networks are required to broadcast in high definition because they have been lent the spectrum to do so; and so on and on. … It is not the time to add more quid pro quo bricks to the wall…’ 201 Jock Given, Turning Off the Television: Broadcasting’s Uncertain Future, UNSW Press, Sydney, 2003, 184.

CHAPTER 4 Broadcasting Services

planned.202 A second round of policy decisions was made on digital television in an attempt to drive take-up. The key aspects of the new policy was the liberalisation of multichannelling. Amendments to the Broadcasting Services Act 1992 (Cth) immediately lifted the genre restrictions on multichannel services provided by the national broadcasters.203 The extent to which the ABC and SBS could provide additional channels on allocated spectrum therefore became limited only by their respective charters and funding. For commercial television broadcasters, the amendments provided for the staged introduction of multichannels. On 1 January 2007, the requirement that the high-definition service provided by a commercial television licensee be a simulcast of its primary analogue signal was removed, effectively allowing a high-definition multichannel.204 From 1 January 2009 commercial television broadcasters were permitted to broadcast an additional standard definition multichannel.205 All multichannelling restrictions on commercial television were removed at the end of the simulcast period (that is, after digital switchover).206

Content on digital multichannels

Copyright © 2015. Oxford University Press. All rights reserved.

The status of digital multichannels has been enhanced by switchover, but the Broadcasting Services Act 1992 (Cth) maintains a distinction between a television broadcaster’s primary service and other digital channels. The program standards on Australian content and children’s television that apply to commercial television broadcasters were not, at first, extended to digital multichannels. Australian content requirements were only recently applied to multichannels provided by commercial television broadcasters, with transmission quotas in effect from 1 January 2013 onwards.207 Since 2013, the genre sub-quotas that apply under the Australian Content Standard and Children’s Television Standards 2005 may be met by programs transmitted on any commercial television broadcasting service provided by a licensee (whether the primary channel or a digital multichannel).208 However, it remains the case that an event on the anti-siphoning list may not be broadcast on a digital multichannel unless the event is first broadcast, or broadcast at the same time, on the network’s primary service.209

Digital broadcasting and community television Community television broadcasters have had a rough time in the transition to digital broadcasting. Access to spectrum for digital services was not allocated to community television broadcasters until late 2009, and then only on a temporary basis. In September 2014, the Minister for Communications announced a policy to continue to provide 202 Department of Communications Information Technology and the Arts, Meeting the Digital Challenge: Reforming Australia’s Media in the Digital Age, Discussion Paper, March 2006, 5; House of Representatives Standing Committee on Communications, Information Technology and the Arts, Digital Television: Who’s Buying It? Inquiry into the Uptake of Digital Television, February 2006, [3.92]. 203 The Broadcasting Services Amendment (Digital Television) Act 2006 (Cth) repealed Sch 4, cl 5A of the Broadcasting Services Act 1992 (Cth). 204 Broadcasting Services Act 1992 (Cth) s 41A. 205 Ibid s 41B. 206 Ibid s 41C. 207 Ibid s 121G. 208 Ibid s 122(10). 209 Ibid Sch 4, Pt 4A. This was introduced to ensure the widest possible audience for anti-siphoning listed events. However, the rationale for continuing the restriction post-switchover is not clear. See Department of Broadband, Communications and the Digital Economy, Sport on Television: A Review of the Anti-Siphoning Scheme in the Contemporary Digital Environment, November, 2010.

99

100

PART 2 Media Regulation

community television broadcasters with access to spectrum through to 31 December 2015, and thereafter that the best long-term outcome for community television is that it uses the internet as its (exclusive) distribution platform.210

4.12.2 Digital radio Digital radio services commenced in metropolitan licence areas in Australia in 2009.211 Digital broadcasting makes similar promises for radio as it does for television. Digital radio can provide CD-quality sound, less interference, additional stations, multimedia capability and enhanced content such as song titles, album covers and other information. There are some similarities and some differences in the conversion of radio and television systems to digital broadcasting. Radio and television have different technical characteristics, experience different competitive pressures, and are used in different ways. As explained in parliament, Radio broadcasting has an established and unique position in the Australian media landscape. It is the most ubiquitous of all media, being found in virtually every home, car and workplace in the country.212

On one estimate, there are around 50 million analogue radio sets in Australia, and this equipment cannot easily be upgraded to receive a digital signal.213 In addition, radio consumes less spectrum than television and any ‘digital dividend’ that will follow from switching off analogue services will be less significant. All this suggests that a gradual transition to digital is appropriate for radio. Analogue radio will coexist with digital services in Australia for the foreseeable future.214

Copyright © 2015. Oxford University Press. All rights reserved.

Digital radio regulatory framework The Broadcasting Legislation Amendment (Digital Radio) Act 2007 (Cth) amended the Broadcasting Services Act 1992 (Cth) and related legislation to establish the legal framework for digital radio. The policy decisions on digital radio also gave priority access rights to incumbent digital radio broadcasters; but did not include any simulcast requirement. A number of provisions were designed to encourage broadcasters to introduce new digital services. The digital radio broadcasting standard adopted in Australia involves a ‘multiplex’ model of service provision. A multiplex (or ensemble) uses a single data stream to deliver a number of constituent services. In short, this means that digital radio broadcasters share transmission facilities. The legislative framework for digital radio established a new licence category under the Radiocommunications Act 1992 (Cth) called a digital radio multiplex 210 Malcolm Turnbull, Minister for Communications, Keynote Address: ACMA RadComms 2014 Conference, 10 September 2014. 211 The ACMA was required to ensure that the ‘digital radio start-up day’ for a metropolitan area was no later than 1 July 2009: Broadcasting Services Act 1992 (Cth) s 8AC(3)(a). 212 Commonwealth, House of Representatives, Hansard (28 March 2007) (Bruce Billson), 9 (Second Reading Speech). 213 Stephen Conroy, Commercial Radio Australia Digital Radio Briefing, 10 March 2009. 214 The main driver for switchover is that it would save duplicative transmission costs. As a point of contrast, the UK intends to switch over to digital radio broadcasting. See Memorandum of Understanding on Local DAB Funding for Radio Switchover between the Department for Culture, Media and Sport, the British Broadcasting Service and others, 2 July 2012.

CHAPTER 4 Broadcasting Services

transmitter licence authorising the operation of a multiplex.215 Commercial and community broadcasting licensees that were given entitlements to digital radio transmission capacity were also given a first right of refusal over the multiplex transmitter licences that would be used to broadcast their services.216 The legislative scheme allowed these broadcasters to form, and become shareholders in, a joint venture company (or consortium) that would have rights in relation to a ‘foundation’ multiplex licence.217 Similar arrangements were made for the ABC and SBS.218

Standard access entitlements The framework for digital radio provided commercial radio broadcasters, the national broadcasters and designated community radio broadcasters with standard access entitlements to digital transmission capacity.219 As available spectrum for digital radio is limited, existing narrowcast services and community broadcasters who were not ‘designated’ were not specifically provided for in the initial phase of digital radio introduction. The standard access entitlement for commercial radio broadcasters was set at one-ninth of the transmission capacity of a foundation multiplex.220 This entitlement is capable of carrying a number of streams of digital audio content, with the exact number determined in a trade-off against sound quality and any enhanced content that might also be transmitted. As a rough guide, the allocation would cover two to three audio streams.221 Designated community broadcasters share two-ninths of the transmission capacity of a foundation multiplex.222

New digital services

Copyright © 2015. Oxford University Press. All rights reserved.

Australian experiences with digital television demonstrated that access to new services is important if consumers are going to be persuaded to buy new reception equipment. This principle is likely to hold for digital radio. The general consensus of reports and policy documents on digital radio is that the availability of new digital content will be a significant factor in the success of the platform.223 The legislative framework on digital radio did not impose any simulcast requirements. Digital radio broadcasters are free to provide

215 Radiocommunications Act 1992 (Cth) ss 98C, 98D, 102C, 102D, 102E. 216 Ibid s 102C. 217 Ibid ss 102C(5), 102D(5). Commercial licensees are able to take a direct interest in a consortium, ­community broadcasters are required to take a collective interest by way of a ‘representative company’: see s 9C. A  ­foundation multiplex licence is one that is subject to the standard access entitlements of incumbent ­broadcasters: ss 98C, 98D, 102F. 218 A sub-category of multiplex licence was created that can only be controlled by a company owned by one or both of the national broadcasters, called a ‘category 3’ digital radio multiplex transmitter licence: Radiocommunications Act 1992 (Cth) 102E. 219 Radiocommunications Act 1992 (Cth) ss 118NQ, 118NR and 118NS. The definition of a designated ­community broadcasting service is set out in s 8AA of the Broadcasting Services Act 1992 (Cth). The effect of the d ­ efinition is that community broadcasting services that provide ‘wide coverage’ (equivalent to that provided by ­commercial radio broadcasting licensees) were designated. 220 Ibid s 118NQ(2) 221 As cited in Moses Kakaire, ‘An Overview of Digital Radio Legislation’ (2007) 26(2) Communications Law Bulletin 5 at 8. 222 Radiocommunications Act 1992 (Cth) s 118NR. 223 See Department of Communications, Information Technology and the Arts, Report of the Digital Radio Study Group, March 2004, 19; Explanatory Memorandum to the Broadcasting Legislation (Digital Radio) Amendment Bill 2007 and the Radio Licence Fees Amendment Bill 2007, 14 and 17; Senator Helen Coonan, Digital Radio, Address to the Commercial Radio Australia Conference, 14 October 2005.

101

102

PART 2 Media Regulation

different content and new services with available transmission capacity.224 In addition, rules on the allocation of excess multiplex capacity are designed to encourage new digital services. Digital radio licensees have special rights to any excess transmission capacity on a foundation multiplex after all standard access entitlements have been allocated.225 A cap is set on the amount of transmission capacity that can be acquired by commercial digital radio broadcasters.226 However, through excess-transmission capacity entitlements commercial digital radio broadcasters are able to acquire an additional one-ninth of the transmission capacity of a multiplex.227 This additional capacity cannot be used to simulcast content, reflecting a legislative intention that it should support new services and ‘new and innovative programming’.228 Digital radio broadcasting licensees are also allowed to transmit digital program enhancement content.229 As digital radio standards are technically capable of transmitting data and audiovisual material, parameters have been set around the types of enhanced content that may be broadcast under a digital radio licence. Digital program enhancement content is defined as content in relation to a radio program in the form of text, or still digital images.230 The definition does not allow digital radio broadcasters to transmit animated or moving images and was intended to prevent digital radio broadcasters from providing services that resemble television.

Copyright © 2015. Oxford University Press. All rights reserved.

The future of digital radio A report of the Digital Radio Advisory Committee delivered in August 1997 recommended that the planning for digital radio broadcasting should start as soon possible, with a view to  services commencing in 2000.231 Services actually commenced in mid-2009.232 In this period, alternative sources of digital audio content became established. As noted in a Department of Communications discussion paper, streaming services such as Pandora, Spotify and TuneIn Radio provide an additional platform for listening to music and radio services and are likely to have implications for broadcast digital radio services.233 Audiences are likely to be fragmented across analogue terrestrial services, digital terrestrial services and services available online. The risk here is that, if audiences for digital radio stay low, it will be difficult for commercial radio broadcasters to invest in new services that prove the value of the platform. In other words, there is a risk that digital radio might not get off the ground; or, perhaps more likely, it will take a while to do so.

224 225 226 227 228 229 230 231 232 233

Broadcasting Services Act 1992 (Cth) ss 41D(3) (commercial) and 85A (community). Radiocommunications Act 1992 (Cth) s 118NT(4) and (6). Ibid s 118NV. Ibid s 188NT. Broadcasting Services Act 1992 (Cth) s 43D. Also note s 35D, which contains a ‘use it or lose it’ ­provision ­allowing the ACMA to cancel and reallocate a licence to provide digital radio services if the existing ­commercial radio broadcasting licensee has not commenced services. Ibid s 8AB. Ibid s 6(1): definition of digital program enhancement content. Digital Radio Advisory Committee, Digital Radio Broadcasting in Australia, August 1997, Recommendation 5. By way of contrast, digital radio commenced in the United Kingdom in 1995, although it experienced very slow take-up until well into the 2000s. See Department of Communications, Information Technology and the Arts, Report of the Digital Radio Study Group, March 2004, 24. Department of Communications, Digital Radio, Discussion Paper (December 2013), 9.

CHAPTER 4 Broadcasting Services

QUESTIONS 1 How should digital television have been introduced in Australia? 2 Are there social benefits to protecting commercial television broadcasters from competition? Consider the regulatory impositions and concessions afforded to commercial television broadcasters and assess the bargain. Are these trade-offs worthwhile?

FURTHER READING

Copyright © 2015. Oxford University Press. All rights reserved.

Australian Communications and Media Authority, Broken Concepts—The Australian Communications Legislative Landscape, August 2011. Australian Government, Convergence Review, Final Report, March 2012. Given, Jock, Turning Off the Television: Broadcasting’s Uncertain Future, UNSW Press, Sydney, 2003. Hitchens, Lesley, Broadcasting Pluralism and Diversity, Hart Publishing, Oxford, 2006. Productivity Commission, Broadcasting, Report No. 11 (March 2000).

103

104

5 Online Content

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION A popular argument in the early history of the internet was that it couldn’t be regulated by national governments. According to this view, the non-hierarchical, decentralised and global nature of the internet meant that it was in a whole new jurisdiction and beyond law. A number of national governments (in particular, China, Saudi Arabia and Iran) have since demonstrated it is possible to filter material and, in various ways, assert control over online  content and communications.1 With technical methods available to restrict online content, the question becomes one of tolerance to the political and economic costs of such actions. This chapter discusses the co-regulatory scheme for online content administered by the Australian Communications and Media Authority (ACMA). This scheme is similarly structured to the co-regulatory scheme of codes and complaints that applies to broadcasting services (discussed in the previous chapter). However, it is much lighter-touch. Online content service providers do not require a licence before providing a service.2 They are not subject to any statutory obligations or program standards requiring their services to promote Australian content or children’s programming. The codes of practice for online content services have nothing to say about the impartiality of news or current affairs, or the ethical treatment of participants in live-hosted programs. Online services are subject to laws of general application  and these can have important effects on how online service providers conduct their businesses.3 However, the ways in which we engage with online services are

1 The OpenNet Initiative has put out a series on internet filtering and surveillance practices. See Ron Deibert, John Palfrey, Rafal Rohozinski and Jonathan Zittrain (eds), Access Denied: The Practice and Policy of Global Internet Filtering, MIT Press, Cambridge, Mass, 2008; Ron Deibert, John Palfrey, Rafal Rohozinski, and Jonathan Zittrain (eds), Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace, MIT Press, Cambridge, Mass, 2010; Ron Deibert, John Palfrey, Rafal Rohozinski, and Jonathan Zittrain (eds), Access Contested: Security, Identity, and Resistance in Asian Cyberspace, MIT Press, Cambridge, Mass, 2011. 2 Internet service providers (ISPs) that provide internet access to end users may require a carrier licence under the Telecommunications Act 1997 (Cth). ISPs are an available regulatory target and play a role in the online content scheme. A lot of the discussion in this chapter focuses on online content services, being online services that are concerned with content, rather than connectivity. 3 For example, the requirements of the Privacy Act 1988 (Cth) and Australian Privacy Principles on handling personal information, or financial services regulation applicable to payment processing.

CHAPTER 5 Online Content

more clearly ‘regulated’ by terms of use and privately designed technical restrictions than any specific government schemes.4 The early culture of the internet persists in assumptions about the role of government in regulating online services. The historical context and assumptions about how broadcasting services should be regulated were very different. As processes of media convergence continue, and as online services and broadcasting services increasingly resemble each other, these differences in regulatory cultures are coming into conflict and are hard to reconcile.

5.1

A brief history of online content regulation

The question of what to do about internet content first came up in Australia in the early 1990s when a Senate Select Committee was considering a scheme for classifying video games. The Committee became aware that violent and sexually explicit content was available on ‘computer bulletin board systems accessible through modems and telephone links’ and noted ‘the situation presents the most challenging regulatory problem’.5 A 1995 consultation paper proposed a self-regulatory scheme incorporating a code of practice for industry that would include standards based on existing classifications for films, a complaints-handling mechanism and an education component to help protect children.6 The Federal Government passed legislation along these lines in 1999, adding a new Schedule 5 to the Broadcasting Services Act 1992 (Cth).7 In an article that closely followed the introduction of the scheme, Senator Alston, then Minister for Communications, explained the government’s intentions in regulating internet content.

Richard Alston, ‘The Government’s Regulatory Framework for internet Content’

Copyright © 2015. Oxford University Press. All rights reserved.

(2000) 23 University of New South Wales Law Journal 192 at 193

In seeking a solution to the problem of offensive and illegal content online, the Government has steered a middle course between heavy handed prohibitions that could hinder industry development and a laissez-faire ‘do nothing’ approach which would mean community standards applicable to other media would not apply to the Internet. Solutions should aim to enhance the enormous potential of the Internet to inform, educate, entertain, and conduct business by ensuring that the online environment is as safe as possible. This is important both to current users of the Internet and to non-users who are presently deterred by fears that they (or their children) will come across harmful material. The Government’s solution is based on a number of essential criteria. First, the requirement of a national, uniform regulatory framework and the avoidance of regulatory fragmentation as the States and Territories enact varying laws. Second, the need for the framework to apply those standards of content control to the Internet as apply to conventional media. Third, it was necessary that the scheme recognise the specific characteristics of the Internet and the degree of responsibility, and therefore liability, which should attach to various players for the provision of Internet content. Fourth, the requirement that the framework

4 Although proposed legislation on cyber-bullying and social media sites is an exception to this rule. For some great discussion on private regulation, see Jonathan Zittrain, The Future of the Internet and How to Stop It, Yale University Press, New Haven, 2009. 5 Senate Select Committee on Community Standards, Report on Video-Games and Classification Issues, 1993. 6 Michael Lee and Michael Lavarch, Content Regulation of On-Line Information Services, July 1995. 7 Broadcasting Legislation Amendment (Online Services) Act 1999 (Cth). The scheme took effect on 1 January 2000.

105

106

PART 2 Media Regulation

meet the legitimate concerns and interests of the community while ensuring that industry development and competitiveness are not stifled by over-zealous laws, or inconsistent or unpredictable regimes. Finally, the belief that the framework should not rely on regulation alone and the recognition that user education in management of the Internet by families is an essential complementary component.

A statutory review of the online content scheme was conducted by the Department of Communications, Information Technology and the Arts in 2004. The review highlighted two issues that would become relevant to the subsequent ‘content services’ reform agenda in 2007. The first was that material streamed live on the internet escaped through enacted definitions and was largely unregulated.8 The second was that audiovisual material was starting to appear on mobile phones and other ‘convergent devices’ and existing regulatory arrangements did not comfortably accommodate these developments. Legislation addressing both issues was passed in response to a scandal. In an episode of the reality program Big Brother two housemates apparently sexually assaulted another contestant. The incident itself (which will forever be reported as the ‘turkey-slap’ incident) was never broadcast on television, but was transmitted through a live stream accessible online and was quickly captured and shared. The ensuing controversy highlighted that the ACMA had no mechanism for responding to live streamed content.9 The Communications Legislation Amendment (Content Services) Act 2007 (Cth) added Schedule 7 to the Broadcasting Services Act 1992 (Cth) and amended the online content scheme to expand its scope. Aside from regulating live services, the new scheme also harmonised content regulation across different delivery platforms (including mobile).

5.2

Online content scheme

Copyright © 2015. Oxford University Press. All rights reserved.

5.2.1 Outline

The online content scheme is structured along the lines of the co-regulatory system that governs broadcasting services. Service providers are principally controlled by codes of practice developed by a representative industry body, with formal regulatory intervention triggered by a complaints and investigation process involving the ACMA. Content is assessed

8 The application of the online content scheme (as it existed before the content services legislation) largely turned on the definition of internet content. According to Sch 5 to the Broadcasting Services Act 1992 (Cth), internet content is information that ‘(a) is kept on a data storage device’; Sch 5 cl 3 definition of internet content. A report to the Australian Broadcasting Authority in 2002 argued that content streamed live and in real time is not ‘kept on a data storage device’ and, as such, it would not be classifiable as internet content under the legislative definition. Centre for Telecommunications Information Networking, Media Streaming and Broadband in Australia: Report to the Australian Broadcasting Authority, April 2002, 61. This was mostly only of academic interest until live streams of tipsy housemates became popular entertainment. 9 The scandal prompted a series of swift and completely ineffective responses from the Federal Government. Then Prime Minister, John Howard, called for Big Brother to be cancelled: ‘Get this Stupid Program Off’, Sydney Morning Herald, 3 July 2006; and the Minister for Communications directed the ACMA to ­investigate ‘whether the Commercial Television Industry Code of Practice was providing adequate community safeguards’. This was, of course, beside the point as the incident had never been televised. See ACMA, ‘Review of Commercial Television Code for Reality Programming’, Media Release MR 133/2006, 7 November 2006; Senator Helen Coonan, ‘Reality Television Review’, Media Release 116/07, 24 August 2007. The report from the ACMA concluded that regulatory arrangements for reality television programming were generally appropriate: ACMA, Reality Television Review: Final Report, 30 March 2007, 88.

CHAPTER 5 Online Content

in accordance with the national classification scheme rating categories and guidelines. In summary, there are three tiers to the online content scheme: 1 A complaints process that may result in: (a) access to prohibited content provided by Australian content services being withdrawn or made subject to an age verification mechanism; or (b) prohibited content hosted on international servers being notified to suppliers of filtering software and subject to user-level filtering.10 2 Processes for sufficiently serious content being referred to law enforcement agencies.11 3 Non-legislative measures including community education and filtering schemes. As a product of the history set out in 5.1 above, the online content scheme is built on awkward foundations. The operative provisions of the online content scheme are spread across two separate schedules to the Broadcasting Services Act 1992 (Cth) which were introduced at different times. There are two codes of practice relevant to the online content scheme, the Internet Industry Codes of Practice 2005 (registered under Schedule 5 to the Broadcasting Services Act 1992 (Cth)) and the Content Services Code 2008 (registered under Schedule 7). These Codes were both developed by the Internet Industry Association, but against different legislative backdrops. Accordingly, there is some crossover and the division of labour between the two codes is not perfect. As a guideline, the Internet Industry Codes of Practice 2005 are most relevant to internet service providers (ISPs). The Content Services Code 2008 regulates ‘content services’, that is, services in the content business (rather than the business of providing connectivity).

Copyright © 2015. Oxford University Press. All rights reserved.

5.2.2 Complaints The online content scheme establishes a complaints process for online content. Complaints regarding online content are meant to be directed to the service provider concerned at first instance, before being escalated to the ACMA.12 As necessary, concerned citizens may complain to the ACMA about prohibited content that is accessible to end users in Australia.13 The complainant must identify the content that is the subject of the complaint, how it can be accessed and explain why they think it is prohibited.14 The ACMA may commence an investigation in response to a complaint.15 The ACMA may also commence an investigation on its own initiative.16 As described in the following paragraphs, the online content scheme has well-developed provisions for responding to prohibited content that is

10 Broadcasting Services Act 1992 (Cth) Sch 5 cls 40(1)(b) and 60(2)(d); Internet Industry Codes of Practice 2005, Code 19. 11 Ibid Sch 5 cls 40(1)(a). 12 Ibid Sch 5 cl 60(h) (internet service providers); Sch 7 cl 82(3) (content services); Content Services Code 2008, para 9. 13 Ibid Sch 7 cl 37. A person is not entitled to make a complaint unless the person is an Australian resident, a body corporate that carries on activities in Australia, the Commonwealth, a state or a territory: Sch 7 cl 41. 14 Ibid Sch 7 cl 37(4). 15 Ibid Sch 7 cl 44. 16 Ibid.

107

108

PART 2 Media Regulation

hosted in Australia. The overwhelming volume of complaints received, and investigations conducted, by the ACMA, however, relate to content hosted overseas.17

5.2.3

Australian content—content services

The regime that applies for Australian content services is set out in Schedule 7 to the Broadcasting Services Act 1992 (Cth). Schedule 7 applies to ‘content services’ with an Australian connection.18 A content service is any combination of text, data, speech, music, sounds or visual images (animated or otherwise) delivered through a ‘carriage service’ (which, in plainer language, means a communications network).19 The content services scheme describes three different types of content service: 1 hosting services—which are services that host stored content, and where hosted content is provided to the public;20 2 live content services—which are services that provide content which is not stored, to the public;21 and 3 links services—which are services that provide links to content and are provided to the public.22

Copyright © 2015. Oxford University Press. All rights reserved.

Where any of these content services are both operated for profit and provided for a fee to the public they are considered a commercial content service and are more highly regulated. Mobile premium services, which were previously dealt with under a separate scheme, are regulated as a sub-category of commercial content service.23 A number of different services and communications are expressed not to be content services. As a general rule, personal communications are excluded from the scope of the content services legislation.24 Broadcasting services and internet search engines are among the further exclusions listed.25 The other important limitation to note is that the definitions for all types of content service require that the service be provided to the public.26

17 The most recent ACMA Annual Report is telling on this. In 2013–14, the ACMA investigated 11,164 individual items of online content, of which 8,981 constituted prohibited content. Of these prohibited items, 99.9 per cent were hosted overseas. One item was hosted in Australia. In this same year, a final ‘take-down’ notice was issued for that one item of Australian-hosted prohibited content. No service-cessation notices were issued for live content services provided from Australia and no link-deletion notices were issued to link service providers with an ‘Australian connection’. The Australian hosting service provider complied with the direction to take down prohibited content. The ACMA noted that there had been 100 per cent compliance with such take-down notices across the life of the Online Content Scheme: ACMA, Annual Report 2013–14, September 2014. 18 Broadcasting Services Act 1992 (Cth) Sch 7 cls 47(1)(b), 56(1)(b) and 62(1)(c). An Australian connection will be established where content is hosted on servers physically located within Australia; or in the case of live content, where the service originates in Australia: Sch 7 cl 3. 19 Ibid Sch 7 cl 2 definitions of content and content service. The definition of carriage service is set out in s 7 of the Telecommunications Act 1997 (Cth) and means ‘a service for carrying communications by means of guided and/ or unguided electromagnetic energy’. 20 Ibid Sch 7 cl 2 definition of stored content; cl 4. 21 Ibid Sch 7 cl 2 definitions of live content and live content service. 22 Ibid Sch 7 cl 2 definition of links service. 23 Ibid Sch 7 cl 2 definition of mobile premium service; cl 20. 24 Specific exemptions exist for instant messaging (IM), email, SMS/MMS, voice and video calls: Broadcasting Services Act 1992 (Cth) Sch 7 cl 2 definitions of content service and exempt content service; cl 4. Note, however, that there are qualifications to these exclusions, in particular for adult chat services or services that specialise in prohibited or potential prohibited content. 25 Broadcasting Services Act 1992 (Cth) Sch 7 cl 3 definition of content service. 26 Ibid cl 2 definitions of commercial content service, links service and live service; cls 4, 7.

CHAPTER 5 Online Content

Copyright © 2015. Oxford University Press. All rights reserved.

The content services provisions respond to prohibited content. Content will be prohibited content where it is (or is substantially likely to be) classified RC or X18+.27 Content that is R18+ will be prohibited content if it is not subject to an age-verification mechanism (referred to as a restricted access system in the legislation).28 After this, whether content is prohibited can depend on whether it is provided by a commercial or non-commercial content service.29 Content that is MA15+ and provided by a commercial content service will be prohibited unless it is subject to a restricted access system.30 Content that is MA15+ and provided by a non-commercial content service is not prohibited. The classification categories for printed publications are also extended to online content under the content services legislation. An electronic version of a printed publication is referred to as an ‘eligible electronic publication’ in the content services legislation, and publications will be considered prohibited content if they are Refused Classification, or classified as Category 1 Restricted or Category 2 Restricted.31 As a basic proposition, content service providers are not required to actively monitor, classify or review content to determine whether it is prohibited. However, some limited expectations to this effect are placed on commercial content service providers. The Content Services Code 2008 requires commercial content service providers to engage trained content assessors to review material before it is made available where the service provider, acting reasonably, considers the content is substantially likely to be prohibited content.32 This is meant to reflect a policy position that service providers who are in a position to exercise a level of control over the material they provide should do so. As reflected in the Content Services Code 2008, however, this policy has not resulted in any particularly onerous content assessment obligations. Where the ACMA establishes that prohibited content is being provided through a content service it will issue a take-down notice (for hosting services), service-cessation notice (for live services) or a link-deletion notice (for links services), as applicable.33 For RC and X18+ content, each of these notices requires that the content service provider disable access to the material.34 For the restricted classification categories, the service provider may respond to the notice by implementing a restricted access system.35 Failure to comply with any type of take-down notice, service-cessation notice or links-deletion notice incurs both criminal and civil liability with a separate offence committed in respect of each day the infringer remains in contravention.36 27 Ibid Sch 7 cl 20. Due to the dynamic nature of online content it is not practical for all online content to be ­classified before it is published. Accordingly, Sch 7 adopts a concept of potential prohibited content, ­being ­content that is not yet classified, but is substantially likely to be prohibited: Sch 7 cl 21. 28 Ibid Sch 7 cl 20(1)(b)(ii). Details of what will constitute an acceptable restricted access system are set out in the Restricted Access System Declaration 2007 and in the Content Services Code 2008. 29 Ibid Sch 7 cls 20(1)(c), (d). 30 Ibid Sch 7 cls 20(1)(c)(ii) and (d)(ii). 31 Ibid Sch 7 cls 11, 20(2). 32 Content Services Code 2008, code 8; Broadcasting Services Act 1992 (Cth) Sch 7 cl 81(1). 33 The ACMA may issue final, or interim, notices depending on whether the content in question has been ­classified. See Broadcasting Services Act 1992 (Cth) Sch 7 cl 47 (action to be taken in relation to hosting services), 56 (action to be taken in relation to live content services), 62 (action to be taken in relation to links services). 34 This is referred to as a ‘Type A Remedial Situation’: Broadcasting Services Act 1992 (Cth) Sch 7 cls 47(1)(c), (e), 47(6) (hosting services), 56(1)(c), 56(6) (live content services), 62(1)(d), (f), 62(6) (links services). 35 This is referred to as a ‘Type B Remedial Situation’: Broadcasting Services Act 1992 (Cth) Sch 7 cls 47(1)(d) and 47(7) (hosting services), 56(1)(d) and 56(7) (live content services), 62(1)(e) and 62(7) (links services). 36 A person must not contravene a designated content/hosting service provider rule: Broadcasting Services Act 1992 (Cth) Sch 7 cls 106, 107. Compliance with all forms of take-down notice are specified as designated content/ hosting service provider rules for hosting service providers under Sch 7 cl 53(6); compliance with all forms of service-cessation notice are specified as designated content/hosting service provider rules for live content services under Sch 7 cl 60(4); and compliance with all forms of link-deletion notice are specified as designated content/hosting service provider rules for links services providers under Sch 7 cl 68(6).

109

110

PART 2 Media Regulation

A graduated range of enforcement measures is available to the ACMA to compel compliance with the content services legislation. The ACMA may issue formal warnings regarding a contravention of applicable industry codes,37 or may issue the service provider with a direction to comply.38 Any further breach of a direction to comply will amount to a contravention of an applicable rule under Schedule 7.39 The ACMA may issue formal warnings where content service providers breach applicable rules under Schedule 7.40 Alternatively, the ACMA may issue written directions to either remedy the contravention, or ensure that it doesn’t occur in the future.41 The ACMA is not limited in the remedial directions it may seek, but the legislation suggests examples such as a direction to implement administrative systems to monitor compliance, or a direction regarding staff education.42 If these enforcement measures fail to prevent a contravention of Schedule 7, the ACMA may apply to the Federal Court for an order that the person cease to provide the content service.43 The following decision of the Administrative Appeals Tribunal provides an example of the application of Schedule 7.

Re Sublime IP Pty Ltd and Australian Communications and Media Authority

Copyright © 2015. Oxford University Press. All rights reserved.

[2010] AATA 353 (13 May 2010)

Deputy President Handley, Senior Member Bell: [1] Sublime IP Pty Ltd is a company registered in NSW that operates as an Internet Service Provider (ISP) and provider of website hosting services. It hosts a website for Electronic Frontiers Australia (EFA), including an article on internet censorship in Australia. EFA is a non-profit association incorporated in South Australia whose major objective is to protect and promote the civil liberties of users and operators of computer-based communications systems and of those affected by their use. EFA opposes the Commonwealth Government’s proposals to censor the internet. The Australian Communications and Media Authority (ACMA) is a federal government agency responsible for the regulation of broadcasting, the internet, radiocommunications and telecommunications. [2] On 5 May 2009, ACMA directed Sublime, by issuing a ‘link deletion notice’, to either delete or restrict access to a link on an EFA webpage to an ‘Abortion TV’ webpage containing pictures of aborted foetuses. Sublime seeks a review of ACMA’s decision to issue that notice. [3] The EFA webpage in question, headed “Net censorship already having a chilling effect”, refers to “the current net censorship regime” in the context of proposals by the Government for the introduction of an internet filter. The article refers to the Classification Board’s classification regime and the power of ACMA to restrict access to material that has been refused a classification or rated R 18+ or X 18+. The article refers to an ‘interim link-deletion notice’ issued to another ISP pending a decision of the Classification Board on an application for classification of the Abortion TV webpage, and provided a hypertext link to the Abortion TV webpage (which the reader can click on) as follows: The page ... which can be found here (warning: graphic content) is itself controversial, as it is from an anti-abortion website.

[4] The Abortion TV webpage was the subject of complaints to ACMA on 5 January 2009 and 19 February 2009, which had been investigated by ACMA and led to its applying to the Classification Board for

37 38 39 40 41 42 43

Broadcasting Services Act 1992 (Cth) Sch 7 cl 90. Ibid Sch 7 cl 89(1). Ibid Sch 7 cl 89(3). Ibid Sch 7 cl 109. Ibid Sch 7 cl 108. Ibid Sch 7 cl 108(3). Ibid Sch 7 cl 110.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 5 Online Content

classification of the Abortion TV webpage. On 18 March 2009, ACMA received a complaint about the EFA webpage and its link to the Abortion TV webpage. On 20 March 2009, ACMA received notification from the Classification Board of its having classified the Abortion TV webpage as R 18+. [5] An ACMA investigator continued to be able to access the content on the Abortion TV webpage by using the hypertext link on the EFA webpage and found there was no restricted access system in place limiting access to those aged 18 and over, and that access to what is defined as “prohibited content” was freely available. ACMA identified Sublime as the host server of the EFA webpage providing the link to the Abortion TV webpage and, on 5 May 2009, issued a notice to Sublime (a final link-deletion notice) directing it to take such steps as are necessary to ensure that either it ceases to provide a link to the Abortion TV webpage or that access to the webpage is subject to a restricted access system. … [14] The notice required the recipient to take such steps as are necessary to ensure that either it ceased to provide a link to the Abortion TV webpage or that access to the webpage be subject to a restricted access system, a system more particularly described in the Restricted Access Systems Declaration 2007 (the Declaration) made by ACMA on 20 December 2007 … [15] The Classification Board classified the Abortion TV webpage as R 18+, a classification that relevantly applies, according to the Guidelines for Classification of Films and Computer Games, to “material of high impact which requires an adult perspective”. In the case of R 18+ content, amongst other things, the restricted access system requirements include that a person seeking access to such content must apply for access, and that there must be verification that the person is at least 18 years of age. A person seeking access to such content must also be provided with a warning about the nature of R 18+ content and safety information about how a parent or guardian may control access to R 18+ content by persons under 18 years of age. … [17] Mr Clapperton contended Sublime lacked the capacity to implement a restricted access system for access to the Abortion TV webpage, especially in view of the fact that Sublime was required to comply with the final link-deletion notice not later than 6pm on the next business day or face the possibility of significant penalties for non-compliance (currently up to $11,000 in respect of each day during which the contravention continues). Sublime, he submitted, lacked both the necessary personnel, skills and experience to assume the decision-making and record-keeping obligations on behalf of EFA, as well as the technical capacity to modify content on the EFA website which is password protected. We note that no evidence was provided to substantiate these contentions. Mr Clapperton also contended that the legislation is “practically ineffective”. In this case, the Abortion TV webpage “is easily discoverable using common search engines and linked to from [sic] many websites hosted outside of Australia”; more generally, because the legislation operates on a complaints system. [18] In our view, these matters should not affect our decision. The Tribunal is concerned not with the practicality or effectiveness of any constraints but rather with their validity and legitimate application. Pursuant to cl 62(7) of Schedule 7, the final link-deletion notice required Sublime to “take such steps as are necessary to ensure” that a type B remedial situation exists in relation to the content (explained below). Thus, the required action contemplated that the implementation of the restricted access system or the deletion of the link could be undertaken by some other person, as in fact occurred in this case, with Sublime procuring EFA to delete the link. [19] We conclude that the constraint imposed by the decision in this case was minor – being only in respect of the hypertext link, leaving the remaining text unaffected – and did not effectively burden the communication. In any event, we conclude that the constraint was reasonably appropriate and adapted to serve a legitimate end – the protection of minors – in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government …

SHOULD THE NOTICE HAVE BEEN ISSUED TO SUBLIME? [27] At issue is whether Sublime is a links service provider. ‘Links service provider’ is defined in cl 2 as a person who provides a links service. This raises two questions: first, what is the relevant links service and, second, who provides that links service?

111

Copyright © 2015. Oxford University Press. All rights reserved.

112

PART 2 Media Regulation

[28] As stated above, a ‘links service’ is a content service providing one or more links to content to the public. The term ‘link’ is not defined in Schedule 7, although a note to cl 3(1) states, “A link is an example of content”. There is no dispute that the hypertext link appearing on the EFA webpage linking users to the Abortion TV webpage was a link for the purposes of Schedule 7. Also, as stated above, a ‘content service’ includes a service that allows end-users to access content using a carriage service. There is no dispute that in this case access to content occurs by way of a carriage service. Thus, the Tribunal is satisfied that the relevant links service in this case was the EFA webpage. [29] The second question is whether the EFA webpage – the links service – was provided by Sublime? Mr Daley, for ACMA, referred the Tribunal to the Macquarie Dictionary definition of ‘provide’, meaning ‘furnish or supply’. He contended that by hosting EFA’s webpage, Sublime furnished a content service to the public allowing end-users to access content on the Abortion TV webpage. Thus, Sublime was a ‘links service provider’ and the proper recipient of a final link-deletion notice under cl 62(1)(e). [30] Mr Clapperton, for Sublime, contended that Sublime was a ‘hosting service provider’, being, as defined in cl 2, a person who provides a ‘hosting service’. In accordance with the definition in cl 4, a ‘hosting service’ is provided where a person hosts stored content and that person or another person provides a content service. In this case, he submitted, EFA provided the contents service and was the links service provider. The mere fact that EFA’s content was sitting on Sublime’s hardware does not make Sublime a content provider. Mr Clapperton contended that EFA was the appropriate recipient of the final link-deletion notice. [31] Mr Clapperton submitted that even if Sublime was a links service provider, the correct or preferable decision is that the final link-deletion notice should have been given to EFA: Re De Brett Investments Pty Ltd and Australian Fisheries Management Authority and 4 Seas Pty Ltd [2004] AATA 704; (2004) 82 ALD 163, at 194 (but see also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, especially Kirby J at [35] to [37]). EFA was the author and publisher of the relevant content, whereas Sublime was the uninvolved third party which merely provided technical services to EFA. EFA, Mr Clapperton submitted, was also better placed to remove the hypertext link, which was what happened in this case. Moreover, in other situations where a notice is served on a purported links service provider which is in fact a hosting service provider, that hosting service provider may have little interest in making an application to the Tribunal for a review. This would mean, in effect, that the content provider might have no means of seeking a review of the decision by ACMA to give a final link-deletion notice. Finally, Mr Clapperton noted EFA was in a better position to effect a restricted access system. [32] Mr Daley noted that EFA had been invited to participate in these proceedings but had declined to do so. (The Tribunal received a letter from EFA dated 19 April 2010 stating that it did not wish to be joined in these proceedings, that it supported Sublime’s contentions, and “willingly accepts that it is the most appropriate entity to receive a Final Link Deletion Notice in regards to content on its website”.) Mr Daley said whether or not Sublime could have put in place a restricted access system, they were still in a position to comply with the notice by getting EFA to take the necessary action. The notice was given and acted on, and it would be of no utility to set aside the decision under review and remit the matter to ACMA with a direction that the required notice be given to EFA. [33] In our view, Sublime is a ‘links service provider’ within the meaning of the definition in cl 2 because it provides a content service in that it allows end-users to access content. We note that the definition of content service includes both paragraph “(a) service that delivers content to persons having equipment appropriate for receiving that content ...” and “(b) a service that allows end-users to access content ...” … In our view, the clear words of the definition include a situation where, as here, the service provided is merely that of providing access to the content. In Sublime’s case, access was provided by its hosting EFA’s website. The fact that Sublime may, for other purposes, also be a hosting service provider to which Division 3 of Schedule 7 applies, is immaterial for the application of Division 5 of Schedule 7 if the relevant definitions and requirements of Division 5 are satisfied. We note that cl 62(1) states that ACMA “must” give the links service provider a notice if the matters specified in subcl (1)(a), (b), (c) and (e) are satisfied. [34] However, we note that while Sublime was a links service provider in this case, so, apparently, was EFA. As the provider of content and the entity most directly affected by the giving of the notice, EFA was the entity likely to be most interested in exercising the right to seek a review of ACMA’s decision to give

CHAPTER 5 Online Content

the notice. In our view, it was open to ACMA to give a notice to either Sublime or EFA, both being located in Australia, and it appears both could have taken the necessary steps to comply with the final link-deletion notice. We note that in other matters there may be circumstances where a content provider such as EFA is not located in Australia, in which instance the only course open to ACMA would be to give a notice to a links service provider such as Sublime that is located in Australia. [35] While we acknowledge that there is some substance to Mr Clapperton’s submissions on this issue, we do not consider it appropriate to set aside the decision on the basis that it would have been preferable for the notice to have been given to EFA. Here it was for ACMA to determine how best to achieve its object of restricting access to prohibited content in accordance with the R 18+ classification. As Mr Daley pointed out, our setting aside the decision and remitting the matter to ACMA with a direction that Sublime was not the appropriate recipient of the final link-deletion notice would not be of any utility since the hypertext link has already been deleted.

DECISION [36] In conclusion, the Tribunal finds that Sublime is a person to which a final link-deletion notice could be given and that the decision to give such a notice to Sublime was not contrary to the implied freedom of political communication. The decision under review is therefore affirmed.

QUESTIONS 1 Do you agree with the contention that the scheme established under Schedule 7 is ‘practically ineffective’? 2 Do you agree with the AATA’s classification of Sublime as a ‘links service’?

Copyright © 2015. Oxford University Press. All rights reserved.

5.2.4

Overseas content

The online content scheme focuses on internet service providers as an available regulatory target when seeking to address prohibited content that is hosted overseas. Where an ACMA investigation identifies prohibited content that is hosted outside Australia, the ACMA must notify that content to local internet service providers.44 The procedures for dealing with prohibited content, once notified to internet service providers, are set out in the Internet Industry Codes of Practice 2005.45 The Codes specify that details of prohibited content identified by the ACMA will be passed directly to suppliers of filtering software, and that internet service providers are required to make filtering software available to end users.46 This approach emphasises end-user responsibility in managing online content issues. It is important to note that the Internet Industry Codes of Practice 2005 promote user-level filtering, rather than ISP-level filtering—that is, filtering software may be voluntarily installed by the user, on their own computer, as opposed to content being filtered by the internet service provider before it reaches the user’s equipment. ISP-level filtering is discussed further at 5.2.7 below.

44 Broadcasting Services Act 1992 (Cth) Sch 5 cls 40(1)(b) and 60(2)(b); Internet Industry Codes of Practice 2005 cl 19.2. 45 It has been noted that since the online content scheme came into force an industry code has always been ­registered that quite successfully skirts any significant responsibility for restricting access to internationally hosted prohibited content: Carolyn Penfold, ‘Converging Content: Diverging Law’ (2004) 13(3) Information and Communications Technology Law 273 at 280. 46 Internet Industry Codes of Practice 2005 cl 19.

113

114

PART 2 Media Regulation

5.2.5

Sufficiently serious content—criminal laws

The online content scheme is supported by criminal laws where it encounters sufficiently serious content. The ACMA must notify the Australian Federal Police (or other appropriate law enforcement agency) where it is satisfied that content is of a sufficiently serious nature to warrant referral to a law enforcement agency.47 Child pornography is the main type of material in this category. The Criminal Code Act 1995 (Cth) includes a series of offences relating to the misuse of carriage services (meaning internet and other communications services).48 It is an offence to access, transmit or distribute child abuse material or child pornography through a carriage service or to use a carriage service to facilitate inappropriate contact with a minor.49 The Criminal Code places obligations on ISPs and content hosts to report child pornography or child abuse material as and when they become aware of its existence.50

5.2.6

Non-legislative and technical measures

A significant part of the online content scheme is non-legislative measures and schemes designed to respond to online risks. The ACMA conducts a number of ‘cyber safety’ and education initiatives about online content and behaviours. These initiatives are thought to be most effective in dealing with risks arising from interactions between users (such as cyber-bullying or online grooming) which are not easily dealt with by measures designed to regulate static online content.51 Education can help to develop protective behaviours in users, which limit such risks. Parents and other responsible adults also need information about how to manage online risks that may affect their children.52

Copyright © 2015. Oxford University Press. All rights reserved.

5.2.7 Filtering As noted at the start of this chapter, there are technical methods available for controlling online content, but these raise complicated social issues. When the online content scheme was first introduced, the accompanying Explanatory Memorandum included the following policy statement: The Government acknowledges that there are technical difficulties with blocking all illegal and offensive material that is hosted overseas but considers where it is technically feasible to block material this should be done.53

47 Broadcasting Services Act 1992 (Cth) Sch 5 cl 40(1)(a) and Sch 7 cl 69(1). 48 Telecommunications Act 1997 (Cth) s 7 definition of carriage service; Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth). Importantly, these offences cover a range of activities that are not otherwise regulated under the online content scheme, such as personal communications. 49 Criminal Code Act 1995 (Cth) Sch 1 (Criminal Code) ss 474.19 (child pornography material) and 474.22 (child abuse material). See also Criminal Code s 473.1 definitions of child abuse material and child pornography ­material. Offences relating to ‘grooming’, or communications to procure sex with a minor, are created by ss 474.26 and 474.27 of the Criminal Code. 50 Ibid s 474.25. 51 ACMA, Developments in Internet Filtering Technologies and Other Measures for Promoting Online Safety, February 2008, 52. 52 See, for example, ACMA, Connected Parents in the Cybersafety Age, February 2014. 53 Revised Explanatory Memorandum to the Broadcasting Services Amendment (Online Services) Bill 1999, 1.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 5 Online Content

This policy was acknowledged in Schedule 5 to the Broadcasting Services Act 1992 (Cth) itself.54 The clear intention was that, when filtering technologies developed to a point where it became practicable to prevent end users from accessing restricted content hosted overseas, then amendments would be implemented to that effect. In 2007, the Federal Government announced plans to introduce ISP-level filtering of internet content.55 The filter would have involved the mandatory filtering of material on a ‘black list’ maintained by the ACMA and a second-tier ‘clean feed’ filter, from which users could opt out, blocking pornography and other legal but inappropriate content. This remained government policy for a number of years, but never became law. The proposal failed to achieve much political support and was heavily criticised.56 It was abandoned as government policy in 2012.57 The current Coalition government has stated that it does not support mandatory filtering of internet content.58 There are both practical (technical) and philosophical reasons why filtering proposals tend to be controversial. Common technical complaints relate to the effect of filtering on network performance, under- or over-blocking content and an inability to adequately filter material distributed through non-web protocols such as instant messaging or file-sharing.59 Freedom of expression is also a relevant concern. Setting the technical parameters of what material is to be filtered is effectively a censorship decision, and whether this decision is made by a private entity or a government agency, it is deeply political. Filtering is less politically consequential where it is voluntarily adopted by users (which is why user-level filtering is an important part of the online content scheme). Although Australia has not introduced any broad ISP-level filtering scheme, some online content has been blocked by government agencies relying on s 313 of the Telecommunications Act 1997 (Cth). This section says that carriers and carriage service providers (such as ISPs) must ‘do their best’ to prevent telecommunications networks from being used in the commission of an offence. This provision was used by the then Labor government and Australian Federal Police to require ISPs to block child abuse sites on a ‘worst of’ list maintained by INTERPOL.60 It has also been used by the Australian Securities and Investments Commission (ASIC) to request ISPs to block sites directed at defrauding Australians.61 This reliance on s 313 is concerning. Section 313 notices are not subject to accountability or transparency mechanisms that should accompany a censorship decision.62

54 Broadcasting Services Act 1992 (Cth) Sch 5, cl 95(5) (repealed). 55 Senator Stephen Conroy, Labor’s Plan for Cyber-Safety, Election Fact Sheet, 2007. 56 A Parliamentary Library Research Paper provides an excellent chronology of the rise and fall of Labor’s­ filtering scheme: Paula Pyburne and Rhonda Jolly ‘Australian Governments and Dilemmas in Filtering the Internet: Juggling Freedoms Against Potential for Harm’, Parliamentary Library Research Paper, 8 August 2014. See also, for example, Reporters Without Borders Internet Enemies Report 2012, 12 March 2012. 57 Senator Stephen Conroy, Child Abuse Material Blocked Online, Media Release, 9 November 2012. 58 Peter Kell (ASIC Deputy Chairman), Senate Estimates—Economics Committee, 4 June 2013. 59 ACMA, Closed Environment Testing of ISP-Level Internet Content Filtering, June 2008, 5. 60 Conroy, above n 57. 61 Kell, above n 58. 62 That ASIC had issued notices invoking s 313 became public knowledge through a Senate Estimates hearing. The owners of the website were not notified that material had been blocked. Only certain ISPs were issued with notices (the larger ones): Kell, above n 58. It was also reported that, as the sites were blocked based on their IP address, other sites sharing those IP addresses were also inadvertently blocked: Ben Grubb, ‘How ASIC’s Attempt to Block One Website Took Down 250,000’, Sydney Morning Herald, 5 June 2013. This is very ­arbitrary government intervention.

115

116

PART 2 Media Regulation

QUESTION 1 On what, if any, criteria would you support mandatory filtering of online content?

Copyright © 2015. Oxford University Press. All rights reserved.

5.2.8 Cyber-bullying Cyber-bullying refers to psychological bullying through email, chat, social media and other online services. The rise of cyber-bullying is attributed to teenagers and children having greater access to the internet and smartphones and the anonymity provided by the internet.63 Cyber-bullying is currently only dealt with under the Criminal Code, which makes it an offence to use a carriage service in a manner that a reasonable person would find menacing, harassing or offensive.64 However, this is quite a blunt instrument for dealing with the issue. The Federal Government has recently introduced a bill specifically dealing with cyberbullying. The legislation will establish the office of the Children’s e-Safety Commissioner.65 A child who is a target of cyber-bullying material, or their parents, will be able to complain to the Commissioner about that material.66 The Commissioner may require that the end user who posted the material remove the material from wherever it was posted, refrain from posting cyber-bullying material, or apologise to the subject of the material.67 The scheme also includes provisions that focus on social media services. The Commissioner may request that certain social media services remove cyber-bullying material that is the subject of a complaint (within 48 hours of being given notice to do so).68 The legislation also provides for ‘large social media services’ to become subject to a requirement that they remove cyberbullying material on receiving notice from the Commissioner.69 The legislation includes a ‘Statement of Parliamentary Expectations’, that all social media services will comply with a set of basic online safety requirements.70 These include that the service itself must have a complaints scheme for cyber-bullying material and that the terms of use for the service prohibit end users from posting cyber-bullying material.71 As such, the scheme contemplates that complaints will be made to the social media service concerned first, before going to the Commissioner.72 This is unusually prescriptive legislation for online services. At the start of this chapter we noted that online services are more commonly ‘regulated’ by terms of use and privately designed technical limitations rather than specific government schemes. Although the cyber-bullying bill is not yet law, it would constitute a notable exception to this rule.

5.3

Safe harbours

Australian law includes two significant ‘safe harbours’ that shelter internet intermediaries against liability for the actions of end users. These safe harbours do important work. The first is set out in the Broadcasting Services Act 1992 (Cth) and provides broad protections against 63 Australian Institute of Criminology, Cyber Bullying: Issues for Policy Makers, 3 July 2007. 64 Criminal Code s 474.17. Also note s 473.4, which sets out the matters to be considered in deciding whether a use of a carriage service was offensive. The matters to be considered mirror those set out in s 11 of the Classification Act 1995 (Cth). 65 Enhancing Online Safety for Children Bill 2014 Part 2. 66 Ibid s 18. 67 Ibid s 42. 68 Ibid s 29. 69 Ibid s 35. 70 Ibid s 22. 71 Enhancing Online Safety for Children Bill 2014 s 21.

CHAPTER 5 Online Content

liability under the laws of a state or territory, or at common law. The second exists under the Copyright Act 1968 (Cth) and establishes a scheme for dealing with infringing content.

5.3.1

Clause 91 of Schedule 5

When inserting Schedule 5 to the Broadcasting Services Act 1992 (Cth), parliament specifically acknowledged that internet service providers and ‘internet content hosts’ may not be aware of the nature of the material accessed, distributed or stored on and through their services by end users.73 Clause 91 of Schedule 5 provides that internet service providers and internet content hosts are not required to actively review, monitor or classify internet content; and cannot be subject to liability under a law of any state or territory or a rule of common law or equity in respect of carrying or hosting particular internet content, where they were not aware of the nature of the content. This clause provides a broad immunity from any action for defamation that might arise from transmitting or hosting internet content. It is important to note, however, that the immunity does not extend to Commonwealth legislation.74

Copyright © 2015. Oxford University Press. All rights reserved.

5.3.2 The Copyright Act A safe harbour for online service providers was established under the Copyright Act 1968 (Cth) as part of the Australia–United States Free Trade Agreement.75 The Australian safe harbour (actually four, separate, safe harbours for different types of services) is modelled on the scheme introduced by the Digital Millennium Copyright Act of 1998 (DMCA) in the United States. The issue that the safe harbour scheme seeks to address is that, on a theory of ‘authorising’ infringement, online service providers may be liable for copyright infringement actioned by end users of their services.76 The safe harbour provisions limit the remedies that are available against service providers for copyright infringement by their users, subject to certain conditions being met.77 The conditions differ depending on the particular role of the service provider. Where the service provider is involved in the passive transmission of content (for example, if the service provider is an ISP), the basic conditions are that the infringing activity must be at the direction of the user and the service provider must not make any substantive modifications to the copyright material transmitted. If the service provider is involved in storing or linking to infringing content, the service provider must not have received a financial benefit attributable to the infringing content and must quickly remove the infringing content on receipt of a take-down notice (or if it otherwise becomes aware of the infringing content).78 The Australian copyright safe harbours are available to ‘carriage service providers’.79 This significantly narrows the scope of the Australian safe harbours. The definition of ‘carriage service provider’ is drawn from telecommunications legislation and is focussed on communications infrastructure.80 The Australian safe harbours are, accordingly, only 73 Explanatory Memorandum to the Broadcasting Services Amendment (Online Services) Bill 1999, 4. 74 Including, in particular, the Copyright Act 1968 (Cth). See Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380; Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42. 75 Copyright Act 1968 (Cth) Division 2AA; Australia–United States Free Trade Agreement, Article 17.11. 76 Copyright Act 1968 (Cth) s 101(1A); Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42. 77 Copyright Act 1968 (Cth) s 116AG. In particular, a service provider within the safe harbour will not be liable for damages or other monetary relief: 116AG(2). 78 Copyright Act 1968 (Cth), s 116AH. 79 As defined in Telecommunications Act 1997 (Cth) s 87; see Copyright Act 1986 (Cth) s 10(1) (definition of ­carriage service provider).

117

118

PART 2 Media Regulation

available to services that provide network access to the public. This covers ISPs, but would not cover, for example, universities that provide network access only to students, or to online content services that do not provide connectivity.81 The broader definition of ‘service provider’ used in US legislation covers online content services, such as YouTube and other social media services.82 The Australian Government has released a discussion paper proposing to amend the definition so that Australian online service providers have equivalent coverage to their US counterparts.83 Although the scope of the Australian copyright safe harbours is limited, it is hard to overstate the effect of the US equivalent on how the internet has developed. The DMCA scheme represented a grand copyright bargain relieving service providers of liability, but requiring that they expeditiously respond to take-down notices. On the 10-year anniversary of the DMCA, Wired ran a special feature referring to the DMCA as the law that saved the internet. It commented: If you’re wondering whom to thank for the Web 2.0 explosion in interactive websites, consider sending a bouquet to Congress … Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large part to the notice-and-takedown regime ushered in by the much-maligned copyright overhaul.84

In combination with the safe harbour established by clause 91 of Schedule 5 (which also has a US equivalent),85 the copyright safe harbour created the legal certainty (and immunity) necessary for a range of online services to develop.

Copyright © 2015. Oxford University Press. All rights reserved.

FURTHER READING Australian Government, Convergence Review, Final Report (March 2012), Appendix G: Report on Review of Schedule 7 of the Broadcasting Services Act. Benkler, Yochai, The Wealth of Networks, Yale University Press, New Haven and London, 2006. Deibert, Ron, et al (eds), Access Denied: The Practice and Policy of Global Internet Filtering, MIT Press, Cambridge, Mass, 2008. Leonard, Peter, ‘Storms Batter Not-So-Safe Harbours—Liability of Internet Intermediaries in Australia’ (2012) 88 Intellectual Property Forum 41. Lessig, Lawrence, Code and Other Laws of Cyberspace Version 2.0, Basic Books, New York, 2006 (available at ). Wu, Tim, The Master Switch: The Rise and Fall of Information Empires, Vintage Books, New York, 2011. Zittrain, Jonathan, The Future of the Internet and How to Stop It, Yale University Press, New Haven, 2009.

81 Peter Leonard, ‘Storms Batter Not-So-Safe Harbours—Liability of Internet Intermediaries in Australia’ (2012) 88 Intellectual Property Forum 41; Australian Government, Online Copyright Infringement, Discussion Paper, July 2014, 7. 82 Viacom International Inc v YouTube Inc 676 F 3d 19 (2012). 83 Australian Government, Online Copyright Infringement, Discussion Paper, July 2014, 7. 84 David Kravets ‘10 Years Later, Misunderstood DMCA is the Law that Saved the Web’ Wired, 27 October 2008: . 85 Communications Decency Act of 1996 47 USC § 230.

6 MEDIA OWNERSHIP

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION The role of the media as a conduit for information and forum for debate means that it has the power to influence community attitudes and beliefs. It is accordingly thought to be important, for both cultural and political reasons, to legislate for diversity in media. Australian broadcasting law has included ownership limitations since the outset. The current Broadcasting Services Act 1992 (Cth) includes a number of restrictions on the ownership and control of commercial television and commercial radio broadcasting licensees. These rules also indirectly affect ownership of print media assets by placing limits on the common control of commercial broadcasting licences and daily metropolitan newspapers. Australian media ownership laws have never extended to any other types of media. There are no sector-specific rules that limit concentration of ownership in, for example, magazines, subscription television or online services. The general trend in media ownership regulation since the 1980s has been one of liberalisation at an incremental pace. This is likely to continue. There is a sense among lawmakers, in Australia and elsewhere, that ownership laws focused principally on broadcasting are falling behind the reality of media markets and how people inform themselves. Although commercial television, commercial radio and daily newspapers remain important, they are an increasingly diluted part of a broader media environment. This chapter reviews the media ownership regime in the Broadcasting Services Act 1992 (Cth), certain proposals for reform, and the issues associated with extending traditional media ownership regimes to cover new media services. It also considers competition laws that may affect media ownership under the Competition and Consumer Act 2010 (Cth), and foreign investment rules under the Foreign Acquisitions and Takeovers Act 1975 (Cth) and Australia’s Foreign Investment Policy.

119

120

PART 2 Media Regulation

6.1

Pluralism and diversity

The terms pluralism and diversity are often used without great precision in debates on media ownership. As explained by Lesley Hitchens in her book on broadcasting policy, ‘pluralism’ and ‘diversity’ can have several meanings: First, they may refer to a situation in which the media environment is structured in a way which ensures that there are a number of different kinds of media outlets; for example, public broadcasting and private broadcasting services. Secondly, they may refer to a media environment which is structured so as to ensure that there is a diversity of owners of the media outlets. Thirdly, they may refer to the desirability of a diversity of opinions being broadcast, and, fourthly, to the broadcasting of a diverse range of programming including both information and entertainment programmes.1

Hitchens continues to note that regulators in the United Kingdom have developed a practice of using the terms to convey specific meanings. The following extract explains this further.

Copyright © 2015. Oxford University Press. All rights reserved.

DEPARTMENT FOR CULTURE, MEDIA AND SPORT (UK), CONSULTATION ON MEDIA OWNERSHIP RULES, 2001 1.3. … ‘[P]lurality’ and ‘diversity’ are sometimes used interchangeably, but they are quite distinct concepts. Diversity refers to the variety of different programmes, publications and services that are available, whereas plurality is about the choice people can make between different providers of those services. Both are key to the quality of service and the range of news and opinion we as citizens receive from the media. They are, however, delivered by different means. 1.4. Since diversity is about the availability of a wide range of content, it has traditionally been maintained through content regulation, rather than ownership controls … 1.6. With plurality it is not content but the source of that content that matters—the company controlling it, the ‘voice’ behind it. We want a plurality of voices, giving the citizen access to a variety of views that, in a competitive market, maintain their own balance. We need regulation that is specifically directed to ensure such plurality. That is why we have imposed rules on media ownership. 1.7 Proponents of the case for plurality set out at least four reasons for its importance: • Plurality ensures that no individual or corporation has excessive power in an industry which is central to the democratic process. • A plurality of owners should secure a plurality of sources of news and editorial opinion, which is vital given the position that newspapers and current affairs occupy at the heart of public debate. A healthy democracy depends on a culture of dissent and argument, which would inevitably be diminished if there were only a limited number of providers of news. • At the limit, even though a single source might produce impartial, high-quality content, they would be able to dictate exactly what constituted ‘news’ itself, and their inclusion or omission of stories could slant the whole news agenda in a particular direction. • Plurality maintains our cultural vitality. Different media companies produce different styles of programming and publishing, which each have a different look and feel to them. A plurality of approaches adds to the breadth and richness of our cultural experience.

1 Lesley Hitchens, Broadcasting Pluralism and Diversity: A Comparative Study of Policy and Regulation, Hart Publishing, Portland, Oregon, 2006, 8–9.

CHAPTER 6 Media Ownership

One of the objects of the Broadcasting Services Act 1992 (Cth) is to promote the availability of a diverse range of radio and television services.2 As a related object, the Broadcasting Services Act 1992 (Cth) aims to encourage diversity in control of influential broadcasting services.3

6.1.1

Diversity

Copyright © 2015. Oxford University Press. All rights reserved.

In Australia, as in the United Kingdom, ownership regulation plays a supporting role in securing diversity of content. Diversity is primarily secured under the Broadcasting Services Act 1992 (Cth) by creating space for different categories of service. Content diversity in Australian media is greatly enhanced by the existence of the national broadcasters (the ABC and SBS), and through a dynamic community broadcasting sector. Programming standards concerning Australian content and children’s television are also relevant. Ownership rules support content diversity based on the hope that legislating so there are more, rather than less, different owners of media outlets will lead to differentiated content that serves different social groups and promotes different interests. There is no necessary connection between diversity in media ownership and diversity in media content. A highly concentrated media market may still provide diversity of opinion, news and programming.4 Equally, it has been noted that having many and varied media proprietors does not by itself guarantee the provision of different or conflicting voices.5 However, while the connection between diversity in ownership and diversity in content has not been proven beyond question, the two are generally assumed to be linked.6 Ownership also happens to be an easier regulatory target than more ephemeral concepts such as ‘diversity of views’. The arrival of new technology is often accompanied by promises of an automatic diversity dividend, increased media decentralisation and the diminished power of mass media and its controllers. These sorts of predictions were made in relation to cable television and were repeated as the internet became popular.7 There is no question that the internet has changed the ways in which we consume news. However, it is less clear that it has increased diversity in the sources of professional journalism.

Department of Communications, Media Control and Ownership Policy Background Paper No. 3, June 2014, 35–36 (footnotes omitted).

Does online news enhance media diversity? The analysis above [discussing industry trends in news media] highlights a significant increase in the availability of news, current affairs and opinion online and an expansion in the number of new news media outlets. In contrast to the pre-digital environment, consumers are increasingly able to tailor the news

2 3 4 5 6

7

Broadcasting Services Act 1992 (Cth) s 3(1)(a). Broadcasting Services Act 1992 (Cth) s 3(1)(c). Productivity Commission, Broadcasting, Report No. 11, March 2000, 312. Des Freedman, The Politics of Media Policy, Polity Press, Cambridge, 2008, 73. As noted in the Revised Explanatory Memorandum to the Broadcasting Services Amendment (Media Ownership) Bill 2006 (Cth) ([23]–[24]): ‘While there is debate about the role of proprietors in determining the voice of media organisations, the BSA assumes that diversity in news and opinion is substantially influenced by the level of diversity in the ownership of media groups.’ See also discussion in Productivity Commission, Broadcasting, Report No. 11, March 2000, 311–12. See generally Nicholas Negroponte, Being Digital, Vintage Books, New York, 1996. Such predictions are also routinely cited as a reason for liberalising media ownership regulation: Hitchens, above n 1, 4.

121

122

PART 2 Media Regulation

content they consume to their tastes and interests and indeed become the ‘generators’ of news reporting and coverage. In this regard, the online platform has arguably enhanced the access to, and dissemination of, news content in Australia and overseas. As digital technologies further erode the historic delineations between traditional and new media, it is reasonable to expect that online-only news media outlets will play an increasingly prominent role in framing and informing public debate on significant social, cultural, political and economic issues. However … online news media outlets are not counted within the existing legislative framework that seeks to establish a floor in number of influential media ‘voices’ available to Australian citizens. More broadly, the proliferation of online sources of news content does not necessarily equate to a proliferation of independent sources of news, current affairs and analysis. Indeed, the internet has, to date at least, tended to give existing players a vehicle to maintain or actually increase their influence. This pattern can be seen in Australia where to date, the established media outlets have tended to dominate the online news space. • Over the 8 years to 2013, either News Corp or Fairfax owned the majority of the top ten most popular news websites, and this dominance has been remarkably stable over the period. • Australian broadcasters also have a strong presence in the top twenty online news sites, as do international news outlets such as the broadcasters BBC and CNN. • Of the news sites, those in the top ten most popular sites tend to be part or fully owned by traditional media, including the online aggregators ninemsn News and Yahoo!7 News. The dominance of established media in the online space is not a pattern unique to Australia. • In the UK, traditional media providers account for 10 of the top 15 online providers of news (eight newspaper groups plus the BBC and Sky), with the remainder predominantly being news aggregators rather than alternative sources of news. A paper prepared by the UK Department of Culture, Media and Sport in 2013 offered some related examples.

Copyright © 2015. Oxford University Press. All rights reserved.

“… [T]here may be a diverse range of content being produced, but people may choose to access it from a particular source – for example the BBC accounts for 25 per cent of TV news minutes broadcast, but 73 per cent of TV news viewing. This will be exacerbated if the algorithms of search engines like Google mean that only some content is easily discoverable, limiting the opportunity for a wide-range of voices to be heard.”

• A similar pattern is evident in the US, where the bulk of the top 25 most used news websites are either established news bands or aggregator sites that take most of their content from existing news providers. While the popularity of news websites unaffiliated with traditional media is increasing, the majority of local news content available online originates from newspapers and local television stations. In other words, the growing number of online news outlets actually rely on a relatively fixed, or declining, pool of original reporting provided by traditional media. These trends suggest that a major impact of the online platform, at least in terms of the more popular news outlets, has been to extend the reach of established news providers. This is perhaps not surprising given that consumers tend to gravitate towards the brands, mastheads and commentators they are familiar with and that can provide them with the particular Australian news they are seeking. In this regard, research conducted by the ACMA in 2011 found that ‘habit’ (i.e. past use of and familiarity with the media outlet), ‘convenience’ (i.e. quick access to stories regardless of location) and ‘trust’ were important in determining why consumers prefer a particular media as a preferred source of news. The growth in the variety of online news services may only serve to reinforce the brands of traditional sources, as they become the easy choice amongst a cloud of alternatives. None of the above erodes the general conclusion that the online medium has radically transformed the environment in which news content is produced and consumed, nor the expectation that the online medium will, over time, become an increasingly important driver of news media diversity. What is does highlight, however, is that the news genre is in a state of dynamic change and that the diversity-enhancing potential of the online space is yet to be fully realised.

CHAPTER 6 Media Ownership

6.1.2

Pluralism

The object of the Broadcasting Services Act 1992 (Cth) of encouraging ‘diversity in control’ of influential broadcasting services can also be understood as an intention to moderate the political power of media proprietors. The reasoning here is that if the media is allowed to become too highly concentrated, there is a risk that one proprietor could have a disproportionate influence on both political discourse and politicians. In other words, concentrating the control of the media could have a distorting effect on the public sphere. Or, alternatively, media ownership restrictions are designed to help preserve a level of neutrality in the ‘marketplace of ideas’. If the media represents a narrow section of interests the marketplace of ideas may not function properly—some ideas may not receive fair airtime, could be aggressively contradicted for conflicted reasons or could be actively repressed, with clear consequences for democracy.8

Copyright © 2015. Oxford University Press. All rights reserved.

Politicians and the media Politicians and the media have an interdependent relationship. Politicians rely on the media to communicate with the electorate. It is also generally assumed that the media has the capacity to influence the electorate’s attitudes through the emphasis of its reporting and its framing of political events and actors. The media, however, remains regulated by governments. At worst, this interdependent relationship can see the public interest sidelined, as curious policy and questionable reporting are produced. There are some notable examples of media proprietors influencing media content for political reasons in Australian history (and folklore). Rupert Murdoch is credited with a role in the 1975 dismissal of Gough Whitlam through the directed coverage of The Australian, which ultimately resulted in a journalists’ strike amid accusations of editorial bias.9 Stories of governments shaping media policy in an implicit quid pro quo for favourable coverage equally make for some of the more interesting conspiracy theories in Australian politics.10 The introduction of the cross-media ownership regime included reforms that greatly enhanced the value of commercial television broadcasting licences by allowing the formation of national networks. Further, the structural effect of prohibiting crossmedia mergers was thought to deliberately assist Packer interests by restricting the newspaper-focused Fairfax group from expanding into television.11 It is similarly hard to resist the conclusion that policies on digital television were designed to do anything other than extend arrangements that suited established freeto-air networks, notwithstanding the potential of the new technology.12

QUESTIONS 1 2 3 4 8

Are you concerned about the concentration of media ownership in Australia? Can you think of any examples of media proprietors seeking to influence a particular issue or political contest? Is there such a thing as too much diversity in media? Would less, but higher quality and more fully funded outlets be preferable? Do online services contribute to diversity in media? In what way?

On the media and democracy, see generally Rodney Tiffen, ‘The Media and Democracy: Reclaiming an Intellectual Agenda’, in Julianne Schultz (ed), Not Just Another Business: Journalism, Citizens and the Media, Pluto Press, Sydney, 1994. 9 Dennis Cryle, ‘Labor’s Bane’, in Murdoch’s Flagship: Twenty-Five Years of the Australian Newspaper, Melbourne University Publishing, Carlton, Vic, 2008, 132–39. House of Representatives Select Committee on the Print Media, News and Fair Facts: The Australian Print Media Industry, March 1992, [8.48]. 10 Ian Ward, ‘Ownership and Control: Media Mates and Moguls’, in Politics of the Media, Macmillan, South Melbourne, 1995, 125–31; Trevor Barr, Newmedia.com.au, Allen & Unwin, St Leonards, NSW, 2000, 10–16. 11 Ward, above n 10, 130–31.

123

124

PART 2 Media Regulation

Copyright © 2015. Oxford University Press. All rights reserved.

6.2

The evolution of Australian media ownership laws

Australian media ownership laws are effected through broadcasting legislation and principally focus on broadcasting services. This could be because broadcasting services are highly influential, could simply be an accident of history, or it could be explained by the regulatory opportunity that comes with licensing broadcasters. In 1935, the number of radio stations that could be commonly owned in a city, a state and nationally became restricted in order to prevent the development of ‘radio monopolies’.13 Two decades later, when television was introduced, rules were put in place to stop anyone owning more than one television station in a licence area, or more than two stations nationally.14 Although these provisions have evolved, the Broadcasting Services Act 1992 (Cth) still contains control rules that place limits on the ownership of multiple licences within the same medium. A regulatory framework centred on cross-media ownership was implemented by the federal Labor government in the late 1980s. This regime was deregulatory at the time. Cross-media ownership rules prevented common ownership across newspapers, commercial radio and commercial television operating in the same licence area.15 That is, a proprietor could not have a controlling interest in more than one of the dominant traditional media institutions in a particular geographic area. However, the rules allowed greater concentration of ownership within each platform and facilitated the establishment of national broadcasting networks. As then Treasurer Paul Keating famously explained, proprietors could choose to be ‘princes of print, queens of the screen or rajahs of radio’. The cross-media ownership rules had (and continue to have) a profound effect on the structure of Australian media. Major media companies in Australia are generally focused on one of the traditional media institutions, with ancillary interests accumulated across media formats that were not covered by the cross-media rules (for instance, magazines, pay television and online services). The current media ownership regulatory framework retains the basic elements of the cross-media ownership regime, as modified by substantial reforms passed by the Coalition government in 2006.16 The reform agenda included changes to media diversity rules and to media-specific foreign ownership restrictions. A new diversity test was introduced into the Broadcasting Services Act 1992 (Cth) allowing cross-media transactions provided that a minimum number of commercial media groups (or ‘voices’) continued to exist in the relevant licence area.17 It was initially intended that the cross-media ownership rule would be wholly abandoned; however, last-minute negotiations over the Bill saw the retention of some limits.18 Common control across all three traditional media institutions (commercial radio, television and associated newspapers) remains prohibited.19 13 Jock Given, ‘Cross-Media Ownership Laws: Refinement or Rejection’ (2007) 13(1) University of New South Wales Law Journal Forum 33 at 33; Franco Papandrea, ‘Media Diversity and Cross-Media Regulation’ (2006) 24(3) Prometheus 301. 14 Ibid. 15 Broadcasting (Ownership and Control) Act 1987 (Cth), which amended the Broadcasting Act 1942 (Cth). Initially the cross-media ownership rule only applied to television and newspapers; however, it was extended to include radio by the Broadcasting (Ownership and Control) Act 1988 (Cth). 16 Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth). 17 Broadcasting Services Act 1992 (Cth) ss 61AG and 61AH. 18 See Department of Communications, Information Technology and the Arts (DCITA), Meeting the Digital Challenge: Reforming Australia’s Media in the Digital Age, March 2006, 41. 19 Broadcasting Services Act 1992 (Cth) ss 61AMA and 61AMB.

CHAPTER 6 Media Ownership

6.3

Ownership and control under the Broadcasting Services Act

The Broadcasting Services Act 1992 (Cth) regulates the ownership and control of commercial television, commercial radio and certain newspapers. The Commonwealth Government does not have a specific constitutional head of power allowing it to make laws in relation to the press. However, newspaper ownership is incidentally regulated as the Broadcasting Services Act 1992 (Cth) limits common ownership of broadcasting licences and ‘associated’ metropolitan daily newspapers.20

6.3.1

Media diversity rules

Media diversity rules are designed to prevent ownership concentration across commercial radio, commercial television and associated newspapers. An associated newspaper is one that is associated with a particular licence area because of its circulation levels. A newspaper will be associated with a commercial television licence area where at least 50 per cent of its circulation is within that licence area. A newspaper will be associated with a radio licence area where at least 50 per cent of its circulation is within that licence area and it reaches at least 2 per cent of the area’s population.21 To be considered a newspaper in the first place, a publication has to be published in English, at least four days a week, and at least 50 per cent of circulation has to be by way of sale.22 The effect of these definitions, when read together, is that national newspapers, free newspapers and many small community newspapers are disregarded for the purposes of the media ownership rules set out in the Broadcasting Services Act 1992 (Cth).

Copyright © 2015. Oxford University Press. All rights reserved.

An ‘unacceptable media diversity situation’—the 5/4 Rule The Broadcasting Services Act 1992 (Cth) prohibits transactions that would lead to an unacceptable media diversity situation.23 Whether a transaction will cause an unacceptable media diversity situation to arise is determined according to a points system, which aims to count the number of independent media ‘voices’ that exist in a licence area.24 An independently controlled media operation (being a commercial television broadcasting licensee; a commercial radio broadcasting licensee; or an associated newspaper) serving a particular licence area is worth one point; as is a commonly controlled media group of two or more media operations.25 Other types of broadcasting service, such as those provided by national, community, narrowcast or subscription licensees, do not constitute a ‘voice’ for the

20 Section 52A of the Broadcasting Services Act 1992 (Cth) asserts an additional constitutional basis referring to newspapers published by a corporation; or where the circulation of the newspaper is within two or more states, a territory or a foreign country. 21 Broadcasting Services Act 1992 (Cth) s 59. 22 Ibid s 6(1) definition of newspaper. 23 Ibid ss 61AB, 61AG and 61AH. 24 The licence areas for commercial radio are used as the relevant geographic reference point. Additional ­provisions in the Broadcasting Services Act 1992 (Cth) take into account situations where television licence areas overlap—and where commercial television licensees share content: Broadcasting Services Act 1992 (Cth) ss 61AC Items 4 and 5. 25 Ibid s 61AC Items 1 (media groups), 2–5 (independent media operations). See also s 61AA definitions of media group and media operation.

125

126

PART 2 Media Regulation

purposes of the test.26 Similarly, magazines and online services are not taken into account. A transaction will be prohibited where it causes the number of points (or voices) in a licence area to fall below five in metropolitan licence areas or four in regional licence areas.27 This diversity test is sometimes referred to as the 5/4 rule. One of the criticisms of the 5/4 rule is that it does not consider the relative influence of a particular media outlet. A suburban newspaper and a commercial television station could potentially both count for one point although the actual influence and audience reach of each operation is substantially different.

An ‘unacceptable 3-way control situation’—the 2/3 Rule An unacceptable 3-way control situation will occur where a person is in a position to control all three types of regulated media operation in a licence area.28 The Broadcasting Services Act 1992 (Cth) prohibits transactions that would result in an unacceptable 3-way control situation.29 In other words a transaction cannot cause someone to be in a position to control a commercial television broadcasting licence, a commercial radio broadcasting licence and an associated newspaper in the same licence area.

Copyright © 2015. Oxford University Press. All rights reserved.

6.3.2

Statutory control rules

Statutory control rules set out in the Broadcasting Services Act 1992 (Cth) restrict the acquisition of multiple licences within the same medium. There are two such rules affecting commercial television broadcasters. A person must not be in a position to control more than one commercial television broadcasting licence in the same licence area.30 This is called the ‘one-to-a-market rule’. In addition, a person may not accumulate television licences that broadcast to more than 75 per cent of the Australian population.31 This is called the ‘audience reach rule’. For commercial radio, the Act states that a person may not be in a position to control more than two commercial radio broadcasting licences in the same licence area.32 This rule is referred to as the ‘two-to-a-market rule’. All of these control rules are supported by parallel provisions that limit a person holding company directorships along similar lines.33 The one-to-a market (commercial television) and two-to-a-market (commercial radio) are the least controversial of the media ownership rules set out in the Broadcasting Services Act 1992 (Cth). There are no particularly vocal calls to remove these rules, and there is a sense that transactions approaching these thresholds may be prevented by competition laws in any event. The audience reach rule has few friends. The rule does not prevent programming networks from forming between metropolitan and regional affiliates. As such, the rule has not had a substantive effect on the diversity of content actually transmitted to viewers. 26 See Standing Committee on Environment, Communications, Information Technology and the Arts, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills, October 2006. 27 Broadcasting Services Act 1992 (Cth) ss 61AA definitions of metropolitan licence area and regional licence area, 61AB, 61AG and 61AH. 28 Ibid s 61AEA. 29 Ibid ss 61AMA and 61AMB. 30 Ibid s 53(2). 31 Ibid s 53(1). 32 Ibid s 54. 33 Ibid ss 55 and 56; ACMA, Statement of Findings: Breaches of Section 56 by Lachlan Murdoch, January 2011; and ACMA, Statement of Findings: Breach of Section 56 by Siobhan McKenna, January 2011—the ACMA took no action in respect of the breaches.

CHAPTER 6 Media Ownership

Franco Papandrea, ‘Media Diversity and Cross-Media Regulation’ (2006) 24(3) Prometheus 301 at 310

The public good nature of television programmes generates strong incentive for broadcasters to maximise the size of the audience for a given programme. One way of maximising audience size is to transmit the same programme to a network of commonly owned or affiliated stations. Audience reach limits, however, prevent the extent to which networks can be formed under common ownership. In a network, centralised programme purchasing and scheduling functions can be performed more cost effectively than the alternative of performing those functions separately for each station in the network. Networks also have advantages over independent stations in producing programmes and competing for independently produced programmes, because production costs can be spread over all the stations in the network. Networks also enhance the sale of advertising, particularly for television where national advertising prevails and is placed mainly through advertising agencies. Advertisers tend to pay a premium for large audiences and incur lower placement costs by dealing with the network. Similarly networks benefit from having a single specialised sales force for all their stations and from the ability to promote the stations as a group. The current limits on the population reach of television stations under common ownership has not stopped the formation of ‘programming’ networks with a population reach in excess of the limit. The formation of programming networks is brought about by two major factors, namely economies of scale from the ability to spread the cost of a common programming function and by the ongoing ban on the licensing of new commercial services. The latter ban means that unaffiliated stations have one realistic programming choice and that is to affiliate with one of the three major networks. As a result, the same programmes, with only minor local variations, are broadcast throughout the country. In other words, the audience reach limits have essentially no effect on the delivery of diversity of programmes, particularly those such as news and current affairs that are likely to influence opinion. Under the circumstances, the effectiveness and value of the regulation is questionable. There would be little, if any loss in diversity if the regulation was abrogated.

Copyright © 2015. Oxford University Press. All rights reserved.

6.3.3

The concept of control

The ownership rules in the Broadcasting Services Act 1992 (Cth) centre on a deliberately flexible concept of whether someone is in a position to exercise control of a particular media property.34 One of the perceived failings of the Broadcasting Act 1942 (Cth) was that it attempted to state a definitive test of control, which could be creatively evaded.35 The question of control is to be determined by practical and commercial considerations rather than highly refined legalistic tests.36 This flexible approach was designed to discourage ‘the construction of corporate entities for the purposes of avoiding fixed concepts of control that might be embodied in legislation’.37 The Broadcasting Services Act 1992 (Cth) acknowledges that control may be brought about through a range of interests other than direct ownership.

34 The concern is whether someone is in a position to exercise control and not whether control is actually ­exercised: Canwest Global Communications Corporation v Australian Broadcasting Authority (1997) 147 ALR 539 at 550. 35 Explanatory Memorandum to the Broadcasting Services Bill 1992, 41. Nonetheless, CanWest’s 56 per cent economic interest in the Ten Network was capable of being structured so that it did not give CanWest control of the network for the purposes of the Broadcasting Services Act 1992 (Cth). This proved that even flexible understandings of control could still be avoided, but required a higher level of legal creativity. See Productivity Commission, Broadcasting, Report No. 11, March 2000, 338; ABA, Investigation into Control: CanWest Global Communications Corporation/The Ten Group Ltd—Third Investigation, October 1998, 5–6. 36 Re Application of News Corp Ltd (1987) 15 FCR 222 per Lockart J at 246; Canwest v ABA (1997) 147 ALR 539 per Hill J at 558. 37 Explanatory Memorandum to the Broadcasting Services Bill 1992, 42.

127

128

PART 2 Media Regulation

Control may include ‘control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights’.38

The Legislative Essay on Control Part 1 of Schedule 1 to the Broadcasting Services Act 1992 (Cth) contains a legislative essay on control. This legislative essay provides guidance on how to determine whether someone is in a position to control a broadcasting licence or newspaper.39 The Schedule continues to set out certain indicia of control, and provisions on how to trace control through more complex corporate structures.

Broadcasting Services Act 1992 (Cth) Schedule 1, Part 1

Copyright © 2015. Oxford University Press. All rights reserved.

1. Control—general (1) This Schedule is intended to provide a means of finding out who is in a position to exercise control of commercial television broadcasting licences, commercial radio broadcasting licences, subscription television broadcasting licences, international broadcasting licences, datacasting transmitter licences, restricted datacasting licences, newspapers and companies and a means of tracing company interests. This Schedule recognises that the concept of control of a licence, a newspaper or a company can be a complex one. The holding of company interests is not the only way to be in a position to exercise control. Clauses 2 and 3 set out the rules for deciding when a position to exercise control exists. While company interests may be important in deciding that question, they are only one issue. In some cases, it may be important to look at agreements and arrangements between people and at accustomed courses of conduct between people. In this respect, the definition of associate in section 6 of this Act is important. A person who has company interests exceeding 15% in a company is regarded as being in a position to control the company. Control of a company may also come about through company interests of 15% or less. This could happen where a person holds company interests of say 10% but no other person holds company interests of more than say 2% and those other persons do not act in concert. A person may be in a position to exercise control of only the media activities of a licensee or a newspaper, but that position is nevertheless to be regarded as a position to exercise control of the licence or the newspaper. (2) Because of the complexities involved in this area, it is not possible to provide rules which will give a definite answer in all cases. Therefore, the ACMA is given a monitoring role over the broadcasting and datacasting industries and suitable powers of investigation in order to reach a conclusion as to whether a person is in a position to exercise control or not. In order to provide certainty for persons involved in those industries, the ACMA is also given, under section 74, a power to give a binding opinion on the question of control.

More than one person may be in a position to exercise control of a media company or a broadcasting licence.40 A person will be in a position to control an associated newspaper if they publish it, or a licence if they are the licensee.41 Control will also be established where a person (directly or indirectly) exercises control over the content or operations of a licence 38 39 40 41

Broadcasting Services Act 1992 (Cth) s 6(1) definition of control. Ibid s 7. Ibid Sch 1 cl 2(4). Ibid Sch 1 cls 2(b)(i), 3(1)(a).

CHAPTER 6 Media Ownership

or newspaper to a significant extent.42 A person will be in a position to exercise control of a company (which may have direct or indirect interests in a media property) where they are able to veto actions taken by the board of directors, control appointments to the board or in any other manner exercise direction or restraint over the company’s management or affairs.43 This extends to circumstances where the company or more than 50 per cent of its directors are accustomed to act in accordance with the person’s instructions or wishes.44 This is not an exhaustive list of the circumstances in which control will be established—further indicia are set out in clause 2 of Schedule 1. If a person has a company interest (for instance, a shareholding or voting interest) of more than 15 per cent in a company, they are deemed to be in a position to exercise control of that company.45 It is important to note that this is only a deeming provision. A person may be in a position to exercise control of a company if they hold company interests of less than 15 per cent. The 15 per cent rule can be extended through a series of companies and company interests.

Broadcasting Services Act 1992 (Cth), Schedule 1, Part 3 7 Application of method through chain of companies The [15 per cent rule] can be applied in the case of a chain of companies. Where a company interest of more than 15% is maintained throughout the chain, the person is to be regarded as being in a position to exercise control of the last company in the chain. Example: 15% Person

15% Co.A

15% Co.B

15% Co.C

Co.D

Here the person is to be regarded as being in a position to exercise control of Company D.

Copyright © 2015. Oxford University Press. All rights reserved.

The Broadcasting Services Act 1992 (Cth) adopts a fractional tracing method to follow company interests through a corporate group.46

Broadcasting Services Act 1992 (Cth), Schedule 1, Part 4 8 Tracing of ownership Company interests can be traced through a chain of companies using a method known as the fractional tracing method. This method applies a formula to decide what company interest a person has.

42 Ibid Sch 1 cls 2(b)(ii), (iii), 3(b). For an analysis of where control will be established by means ­other than through company interests, see ACMA, Investigation into Control of Commercial Radio Broadcasting Licences Held by Elmie Investments Pty Ltd, November 2007, 101–16. 43 Broadcasting Services Act 1992 (Cth) Sch 1 cls 2(d), 3(c). 44 Ibid Sch 1 cls 2(e), 3(c)(v). 45 Ibid Sch 1 cl 6. Also see s 6 definition of company interest. 46 For an example of the fractional tracing method being applied, see Australian Broadcasting Authority, Investigation into Control: Mr Kerry Packer/John Fairfax Holdings Ltd, April 1995, Appendix B.

129

130

PART 2 Media Regulation

This method is best demonstrated by an example. Example: 30% Person

10% Co.A

Co.B

The person’s company interest in Company B is worked out using the formula: Company Interest 1 × Company Interest 2 where: • Company Interest 1 is the company interest of the person, expressed as a fraction, in Company A. • Company Interest 2 is the company interest of Company A, expressed as a fraction, in Company B. In this case, the formula produces: 3/10 × 1/10, which means that the person has a 3% company interest in Company B. Interests traced in this way can be added. If Company B is a licensee and the person had, through other chains of companies, a further 12.5% company interest in Company B, the person would be regarded as being in a position to exercise control of Company B under Part 3 of this Schedule because the person would have company interests exceeding 15% in Company B. Example: Person

80% Company C

Company A

10%

45% Company D 10%

Company B (Licensee)

Copyright © 2015. Oxford University Press. All rights reserved.

In this example, the person has a 15.5% company interest in Company B. This is made up of 3% (through Company A), 8% (through Company C) and 4.5% (through Company D). This method of tracing ownership may be used through any number of companies. However, the ACMA is not required to trace every minor company interest.

The Broadcasting Services Act 1992 (Cth) allows for a person to be in a position to exercise control of a media company or media property either alone, or together with their associates.47 The associate provisions take into account that business and personal relationships can be an aspect of control.48

Broadcasting Services Act 1992 (Cth) Section 6 associate, in relation to a person in relation to control of a licence or a newspaper, or control of a company in relation to a licence or a newspaper, means: (a) the person’s spouse (including a de facto spouse) or a parent, child, brother or sister of the person; or (b) a partner of the person or, if a partner of the person is a natural person, a spouse or a child of a partner of the person; or (c) if the person or another person who is an associate of the person under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or

47 Broadcasting Services Act 1992 (Cth) Sch 1 cl 2(1)(a), 3(1)(c). 48 For further analysis of the associate provisions, see Australian Broadcasting Authority, above n 46, [4.1]–[4.8]; ACMA, above n 42, [9.5].

CHAPTER 6 Media Ownership

(d) a person (whether a company or not) who: (i) acts, or is accustomed to act; or (ii) under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act; in accordance with the directions, instructions or wishes of, or in concert with, the first-mentioned person or of the first-mentioned person and another person who is an associate of the first-mentioned person under another paragraph; or (e) if the person is a company—another company if: (i) the other company is a related body corporate of the person for the purposes of the Corporations Act 1990; or (ii) the person, or the person and another person who is an associate of the person under another paragraph, are in a position to exercise control of the other company;

Copyright © 2015. Oxford University Press. All rights reserved.

but persons are not associates if the ACMA is satisfied that they do not act together in any relevant dealings relating to that company, licence or newspaper, and neither of them is in a position to exert influence over the business dealings of the other in relation to that company, licence or newspaper. [Emphasis added.]

As the Broadcasting Services Act 1992 (Cth) adopts a deliberately flexible understanding of control, there is scope for regulatory uncertainty. Avenues are available to request an ACMA opinion on whether a person is in a position to exercise control of a broadcasting licence, a newspaper or a media company, or whether they would be if a particular transaction took place.49 While available, ACMA opinions are rarely sought in practice. A prior approval regime exists in the Broadcasting Services Act 1992 (Cth) allowing the ACMA to grant prior approval to a transaction that would otherwise result in a breach of the media diversity rules.50 The ACMA must be satisfied that the applicant for prior approval, or another person, will ensure that the breach does not continue beyond a specified date.51 The ACMA may also grant prior approval of a temporary breach of statutory control rules where satisfied that the breach will be incidental to objectives of the transaction, and steps will be taken to ensure the breach does not continue.52 The ACMA will have regard to the objects of the Broadcasting Services Act 1992 (Cth) when exercising its discretion to grant prior approval.53 Prior approval provisions may operate in concert with the ACMA’s power to accept enforceable undertakings.54 The ACMA is generally charged with monitoring compliance with the ownership and control rules in the Broadcasting Services Act 1992 (Cth). The ACMA is assisted in this role by notification provisions requiring media organisations to regularly report on known 49 Broadcasting Services Act 1992 (Cth) s 74. 50 Ibid ss 61AJ and 61AMC. 51 The maximum period for which a breach of an unacceptable media diversity situation may be approved is two years: Broadcasting Services Act 1992 (Cth) s 61AJ(5); the maximum period for which a breach of an unacceptable three-way control situation may be approved is 12 months: s 61AMC(5). The ACMA may grant an extension of time to comply with a prior approval notice where satisfied it is appropriate to do so: ss 61AK(2), 61AMD(2). 52 Broadcasting Services Act 1992 (Cth) s 67. A prior approval of a temporary breach may be for a period of up to two years, and there is scope for a further extension of time: ss 67(5), 68. 53 ACMA, Media Ownership Reforms—Prior Approval Processes for Certain Media Mergers, September 2007. 54 For example, the ACMA gave prior approval for certain breaches of statutory control rules by Fairfax and its directors when acquiring radio assets previously held by Southern Cross Broadcasting: ACMA, Fairfax Media Undertakes to Divest Ipswich Radio Station, Media Release 12/2008, 13 February 2008. See also Ian McGill, ‘Cross Media ­Mergers Under the 2006 Amendments to the Broadcasting Services Act 1992 (Cth)’ (2007) 13(1) University of New South Wales Law Journal Forum 47 at 50.

131

132

PART 2 Media Regulation

matters of control and directorships.55 This information is reflected in a register of controlled media groups maintained by the ACMA and in the ACMA’s Media Diversity Report, which is intended to provide market participants with a clear picture of the number of independent media operations that exist in a licence area.56 Where the ACMA establishes that a breach of a media diversity rule exists, it may issue a remedial direction requiring that the person take action to ensure the breach does not continue.57 The ACMA may also pursue a civil penalty order in the Federal Court;58 seek an injunction to prevent a contravention;59 accept an enforceable undertaking;60 or refer the matter to be prosecuted as an offence.61 The enforcement measures that follow a breach of a statutory control rule are more serious. If the ACMA is satisfied that a person has contravened a statutory control rule, it may issue a notice directing the person to remedy the breach,62 or accept an enforceable undertaking in order to effect compliance.63 Otherwise, breach of a statutory control rule may be prosecuted as an offence with penalties of up to $3.4 million where the breach relates to a commercial television broadcasting licence, or $340,000 where the breach relates to a commercial radio broadcasting licence.64

QUESTIONS 1 Is it worth having audience reach rules? What would be a better limitation? 2 Is the trade-off between regulatory certainty and flexibility in the concept of control appropriate?

Copyright © 2015. Oxford University Press. All rights reserved.

6.4

Competition

Australian competition regulation is effected through the Competition and Consumer Act 2010 (Cth), administered by the Australian Competition and Consumer Commission (ACCC). Media, like any other industry, is subject to the Competition and Consumer Act 2010 (Cth). The provision that most directly affects media ownership under this legislation is s 50, which prohibits acquisitions of shares or assets that would have, or would be likely to have, the effect of substantially lessening competition in a market.65 The factors to be considered when assessing whether an acquisition will substantially lessen competition in a relevant market are set out in s 50(3). These include barriers to entry to the market, level of concentration in the market, the likelihood that the acquirer would be able to significantly and sustainably increase prices or profit margins, the extent to which substitutes are available in the market, and the dynamic characteristics of the market—including growth, innovation and differentiation. The ACCC provides detailed guidance on each of the merger factors in its Merger Guidelines (2008).66 55 Broadcasting Services Act 1992 (Cth) ss 62–65B. 56 Ibid ss 61AU–61AZH. A register of associated newspapers is maintained under s 59(1) of the Broadcasting Services Act 1992 (Cth) and a register of licences, notifications, approvals and other matters is maintained under s 75 of the Act. 57 Ibid ss 61AN, 61ANA. 58 Ibid ss 205F, 205G. 59 Ibid s 205Q. 60 Ibid ss 61AS, 205W. 61 Ibid ss 61AG and 61AMA. 62 Ibid s 70. 63 Ibid s 205W. 64 Ibid s 66. Also note that this is a continuing offence: s 76. Crimes Act 1914 s 4AA (definition of a penalty unit). 65 Competition and Consumer Act 2010 (Cth) s 50. The ACCC has adopted a practice of referring to acquisitions of shares or assets affected by s 50 as ‘mergers’ and participants as ‘merger parties’. This practice has been adopted here as well. See ACCC, Media Mergers, 2006, 3.

CHAPTER 6 Media Ownership

Copyright © 2015. Oxford University Press. All rights reserved.

6.4.1

Market definition

Section 50 is concerned with acquisitions that substantially lessen competition in a market.67 The definition of the relevant market is therefore critical to any assessment of whether an acquisition would be contrary to the Competition and Consumer Act 2010 (Cth). A simple explanation of a market offered by the ACCC is that a market is ‘the product and geographic space in which rivalry and competition take place’.68 There are, then, two basic elements to a market: a product dimension, and a geographic dimension.69 Defining a market can be difficult. As noted by the ACCC, ‘it is rarely possible to draw a clear line around fields of rivalry’.70 Another key concept in defining a market is substitution. The Competition and Consumer Act 2010 (Cth) states that a market for goods and services includes substitutable or otherwise competitive goods and services.71 Substitutable products can act as a competitive constraint. The substitution analysis considers, for example, if the cover price of newspapers went up would consumers instead buy more magazines.72 As a general principle, the broader the market and broader the field of competition, the harder it will be to find that a transaction substantially lessens competition in that market. As another basic (and, as far as we know, hypothetical) example: Facebook acquiring Twitter may not affect the market for online services generally, but may affect a market for social media services. Media markets were traditionally defined according to platform. Newspapers, radio, television and pay television were taken to be in separate markets.73 These clean distinctions have been complicated by processes of convergence. As media content, advertising spend and audiences move more freely across platforms, it is has become necessary to develop more sophisticated market definitions. The ACCC’s guidance paper Media Mergers (2006) outlines an analytical framework under which the Commission may depart from platformbased definitions of media markets. In assessing media mergers the ACCC will consider whether competition concerns are apparent in the following cross-platform markets: the supply of advertising opportunities to advertisers; the supply of content to consumers; and the acquisition of content from content providers. While the ACCC may apply this flexible analytical framework in assessing media mergers, it is important to note that market definitions adopted by the ACCC remain open to challenge in the Federal Court. The language of the Competition and Consumer Act 2010 (Cth) remains the important touchstone.

6.4.2

Approval processes

The ACCC enforces the merger provisions of the Competition and Consumer Act 2010 (Cth). The ACCC does not have the power to prohibit a media merger; however, the ACCC 67 68 69 70 71

For the general definition of a ‘market’ see: Competition and Consumer Act 2010 (Cth) ss 4E, 50(6). ACCC, above n 66, [4.6]. Ibid [4.8]. Ibid [4.4]. Competition and Consumer Act 2010 (Cth) s 4E; see also Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 at 190. 72 In Seven Network v News Limited (the ‘C7 litigation’), there was a consensus that AFL broadcasting rights and NRL broadcasting rights were in different markets: Seven Network v News Limited [2007] FCA 1062 at [1783], [1908]. A more contentious aspect of the C7 litigation was whether there were separate markets for the acquisition of free-to-air and subscription broadcasting rights. Seven argued (unsuccessfully) that the ability of rights owners to offer rights to free-to-air broadcasters would not act as a constraint on the price of pay television rights: Seven Network v News Limited [2007] FCA 1062 at [1811]–[1812], [1856]. 73 Graham Samuel, Grandad, What’s a Newspaper? The Next Media Revolution, 19 May 2006, 3; ACCC, Media Mergers, August 2006, 5.

133

Copyright © 2015. Oxford University Press. All rights reserved.

134

PART 2 Media Regulation

or a third party may apply to the Federal Court for an injunction to prevent a transaction.74 After the fact, the ACCC may apply to the Federal Court for divestiture or penalties; and third parties may bring an action seeking divestiture or damages.75Although not formally required, it is common practice for merger parties to seek a clearance from the ACCC or the Australian Competition Tribunal before proceeding with a transaction that may contravene the Competition and Consumer Act 2010 (Cth).76 There are three merger approval processes available to merger parties: informal clearance and formal clearance from the ACCC; and authorisation from the Australian Competition Tribunal.77 It is open to merger parties to approach the ACCC seeking an informal opinion on whether the Commission is likely to take action in response to a proposed transaction.78 The ACCC will grant informal clearance where a transaction does not raise substantial competition concerns. However, this process does not confer any formal legal immunity. A third party may seek damages or a divestiture order post-acquisition even where a transaction has been informally cleared, although it is very rare for a third party to seek to undo a merger that the ACCC did not oppose.79 Confidentiality through the informal clearance process can be negotiated between the ACCC and the merger parties.80 Where informal clearance is refused, merger parties have no structured avenue of appeal but may elect to proceed with a transaction and contest any subsequent court action brought by the ACCC or a third party. Informal clearance is likely to be sought where a transaction does not appear to create substantive competition issues, or where any such issues are easily resolved through undertakings given by the merger parties. An application for formal clearance may be made to the ACCC.81 The ACCC must not grant formal clearance unless it is satisfied that the proposed acquisition is not likely to substantially lessen competition.82 The formal clearance provisions were introduced following the recommendations of the Dawson Review.83 The establishment of a formal regime was intended to give merger parties more certainty than the informal clearance system.84 Formal clearance provides merger parties with legal protection from court action under s 50 of Competition and Consumer Act 2010 (Cth).85 Further, the ACCC must issue a determination on a clearance application within 40 business days.86 This contrasts with the process for informal clearance, which does not have such a definite timeline. An applicant may request that certain information or documents be kept confidential through a formal

74 Competition and Consumer Act 2010 (Cth) s 80. 75 Ibid s 81. 76 Australia does not have a mandatory notification regime—merger parties are free to proceed with a t­ ransaction without seeking prior clearance: Graham Samuel, ‘Key Competition Issues in Australia’s Media and Broadcasting Markets’ (2007) 13(1) University of New South Wales Law Journal Forum 2 at 2. 77 ACCC, Informal Merger Review Process Guidelines, September, 2013; Competition and Consumer Act 2010 (Cth), Part VII, Division 3. Also note that merger parties may seek a declaration from the Federal Court that a transaction would not contravene the Competition and Consumer Act 2010 (Cth). 78 ACCC, Informal Merger Review Process Guidelines, September 2013. 79 Ibid [1.11]. 80 Ibid [2.17]–[2.22]. 81 Competition and Consumer Act 2010 (Cth) Part VII, Division 3, Subdivision B. 82 Ibid s 95AN. 83 Daryl Dawson, Review of the Competition Provisions of the Trade Practices Act, January 2003. 84 ACCC, Formal Merger Review Process Guidelines, June 2008, [1.13]–[1.15]. 85 Competition and Consumer Act 2010 (Cth) s 95AC(2). 86 Ibid s 95AO.

CHAPTER 6 Media Ownership

clearance process.87 However, the default position is that material will be publicly disclosed.88 This is consistent with the recommendations of the Dawson Review that sought to increase the transparency of the ACCC’s clearance decisions.89 Where formal clearance is refused by the ACCC, the applicant may seek a review of the decision by the Australian Competition Tribunal.90 The final option is for merger parties to apply to the Australian Competition Tribunal for a merger authorisation. Like formal clearance, authorisation provides legal immunity from court action; however, the test for approval is different. Formal and informal clearance turn on whether an acquisition will or will not result in a substantial lessening of competition. An authorisation may be granted by the Australian Competition Tribunal, even where it may cause a substantial lessening of competition, if the proposed merger is likely to result in a public benefit.91

6.4.3

87B Undertakings

ACCC clearance may be conditional on undertakings designed to address competition concerns. The ACCC can accept enforceable undertakings pursuant to s 87B of the Competition and Consumer Act 2010 (Cth). The ACCC prefers structural undertakings (such as divestiture) as opposed to behavioural undertakings (relating to, for example, price, output, quality and service guarantees and obligations), which are more difficult to enforce and can require monitoring.92

6.4.4 FOXTEL/Austar

Copyright © 2015. Oxford University Press. All rights reserved.

The following extract is taken from the ACCC’s public competition assessment of the FOXTEL/Austar merger in 2012. It shows how the ACCC goes about defining media markets; how it assesses the impact of a merger on competition in those markets, and how undertakings may address identified competition concerns.

ACCC, Public Competition Assessment: FOXTEL—proposed acquisition of Austar United Communications Limited 14

June 2012 (footnotes omitted)

Introduction 1. On 10 April 2012, the Australian Competition and Consumer Commission (ACCC) announced its decision not to oppose the proposed acquisition of Austar United Communications Limited (Austar) by FOXTEL Management Pty Ltd (FOXTEL) (the proposed acquisition), subject to undertakings accepted by the ACCC on 9 April 2012 (the undertakings) pursuant to section 87B of the Competition and Consumer Act 2010

87 Ibid s 95AI. 88 See Competition and Consumer Act 2010 (Cth) ss 95AG (applications to be published online) and 95AH (merger clearance register). 89 Dawson, above n 83, 61. 90 Competition and Consumer Act 2010 (Cth) s 111. 91 Ibid ss 95AT and 95AZH. 92 ACCC, Formal Merger Review Process Guidelines, June 2008, [3.105]; ACCC, Merger Guidelines, November 2008, 63 (Appendix 3).

135

136

PART 2 Media Regulation



(Cth) (the Act). The ACCC decided that the proposed acquisition, in conjunction with the undertakings, would be unlikely to have the effect of substantially lessening competition in any market in contravention of section 50 of the Act.

The Parties FOXTEL 9. FOXTEL is Australia’s largest subscription television provider delivering audiovisual content to more than 1.6 million residential subscribers in metropolitan Australia. 10. FOXTEL delivers more than 200 channels, including high definition (HD) content, covering news, sport, general entertainment, movies, documentaries, music and children’s programming. …

Austar United Communications Limited 13. Prior to its acquisition by Foxtel, Austar was listed on the Australian Securities Exchange. Liberty Global, an international media company based in the United Kingdom, owned a 54.2% indirect majority interest in Austar as at 31 March 2011. The remainder of the issued capital were publicly held. 14. Austar had more than 750,000 subscribers. Austar’s coverage area was approximately 2.4 million homes in regional and rural Australia, as well as the Gold Coast, Darwin and Hobart. 15. Austar provided over 180 “premier” channels and 13 HD Channels. 16. Austar had a 50% stake in XYZnetworks (a 50/50 joint venture with FOXTEL). XYZnetworks was the exclusive owner and/or distributor of twelve key channels including Arena, a number of Lifestyle-branded channels and VH1. …

Market definition 27. The ACCC considered that the following two markets were most relevant to the assessment of the competitive impact of the proposed acquisition: • the national market for the retail supply of subscription television services; and • a number of regional markets for the supply of fixed broadband and fixed voice telephony products.

Copyright © 2015. Oxford University Press. All rights reserved.

28. The ACCC also considered the impact of the proposed acquisition in content acquisition markets and in the supply of subscription television services to consumers on the Gold Coast.

National market for the supply of subscription television services 29. The ACCC formed the view that there was a national market for the supply of subscription television services. Other sources of supply of audiovisual content to end consumers including FTA television, mobile TV and audiovisual content delivered on a transactional basis, including over the internet, were not sufficiently close substitutes to be considered in the same market as subscription television services.

Characteristics of subscription television services 30. Subscription television providers typically deliver a package of multiple linear television channels, each of which generally conforms to a particular genre or subject (such as children’s television or sport). Subscription television usually includes niche programming and often repeat programming at different times and dates. 31. Subscription television is provided to subscribers for a fee and is delivered to subscribers’ televisions, traditionally via cable or satellite distribution systems. However, based on information available to the ACCC, IPTV appeared to be emerging as a potentially significant alternative delivery mechanism through which subscription television could be provided to end consumers.

Subscription video on demand services 32. The ACCC also considered that SVOD services were likely to become closer substitutes for traditional subscription television, particularly for certain types of content such as movies. SVOD exhibits many

CHAPTER 6 Media Ownership

of the same characteristics as subscription television. SVOD typically involves the consumer paying a regular fixed fee for a selection of aggregated content. The most significant difference from other subscription television services is that the consumer has a significant degree of freedom to determine the scheduling and precise composition of programming.

FTA television services 33. The ACCC recognised that FTA television operators compete to some extent with subscription television providers for the supply of audiovisual content to end consumers. 34. The ACCC formed the view that FTA television was not a sufficiently close substitute to be considered in the relevant market for the purposes of this competition analysis. The ACCC considered that the availability of FTA television, in combination with other sources of audiovisual content, would be likely to provide an ultimate competitive constraint to subscription television, but that other subscription television services were closer substitutes. If there was a market with multiple subscription television service providers, the competition between those providers would be significantly closer and more vigorous than between the subscription television providers and FTA television broadcasters.

Other audiovisual content delivery services 35. The ACCC considered that mobile television services were unlikely to be close substitutes for subscription television services. However, the ability for a subscription television service provider to be able to offer a roaming service (on tablet devices or mobile phones) in conjunction with or as an adjunct to their main television service, was considered to be of increasing importance in the marketplace and may improve the attractiveness of those subscription television services. 36. The ACCC also considered that there was limited substitution between subscription television services and audiovisual content acquired by consumers on a transactional basis, including physical movie rental and online TVOD. On the basis of the available information, the ACCC considered that these types of services were more complementary to other types of audiovisual content delivery services than substitutes for them, either being utilised at different times or places than those services, or as a supplement to those audiovisual content delivery services. Like mobile content services, TVOD services were considered to be important services to be offered in conjunction or as an adjunct to the core subscription television offer.

Copyright © 2015. Oxford University Press. All rights reserved.

Conclusion 37. In conclusion, the ACCC considered there was a national market for the supply of subscription television services, delivered by any distribution method including cable, satellite and IPTV. The ACCC considered that SVOD was likely to become a closer substitute for subscription television over time, particularly in relation to certain types of content such as movies. Based on available information, the ACCC considered that other sources of supply of audiovisual content to end consumers including FTA television, mobile TV and audiovisual content delivered on a transactional basis, including over the internet, were not sufficiently close substitutes to be considered in the same market as subscription television services. …

Barriers to entry: Compelling content 48. The ACCC considered that the most significant barrier to entry in the market for the supply of subscription television to consumers was the acquisition of certain audiovisual content including on an exclusive basis. 49. The ACCC consulted widely on this issue to ascertain the nature and extent of the barriers to entry and expansion arising from content exclusivity. Market participants identified an inability to access compelling content as the most significant barrier to entry in the market for the supply of subscription television. 50. The ACCC also formed the view that, even in the absence of the proposed acquisition, the acquisition of certain audiovisual content rights on an exclusive basis was a significant barrier to entry in the market for the supply of subscription television. Through the acquisition of content on an exclusive basis, FOXTEL and Austar had been able to attract large numbers of end consumers, which in turn increased the attractiveness of their platforms to content rights holders. This further enhanced their ability to obtain content on an exclusive basis and attract additional subscribers.

137

138

PART 2 Media Regulation

51. Moreover, the ACCC considered that the increased scale of the merged firm would, to some extent, further increase the ability of the merged firm to obtain some content on an exclusive basis, particularly content for which FOXTEL and Austar bid independently. This may have had the effect of further increasing barriers to entry.

Competition Analysis 52. The ACCC considered that, in the absence of the undertaking, the proposed acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in: • the national market for the retail supply of subscription television services; and • a number of regional markets for the supply of fixed broadband and fixed voice telephony products. 53. The foundation of the ACCC’s concern was that the proposed acquisition would: • bring together the two market participants in Australia who had a substantial customer base in subscription television and access to compelling content; and • extend Telstra’s 50% ownership from one of those key players (i.e. FOXTEL), to both of them (i.e. FOXTEL and Austar). 54. Based on information obtained during the course of its review of the proposed acquisition, the ACCC considered that three primary structural issues were generally relevant to competition in telecommunications and audiovisual markets in the context of the proposed acquisition: • access to content delivery infrastructure; • access to compelling content; and • an established substantial subscription television customer base.

Copyright © 2015. Oxford University Press. All rights reserved.

55. The ACCC considered that Austar had a distinct and established substantial customer base; actual or potential independent access to compelling content; and access to satellite content delivery infrastructure. The proposed acquisition would consolidate these three core structural underpinnings in FOXTEL. 56. Without the proposed acquisition, there would have been greater potential for competition between Austar and FOXTEL and Telstra in the subscription television and telecommunications markets. That potential competition could have unfolded in a number of ways. The ACCC considered that the two most likely scenarios were: • Austar independently entering into telecommunications markets by offering consumers bundles comprising subscription television content and telecommunications services or entering alliances with ISPs to offer such bundles; and/or • the breaking down of historical geographic broadcast rights demarcation between FOXTEL and Austar, particularly through the emergence of national content delivery competition using IPTV. …

Subscription television market 59. Without the proposed acquisition, the ACCC considered that as telecommunications networks and content  delivery platforms developed and improved, FOXTEL and/or Austar would have been likely to develop IPTV services that were differentiated from their existing satellite and cable subscription television services. 60. Additionally, the ACCC considered that FOXTEL and Austar were likely to have an incentive to supply their differentiated IPTV services on a national basis. Over time, this would make it increasingly likely that the historical geographic demarcation of broadcast rights between FOXTEL and Austar would have broken down. For this differentiated competition to be effective, FOXTEL and/or Austar would not have needed to replicate all of their satellite broadcast content in an IPTV service, and the content on those services could have continued to be developed over time. 61. The ACCC considered that FOXTEL and Austar would have been in the best position to access the necessary rights to develop strong competitive national IPTV products, either directly or in

CHAPTER 6 Media Ownership

partnership with other parties such as Telstra or other telecommunications service providers, given their existing relationships with content suppliers arising from access to an existing substantial subscription television customer base.

Conclusion 62. The ACCC was concerned that the proposed acquisition would have: • foreclosed potential future competition between FOXTEL and Austar in the supply of subscription television services, particularly by way of IPTV delivery; • foreclosed potential future competition between Telstra and Austar in the supply of telecom­ munications services; and • allowed the merged entity to leverage its substantial customer base in the national market for the retail supply of subscription television services to acquire IPTV rights on an exclusive basis and consequently constrain competitive entry or expansion by other parties. …

Undertaking 68. On 9 April 2012, the ACCC accepted a court enforceable undertaking from FOXTEL, pursuant to section 87B of the Act.

Key elements of the undertaking 69. The core element of the undertaking is an obligation on FOXTEL not to acquire certain distribution rights to certain independent content on an exclusive basis. These distribution rights include IPTV and some mobile distribution rights, but exclude most satellite and cable distribution rights. The undertaking also prevents FOXTEL from acquiring those same rights from anyone if an ultimate shareholder, or related entity of an ultimate shareholder, acquires those rights on an exclusive basis. …

Copyright © 2015. Oxford University Press. All rights reserved.

Objective of the undertaking 74. The objective of the undertaking is to address the ACCC’s concerns about competitive detriment that would otherwise arise as a result of the proposed acquisition. 75. As outlined above, the ACCC considered that as markets and content delivery technologies developed, IPTV was likely to be a critical area of potential competition between FOXTEL and Austar. In addition, as IPTV was a developing content delivery mechanism, it exhibited dynamic characteristics which created the potential for new entrants into the market, provided that the merged entity was unable to act to prevent this emerging competition. 76. Thus, the undertaking aims to address the ACCC’s concerns by preventing FOXTEL from entering into  arrangements with certain content suppliers to acquire content on an exclusive basis so as to enable  competing content aggregators and/or telecommunications service providers to bid to acquire rights to content which can be provided as part of an IPTV service. Such exclusive arrangements would have had the potential to stifle new entry in the IPTV sector before new entrants were able to achieve sufficient scale in the market to effectively compete with incumbent providers for access to that content. 77. By reducing exclusive rights to content, the undertaking aims to lower barriers to entry and allow new or enhanced competition in telecommunications and subscription television markets. The undertaking aims to make available sufficient attractive content to emerging competitors to enable them to develop competitive and sustainable IPTV offers. 78. The undertaking is directed at reducing FOXTEL’s ability, directly or indirectly, to take advantage of its substantial subscriber base to obtain exclusive rights to attractive content. This in turn is intended to present opportunities for smaller competitors or new entrants to develop attractive content services and grow a sufficient subscriber base to be able to maintain and continue to develop competitive IPTV offers after the undertaking has expired. The ACCC considers that this approach is most likely to reduce

139

140

PART 2 Media Regulation

barriers to entry without dampening incentives for content suppliers or subscription television operators to be innovative and competitive. 79. The undertaking does not prevent FOXTEL from acquiring exclusive rights in relation to individual sports. The ACCC considered that to the extent that FOXTEL’s (and its shareholders’) ownership of exclusive sports rights may raise competition concerns, these concerns existed independently of the proposed acquisition. …

Conclusion 87. On the basis of the above, and taking into account the undertakings proposed by FOXTEL and accepted by the ACCC, the ACCC formed the view that the proposed acquisition of Austar United Communications Limited by FOXTEL would not be likely to have the effect or be likely to have the effect of substantially lessening competition in any market in contravention of section 50 of the Act.

6.4.5

Competition and diversity

The aims of the merger provisions in the Competition and Consumer Act 2010 (Cth) are economic rather than social. Competition laws are not specifically designed to protect diversity of content or opinion. The merger rules incidentally further diversity by limiting transactions that would see a concentration of media ownership. However, as ACCC has acknowledged, certain transactions may affect media diversity without substantially lessening competition.93 On this basis, some commentators have argued that competition laws are not capable of adequately dealing with issues of media diversity.94

Franco Papandrea, ‘Media Diversity and Cross-Media Regulation’

Copyright © 2015. Oxford University Press. All rights reserved.

(2006) 24(3) Prometheus 301 at 306

Commercial mass media services operate concurrently in a number of markets. First, all commercial media services operate in the advertising market. In that market, the broadcasting media sell ‘access time for exposure to their audiences’, and the print media sell advertising space for exposure to their audiences, to advertisers. The good sold to advertisers is a composite of either time or space and audience size. Thus the price to advertisers varies with both exposure time (or space) and the size of the audience. The characteristics of the audience also affect the price of the advertising. Diverse audiences tend to be valued less than homogenous audiences. Second, the media also operate in the broader information and entertainment market. Here they either sell their product to consumers or secure the consumers’ attention with free content. Some media (particularly print media, but also pay television) use a hybrid sale-content combination to secure audiences. In all cases, consumers are attracted by the ‘content’ offered by the media, but take account of both the price and appeal of the content (including the advertising).

93 As put by ACCC Chariman, Graham Samuel, ‘the ACCC is not the ­diversity police’: Graham Samuel, Regulating Media and Broadcasting Networks in a Changing Media Environment, 5 March 2007, 11. Consolidation can occur without substantially lessening competition, particularly where barriers to entry are low: see ACCC, News Limited—Proposed Acquisition of Federal Publishing Company Community Media Group, Public Competition Assessment, 20 February 2007. 94 Standing Committee on Environment, Communications, Information Technology and the Arts, Broadcasting Services Amendment (Media Ownership) Bill 2006 and Related Bills, October 2006, 89; Franco Papandrea, ‘Media Diversity and Cross-Media Regulation’ (2006) 24(3) Prometheus 301 at 307; Stephen Bartholomeusz, ‘Can the ACCC Handle Media Law?’, The Age, 10 August 2006.

CHAPTER 6 Media Ownership

Third, the media also operate in the so-called ‘marketplace of ideas’, which strictly speaking is not a market in the economic sense. Although some analogies tend to be made between the ‘ideas market’ and an economic market, the usefulness of the analogies is largely confined to the concept that just as antagonistic competition among a large number of suppliers in a product market leads to socially efficient outcomes, so too antagonistic competition among a sufficiently large number of independent sources of information will lead to socially efficient outcomes in the ideas market. Antagonistic competition in the ideas market among a sufficiently large number of players will ensure that only those ideas that can withstand challenge from others will emerge as winners. In other words, in the ideas market benefits are maximised by the availability of the widest possible range of viewpoints for the consumer to choose from. However, in contrast to an economic market where competition is promoted by greater substitutability between differentiated products (the less differentiated, the greater the substitutability and thus the better the outcome), in the ideas market, the efficiency of the outcome increases with increasing differentiation among the competing ideas. Notwithstanding the analogies between an economic market and the ideas market, it is important to recognise that the two are different and are likely to need different tools for adequate analysis. Diversity in the ideas market is a social policy concept and is not necessarily conducive to analysis using tools that are pertinent to analysis of economic markets. Consequently, Trade Practices legislation designed to address problems in the operation of economic markets are not necessarily appropriate for dealing with problems in the ideas market.

It is also worth noting that while s 50 of the Competition and Consumer Act 2010 (Cth) may be capable of addressing competition concerns within a market, it does not allow intervention where a transaction reduces diversity across distinct media markets.95 The extent of the diversity protection provided by s 50 in a cross-media merger is therefore dependent on whether a cross-platform market could be defined in which competition may be affected. As markets evolve and are defined only in response to individual merger proposals, there is room for speculation over whether competition laws could respond to a cross-platform merger that threatened diversity.

Copyright © 2015. Oxford University Press. All rights reserved.

6.4.6

The relationship between competition and broadcasting laws

The Broadcasting Services Act 1992 (Cth) includes a section stating that the Act’s ownership provisions have effect notwithstanding the Competition and Consumer Act 2010 (Cth).96 In Austereo Ltd v Trade Practices Commission97 (Austereo) it was argued that the Broadcasting Services Act 1992 (Cth) was an exclusive code governing the ownership and control of broadcasting services. Section 50 of the Competition and Consumer Act 2010 (Cth) could not therefore prohibit a transaction if it was otherwise permitted under the Broadcasting Services Act 1992 (Cth). This argument was rejected in Austereo, with Gummow J holding: In the matter of etymology, grammar and ordinary meaning, s 77 does not purport to repeal the operation of any provision of the [Competition and Consumer Act 2010 (Cth)]. Rather it is concerned with preserving the full operation of the [Broadcasting Services Act 1992 (Cth)].98 95 John Gardiner-Garden and Jonathan Chowns, Media Ownership Regulation in Australia, Parliamentary Library E-Brief, 30 May 2006. 96 Broadcasting Services Act 1992 (Cth), s 77. 97 (1993) 41 FCR 1. 98 Ibid at 13.

141

142

PART 2 Media Regulation

In short, the ownership rules in the Broadcasting Services Act 1992 (Cth) and merger provisions in the Competition and Consumer Act 2010 (Cth) coexist. If a media transaction would cause a contravention of either Act it cannot proceed.

Copyright © 2015. Oxford University Press. All rights reserved.

6.5

Deregulation and re-regulation

It is occasionally argued that sector-specific media ownership rules are unnecessary, and that media ownership should simply be regulated by competition (or anti-trust) laws without any additional regulatory interference. One of the first prominent statements of this position came at the start of the 1980s in the United States. In line with the ideological mood of the times and of the Reagan administration, the Federal Communications Commission (FCC) proposed a dramatic deregulation of media ownership, and reliance on the ‘normal mechanisms of the market’ (including anti-trust laws).99 Then Chairman of the FCC, Mark Fowler, referred to television as a ‘toaster with pictures’—underlying the point that media is fundamentally just another business.100 This position has seemed increasingly less radical as media ownership rules focused on broadcast outlets have failed to keep up with developments in media markets—meaning the introduction of cable television, let alone developed online services. New Zealand has had no specific media ownership laws since the early 1990s, relying instead on general competition laws.101 This may forecast a future direction for Australia. In discussing Australian media ownership rules, and possible deregulation, the Minister for Communications, Malcolm Turnbull, suggested questions of media ownership should ‘just be a matter for the ACCC’.102 As noted at the start of this chapter, the general trend in media ownership rules has been one of liberalisation at an incremental pace. The introduction of the cross-media ownership regime in the late 1980s was a notable deregulatory moment, as was the introduction of the current diversity tests in 2006. However, attempts at media law reform are both controversial and rare. Consultation processes indicate that the public is clearly concerned about media ownership and continues to support sector-specific media ownership rules.103 This makes media ownership reform difficult.104 The following paragraphs note some proposals for reform that have been made in prominent government reports, but have not been carried into law. 99 Mark S Fowler and Daniel L Brenner, ‘A Marketplace Approach to Broadcast Regulation’ 60 Texas Law Review 207 (1981–1982) at 210. 100 Mark S Fowler, as cited in Lori A Brainard, Television: The Limits of Deregulation, Lynne Rienner Pub, Boulder, 2004, 61 101 New Zealand Department of Communications, Media Control and Ownership, Policy Background Paper No. 3, June 2014, Appendix A. 102 Malcolm Turnbull, as cited in ABC ‘Cross-media Ownership Rules Due for Review’ accessed 14 December 2014. 103 See Australian Government, Convergence Review, Final Report, March 2012, 18. A deregulatory proposal on media ownership regulation in the United States in 2003 caused a ‘firestorm’ of controversy. The Federal Communications Commission received literally hundreds of thousands of public submissions opposing the changes—causing phone lines to flood and internet servers to crash: see Stuart M Benjamin ‘Evaluating the Federal Communication Commission’s National Television Ownership Cap: What’s Bad for Broadcasting is Good for the Country’ 46 William and Mary Law Review 439 (2004) at 440. Australian public consultations have not tended to reach this level of drama, but they have approached it. Submissions to the Convergence Review and the Finkelstein Inquiry numbered in the tens of thousands for each inquiry. 104 As the Labor government learned in 2013 when only a fraction of its legislative reform package on media found sufficient parliamentary support to become law: Rhonda Jolly, Media Reform: in Shallows and Miseries, Parliamentary Library Research Paper 2013–14, 23 October 2013.

CHAPTER 6 Media Ownership

6.5.1

A public interest test

In its broad review of Australian broadcasting laws in 2000, the Productivity Commission recommended the repeal of cross-media ownership rules and greater reliance on competition laws, but also recommended the introduction of a new media-specific ‘public interest’ test in competition legislation. The Commission took the view that, without amendments, competition legislation was inadequate to address the public interest considerations associated with media mergers—in particular because competition laws could not readily address issues of diversity in sources of news and opinion.105 This approach was rejected by the Coalition government when it rewrote the media ownership framework in 2006. The government felt that a qualitative mechanism such as a public interest test would be too subjective, creating uncertainty and eroding public confidence in the transparency of the approval process.106 It would also further politicise government intervention in media mergers.

Copyright © 2015. Oxford University Press. All rights reserved.

6.5.2

The Convergence Review

The Convergence Review recommended the retention of a quantitative ‘minimum number of owners’ rule (similar to the 4/5 rule), but thought this should be extended beyond commercial broadcasting services and associated newspapers to ‘all entities that provide a news and commentary service and have a significant influence in a local market’.107 The Convergence Review also revisited the idea of a public interest test, recommending that the new communications regulator (another recommendation) have the power to block a proposed transaction based on diversity considerations.108 The test would apply to ‘content service enterprises of national significance’—a platform-neutral concept designed to bring media entities providing national services and with sufficiently high combined audience numbers within the regulatory net. The test would complement, rather than duplicate, the ACCC’s existing merger powers. The regulator would be asked to consider whether the proposed transaction would ‘diminish the diversity of unique owners providing general content services as well as news and commentary at a national level’ or ‘diminish the range of content services at a national level’.109 This recommendation was picked up by the federal Labor government in 2013, in its (mostly unsuccessful) legislative response to the Finkelstein Inquiry and the Convergence Review. The Broadcasting Legislation Amendment (News Media Diversity) Bill 2013 (Cth) would have required the newly established office of the Public Interest Media Advocate to disapprove a transaction that would bring about a substantial lessening of diversity of control in news media.110 This legislation did not achieve sufficient parliamentary support to pass and was withdrawn.

105 Productivity Commission, Broadcasting, Report No. 11, March, 2000, 350–51. 106 Explanatory Memorandum to the Broadcasting Services (Media Ownership) Amendments Bill 2006 (Cth) [91]–[93]. 107 Australian Government, Convergence Review, Final Report, March, 2012, 18 (Recommendation 6.a.). 108 Ibid (Recommendation 6.b.). 109 Ibid 24. 110 Broadcasting Legislation Amendment (News Media Diversity) Bill 2013 (Cth) (proposing a new Part 5A to the Broadcasting Services Act 1992 (Cth)).

143

144

PART 2 Media Regulation

6.5.3

Threshold questions

One of the unresolved questions in media policy is how media ownership laws may be extended beyond their historical concern with broadcasting services and newspapers to apply to a wider range of content services. The following set of ‘threshold questions’ for updating the media ownership regime were raised in a Policy Background Paper prepared by the Department of Communications in mid-2014. These questions are likely to be relevant to any future media ownership reform project (that is, any project that does not propose simply to abandon all sector-specific media ownership regulation).

Department of Communications Media Control and Ownership Policy Background Paper No. 3, June 2014, 42–43.

8 Threshold questions in moving beyond the existing control rules The existing media control rules are quantitative and straight forward, regulating only the traditional media, focussing on clearly identifiable geographic areas (commercial radio licence areas), and only operating to the extent of control of the platform. Subject to some subjectivity around what constitutes control, it is generally clear whether a particular transaction would be permitted or prevented under these rules. Any move to modify these rules, or to introduce new ones, requires consideration of a number of key questions, namely:

Copyright © 2015. Oxford University Press. All rights reserved.

1. Can you target regulation to news media outlets, rather than platforms? 2. Can or should you incorporate online services into a regulatory assessment? A number of overseas jurisdictions have attempted to move towards definitions of plurality / diversity that take account of the changes in the media landscape, including online services. In 2012, Ofcom (UK) published a report which sought to define media plurality in terms of two elements: a diversity of viewpoints across and within media organisations, and the prevention of any one media owner having too much influence. This review of plurality was restricted to the genre of news and current affairs. The European Commission has also developed a Media Pluralism Monitor which adopts a wide understanding of pluralism, focused on the supply, distribution and use of media. Both frameworks use a combination of qualitative and quantitative information to analyse media plurality. Despite these initiatives, no country has successfully developed a coherent, transparent and simple measure of media diversity that identifies the number of media voices in a given market, including online, and their influence. It is certainly possible to define what constitutes news media content, or a news media voice, in general terms. For example: • ‘News media content’ could be defined as content that has the character of news or current affairs, or consists of commentary or opinion on, or analysis of, news or current affairs. • ‘News media voice’ could be defined as a media service (commercial television, commercial radio, print publication or online outlet) that provides, or substantially provides, news media content, and this might exclude those services that merely aggregate news and provide no editorial input. The more difficult exercise is to determine the threshold for regulation – which news media voices should be subject to control restrictions, and which should not. Ideally, news media voices subject to regulation would be those with significant reach and impact in terms of informing ideas, opinion and debate in the general population in a given market, and would exclude news outlets targeted to narrow or special interest groups, or outlets with limited audience reach. However, drawing this ‘line in the sand’ is not straight forward. One approach would be to simply list the regulated parties through subordinate legislation. While this would provide a reasonably flexible approach (the list could be varied over time as required), the inclusion of outlets on the list would be subjective and their selection is likely to lack transparency. An alternative would be to define a threshold for regulation. In other words, regulate certain outlets on the basis of a criterion such as audience or readership. Although this would ensure a more objective basis for the regulation of some media outlets and not others, there may be difficulties with this approach.

CHAPTER 6 Media Ownership

The available data sets for the established media are not directly comparable, as the metrics for measuring the audience of a television service, the readership of a print publication, and the visits to a website are all different. Even if methodological differences could be resolved (i.e. surveys were standardised and conducted by the one organisation), it may not be the case that the average audience for a 30 minute news program equates with buying a newspaper, subscribing to an online news service, or watching a 24 hour news channel. For example, a subscriber to an online or print publication may actually engage with the content only periodically, or could be an avid user. This range of use may not have any relationship to 30 minutes of television viewing. These shortcomings highlight a number of challenges that would arise in regulating plurality or diversity in a contemporary, digital media environment. • Cross-platform measurement: as noted above, there are few indicators that could measure an audience across all platforms.

Copyright © 2015. Oxford University Press. All rights reserved.

– Revenue metrics tend to be based on advertising revenue (not all revenue) and operate at the platform level, rather than provider level. There is also no established method for tracing revenues from multiple platforms back to the originating media provider. – Audience metrics are more developed and available from the likes of OzTAM, Nielsen and Roy Morgan. However, as noted above, there are differences between platforms in terms of the methodology employed and no one source fully captures the audience for news services across all platforms. For example, a news organisation may distribute content via an online newspaper, a variety of unrelated websites, Twitter and other social networking service like Facebook, video on YouTube and other video portals, and podcasts across various online platforms. They also don’t capture digital publications purchased online and email newsletters, where the ‘impact’ or influence is felt through their distributed newsletters rather than general visits to their website. – Influence metrics are likely to be the most important in assessing media diversity, but would generally only be able to be captured through consumer or audience surveys. This consumer survey approach has been advocated by Ofcom as a means of eliciting the main sources of news consumed, regardless of the platform, to then produce a cross-platform indicator of the use of news by organisation. This could also examine elements such as the level of ‘consumer trust’ in outlets, and their perceptions of accuracy and fairness in the presentation of news and commentary. To date, only ad hoc surveys of this nature have been conducted in Australia. • Weighting: as noted above, media platforms are unlikely to be equal in terms of their influence, even if the content is the same or similar. For example, five minutes of television-watching is unlikely to equate to five minutes of radio listening, and neither are likely to equate to five minutes of web browsing. To address this issue it may be appropriate to employ some form of weighting which, for example, could be based on factors such as the ‘suggestive powers’ of the medium (whether it includes text, audio and visual material), the availability of the medium and the topicality of the news (relevance and frequency). • Supply chain issues: the position of an organisation in a news supply chain, and more specifically their level of editorial control, may affect the organisation’s capacity to influence. For example, organisations that simply re-publish news content created by others – as is the case with many online news portals – may be less influential in terms of the number of voices in a given market. Moreover, producing meaningful online figures for parent companies would require more analysis of editorial and content sharing arrangements, and a detailed examination of the ownership and control of each entity. This would track an organisation’s content across websites and other online distribution methods, such as audio and video streaming/downloading, taking into account the fragmented online environment and changing online consumer behaviour. In conclusion, while most regulatory frameworks governing media ownership (including Australia) operate at the platform level, changes in the media landscape may necessitate a ‘rethink’ of how these rules, or new rules, should operate. At present, there is no consensus on the process through which audiences are influenced or the best tools to measure such a process. There is also a lack of appropriate data, and no consensus on the best way to measure the level of media plurality in a networked environment. This is true of online services, and also subscription television services which are not currently governed by the control rules.

145

146

PART 2 Media Regulation

QUESTIONS 1 Are sector-specific media ownership rules necessary to protect diversity? Could media simply be regulated by general competition laws? 2 Would you support the introduction of a public interest test applied by the ACCC, a judge or the executive to media mergers? If so, what criteria should be used to assess whether a transaction would be in the public interest?

6.6

Foreign investment

Foreign ownership of media was historically restricted in order to protect Australians from foreign propagandists. In early debates on foreign control of commercial broadcasting, Prime Minister Menzies asked parliament to consider:

Copyright © 2015. Oxford University Press. All rights reserved.

whether the Government should permit or even encourage a state of affairs in which the most intimate form of propaganda known to modern science that is being conducted in this country, one that is going into every home and is reaching every man, woman and child in this country, should be in the hands of people who do not belong to this country.111

A more contemporary motivation for foreign investment restrictions was to support local content. It was argued that the steady globalisation of media companies is likely to result in more foreign programming.112 Until quite recently, one of the objects of the Broadcasting Services Act 1992 (Cth) remained ‘to ensure Australians have effective control of the more influential broadcasting services’.113 The Australian Government’s current policy stance towards foreign investment is one of encouragement.114 Foreign investment provides access to capital, allowing Australian media companies to keep up with capital-intensive technological change.115 Access to capital further provides opportunities for Australian media companies to realise economies of scale across global networks, and assists international expansion and partnerships.116 The following paragraphs review foreign ownership restrictions under broadcasting legislation, the Foreign Acquisitions and Takeovers Act 1975 (Cth) and Australia’s Foreign Investment Policy. The comments on broadcasting legislation are now only of historical interest as media-specific foreign investment restrictions have been repealed. The restrictions established under the Foreign Acquisitions and Takeovers Act 1975 (Cth) and Australia’s Foreign Investment Policy remain current.

111 Australian Commonwealth, Parliamentary Debates, House of Representatives (28 November 1951), 2926 (Robert Menzies), as cited in Jock Given, ‘Foreign Ownership of Media and Telecommunications: An Australian Story’ (2002) 7 Media &Arts Law Review 253 at 261. Also note the comments of Hill J in Canwest v ABA (1997) 147 ALR 539 at 540, observing: ‘Foreign ownership and control are often regarded with suspicion. Particularly is that so where what is involved is ownership or control of the media.’ 112 Media Entertainment and Arts Alliance, Submission to the Department of Communications, Information Technology and the Arts Regarding Meeting the Digital Challenge—Reforming Australia’s Media in the Digital Age, April 2006, [2.3.1]. 113 Broadcasting Services Act 1992 (Cth) s 3(1)(d), repealed by the Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth). 114 Australia’s Foreign Investment Policy, 2013. 115 Shane Barber, ‘Foreign Ownership: Meeting the Challenges of Globalisation’ (2007) 13(1) University of New South Wales Law Journal Forum 63 at 65. 116 Ibid.

CHAPTER 6 Media Ownership

6.6.1

Broadcasting legislation

Foreign ownership restrictions on broadcasting licensees were implemented alongside the introduction of television to ensure foreigners would not be able to gain a position of influence over domestic opinion.117 The concerns motivating foreign ownership restrictions have drifted from preserving national security to preserving cultural identity.118 As local content objectives have become directly addressed through standards and licence conditions applicable to broadcasters, foreign ownership restrictions have been progressively liberalised.119 Prior to 2006, the Broadcasting Services Act 1992 (Cth) stated that a foreign person could not exercise control of a commercial television broadcasting licence; that no more than 20 per cent of the directors of a commercial television licensee could be foreign persons unless approved by the ACMA; and that a foreign person could not have company interests greater than 20 per cent in a subscription television licence. All of these rules were abandoned as part of the media ownership law reform package passed in 2006.120 At the same time, a restriction in the Australian Foreign Investment Policy which capped direct foreign investment in newspapers was also abandoned. This removed all sector-specific rules on foreign investment in media, although media remains a ‘sensitive sector’ under the current Foreign Investment Policy.

Copyright © 2015. Oxford University Press. All rights reserved.

6.6.2 The Foreign Acquisitions and Takeovers Act and Foreign Investment Policy The Foreign Acquisitions and Takeovers Act 1975 (Cth) allows the Treasurer to prevent certain types of foreign investments where they are considered to be contrary to the national interest.121 Australia’s Foreign Investment Policy (2013) provides an overview of Australia’s foreign investment regime and structures Treasury assessment of foreign investment proposals. The Treasurer is assisted in the administration of the Foreign Acquisition and Takeovers Act 1975 (Cth) and the Foreign Investment Policy by the Foreign Investment Review Board (FIRB). The FIRB is a non-statutory body that examines foreign investment proposals against the background of the Foreign Investment Policy and then makes recommendations to the government as to whether a transaction should be allowed to proceed. The media is named as a sensitive sector under the Foreign Investment Policy. All foreign investors must notify the FIRB and get prior approval of any proposed investment of 5 per cent or more in the media sector, regardless of the value of the investment.122 The ‘media sector’ is defined in the Foreign Investment Policy to mean daily newspapers, television 117 Productivity Commission, Broadcasting, Report No. 11, March 2000, 332. 118 See Canwest v Australian Broadcasting Authority (1997) 147 ALR 539 per Hill J at 540; Media Entertainment and Arts Alliance, Submission to the Department of Communications, Information Technology and the Arts Regarding Meeting the Digital Challenge—Reforming Australia’s Media in the Digital Age, April 2006. 119 Limitations on the foreign ownership and control of radio contained in the Broadcasting Act 1942 (Cth) were lost from broadcasting laws when the Broadcasting Services Act 1992 (Cth) was first enacted: Franco Papandrea, ‘Media Diversity and Cross-Media Regulation’ (2006) 24(3) Prometheus 301. 120 Broadcasting Services Act 1992 (Cth) ss 48, 57 and 109, repealed by Broadcasting Services Amendment (Media Ownership) Act 2006 (Cth). 121 Foreign Acquisitions and Takeovers Act 1975 (Cth) ss 18(2), (4); 19(2), (4). The basic investment thresholds as at 15 January 2015 are $252 million for most foreign investment in Australian businesses. Due to free trade agreements with Australia, Chilean, Korean, Japanese, New Zealand and United States non-government investors have the benefit of higher thresholds, specifically $252 million in a prescribed sensitive sector, or $1,094 million for investments not involving a prescribed sensitive sector. 122 Australia’s Foreign Investment Policy, 2013. Note that media investment proposals that are below thresholds set in the Foreign Acquisitions and Takeovers Act 1975 (Cth) are subject only to policy disapproval by the Treasurer; however, it would be particularly bold for a foreign investment proposal to proceed in breach of the non-legislative framework.

147

148

PART 2 Media Regulation

and radio (including internet sites that broadcast or represent these forms of media).123 The Treasurer may allow a foreign investment proposal subject to conditions.124 The test of whether the Treasurer can prohibit or unwind a transaction is whether it is or would be contrary to the national interest.125 The national interest, or what might be contrary to it, is not defined in the Foreign Acquisitions and Takeovers Act 1975 (Cth) and the Foreign Investment Policy provides only vague guidance about what this means. The Foreign Investment Policy states that ‘[w]hat is contrary to the national interest cannot be answered with hard and fast rules’.126 However, the government will consider factors including national security, the impact of the investment on the general economy, and the character of the investor.127 The national interest criteria therefore grants the Treasurer a broad discretion to object to foreign investment proposals.128 The lack of transparency in foreign investment regulation and attendant uncertainty is only somewhat mitigated by the fact that the discretion to prohibit a transaction or require divestiture is rarely exercised.

QUESTIONS 1 Is it necessary to regulate foreign investment in media? 2 Are current foreign investment restrictions appropriate? 3 Should media be treated as a sensitive sector in Australia’s Foreign Investment Policy?

Copyright © 2015. Oxford University Press. All rights reserved.

FURTHER READING Australia’s Foreign Investment Policy, 2013. Australian Competition and Consumer Commission, Media Mergers, August 2006. Australian Competition and Consumer Commission, Merger Guidelines, November 2008. Australian Government, Convergence Review, Final Report, March 2012. Cunningham, Stuart, ‘Diversity: Rhetoric and Reality’, in Julianne Schultz (ed), Not Just Another Business: Journalism, Citizens and the Media, Pluto Press, Sydney, 1994, Ch 7. Department of Communications, Media Control and Ownership, Policy Background Paper No. 3, June 2014. Fowler, Mark and Brenner, Daniel, ‘A Marketplace Approach to Broadcast Regulation’ (1982) 60 Texas Law Review 207. Given, Jock, ‘Foreign Ownership of Media and Telecommunications: An Australian Story’ (2002) 7 Media & Arts Law Review 253. Hitchens, Lesley, ‘Australian Media Law Reform—Discerning the Policy’ (2007) 13(1) University of New South Wales Law Journal Forum 26. Jolly, Rhonda, Media Reform: In Shallows and Miseries Parliamentary Library Research Paper 2013–14, 23 October 2013. McGill, Ian, ‘Cross Media Mergers under the 2006 Amendments to the Broadcasting Services Act 1992 (Cth)’ (2007) 13(1) University of New South Wales Law Journal Forum 47. 123 Ibid 16. 124 Foreign Acquisitions and Takeovers Act 1975 (Cth) s 25(1A). For instance, conditional approval was given to a transaction altering CanWest’s interest in the Ten Network, with requirements including that the­ company headquarters remain in Australia and that the majority of directors of the company be Australian citizens: Peter Costello (Treasurer), Foreign Investment—Canwest Global Communications Corp—Acquisition of Interest in Ten Network Holdings Limited, Media Release No. 078, 20 August 2007. 125 Foreign Acquisitions and Takeovers Act 1975 (Cth) ss 18(2)(c), (4)(b); 19(2)(c), (4)(b). 126 Australia’s Foreign Investment Policy, 2013, 5. 127 Ibid 7–8 (National Interest Considerations). 128 Also note that avenues for judicial review are likely to be strictly limited. Per Hill J in CanWest v The Treasurer (1997) 147 ALR 509 at 525: ‘a court would be loathe to interfere with a discretion vested in the Treasurer on a matter such as national interest’.

PART 3

Copyright © 2015. Oxford University Press. All rights reserved.

Defamation and the Protection of Reputation 7 Liability for Defamation

151

8 Defences to Defamation

221

9 Remedies for Defamation

268

10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

289

Copyright © 2015. Oxford University Press. All rights reserved.

7 Liability for Defamation

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION Defamation is the area of civil liability that has the greatest impact on the daily operations of the media. There are several reasons for this. First, the tort of defamation is well established, with a continuous history dating back to at least the thirteenth century. Second, as this and the next two chapters will demonstrate, defamation can be committed readily. Broadly, defamation law involves the balancing of competing interests—the right to reputation, on the one hand, and freedom of expression, on the other hand. As will become clear from the three chapters analysing the tort of defamation, Anglo-Australian defamation law strikes the balance in favour of the protection of reputation. However, different legal systems strike the balance differently. For instance, US defamation law strikes the balance decisively in favour of freedom of expression. Over the next three chapters, the relevant principles of liability, defences and remedies will be explored. The focus of this chapter will be on preliminary matters relating to defamation, including the historical development of defamation, sources of law for defamation and standing to sue. The chapter will also examine the elements of a plaintiff’s case in defamation, which are, broadly, matter bearing a defamatory meaning, identification and publication.

7.1

7.1.1

Preliminary matters

The protection of reputation and freedom of expression

Reputation is the principal interest protected by the tort of defamation.1 However, it is not the only interest that needs to be considered. The tort of defamation involves a balancing of two competing interests—the protection of reputation and freedom of expression.2 What is meant by freedom of expression has been analysed in Chapter 2. That chapter amply demonstrates that the concept of freedom of expression and its various rationales have been extensively examined in the decided cases and the academic literature. 1 Ray Watterson, ‘What is Defamatory Today?’ (1993) 67 Australian Law Journal 811 at 812–13; Eric Barendt, ‘What is the Point of Libel Law?’ (1999) 52 Current Legal Problems 110 at 112–14. 2 See, for example, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568 per curiam; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 599 per Gleeson CJ, McHugh, Gummow and Hayne JJ.

151

152

PART 3 Defamation and the Protection of Reputation

By contrast, the concept of reputation has been comparatively unexamined.3 Perhaps the most famous working definition of reputation was provided by Lord Denning in Plato Films Ltd v Speidel,4 wherein his Lordship stated: A man’s ‘character’, it is sometimes said, is what he in fact is, whereas his ‘reputation’ is what other people think he is.5

Broadly, then, reputation is the public self and character is the private self of the plaintiff. The gist of the action in defamation is the damage done to the plaintiff’s esteem in the view of others, rather than the insult or affront to the plaintiff’s dignity, personality or disposition.6 This focus informs a number of important principles of defamation law, as this chapter will demonstrate.

QUESTIONS 1 What is meant by ‘reputation’? In what senses can the term ‘reputation’ be used and understood in defamation law? 2 How important is reputation in contemporary Australian society? In what ways has a person’s or an entity’s good reputation become more or less important? 3 Does Australian defamation law in its current form adequately protect and enhance freedom of expression? 4 Is an appropriate balance struck in Australian defamation law between the protection of reputation and freedom of expression? How could Australian defamation law be improved, if at all?

7.1.2

The historical development of defamation law

Defamation is a particularly complex area of law. The former New South Wales Court of Appeal judge, Ipp JA, writing extra-curially, referred to defamation as ‘the Galapagos Islands Division of the law of torts’.7 His Honour explained the basis for this description:

Copyright © 2015. Oxford University Press. All rights reserved.

The tort of defamation has evolved all on its own and has created legal forms and practices unknown anywhere else. It has evolved its own dialect and adopted esoteric customs.8

Defamation’s complex and esoteric nature is explicable partly because it derived from diverse sources and partly because it has not undergone the subsequent rationalisation and reform most other areas of the common law have.9 Judges and academics have suggested that the contours of liability for defamation were firmly established in the sixteenth and seventeenth centuries, with defences later being recognised, more by way of accretion 3 However, this lacuna in defamation jurisprudence is being addressed. See, for example, David Rolph, ‘Dirty Pictures: Defamation, Reputation and Nudity’ (2006) 10 Law Text Culture 101; Lawrence McNamara, Reputation and Defamation, Oxford University Press, Oxford, 2007; David Rolph, Reputation, Celebrity and Defamation Law, Ashgate Press, Aldershot, 2008. 4 [1961] AC 1090. 5 Ibid at 1138 (original emphasis). 6 Sir Frederick Pollock, The Law of Torts, Stevens & Sons, London, 1887, 210; Plato Films Ltd v Speidel [1961] AC 1090 at 1138 per Lord Denning; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600 per Gleeson CJ, McHugh, Gummow and Hayne JJ. 7 Justice David Ipp, ‘Themes in the Law of Torts’ (2007) 81 Australian Law Journal 609 at 615. 8 Ibid. See also Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 at 58 per Blackburn J (dealing specifically with New South Wales defamation law). 9 See, for example, Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at 411 per Gummow J.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 7 Liability for Defamation

than  reform.10 An historical understanding of the sources of English defamation law is therefore useful to appreciate the current state of Australian defamation law. Liability for false statements spoken about another was originally treated as a crime in English law and attracted punishment by the ecclesiastical courts.11 The royal courts initially adopted the view that the making of false statements was a spiritual offence and that no action would lie for ‘mere wind’.12 Some local courts, however, provided a remedy for defamation on an ad hoc basis.13 In the late fifteenth century, the royal courts began to curtail the jurisdiction of the ecclesiastical courts in a number of areas, including defamation, through the use of the writ of prohibition. By the early sixteenth century, the royal courts had begun to entertain claims for defamation. Such claims were treated as actions on the case, in which damage was the gist of the action.14 Thus, the royal courts began to develop a civil jurisdiction over defamation. Unlike the ecclesiastical courts, the royal courts were able to award damages. The recorded cases from this period overwhelmingly deal with slander (that is, oral defamation).15 They originally related to imputations of temporal crimes, such as theft, murder, perjury and forgery, as well as imputations of professional incompetence, which were non-spiritual allegations and thus not within the jurisdiction of the ecclesiastical courts.16 Also, in the late fifteenth century, the Court of Star Chamber, a quasi-judicial executive council that conducted its proceedings in private, was established. The printing press, which was introduced to England in the late fifteenth century, was tightly regulated by the Crown. The Star Chamber began to develop a criminal jurisdiction over libels (that is, printed defamation).17 This included the decision in De Libellis Famosis in 1606,18 an important case in the history of defamation law and the foundation for the crime of seditious libel. Particularly during the reign of Charles I, the Star Chamber was used for politically motivated prosecutions for criminal libel. The Star Chamber being discredited as an institution, it was abolished by the Long Parliament in 1641,19 prior to the outbreak of the English Civil War. The development of defamation law was in abeyance during the period of the English Civil War and the Protectorate.20 Following the restoration of the monarchy in 1660, the royal courts assumed responsibility for the development of civil and criminal defamation, and libel and slander.

10 See, for example, Sir William Holdsworth, History of English Law, 7th edn, Methuen, London, 1972, Vol VIII, 378; Hill v Church of Scientology of Toronto (1995) 126 DLR (4th) 129 at 162 per Cory J. As to the development of defences particularly, see Paul Mitchell, The Making of the Modern law of Defamation, Hart Publishing, Oxford, 2005. 11 See, for example, RM Helmholz, The Oxford History of the Laws of England (The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s), Vol 1, Oxford University Press, Oxford, 2004, Ch 11. 12 Chaplain v Shepherd (1315) 101 SS 46. 13 AKR Kiralfy, The Action on the Case, Sweet & Maxwell, London, 1951, 117; SFC Milsom, Historical Foundations of the Common Law, 2nd edn, Butterworths, London, 1981, 379; JH Baker, An Introduction to English Legal History, 4th edn, LexisNexis Butterworths, London, 2002, 436. 14 Kiralfy, above n 13, 116; Baker, above n 13, 438. 15 As to the distinction between libel and slander, see below at 7.1.6. 16 Baker, above n 13, 438–39. 17 Sir William Holdsworth, History of English Law, 7th edn, Methuen, London, 1972, Vol VIII, 404; Baker, above n 13, 436. As to the distinction between libel and slander, see below at 7.1.6. 18 (1605) 5 Co Rep 125; (1605) 77 ER 250. 19 16 Car 1 c 10. 20 Holdsworth, above n 17, 412.

153

154

PART 3 Defamation and the Protection of Reputation

Developing alongside the jurisdiction of the ecclesiastical courts, the royal courts and the Star Chamber was liability based on scandalum magnatum. Scandalum magnatum literally means the ‘scandalising of magnates’—the great men and women of the realm, such as aristocrats and judges. Scandalum magnatum had a number of statutory iterations, notably in 1275 and 1378.21 Despite its early development, one of the first decided cases about scandalum magnatum was Lord Beauchamp v Sir Richard Croft in 1497.22 There were periods when litigation based on scandalum magnatum was intensive, notably in the decades immediately following the Restoration, usually when such ‘magnates’ felt their position threatened.23 Certain high-profile litigants had frequent recourse to the courts, including the Duke of York (later James II).24 Although the statutory cause of action for scandalum magnatum fell into disuse by the early eighteenth century, it was not abolished until the Statute Law Revision Act 1887 (UK). English defamation law derived from a range of sources—the ecclesiastical courts, the royal courts, the Star Chamber, and scandalum magnatum. These all served different purposes, protected different interests and developed different principles of liability. Given defamation law’s historical development, its singularity is unsurprising but probably not desirable.

Copyright © 2015. Oxford University Press. All rights reserved.

7.1.3

Defamation law in Australia

Australian defamation law is, unsurprisingly, derived from English defamation law. From the 1840s, colonial legislatures began to pass their own defamation laws.25 The ultimate effect of this was that there ended up being eight, substantively different, systems of defamation law operating in Australia, one for each state and territory. In some jurisdictions, such as South Australia, Victoria and Western Australia, the common law applied, largely unaffected by statute. In other jurisdictions, such as Queensland and Tasmania, defamation law was codified.26 In other jurisdictions, such as New South Wales, the common law applied but was subject to considerable statutory modification.27 The difficulties posed by having eight different systems of defamation law in a country of approximately 20 million people, where national newspapers, radio and television broadcasts and, more recently, internet publications had become commonplace, are obvious.28 In recent decades, there was a recognition of these difficulties and of the undesirability of such legal diversity. A number of unsuccessful attempts were made to introduce national, uniform defamation laws.29 However, in 2004, the then Commonwealth Attorney-General, 21 Baker, above n 13, 436. 22 (1497) 72 ER 182. 23 John C Lassiter, ‘Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum, ­1479–1773’ (1978) 22 American Journal of Legal History 216 at 219–21. 24 See, for example, Duke of York v Pilkington (1682) 90 ER 34; Duke of York v Oates (1684) 10 State Trials 125. 25 The first legislation was the Slander and Libel or Injuries to Character Act 1847 (NSW) (11 Vic c 13). For an overview of the historical development of Australian defamation law, see Patrick George, Defamation Law in Australia, 2nd edn, LexisNexis Butterworths, Chatswood (NSW), 2012, [3.4]–[3.7]. 26 See Defamation Act 1889 (Qld) (repealed); Defamation Act 1957 (Tas) (repealed). As to an earlier, unsuccessful attempt at codification of defamation law in New South Wales, see Defamation Act 1958 (NSW) (repealed). 27 Defamation Act 1974 (NSW) (repealed). 28 See, for example, Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6; (1973) 22 FLR 181. 29 For an overview of previous attempts to enact national, uniform defamation laws, see Andrew Kenyon, Defamation: Comparative Law and Practice, UCL Press, London, 2006, 362–64.

CHAPTER 7 Liability for Defamation

Philip Ruddock, signalled his intention to introduce national defamation legislation into the Federal Parliament.30 This provided the impetus for the states and territories to devise their own national, uniform defamation laws.31 Throughout 2005 and into 2006, all the state and territory legislatures passed the national, uniform defamation laws.32 The statutes are the principal source of defamation law in Australia, augmented by the common law.33 The laws came into effect in the states on 1 January 2006 and later in the same year in the territories.34 The laws as enacted are not completely uniform. As will become clear in the course of this chapter, they differ in small but telling ways. It is, however, accurate, if potentially an oxymoron, to describe them as substantially uniform. Given the alacrity with which they were enacted and their remarkable consistency, the national, uniform defamation laws represent a significant legislative achievement.

7.1.4

Civil and criminal defamation

It is clear that, historically, defamation has been treated as both a crime and a tort.35 This situation remains the same today under Australian law. Defamation can be prosecuted as a crime or sued upon as a tort. Historically, criminal defamation was very important. Now, criminal defamation is of more marginal relevance, being rarely prosecuted.36 Consequently, this chapter concerns itself principally with the law relating to civil defamation, given that this is the form of liability predominantly encountered by the media.

7.1.5

Criminal defamation

Copyright © 2015. Oxford University Press. All rights reserved.

However, it is important to note the possibility of a prosecution for criminal defamation. In the reform process that led to the introduction of the national, uniform defamation laws, the then Commonwealth Attorney-General, Philip Ruddock, left the issue of criminal defamation to the states and territories.37 The states and territories produced a model provision, dealing with criminal defamation.38 All jurisdictions, except the Northern

30 See Australian Government, Attorney-General’s Department, Outline of a Possible National Defamation Law, March 2004; Australian Government, Attorney-General’s Department, Revised Outline of a Possible National Defamation Law, July 2004. 31 SCAG Working Group of State and Territory Officers, Proposal for National Uniform Defamation Laws, July 2004. 32 The relevant statutes are as follows: Civil Law (Wrongs) Act 2002 (ACT) Ch 9; Defamation Act 2006 (NT); Defamation Act 2005 (NSW); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA). 33 As to the interaction of statute and common law in relation to defamation, see Civil Law (Wrongs) Act 2006 (ACT) s 118; Defamation Act 2006 (NT) s 5; Defamation Act 2005 (NSW) s 6; Defamation Act 2005 (Qld) s 6; Defamation Act 2006 (SA) s 6; Defamation Act 2005 (Tas) s 6; Defamation Act 2005 (Vic) s 6; Defamation Act 2005 (WA) s 6. 34 As to the commencement of the national, uniform defamation laws in the states, see Defamation Act 2005 (NSW) s 2; Defamation Act 2005 (Qld) s 2; Defamation Act 2005 (SA) s 2; Defamation Act 2005 (Tas) s 2 (Proclaimed; proclaimed date: 1 January 2006); Defamation Act 2006 (Vic) s 2; Defamation Act 2005 (WA) s 2. The Civil Law (Wrongs) Act 2002 (ACT) Ch 9 commenced on 22 February 2006. The Defamation Act 2006 (NT) commenced on 26 April 2006. 35 As to the historical development of defamation law, see 7.1.2. 36 For examples of attempts to prosecute for criminal defamation, see Byrnes v Barry (2003) 151 ACTR 1; R v Ratcliff [2007] SASC 297. 37 Australian Government, Attorney-General’s Department, above n 30, 39. 38 States and Territories Model Defamation Provisions cl 46.

155

156

PART 3 Defamation and the Protection of Reputation

Territory and Victoria,39 adopted a version of the model provision. The notable features of the enacted provision are: • the definition of the offence (being the publication of defamatory matter about the victim, knowing the matter to be false or being reckless as to the truth or falsity of the matter and intending to cause harm to the victim or any other person or being reckless as to whether such harm is caused);40 • the need for the consent of the Director of Public Prosecutions prior to the commencement of proceedings;41 • the allocation of functions between judge and jury;42 • the incorporation of defences to civil defamation as a lawful excuse for criminal defamation;43 • the onus of proof being placed on the prosecution to negate lawful excuse;44 and • a maximum penalty of three years’ imprisonment.45

7.1.6

The distinction between libel and slander

Copyright © 2015. Oxford University Press. All rights reserved.

It is also clear that historically, at common law, a distinction was drawn between libel and slander.46 Broadly, libel is defined as defamation in a permanent form, whereas slander is defined as defamation in a transient form, such as the spoken word.47 The difference between the two was important as libel was actionable per se (that is, without proof of damage), whereas, generally, damage was the gist of the action for slander.48 (Some forms of slander were actionable per se—allegations of criminal conduct; allegations disparaging a

39 As to the position in the Northern Territory, see Criminal Code (NT) ss 203–208; as to the position in Victoria, see Wrongs Act 1958 (Vic) Pt I. 40 Crimes Act 1900 (ACT) s 439(1); Crimes Act 1900 (NSW) s 529(3); Criminal Code Act 1899 (Qld) s 365(1); Criminal Law Consolidation Act 1935 (SA) s 257(1); Criminal Code Act 1924 (Tas) s 196(1); Criminal Code (WA) s 345(1). In the Australian Capital Territory and New South Wales, there is no express ground of liability based on the defendant’s recklessness as to the truth or falsity of the matter. 41 Crimes Act 1900 (ACT) s 439(4); Crimes Act 1900 (NSW) s 529(7); Criminal Code Act 1899 (Qld) s 365(7); Criminal Law Consolidation Act 1935 (SA) s 257(4); Criminal Code Act 1924 (Tas) s 196(6); Criminal Code (WA) s 345(6). 42 Crimes Act 1900 (ACT) s 439(3); Crimes Act 1900 (NSW) s 529(6); Criminal Code Act 1899 (Qld) ss 365(5), 365(6); Criminal Law Consolidation Act 1935 (SA) s 257(3); Criminal Code Act 1924 (Tas) s 196(5); Criminal Code (WA) s 345(5). As to the allocation of functions between judge and jury in a civil defamation proceeding, see below at 7.1.16. 43 Crimes Act 1900 (ACT) s 439(2); Crimes Act 1900 (NSW) s 529(4); Criminal Code Act 1899 (Qld) s 365(3); Criminal Law Consolidation Act 1935 (SA) s 257(2); Criminal Code Act 1924 (Tas) s 196(3); Criminal Code (WA) s 345(3). 44 Crimes Act 1900 (ACT) s 439(2); Crimes Act 1900 (NSW) s 529(5); Criminal Code Act 1899 (Qld) s 365(4); Criminal Code Act 1924 (Tas) s 196(4); Criminal Code (WA) s 345(4). 45 Crimes Act 1900 (ACT) s 439(1); Crimes Act 1900 (NSW) s 529(3); Criminal Code Act 1899 (Qld) s 365(1); Criminal Law Consolidation Act 1935 (SA) s 257(1); Criminal Code (WA) s 345(1). The Australian Capital Territory provision also stipulates a maximum fine. The West Australian provision also allows for lesser ­penalties on a summary conviction. 46 As to the historical development of defamation law, see above at 7.1.2. 47 Thorley v Lord Kerry (1812) 4 Taunt 355 at 364–65; (1812) 128 ER 367 at 371 per Mansfield CJ; Meldrum v Australian Broadcasting Company Ltd [1932] VLR 423 at 435 per Mann J; Mickelberg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 at 188 per Hasluck J. 48 Ratcliffe v Evans [1892] 2 QB 524 at 530–31 per Bowen LJ; Mickelberg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 at 188 per Hasluck J. As to the presumption of damage in defamation law, see below at 7.1.7.

CHAPTER 7 Liability for Defamation

plaintiff’s business, trade or profession; and allegations of contagious or infectious disease.)49 The rationale for the broad distinction between libel and slander was that libel, being in permanent form, can be readily circulated, thereby causing greater and more lasting damage to the plaintiff’s reputation.50 It is sometimes difficult to distinguish between libel and slander.51 Prior to the introduction of the national, uniform defamation laws, five jurisdictions had already abolished the distinction between libel and slander.52 This distinction remained part of the law of defamation in South Australia, Victoria and Western Australia.53 Now, by virtue of the national, uniform defamation laws, the distinction between libel and slander has been abolished throughout Australia, with the effect that all forms of defamation are actionable without proof of special damage.54

7.1.7

The presumption of damage in defamation

At common law, damage to reputation was presumed in relation to libel. As Bowen LJ stated in Ratcliffe v Evans:55 Every libel is of itself a wrong in regard of which the law, as we have seen, implies general damage. By the very fact that he has committed such a wrong, the defendant is prepared for the proof that some general damage may have been done.

Copyright © 2015. Oxford University Press. All rights reserved.

At common law, certain categories of slander were actionable per se. Now, with the abolition of the distinction between libel and slander, damage to reputation is presumed in all cases of defamation.56 A plaintiff does not have to prove he or she suffered damage to reputation in order to recover damages for defamation. The rationale for the presumption of damage in defamation cases appears to be the difficulty on the part of the plaintiff proving damage to reputation. As Lord Atkin evocatively observed in Ley v Hamilton:57 [i]t is precisely because the ‘real’ damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation. 49 Mickelberg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 at 188–89 per Hasluck J. 50 King v Lake (1670) Hardres 470 at 470; (1670) 145 ER 552 at 553 per Hale CB; Ratcliffe v Evans [1892] 2 QB 524 at 530 per Bowen LJ. 51 See, for example, Meldrum v Australian Broadcasting Company Ltd [1932] VLR 423 (whether radio broadcast libel or slander); Wainer v Rippon [1980] VR 129 (whether television broadcast libel or slander); Mickelberg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 (whether simultaneous radio broadcast via internet libel or slander). 52 Defamation Act 1901 (ACT) s 3 (repealed); Defamation Act 2001 (ACT) s 14 (repealed); Civil Law (Wrongs) Act 2002 (ACT) s 57 (repealed); Defamation Act 1938 (NT) s 2 (repealed); Defamation Act 1974 (NSW) s 8 (repealed); Defamation Act 1889 (Qld) s 5 (repealed); Defamation Act 1957 (Tas) s 9 (repealed). 53 See, for example, Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417; Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138; Middendorp Electric Co Pty Ltd v Sonnenveld [2001] VSC 312; Clover Bond Pty Ltd v Carroll [2004] WASC 216; Robinson v Quinlivan [2006] WASC 38 at [36]–[37] per Newnes M. 54 Civil Law (Wrongs) Act 2002 (ACT) s 119(2); Defamation Act 2006 (NT) s 6(2); Defamation Act 2005 (NSW) s 7(2); Defamation Act 2005 (Qld) s 7(2); Defamation Act 2005 (SA) s 7(2); Defamation Act 2005 (Tas) s 7(2); Defamation Act 2005 (Vic) s 7(2); Defamation Act 2005 (WA) s 7(2). 55 [1892] 2 QB 524 at 529. 56 As to the distinction between libel and slander, see above at 7.1.6. 57 (1935) 153 LT 384 at 386.

157

158

PART 3 Defamation and the Protection of Reputation

The presumption of damage in defamation has been somewhat controversial, particularly in relation to the right of corporations to sue for defamation.58 Nevertheless, the presumption of damage to reputation remains an integral part of the common law of defamation.

QUESTIONS 1 How does the presumption of damage in defamation compare to the requirement of damage in other torts you have previously studied? 2 Is the presumption of damage to reputation a necessary or a desirable principle of defamation law? What are its advantages and disadvantages?

7.1.8

Standing to sue for defamation

In order to sue for defamation, the person or entity needs to have standing to sue for defamation. In Australian law, as a general rule, all natural persons have standing to sue for defamation.

Copyright © 2015. Oxford University Press. All rights reserved.

7.1.9

Public figures

Merely because the plaintiff is a politician or a celebrity does not mean that his or her right to sue for defamation is diminished. There is no ‘public figure’ doctrine in Australian law that curtails the right of public figures to sue for defamation. Repeated reform initiatives have rejected the introduction of a ‘public figure’ doctrine into Australian defamation law. This may be contrasted to the position in the United States, where, following the constitutionalisation of defamation law in the United States Supreme Court decision in New York Times Inc v Sullivan,59 public figures need to prove ‘actual malice’ on the part of the publisher. Under United States defamation law, the plaintiff also bears the onus of proof as to the falsity of the matter complained of, as opposed to the position in Anglo-Australian defamation law, under which the defendant bears the onus of proof as to the truth of the matter. The cumulative effect of these features of United States defamation law is that it is extremely difficult for ‘public figures’ to sue for defamation. Politicians and celebrities face no such obstacles in Australia. Indeed, they are some of the most prominent and regular users of defamation law.

QUESTION 1 Should public figures be able to sue for defamation? Should a different test apply for public figures than for private citizens?

7.1.10 Defamation of the dead There can be no defamation of the dead. At common law, the rule is actio personalis moritur cum persona—the cause of action in tort dies with the plaintiff or the defendant.60 Therefore, an action in defamation cannot be brought by or against, or maintained on

58 As to the right of corporations to sue for defamation, see below at 7.1.13. 59 376 US 254 (1964); 84 S Ct 710 (1964). 60 See, for example, Hambly v Trott (1776) 1 Cowp 371 at 374–76; (1776) 98 ER 1136 at 1138 per Lord Mansfield; Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 178 per Samuels JA.

CHAPTER 7 Liability for Defamation

behalf  of, a  deceased person.61 In relation to most claims in tort, the common law rule has been abolished.62 However, in all jurisdictions except Tasmania, this abrogation of the common law rule has expressly excluded the tort of defamation, with the consequence that the common law rule continues to apply.63 The national, uniform defamation laws restate the common law position that there can be no defamation of the dead.64 The Defamation Act 2005 (Tas) omits this provision. The apparent effect of this exclusion is that the common law position that there can be no defamation of the dead continues to apply in that jurisdiction, notwithstanding any legislative intention to the contrary. Although there can be no defamation of the dead, aspersions cast upon a deceased person may indirectly damage the reputations of his or her living relatives. In such cases, the living relatives may have causes of action for which to sue in defamation.

QUESTIONS 1 What might be the reasons for the common law position (now reinforced by statute) that there can be no defamation of the dead? How convincing do you find these reasons? 2 If a cause of action in defamation on behalf of a deceased person were to be recognised, what would be the competing interests that would need to be considered? 3 What impact, if any, might allowing a cause of action in defamation to be brought on behalf of a deceased person have on the practices of investigative journalism and historical writing?

Copyright © 2015. Oxford University Press. All rights reserved.

7.1.11 Government bodies Prior to the decision of the House of Lords in Derbyshire County Council v Times Newspapers Ltd,65 there was slender but divided authority on the question of whether a local council could sue for defamation in respect of damage to its governing reputation. In Manchester Corporation v Williams,66 Lawrance J, with whom Day J agreed, held that a local council did not have standing to sue for defamation.67 A contrary decision was reached by Browne J in Bognor Regis Urban District Council v Campion.68 In Derbyshire County Council v Times Newspapers Ltd, the House of Lords favoured the former approach.69 The leading Australian authority on this issue is the New South Wales Court of Appeal’s decision in Ballina Shire Council v Ringland,70 which is extracted below. The principle in 61 See, for example, Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 541 per Hunt J. 62 Civil Law (Wrongs) Act 2002 (ACT) s 15(1); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 5(1); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1); Succession Act 1981 (Qld) s 66(1); Survival of Causes of Action Act 1940 (SA) s 2(1); Administration and Probate Act 1935 (Tas) s 27(1); Administration and Probate Act 1958 (Vic) s 29(1); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(1). 63 Civil Law (Wrongs) Act 2002 (ACT) s 15(2); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 5(2); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1); Succession Act 1981 (Qld) s 66(1); Survival of Causes of Action Act 1940 (SA) s 2(2); Administration and Probate Act 1958 (Vic) s 29(1); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(1). 64 Civil Law (Wrongs) Act 2002 (ACT) s 122; Defamation Act 2006 (NT) s 9; Defamation Act 2005 (NSW) s 10; Defamation Act 2005 (Qld) s 10; Defamation Act 2005 (SA) s 10; Defamation Act 2005 (Vic) s 10; Defamation Act 2005 (WA) s 10. 65 [1993] AC 534. 66 [1891] 1 QB 94. 67 Ibid at 96. 68 [1972] 2 QB 169 at 177–78. 69 [1993] AC 534 at 549–51 per Lord Keith of Kinkel. 70 (1994) 33 NSWLR 680.

159

160

PART 3 Defamation and the Protection of Reputation

this case was subsequently applied to preclude the New South Wales Aboriginal Land Council suing for defamation. By majority, the New South Wales Court of Appeal (Handley and Powell JJA, Meagher JA dissenting) held that the New South Wales Aboriginal Land Council, a statutory corporation constituted under the Aboriginal Land Rights Act 1983 (NSW), was an elected, government body, albeit only for a proportion of the wider community, and therefore lacked standing to sue for defamation to protect and vindicate its ‘governing reputation’.71 However, the Supreme Court of New South Wales refused to apply the principle in Ballina Shire Council v Ringland to a trade union registered under the Industrial Relations Act 1996 (NSW).72 The potential uses of the principle in Ballina Shire Council v Ringland are otherwise untested in the decided cases. The fact that a local council is unable to sue for defamation to protect and vindicate its governing reputation does not impair the right of individual councillors or council officials from suing for defamation in respect of their personal reputations.73

Ballina Shire Council v Ringland (1994) 33 NSWLR 680

Copyright © 2015. Oxford University Press. All rights reserved.

[The plaintiff, Ballina Shire Council, sued the defendant, William Ringland, for defamation and injurious falsehood in the Supreme Court of New South Wales. Ringland, a member of an organisation called the Clean Seas Coalition, issued a press release accusing the Council of increasing its sewage outfall and surreptitiously pumping it out to sea at night and during storms. The allegations in the press release were reproduced in a local newspaper. The trial judge, Levine J, ordered the matter to be removed to the New South Wales Court of Appeal so that separate questions as to the capacity of the council to bring the proceedings be answered.] GLEESON CJ (at 690): What I take to be the essence of the reasoning in the Derbyshire County Council case is the inconsistency between the principles which underlie the law of defamation, and our assumptions as to the nature and role of democratically elected governmental institutions. The law of defamation in this State is based partly on the common law, and partly on statute. It involves a balancing of the interests of those whom it protects in the maintenance of their reputation, and the interests of the community in free speech. Different people may have different views upon the way in which the balance has been struck, but the purpose of the law is clear. The law protects the reputation which a person has (which is not necessarily the same as the reputation which a person deserves) and, subject to carefully defined qualifications, it permits the recovery of damages for injury to such reputation, even where that results from statements of honestly held beliefs or opinions. A defamatory imputation is one that tends to lower a plaintiff in the estimation of others, or exposes the plaintiff to hatred, contempt or ridicule, or injures the plaintiff in the plaintiff’s office, trade, or profession: Gatley on Libel and Slander, 8th edn (1981) at 15. How does this apply in the case of an elected governmental institution? What is the governmental (691) reputation which, according to the Bognor Regis decision, the law of defamation protects? Against what is it protected? The idea of a democracy is that people are encouraged to express their criticisms, even their wrongheaded criticisms, of elected governmental institutions, in the expectation that this process will improve the quality of the government. The fact that the institutions are democratically elected is supposed to mean that, through a process of political debate and decision, the citizens in a community govern themselves. To treat governmental institutions as having a ‘governing reputation’ which the common law will protect against criticism on the part of citizens is, to my mind, incongruous. I regard the matter as turning

71 New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 at 310–11 per Handley JA; at 311 per Powell JA. 72 Robertson v John Fairfax Publications Pty Ltd (2003) 58 NSWLR 246 at 251 per Simpson J. 73 Manchester Corporation v Williams [1891] 1 QB 94 at 96 per Lawrance J; Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 550 per Lord Keith of Kinkel.

CHAPTER 7 Liability for Defamation

Copyright © 2015. Oxford University Press. All rights reserved.

upon the concept of reputation, and the nature of the reputation which the law of defamation sets out to protect. I understand that concept in its application to individuals (including individual politicians), trading corporations and other bodies, but I have the greatest difficulty with the concept in its application to the governing reputation of an elected governmental institution. The right of an individual, even one in public life, to his or her personal reputation is one thing. Such a right can be recognised and protected by the law without undue interference with the right of free speech. On the other hand, to maintain that an elected governmental institution has a right to a reputation as a governing body is to contend for the existence of something that is incompatible with the very process to which the body owes its existence. Before concluding this matter, it is necessary to note a further argument that was put on behalf of the Council. The Defamation Act 1974 provides, in s 9, that any person defamed by the publication of a defamatory imputation has a cause of action against the publisher. No one doubts that, in s 9, the word ‘person’ includes corporations. As was noted above, corporations can, and not infrequently do, sue for defamation. That, according to the Council’s argument, concludes the present issue in its favour. By statute, it is said, a corporation may sue for defamation, and there is no warranty for qualifying the terms of the statute to limit its application to some corporations or, to put the matter in another way, to limit its application to corporations other than elected governmental bodies. At the time the Defamation Act 1974 was enacted, the generally held opinion was that all corporations had the capacity to sue for defamation, and this no doubt explains the language of the statute. The House of Lords cannot amend an Act of the New South Wales Parliament. The answer to this submission is to be found, once again, in the concept of reputation which is protected by the law of defamation. If, as I consider, the governing reputation of an elected governmental body is not something which the common law of defamation sets out to protect, then an imputation adverse to such a body would not relevantly be a defamatory imputation for the purpose of the statute. The statute is not a code upon the law of defamation, but builds upon, and alters in certain respects, the principles established by the common law. Its meaning and effect can only be understood in the light of the common law. This argument, therefore, does not advance the Council’s position. I would follow the decision of the House of Lords, and answer the first question in the negative. [In separate reasons for judgment, Kirby P agreed with Gleeson CJ as to the Council’s inability to sue for defamation. Mahoney JA dissented on this issue. In relation to the capacity of the Council to sue for injurious falsehood, a differently constituted majority, Gleeson CJ and Mahoney JA (Kirby P dissenting) found that the Council was able to sue for this cause of action. As to injurious falsehood generally, see below at 10.1. The claim for injurious falsehood was eventually dismissed. See Ballina Shire Council v Ringland [1999] NSWSC 11.]

QUESTIONS 1 What reasons are given for refusing to allow local councils the right to sue for defamation? How sound do you think these reasons are? 2 What impact, if any, should the implied freedom of political communication, derived from the text and structure of the Commonwealth Constitution, have on the application of the principle in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 and Ballina Shire Council v Ringland (1994) 33 NSWLR 680 in the Australian context? 3 How extensive is the principle in Derbyshire County Council v Times Newspapers Ltd and Ballina Shire Council v Ringland? In respect of what other entities might an argument as to standing to sue in defamation based on this principle be raised?

7.1.12 Partnerships A partnership has a sufficient reputation, and therefore standing, to sue for defamation. In order for a partnership to be able to sue for defamation, the imputations made against it must reflect upon its business or trading reputation. Imputations made against a partnership may also reflect adversely upon the personal reputations of individual partners. If this is the case, the partners may sue personally for the damage done to their reputations and the injury

161

162

PART 3 Defamation and the Protection of Reputation

to their feelings. If the imputations reflect only upon the personal reputations of one or more of the partners but not the partnership itself, only those partners personally affected may sue for defamation. These principles are demonstrated in the decision of Steytler J in Todd v Swan Television & Radio Pty Ltd, extracted below.

Todd v Swan Television & Radio Pty Ltd (2001) 25 WAR 284

Copyright © 2015. Oxford University Press. All rights reserved.

[The plaintiffs, the Todds, were a married couple who operated a furniture business by way of partnership. They lived in a house located on the business premises. A family friend, Mrs Middleton, was staying with the Todds. While the Todds were out one evening, Mrs Middleton’s estranged husband came to the property and murdered his wife, then attempted suicide. Reporting this incident, the defendant television network showed footage of the Todds’ premises and stated that the ‘store owner’ and his wife had been the perpetrator and the victim respectively. In response, family and friends inundated the Todds with telephone calls and the partnership business suffered for a period of time. The Todds brought defamation proceedings in the Supreme Court of Western Australia in their personal capacity and as a partnership.] STEYTLER J (at 298): Were the imputations defamatory of the partnership operated by Mr and Mrs Todd? [75] The question whether the imputations were defamatory of the partnership operated by Mr and Mrs Todd is more difficult. [76] There is no doubt that a partnership has a personality which is capable of being defamed and in respect of which it can bring an action for libel: Coryton v Lithebye (1670) 2 Wms Saund 115; Cook v Batchellor (1802) 3 Bos & Pul 150; 127 ER 83; Forster v Lawson (1826) 3 Bing 452; 130 ER 587; Le Fanu v Malcomson (1848) 1 HLC 637; 9 ER 910; Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87; 157 ER 769 and Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1977] 1 QB 585 at 595. However the partners cannot sue jointly in respect of a defamation causing injury to an individual member of the firm. [77] So, in Smith v McGuiggan (1863) 2 SCR (NSW) 268, Stephen CJ (with whom Wise J was in agreement) drew a distinction between a circumstance in which a slander reflected only upon the personal reputation of each partner and one in which it reflected upon their trade or mode of carrying on business as partners. Where the slander fell within the former category, there was no joint cause of action. (See also Haythorn v Lawson (1827) 3 C & P 195; and Vogel v Bushnell 221 SW 819 (Mo 1920)). [78] In Bricker v Campbell (1891) 21 Ontario R 204 at 211, MacMahon J expressed the opinion that, where a libel was on a member of a firm in respect of his trade or business, the partner libelled could recover without proof of special damage. However, he said, all of the partners would have to sue jointly in respect of special damage sustained by the partnership (see also Harrison v Bevington (1838) 8 C & P 708). But that, of course, does not mean that, in a case in which the words in question are defamatory of both the individual and of the firm, only the firm, or only the individual, could sue. In such a case, the individual and the firm could join their separate claims in one action. (Cf Gatley on Libel and Slander, 9th edn, par 8.25.) [79] Any defamation of a partnership must be in the way of its business: see, for example, South Hetton Coal Company Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 138–139 and 141; and D & L Caterers Ltd v D’Ajou [1945] 1 KB 364 at 367. In this State, where there is no equivalent to s 5 of the Defamation Act 1958 (NSW), malicious statements which injure a person’s business or his or her goods, but do not disparage that person’s reputation, are not actionable in defamation, although they might be so as injurious falsehoods. However a person whose reputation is disparaged by a defamatory statement can recover, as damages, any business loss sustained in consequence of the publication of the defamatory statement. (See Mirror Newspapers Ltd v World Hosts Pty Ltd (1978) 141 CLR 632 at 639, per Mason and Jacobs JJ.) [80] As I have previously remarked in Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 448, the courts have not taken a narrow view of the defamatory imputations which are capable of injuring the reputation of a [299] trading corporation: see New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 at 304–305; and South Hetton Coal Co Ltd v North-Eastern News Association Ltd, above, at 138. A firm or

CHAPTER 7 Liability for Defamation

partnership is in no different position. So, for example, there might be injury to goodwill (see Lewis v Daily Telegraph Ltd [1964] AC 234 at 262 and Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 at 339) or the defamatory imputation might prevent people from entering its employment or make people reluctant to deal with it (see South Hetton Coal Co Ltd, above, and Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534 at 547). [81] The question in this case is whether it is defamatory of a partnership to say that the business which it operates is owned by a man who has murdered his wife and who has attempted suicide, that being, as I have said, the imputation which is relied upon by the plaintiffs … [86] It has many times been said that a corporation cannot sue for defamation in (300) respect of an allegation, for example, that it has committed a murder. The basis for this has been said to be that a corporation is incapable of committing a murder. Thus, in The Metropolitan Saloon Omnibus Company (Ltd) v Hawkins (1859) 4 H & N 87 at 90, Pollock CB said that a corporation could not sue in respect of an imputation of murder, or incest, or adultery, because it could not commit those crimes. The same thing was said, in South Hetton Coal Company, above, by Lopes LJ, at 141–142 (see also the comments of Kay LJ in that case, at 147). In D & L Caterers, above, at 366, Lord Goddard said that:

Copyright © 2015. Oxford University Press. All rights reserved.

If one said of a company ‘It is a murderer’ or ‘it is a forger,’ I have no doubt that the company could not bring an action, because a company cannot forge and a company cannot murder, so that in the ordinary way it would not be actionable to write something of a company which might be actionable in the case of individuals, unless what is written reflects on the company in the way of its business.

[87] This kind of reasoning has been trenchantly criticised by Spencer Bower: The Law of Actionable Defamation, 2nd edn, at 244. The author there says that arguments of this kind assume ‘that an artificial person cannot have a corporate or collective reputation in respect of any acts or conduct except those for which it could be punished in the same way as a natural person could, and that, because a corporation cannot be hanged, it is not actionable to publish of it that it employs its members or agents to perpetrate crimes for which they could be hanged: in other words, that it would not be defamatory to write or say of a society that … it seeks to effect its objects by murder and outrage ….’ The author suggests that such charges could be actionable at the suit of a body of persons, mentioning that it would be as defamatory of a natural person to say of him that he employed another to commit murder as it would be to say of him that he committed that offence himself, and that it should make no difference that the principal was a company rather than a natural person. [88] In Australian Liquor, Hospitality and Miscellaneous Workers’ Union (Miscellaneous Workers’ Division) WA Branch v Mulligan (1996) 15 WAR 385 at 387, Anderson J endorsed the opinion of Spencer Bower, above, at 244, that if the act itself was one which the corporation was capable of committing, whether by itself or by an agent, there was no reason why an allegation that the act was committed could not carry a defamatory imputation and, if it did, why the corporation should not sue in defamation in respect of it. The real question, in this last respect, may be that of whether or not the acts of the person concerned can be imputed to the company or business, in circumstances in which they are committed by the ‘directing mind’ of the company or business or at the instance of that ‘directing mind’ (cf Gatley, above, at 184 and Bognor Regis Urban District Council v Campion [1972] 2 QB 169 at 177, discussed in Derbyshire County Council v Times Newspapers Ltd, above, at 545–547). [89] There can, in this case, be no suggestion of any imputation to the effect that the murder was committed on behalf of the business. The business was only mentioned in the first television broadcast as a means of identifying the person who was believed to have committed the murder in the course of ‘a domestic argument’. I have earlier said that the dispute was described, in the first broadcast, in that way and that the name of the business was shown in a context in which it was said that it was ‘the wife of the store owner’ who was believed to have been stabbed by her husband during that dispute. [90] That, no doubt, is why the plaintiffs, in their joint action, plead only imputations to the effect that the business was owned by a man who had murdered his wife and that it was owned by a man who had attempted suicide. (301) Are imputations of that kind defamatory of the plaintiffs in their capacity as partners who, in truth, own the business? Counsel for the defendant contends that they are not. He submits, firstly (and

163

Copyright © 2015. Oxford University Press. All rights reserved.

164

PART 3 Defamation and the Protection of Reputation

his submission echoes what is said by Gatley, above, par 2.26), that, to be actionable, words must impute to the plaintiffs themselves (here as a partnership) some quality which is detrimental, or the absence of some quality which is essential, to the successful carrying on of their trade and that the mere fact that words tend to injure them in the way of their trade is insufficient. He argues that there is nothing of that kind here, and he points to the fact that, even in their pleading, the plaintiffs allege only that the reputation of the business itself was injured and not that their own business reputation was injured. He points, also, to the fact that there was no evidence, at the trial, or even any plea in the statement of claim, to the effect that anyone knew that Mr and Mrs Todd owned the business of ‘Todds Furniture Mart’ in partnership. [91] It is no doubt true that, if the plaintiffs are to bring an action in their capacity as joint owners of the business, they must show that they have been defamed in that capacity. Here they have pleaded, and proved (by the evidence of Mr Todd and by documentary evidence admitted at the trial), that they owned, and operated, in partnership, a business (which they have defined as ‘the Business’) registered as ‘Todds Furniture and Auctions’ but also carried on under the name ‘Todds Furniture Mart’. Those names were, for any practical purpose, the names of the partnership. While the plaintiffs allege, in their statement of claim, that the reputation of ‘the Business’ has been injured and that ‘the Business’ has been shunned as a consequence of the defamation, it is evident that they mean, by that, that the partnership’s reputation (under the name or names by which it is known) has been injured and that its business has been shunned as a consequence. It was upon this basis that the trial was fought out. [92] Next, it seems to me to matter little whether or not anyone knew that Mr and Mrs Todd were the partners who traded under the name or names to which I have referred. If the partnership was defamed in the name by which it was commonly known, that is, in my opinion, enough to enable it to bring its action. It does not need to show that those to whom it was defamed knew the name of each of the partners who traded under that name. It has, as I have said, a personality (which may exist under a business name or names) which is capable of being defamed and in respect of which it can bring an action for libel. [93] The more difficult question is whether the partnership, having its own personality under the name ‘Todds Furniture Mart’, was defamed by the imputations to which I have referred, which were, as I have said, to the effect only that the business, ‘Todds Furniture Mart’, was owned by a man who had murdered his wife and who had attempted suicide. [94] I am satisfied, on the evidence, that what was imputed to the business, namely that it was owned by a man who had killed his wife and attempted suicide, caused people to avoid it. I accept Mr Todd’s evidence and that of Mr Quigley, who attended the auction on 15 November, to the effect that only half the normal number of people attended that auction (albeit the two men differed in their assessment of numbers). I have earlier accepted Mr Todd’s evidence that, for a period, business fell away after the first broadcast and that there was no other factor than the broadcast which could explain the fall in business. [95] However the fact that the business was avoided does not mean that the partnership which owned it was defamed. While it might be so, as was said in (302) Youssoupoff, above, at 584 and 587, that imputations which cause others to shun or avoid the plaintiff are defamatory, they must be imputations which bear upon the reputation of the plaintiff, and not of someone else, or, to use the words of Phillips LJ in Berkoff, above, which ‘relate to an attribute of the plaintiff’. As was said by Street J in Slatyer v Daily Telegraph Newspaper Co (1907) 7 SR (NSW) 488 at 498, ‘A malicious falsehood not defamatory but causing damage may in some circumstances be foundation for an action on the case for damages, but unless the untruth is calculated to injure the reputation and character of the person of whom it is spoken, it cannot give rise to an action for defamation’. (See also Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 1 NSWLR 16 and Mirror Newspapers Ltd v World Hosts Pty Ltd, above, at 638–639, dealing with the common law prior to the passing, in New South Wales, of the Defamation Act 1958 (NSW)). In Mirror Newspapers Ltd v World Hosts Pty Ltd, above, at 639, Mason and Jacobs JJ (with whom Gibbs and Stephen JJ were in agreement) said that, while a plaintiff whose reputation was disparaged by a defamatory statement could recover as damages any business loss sustained in consequence of the publication of the defamatory statement (as to which see Ratcliffe v Evans [1892] 1 QB 524 at 529, and Calvet v Tomkies [1963] 1 WLR 1397), malicious statements which injured a man’s business or his goods but did not disparage his reputation were not actionable in defamation

CHAPTER 7 Liability for Defamation

Copyright © 2015. Oxford University Press. All rights reserved.

though they were actionable as injurious falsehoods (as to which see South Hetton Coal Co, above, at 139, and Drummond-Jackson, above, at 698). [96] Here the imputations undoubtedly injured the partnership in the way of its trade, but they did not involve any reflection on the ‘character’ of the partnership itself or ‘upon the mode in which its business was carried on’ (see Griffiths v Benn (1911) 27 TLR 346, at 350, per Cozens-Hardy MR). I am unable to accept that, to say of a business that it is owned by a man who has murdered his wife and attempted suicide in the course of a domestic argument, is to say anything of the partnership which, in truth, owns that business. Rather, what was said was capable of reflecting only upon the character of Mr Todd himself, albeit he has, somewhat inaccurately, been identified as ‘the owner’ of the business. That it was Mr Todd who was identified as the owner of the business is, as I have earlier said, not in doubt. [97] Counsel for the plaintiffs contended that, in this case, the business was Mr Todd’s alter ego, and that this should have the consequence that what was defamatory of Mr Todd was necessarily defamatory, also, of the business, by which expression I took him to refer to the partnership. He relied upon three cases in support of this proposition … [Steytler J then considered the effect of Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9, A boriginal Nations Pty Ltd v John Fairfax Publications Pty Ltd [1998] ACTSC 125 and Hunt Australia Pty Ltd v Davidson’s Arnhemland Safaris (2000) 179 ALR 738.] [101] The evidence in this case undoubtedly established that Mr Todd was closely identified with the business known as ‘Todds Furniture Mart’ and that he played a major part in its operations, to the extent that he was probably seen as the person who controlled it. However the situation in this case is readily distinguishable from the kind of situation considered by the court in each of the three cases to which I was referred. That is because what was said of Mr Todd, that he had murdered his wife and attempted suicide, could not have been understood as if it had been said of the partnership. A partnership could not have murdered its wife and attempted suicide. This case is consequently very different, for example, to that of Hunt Australia, in which the defamatory imputation bore upon the trustworthiness of the managing director of the plaintiff company in such a way as to make him a danger to the well-being of the very industry in which the company, of which he was the ‘alter ego’, was engaged. [102] For all of these reasons, it seems to me that the claim, insofar as it is brought jointly by Mr and Mrs Todd in their capacity as members of the partnership which owns the business, is unsustainable and should be dismissed. [Steyler J awarded Mr Todd $70,000 damages in respect of the damage to his personal reputation and the injury to his feelings.]

QUESTION 1 Where individual partners are closely identified with the partnership business, how tenable is the distinction drawn by defamation law between the personal reputations of the partners and the business or trading reputation of the partnership business?

7.1.13 Corporations—the common law position At common law, all natural persons and artificial entities, including partnerships and corporations, are generally entitled to sue in defamation to protect and vindicate their reputations. There are, however, some notable, albeit limited, exceptions, such as the inability of governmental bodies to sue in defamation in respect of their ‘governing’ reputations.74

74 Derbyshire County Council v Times Newspapers Ltd [1993] AC 534; Ballina Shire Council v Ringland (1994) 33 NSWLR 680; New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300.

165

166

PART 3 Defamation and the Protection of Reputation

The  national, uniform defamation laws effect an important and controversial change to standing to sue for defamation, in that they significantly curtail the right of corporations to sue. At common law, a corporation could sue for defamation.75 However, as a corporation is an artificial entity, it does not have feelings, therefore it could not recover damages for hurt to its feelings76—a significant component of an award of compensatory damages for a natural person. It could only recover damages for injury to its reputation. As Lord Reid famously pointed out in Lewis v Daily Telegraph Ltd, a corporation could only be injured ‘in its pocket’.77 A trading corporation, having only a trading reputation, can only recover damages that are economic in nature.78 There is, however, no requirement that a corporation prove as special damage the economic harm it suffered as a consequence of the defamatory publication. Like a natural person, a corporation is entitled to the presumption of damage to reputation.79 The common law position was reaffirmed and explained by the House of Lords in Jameel v Wall Street Journal Europe SprL, which is extracted below.

Jameel v Wall Street Journal Europe SprL

Copyright © 2015. Oxford University Press. All rights reserved.

[2007] 1 AC 359

[In early February 2002, the appellant, Wall Street Journal Europe SprL, published an article under the headline, ‘Saudi Officials Monitor Certain Bank Accounts’. The article alleged that the central bank of Saudi Arabia, the Saudi Arabian Monetary Authority, was monitoring central bank accounts at the request of United States law enforcement agencies. These accounts were suspected of being used to fund terrorist organisations. The article named ‘the Abdullatif Jamil Group of companies’ as suspects. The respondents, Mohammed Jameel and the Abdul Latif Jameel Group, of which Jameel was the general manager and president, brought defamation proceedings in England. Both respondents were Saudi Arabian. The Abdul Latif Group did not own property or conduct business in England or Wales but did have a commercial reputation there. At first instance, Eady J ruled that the common law presumption of damage in defamation, as it applied to corporations, was not incompatible with freedom of expression under Article 10 of the European Convention on Human Rights and further held that Wall Street Journal Europe was not entitled to rely upon the defence of ‘responsible journalism’ qualified privilege. As to the defence of qualified privilege, see below at 8.5. An appeal to the Court of Appeal was dismissed. Wall Street Journal Europe appealed to the House of Lords in relation to both issues. The following extract relates only to the presumption of damage in defamation in respect of corporations.]

75 Metropolitan Saloon Omnibus Co v Hawkins (1859) 4 H & N 87 at 90; (1859) 157 ER 769 per Pollock CB; South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 139 per Lord Esher MR; at  ­141–43  per Lopes LJ; at 148 per Kay LJ; Barnes & Co Ltd v Sharpe (1910) 11 CLR 462 at ­478–79 per O’Connor J; at 485–86 per Higgins J; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 448 per Steytler J; Jameel v Wall Street Journal Europe SprL [2007] 1 AC 359 at 372 per Lord-Bingham of Cornhill. 76 Lewis v Daily Telegraph Ltd [1964] AC 234 at 262 per Lord Reid. 77 Ibid. 78 A corporation cannot recover damages for its ‘reputation as such’: Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 586–87 per Neaves J; at 599–603 per Pincus J; Jameel v Wall Street Journal Europe SprL [2007] 1 AC 359 at 392 per Lord Hope of Craighead; contra Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 254–56 per Mahoney JA. 79 South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 139 per Lord Esher MR; at 143 per Lopes LJ; at 148 per Kay LJ; Jameel v Wall Street Europe SprL [2007] 1 AC 359 at 374–76 per Lord Bingham of Cornhill.

CHAPTER 7 Liability for Defamation

LORD BINGHAM OF CORNHILL (at 371):

I. Damage [11] The issue under this head is whether a trading company which itself conducts no business but which has a trading reputation within England and Wales should be entitled to recover general damages for libel without pleading and proving that the publication complained of has caused it (372) special damage. To resolve this question it is helpful to distinguish three sub-issues: (1) whether such an entitlement exists under the current law of England and Wales; (2) whether, if so, article 10 of the European Convention on Human Rights requires revision of the current domestic law; and (3) whether, if not, the current domestic law should in any event be revised.

Copyright © 2015. Oxford University Press. All rights reserved.

(1) THE CURRENT DOMESTIC LAW [12] The tort of libel has long been recognised as actionable per se. Thus where a personal plaintiff proves publication of a false statement damaging to his reputation without lawful justification, he need not plead or prove special damage in order to succeed. Proof of injury to his reputation is enough. [13] It was argued in South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 that this rule did not apply to trading companies. The newspaper in that case had published an article strongly critical of the way in which the plaintiff, a colliery owner, housed its workers, and the company had not pleaded or proved any actual damage. It was argued for the publisher that a corporation could have no personal character, and that the article had not related to the business of the company: pp 134, 137. The Court of Appeal unanimously rejected this argument. Lord Esher MR held the law of libel to be one and the same for all plaintiffs: p 138. While he referred to obvious differences between individuals and companies, at pp 138–139, his conclusion, at p 139, was clear: ‘Then, if the case be one of libel—whether on a person, a firm, or a company—the law is that damages are at large. It is not necessary to prove any particular damage; the jury may give such damages as they think fit, having regard to the conduct of the parties respectively, and all the circumstances of the case.’ There need be no evidence of particular damage: p 140. Lopes LJ agreed, at p 141: a company may maintain an action for a libel reflecting on the management of its business without alleging or proving special damage. Kay LJ also agreed, at p 148: a trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special, although, where there is no such evidence, the damages given will probably be small. [14] In Lewis v Daily Telegraph Ltd [1964] AC 234, 262, Lord Reid pointed out that a company cannot be  injured in its feelings but only in its pocket. There was, however, no challenge in that case to the principle laid down in South Hetton, which was not cited in either party’s printed case, or in argument, or in any judgment. [15] Mr Robertson, for the newspaper, pointed out, quite correctly, that the Faulks Committee on Defamation, in its Report (Cmnd 5909) (March 1975), para 336, recommended amendment of the South Hetton rule. The amendment recommended was, however, only to limit libel actions by trading corporations to cases where the trading corporation could establish either that it had suffered special damage or that the defamation was likely to cause it financial damage. This recommendation was made after considering trenchant criticisms of the existing rule made by Mr J A Weir (‘Local Authority v Critical Ratepayer—A Suit in Defamation’ (373) (1972A) CLJ 238). It is not a recommendation to which Parliament has chosen to give effect. [16] In Derbyshire County Council v Times Newspapers Ltd the issue concerned the entitlement of a local authority, not a trading corporation, to sue in libel. But at first instance South Hetton was cited, and contributed to Morland J’s conclusion that a local authority could sue: [1992] QB 770, 781, 783–788. On appeal, counsel for the newspaper distinguished South Hetton on the ground of the colliery company’s trading character and counsel for the local authority relied on it: pp 792, 797. No member of the Court of Appeal questioned the decision. Balcombe LJ accepted South Hetton as binding for what it decided, but also (despite Mr Weir’s criticism) expressed his agreement with it: p 809. In the House, counsel for the local authority cited the decision [1993] AC 534, 536–537. Counsel for the newspaper did not criticise it, but distinguished it as applicable to a company with a business reputation which a local authority did not have: p 538. In his leading opinion, with which the other members of the House agreed, Lord Keith of Kinkel (who had been a member of the Faulks committee) cited South Hetton at some length, and also National Union of General and Municipal

167

168

PART 3 Defamation and the Protection of Reputation

Workers v Gillian [1946] KB 81, in which a non-trading corporation (a trade union) had been assimilated to a trading corporation. He then continued, at p 547: The authorities cited above clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it. The South Hetton Coal Co case [1894] 1 QB 133 would appear to be an instance of the latter kind, and not, as suggested by Browne J, an authority for the view that a trading corporation can sue for something that does not affect it adversely in the way of its business. The trade union cases are understandable upon the view that defamatory matter may adversely affect the union’s ability to keep its members or attract new ones or to maintain a convincing attitude towards employers. Likewise in the case of a charitable organisation the effect may be to discourage subscribers or otherwise impair its ability to carry on its charitable objects. Similar considerations can no doubt be advanced in connection with the position of a local authority. Defamatory statements might make it more difficult to borrow or to attract suitable staff and thus affect adversely the efficient carrying out of its functions.

Lord Keith then went on to give his reasons for concluding that a local authority was to be distinguished from other types of corporation, whether trading or non-trading. [17] In Derbyshire the correctness of South Hetton was not challenged, but acceptance of its correctness was an important step in Lord Keith’s reasoning and I find no ambiguity in the proposition he propounded: the authorities clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. In Shevill v Presse Alliance SA [1996] AC 959, (374) decided some three years later by a differently constituted committee of the House, one of the plaintiffs was a trading corporation and the presumption of damage in libel cases was treated as part of our national substantive law. I conclude that under the current law of England and Wales a trading company with a trading reputation in this country may recover general damages without pleading or proving special damage if the publication complained of has a tendency to damage it in the way of its business. (375) …

Copyright © 2015. Oxford University Press. All rights reserved.

(3) Revision of the current law [23] Since the European court accords a generous margin of appreciation to the judgment of national authorities, and these include courts, it is appropriate for the House to review the merits of the South Hetton rule as restated in Derbyshire. The newspaper argues that, in accordance with the trend towards enhanced recognition of freedom of expression, the rule should be abrogated. Parliament could of course have legislated to abrogate or modify the rule, but it has not done so. It is accordingly necessary to revert to basic principles. [24] The tort of defamation exists to afford redress for unjustified injury to reputation. By a successful action the injured reputation is vindicated. The ordinary means of vindication is by the verdict of a judge or jury and an award of damages. Most plaintiffs are individuals, who are not required to prove that they have suffered financial loss or even that any particular person has thought the worse of them as a result of the publication complained of. I do not understand this rule to be criticised. Thus the question arises whether a corporation with a commercial reputation within the jurisdiction should be subject to a different rule. [25] There are of course many defamatory things which can be said about individuals (for example, about their sexual proclivities) which could not be said about corporations. But it is not at all hard to think of statements seriously injurious to the general commercial reputation of trading and charitable corporations: that an arms company has routinely bribed officials of foreign governments to secure contracts; that an oil company has wilfully and unnecessarily damaged the environment; that an international humanitarian agency has wrongfully succumbed to government pressure; that a retailer has knowingly exploited child labour; and so on. The leading figures in such corporations may be understood to be personally implicated, but not, in my opinion, necessarily so. Should the corporation be entitled to sue in its own right only if it can prove financial loss? I do not think so, for two main reasons. (376) [26] First, the good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public and even its own staff, make people less ready to deal with it, less willing or less proud to work for it. If this were not so, corporations would not go to the lengths

CHAPTER 7 Liability for Defamation

they do to protect and burnish their corporate images. I find nothing repugnant in the notion that this is a value which the law should protect. Nor do I think it an adequate answer that the corporation can itself seek to answer the defamatory statement by press release or public statement, since protestations of innocence by the impugned party necessarily carry less weight with the public than the prompt issue of proceedings which culminate in a favourable verdict by judge or jury. Secondly, I do not accept that a publication, if truly damaging to a corporation’s commercial reputation, will result in provable financial loss, since the more prompt and public a company’s issue of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue. [27] I do not on balance consider that the existing rule should be changed, provided always that where a trading corporation has suffered no actual financial loss any damages awarded should be kept strictly within modest bounds. Appeal allowed in part. [In separate reasons for judgment, Lord Hope of Craighead and Lord Scott of Foscote agreed with Lord Bingham of Cornhill that the appeal should be dismissed in relation to the issue of presumption of damage in defamation in respect of corporations. Lord Hoffmann and Baroness Hale of Richmond dissented on this issue. The appeal was unanimously allowed in relation to the defence of qualified privilege, as to which, see below at 8.5.]

QUESTIONS 1 Should corporations be entitled to the presumption of damage in defamation cases? 2 How convincing do you find the arguments in favour of allowing corporations to be able to sue for defamation?

Copyright © 2015. Oxford University Press. All rights reserved.

7.1.14 Corporations—statutory provisions In Australia, the right of corporations to sue for defamation is now significantly curtailed as a result of restrictions introduced by the national, uniform defamation laws.80 The statutory provision proceeds on the basis that corporations are excluded from suing for defamation unless they fall within the definition of an ‘excluded corporation’. Not-for-profit corporations and genuinely small corporations can and do still sue for defamation under the national, uniform defamation laws.81

National defamation laws Certain corporations do not have cause of action for defamation (1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication. (2) A corporation is an excluded corporation if: (a) the objects for which it is formed do not include obtaining financial gain for its members or corporators, or (b) it employs fewer than 10 persons and is not related to another corporation, and the corporation is not a public body.

80 Civil Law (Wrongs) Act 2002 (ACT) s 121; Defamation Act 2006 (NT) s 8; Defamation Act 2005 (NSW) s 9; Defamation Act 2005 (Qld) s 9; Defamation Act 2005 (SA) s 9; Defamation Act 2005 (Tas) s 9; Defamation Act 2005 (Vic) s 9; Defamation Act 2005 (WA) s 9. 81 See, for example, Royal Society for the Prevention of Cruelty to Animals New South Wales v Davies [2011] NSWSC 1445 (RSPCA NSW awarded $100,000 damages); Cripps v Vakras [2014] VSC 279 (Redleg Museum Services Pty Ltd awarded $30,000 damages).

169

170

PART 3 Defamation and the Protection of Reputation

(3) In counting employees for the purposes of subsection (2)(b), part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent. (4) In determining whether a corporation is related to another corporation for the purposes of subsection (2)(b), section 50 of the Corporations Act 2001 of the Commonwealth applies as if references to bodies corporate in that section were references to corporations within the meaning of this section. (5) Subsection (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation. (6) In this section: corporation includes any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body. public body means a local government body or other governmental or public authority constituted by or under a law of any country.

QUESTIONS 1 What types of corporations can still sue for defamation in Australia? What percentage of corporations do you think this covers? 2 Why do you think the national, uniform defamation laws introduced these restrictions on the right of corporations to sue for defamation? How convincing do you find these reasons? 3 What was the legislative intention behind the restriction on the right of corporations to sue for defamation? How effective is the statutory provision in giving effect to that intention? 4 Are there any unintended consequences in restricting the right of corporations to sue for defamation?

Copyright © 2015. Oxford University Press. All rights reserved.

7.1.15 Limitation period for defamation claims Prior to the introduction of the national, uniform defamation laws, the applicable limitation periods for defamation claims were those for tort claims generally. They varied widely across Australia, within a range of between three to six years.82 In 2002, a limitation period of one year (with the possibility of a court-ordered extension of up to three years) was introduced in New South Wales.83 The national, uniform defamation laws now adopt this approach as well.84 There were a number of reasons for this shortening of the limitation period for defamation claims. First, the tort of defamation is complete upon publication and potential plaintiffs are usually aware of the publication. By contrast, in relation to certain types of personal injuries and property damage, the damage may take longer to crystallise and the potential plaintiffs may be unaware of the damage they have suffered.85 Second, there would be no significant prejudice to plaintiffs in defamation claims by virtue of the shortening of the limitation period, as plaintiffs who were genuinely concerned about real damage being done to their 82 Limitation Act 1985 (ACT) s 11(1); Limitation Act 1981 (NT) s 12(1)(a); Limitation Act 1969 (NSW) s 14(1) (a); Limitation of Actions Act 1974 (Qld) s 10(1)(a); Limitation of Actions Act 1936 (SA) s 35(c); Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions Act 1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 13(1). 83 Defamation Amendment Act 2002 (NSW) s 4, Sch 2.2. 84 Limitation Act 1985 (ACT) s 21B(1), (2); Limitation Act 1981 (NT) ss 12(1A), 44A; Limitation Act 1969 (NSW) ss 14B, 56A; Limitation of Actions Act 1974 (Qld) ss 10AA, 32A; Limitation of Actions Act 1936 (SA) s 37(1), (2); Defamation Act 2005 (Tas) s 20A(1), (2); Limitation of Actions Act 1958 (Vic) ss 5(1AAA), 23B; Limitation Act 2005 (WA) ss 15, 40. 85 New South Wales Law Reform Commission, Defamation, Report No. 75, 1995, [13.4]; Attorney-General’s Taskforce on Defamation Law Reform, Defamation Law: Proposals for Reform in NSW, September 2002, 12–13.

CHAPTER 7 Liability for Defamation

reputations would commence proceedings as soon as possible.86 Finally, a limitation period of up to six years for defamation claims would be inconsistent with the reduced limitation periods introduced for personal injury claims as part of the tort law reforms introduced from 2002 onwards.87

7.1.16 The respective roles of judge and jury in a defamation proceeding

Copyright © 2015. Oxford University Press. All rights reserved.

Defamation law is unusual, in that it is the last remaining area of civil jurisdiction in which juries can play a significant role. Broadly, the judge determines questions of law and the jury determines questions of fact. In a defamation case, this means that the judge determines the question of defamatory capacity88 and questions of law relating to defences (such as whether an occasion is privileged),89 and the jury determines the question of defamatory meaning,90 questions of fact relating to defences91 and the assessment of damages.92 The common law position can be, and has been, altered by statute. In certain jurisdictions, such as the Australian Capital Territory, the Northern Territory and South Australia, juries in defamation proceedings are not available, having been abolished.93 Although the normal mode of trial in the Federal Court of Australia is without a jury,94 a jury may be empanelled in a proceeding if it is expedient in the interests of justice to do so.95 This power has only been used in one reported case. In Ra v Nationwide News Pty Ltd,96 Rares J ordered a jury in a matter involving defamation and misleading or deceptive conduct under the Trade Practices Act 1974 (Cth).97 His Honour even ordered an enlarged jury of 12 persons, civil juries usually being smaller than juries in criminal trials.98 However, the matter settled before trial. In the remaining jurisdictions—New South Wales, Queensland, Tasmania, Victoria and Western Australia—express statutory provisions are made for the respective roles of judge and jury in a defamation trial. The national, uniform defamation laws effect changes to the allocation of tasks between judge and jury in a defamation proceeding. Where a jury is available in a defamation proceeding, either party may elect to have a jury.99 If such an election is made, the jury will determine issues of liability and defences100 and the judge sitting alone will assess any damages to be awarded.101  86 Ibid.  87 See Limitation Act 1985 (ACT) s 16B; Limitation Act 1969 (NSW) s 18A; Limitation of Actions Act 1974 (Qld) s 11; Limitation of Actions Act 1936 (SA) s 36; Limitation Act 1974 (Tas) s 5A; Limitation of Actions Act 1958 (Vic) s 5(1AA); Limitation Act 2005 (WA) s 14(1).  88 As to defamatory capacity, see 7.2.  89 As to defences to defamation, see Chapter 8. As to defences of privilege particularly, see 8.4ff.  90 As to defamatory meaning, see 7.2.  91 As to defences to defamation, see Chapter 8.  92 As to the assessment of damages, see 9.1.2ff.  93 Supreme Court Act 1933 (ACT) s 22; Juries Act 1962 (NT) s 6A; Juries Act 1927 (SA) s 5.  94 Federal Court of Australia Act 1976 (Cth) s 39.  95 Ibid s 40.  96 (2009) 182 FCR 148.  97 Ibid at 156.  98 Ibid at 158.  99 Defamation Act 2005 (NSW) s 21(1); Defamation Act 2005 (Qld) s 21(1); Defamation Act 2005 (Tas) s 21(1); Defamation Act 2005 (Vic) s 21(1); Defamation Act 2005 (WA) s 21(1). 100 Defamation Act 2005 (NSW) s 22(2); Defamation Act 2005 (Qld) s 22(2); Defamation Act 2005 (Tas) s 22(2); Defamation Act 2005 (Vic) s 22(2); Defamation Act 2005 (WA) s 22(2). 101 Defamation Act 2005 (NSW) s 22(3); Defamation Act 2005 (Qld) s 22(3); Defamation Act 2005 (Tas) s 22(3); Defamation Act 2005 (Vic) s 22(3); Defamation Act 2005 (WA) s 22(3).

171

172

PART 3 Defamation and the Protection of Reputation

In New South Wales, defamation cases are now regularly tried without a jury.102 This marks a significant change, as prior to the introduction of the national, uniform defamation laws, a jury was required in all defamation cases, save in exceptional circumstances.103 It is interesting to note that, as a result of its libel law reform process in 2013, United Kingdom law now has a presumption against trial by jury in defamation cases, reversing the special and established position in this form of litigation.104

QUESTIONS 1 What are the benefits and disadvantages of having a jury involved in the determination of a defamation case? 2 How extensive should a jury’s involvement in the determination of a defamation case be? 3 Do the differences as to the mode of the defamation trial materially detract from the uniformity of the national, uniform defamation laws? Would the presence or absence of a jury in a given jurisdiction be perceived by a prospective plaintiff as a forensic advantage so as to encourage ‘forum shopping’?

7.2

7.2.1

Defamatory capacity and meaning Defamatory matter

Copyright © 2015. Oxford University Press. All rights reserved.

In order for a defendant to be liable for defamation, he or she must publish defamatory matter about the plaintiff. Defamatory matter can take many forms—as Lopes LJ observed in Monson v Tussauds Ltd,105 ‘a statue, a caricature, an effigy, chalk marks on a wall, signs, or pictures may constitute a libel’.106 The national, uniform defamation laws define the term ‘matter’ inclusively to embrace: (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and (b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and (c) a letter, note or other writing, and (d) a picture, gesture or oral utterance, and (e) any other thing by means of which something may be communicated to a person.107

Some examples of cases involving more unusual types of defamatory matter include Monson v Tussauds Ltd,108 in which a waxwork dummy of the plaintiff was included in the ‘Chamber of Horrors’ at the defendant’s famous museum, the plaintiff having been tried for murder in Scotland and receiving a verdict of ‘not proven’; Falkenberg v Nationwide News 102 See, for example, Holmes v Fraser [2008] NSWSC 570; Cantwell v Sinclair [2011] NSWSC 1244; Petrov v Do [2012] NSWSC 1382. 103 Supreme Court Act 1970 (NSW) s 86 (repealed); District Court Act 1973 (NSW) s 76B (repealed). 104 Defamation Act 2013 (UK) c 26, s 11. 105 [1894] 1 QB 671. 106 Ibid at 692. 107 Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (NSW) s 4; Defamation Act 2005 (Qld) s 4, Sch 5; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4. 108 [1894] 1 QB 671.

CHAPTER 7 Liability for Defamation

Pty Ltd,109 in which a married couple complained that a ‘Far Side’ cartoon by American cartoonist, Gary Larson, containing their Sydney telephone number, published in The Daily Telegraph Mirror, suggested they were the relevant contact for Satan; and Bishop v New South Wales,110 in which a schoolteacher complained that a theatrical performance at a high school assembly graphically suggested he was having an inappropriate sexual relationship with a colleague. It appears defendants are only limited by their own inventiveness as to the types of matter that can damage reputations.

Copyright © 2015. Oxford University Press. All rights reserved.

7.2.2

The cause of action in defamation

At common law, the cause of action in defamation was the defamatory matter the defendant published.111 The defamatory matter could contain multiple imputations but there was still only one cause of action. For example, one newspaper article containing a number of discrete allegations against the plaintiff would only give rise to one cause of action in defamation. At common law, where a plaintiff relies upon the natural and ordinary meaning of a matter,112 there previously was no obligation on the part of the plaintiff to particularise the meanings that he or she claims are conveyed by the matter,113 although it has been described as sound pleading practice to do so and is encouraged by the courts in all but the most straightforward cases.114 A cause of action based on a meaning conveyed by way of true innuendo is separate and distinct from a cause of action based on the natural and ordinary meaning and needs to be pleaded separately. The particularisation of the meanings complained of is essential to a claim in defamation based on true innuendo.115 Under the Defamation Act 1974 (NSW) s 9(2) (repealed), the imputation was made the cause of action. A plaintiff had to plead each separate meaning upon which he or she sought to rely. The failure to plead a particular imputation would mean that the plaintiff could not succeed in relation to that defamatory meaning, as the plaintiff had failed to plead his or her cause of action. The making of the imputation the cause of action unsurprisingly increased the prolixity of defamation pleadings. The national, uniform defamation laws now enact the common law position across Australia so that the defamatory matter, rather than each imputation contained within it, is now the cause of action.116 It was hoped that this would reduce somewhat the prolixity of defamation pleadings and the complexity of defamation proceedings generally. This hope has proven thus far to be forlorn. 109 110 111 112 113

Unreported, SC(NSW), No. 20832/94, Levine J, 16 December 1994. [2000] NSWSC 1042. Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 188 per Lander J. As to the natural and ordinary meaning of a matter, see 7.2.6. Packer v Mirror Newspapers Ltd (1969) 90 WN(Pt 1) (NSW) 308 at 309–10 per Wallace P; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 530 per Brennan CJ and McHugh J; Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at 304 per Beaumont J, Fed C of A, Full Court; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J. 114 Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at 304–05 per Beaumont J, Fed C of A, Full  Court; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 530–32 per Brennan CJ and McHugh J. See also Kerney v Optimus Holdings Pty Ltd [1976] VR 399 at 401–02 per Menhennitt J. 115 As to true innuendoes, see 7.2.7. 116 Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (NSW) s 4; Defamation Act 2005 (Qld) s 4(1), Sch 5; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4.

173

174

PART 3 Defamation and the Protection of Reputation

7.2.2.1

Defamatory capacity

Before a jury can determine whether a matter in fact bears a defamatory meaning, a judge must first determine whether, as a matter of law, the matter is capable of bearing a defamatory meaning.117 The question of capacity comprises two distinct issues. First, the judge must be satisfied that the matter is capable of conveying the plaintiff’s pleaded imputations to the ordinary, reasonable reader.118 Second, the judge must further be satisfied that the plaintiff’s pleaded imputations, if capable of being conveyed, are capable of being defamatory in the view of the ordinary, reasonable reader.119 The judge must construe the matter in context and may therefore take into account the mode or manner of publication.120 He or she must reject any imputations that arise only by virtue of ‘some strained, or forced, or utterly unreasonable interpretation’.121 The tests for capacity are best understood as a ‘judicial filter’,122 by the application of which a trial judge can strike out any farfetched or fanciful imputations that no jury acting reasonably could find established. Where there is doubt as to whether an imputation is capable of being conveyed or is capable of being defamatory, the better course is to leave the imputation to the jury for its determination.123

7.2.2.2

Defamatory meaning

Copyright © 2015. Oxford University Press. All rights reserved.

If a judge determines that a matter is capable of bearing a defamatory meaning, it becomes the responsibility of the jury to determine whether in fact the matter bears a defamatory meaning. The question of defamatory meaning comprises two distinct issues. First, the jury must assess whether the defamatory meanings contended for by the plaintiff are in fact conveyed to the ordinary, reasonable reader. Second, the jury must consider whether the defamatory meanings are in fact defamatory of the plaintiff in the view of the ordinary, reasonable reader.124 Where a plaintiff relies upon the natural and ordinary meaning of a matter, evidence cannot be adduced to assist or to direct the jury as to how the matter is to be interpreted. Similarly, evidence cannot be adduced in relation to the defamatory quality of the imputations. What the matter means and whether the imputations conveyed are defamatory are questions peculiarly within the province of the jury and are not amenable to proof.125

7.2.3

The ordinary, reasonable reader

Just as liability for negligence is assessed by reference to the reasonable person, the central construct of defamation law, by reference to which liability is determined, is the ordinary, 117 Capital and Counties Bank Ltd v Henty & Sons (1882) 7 App Cas 741 at 744 per Lord Selborne LC; Jones v Skelton [1964] NSWR 485 at 491 per curiam, PC; Farquhar v Bottom [1980] 2 NSWLR 380 at 385 per Hunt J. 118 Farquhar v Bottom [1980] 2 NSWLR 380 at 385 per Hunt J. As to the concept of the ordinary, reasonable reader, see below at 7.2.3. 119 Jones v Skelton [1964] NSWR 485 at 491 per curiam, PC; Farquhar v Bottom [1980] 2 NSWLR 380 at 385 per Hunt J. As to the concept of the ordinary, reasonable reader, see below at 7.2.3. 120 Capital and Counties Bank Ltd v Henty & Sons (1882) 7 App Cas 741 at 744 per Lord Selborne LC; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 153 at 165 per Hunt CJ at CL. 121 Jones v Skelton [1964] NSWR 485 at 491 per curiam, PC; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 153 at 165 per Hunt CJ at CL. 122 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at 96 per Kirby J (discussing the Defamation Act  1974 (NSW) s 7A(1) (repealed), which is substantially declaratory of the common law). See also Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 153 at 164 per Hunt CJ at CL. 123 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 153 at 164 per Hunt CJ at CL. 124 See the extract from Farquhar v Bottom [1980] 2 NSWLR 380 at 7.2.3 below. 125 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 per Brennan J.

CHAPTER 7 Liability for Defamation

reasonable reader (or listener or viewer). Defamation is therefore determined by an objective standard, rather than the subjective response of the decision-maker. The test of the ordinary, reasonable reader is applied by both the judge and the jury in defamation proceedings, albeit for different purposes and therefore, on occasion, to different conclusions.126 Just as in negligence, a sophisticated account of the ordinary, reasonable reader emerges from the decided cases. Perhaps the most useful distillation of the ordinary, reasonable reader is provided by Hunt J in Farquhar v Bottom, which is extracted below.

Farquhar v Bottom [1980] 2 NSWLR 380

Copyright © 2015. Oxford University Press. All rights reserved.

[The plaintiff, Murray Farquhar, was the former Chief Stipendiary Magistrate of New South Wales. The first defendant, Bob Bottom, was an investigative journalist who published a book entitled The Godfather in Australia—Organized Crime’s Australian Connections. Farquhar brought defamation proceedings against Bottom and his publisher in the Supreme Court of New South Wales, claiming one chapter imputed that he had acted contrary to his judicial oath in the hearing of a major drug case and that he considered events, submissions, evidence and/or matters outside the courtroom in dealing with this case.] HUNT J (at 385): [19] The only issue before me is whether the matter complained of is capable of conveying those imputations to the ordinary, reasonable reader. That is a question of law: Jones v Skelton. Whether those imputations are capable of defaming the plaintiff is another question of law: ibid, but it does not arise in the proceedings before me. The defamatory capacity of the imputations must be determined as a separate question: Capital and Counties Bank Ltd v George Henty & Sons; Jones v Skelton; Monte’s case. It will have to be decided, if indeed it could be disputed, by the trial judge. [20] If both these questions of law are answered in favour of the plaintiff, it then becomes necessary for the jury to determine (a) whether the ordinary reasonable reader would, in fact, have read the matter complained of as conveying those imputations, and (b) whether that reader would, in fact, have understood such imputations as being such as to cause ordinary decent folk in the community, taken in general, to think the less of the plaintiff: Gardiner v John Fairfax & Sons Pty Ltd; Consolidated Trust Co Ltd v Browne. [21] In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly (386) unreasonable interpretation: Jones v Skelton. I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd; who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland; nor avid for scandal: Lewis v Daily Telegraph Ltd. [22] This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd; Jones v Skelton; Lang v Australian Consolidated Press Ltd. It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd; Morgan v Odhams Press Ltd; Lang v Australian Consolidated Press Ltd; Middle East Airlines Airliban SAL v Sungravure Pty Ltd. [23] In what might be described as ‘newspaper’ cases (of which this present case is not one), further questions may arise as to the care with which the ordinary reasonable reader would have read a sensational article, and as to the degree of analytical attention he would apply to it; Morgan’s case; and as to the degree of accuracy he might have expected of that article; Steele v Mirror Newspapers Ltd. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking: Morgan’s case, following Lewis v Daily Telegraph Ltd; Steele’s case; Mirror Newspapers Ltd v World Hosts Pty Ltd; Parker v John Fairfax & Sons Ltd.

126 As to the role of the ordinary, reasonable reader in relation to defamatory capacity, see above at 7.2.2.1. As to the role of the ordinary, reasonable reader in relation to defamatory meaning, see above at 7.2.2.2.

175

176

PART 3 Defamation and the Protection of Reputation

[24] The mode or manner of publication is a material fact in determining what imputation is conveyed: Henty’s case; English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd. One assumes that the reader of a book would read it with more care than he would a newspaper. In both the ‘newspaper’ and in other cases, there is also a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual: Lewis v Daily Telegraph Ltd. [25] Finally, it is not enough to say that, by some person or another, the matter complained of might be understood in the sense contended for by the plaintiff. What must be considered is the sense in which the ordinary reasonable reader would understand it: Nevill v Fine Art and General Insurance Co Ltd; Stubbs Ltd v Russell; Lewis v Daily Telegraph Ltd; Murphy v Australian Consolidated Press Ltd.

7.2.4

Interpreting defamatory matter

Special rules and principles have developed over centuries relating to the interpretation of defamatory matter. It should be frankly acknowledged that defamation law’s approach to meaning is highly artificial, as the famous extract from Diplock LJ’s judgment in Slim v Daily Telegraph Ltd, extracted below, confirms.

Slim v Daily Telegraph Ltd

Copyright © 2015. Oxford University Press. All rights reserved.

[1968] 2 QB 157

DIPLOCK LJ (at 171): Libel is concerned with the meaning of words. Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey. But the notion that the same words (172) should bear different meanings to different men and that more than one meaning should be ‘right’ conflicts with the whole training of a lawyer. Words are the tools of his trade. He uses them to define legal rights and duties. They do not achieve that purpose unless there can be attributed to them a single meaning as the ‘right’ meaning, and so the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the ‘right’ meaning by the adjudicator to whom the law confides the responsibility of determining it.

7.2.5

The role of context

It emerges clearly from the extract below, taken from the House of Lords decision in Charleston v News Group Newspapers Ltd,127 that the ordinary, reasonable reader is taken to have read the whole of a defamatory matter. A plaintiff cannot separate out elements of the defamatory matter, such as headlines or photographs, and rely upon one or more of these elements as the basis of his or her claim. Importantly, as a result of reading the whole of the defamatory matter, the ordinary, reasonable reader is permitted to have regard to the matter in context in order to ascertain its meaning.

127 [1995] 2 AC 65.

CHAPTER 7 Liability for Defamation

Charleston v News Group Newspapers Ltd [1995] 2 AC 65

[The authors cannot improve upon Lord Bridge of Harwich’s recitation of the facts in this case.] LORD BRIDGE OF HARWICH (at 68): The plaintiffs are an actor and actress who played the parts of Harold and Madge Bishop, a respectable married couple, in the popular Australian television serial ‘Neighbours’ and were thus well known to an English audience of millions. The article complained of appears with a headline across most of the page in capital letters three-quarters of an inch high which reads: ‘Strewth! What’s Harold up to with our Madge?’ Immediately beneath this is a large photograph of a man and a woman nearly naked. The woman is leaning forward over some piece of furniture and the man is standing behind her apparently engaging in an act of intercourse or sodomy with her. Superimposed over the lower part of their bodies is an outline map of Australia bearing the words ‘Censored down under.’ To the right of this is another smaller photograph of a woman wearing a tight-fitting blouse or jacket with holes cut to expose her bare breasts. The face of the man in the large photograph is the male plaintiff’s and the face of the woman in both photographs is the female plaintiff’s. (69) Below the photographs is another smaller, but still prominent, headline which reads: ‘Porn shocker for Neighbours stars.’ The captions under the photographs are in small print and read respectively: ‘Soap studs: Harold and Madge’s faces are added to porn actors’ bodies in a scene from the game.’ and ‘Ramsay rave: “Madge” in kinky leather gear.’ Ramsay Street is where the action of ‘Neighbours’ is set. The text of the article which follows makes it clear that the photographs have been produced by the makers of a pornographic computer game by superimposing the faces of the plaintiffs without their knowledge or consent on the bodies of others. The opening paragraphs of the article read:

Copyright © 2015. Oxford University Press. All rights reserved.

What would the Neighbours say … straight laced Harold Bishop starring in a bondage session with screen wife Madge … The famous faces from the TV soap are the unwitting stars of a sordid computer game that is available to their child fans … The game superimposes stars’ heads on near-naked bodies of real porn models. The stars knew nothing about it.

Beside this text are inset two small photographs of the plaintiffs with the caption: ‘Victims: Ian and Anne.’ The remainder of the article castigates the makers of the ‘sordid computer game’ in a tone of selfrighteous indignation which contrasts oddly with the prominence given to the main photograph. The plaintiffs must have found this publication deeply offensive and insulting. Many people will not only deplore this kind of gutter journalism but will think that the law ought to give some redress to the plaintiffs against the publication of such degrading faked photographs irrespective of what the accompanying text may have said. I have considerable sympathy with this point of view. However, your Lordships are not concerned to pronounce on any question of journalistic ethics nor to consider whether the publication of the photographs by itself constituted some novel tort. The single question of law to which the appeal gives rise is whether the plaintiffs have any remedy in the tort of defamation on the basis of their pleaded claim, and this in turn narrows down to the question whether a claim in defamation in respect of a publication which, it is conceded, is not defamatory if considered as a whole, may nevertheless succeed on the ground that some readers will have read part only of the published matter and that this part, considered in isolation, is capable of bearing a defamatory meaning. The plaintiffs’ statement of claim alleges that the publication conveyed to the reader a number of defamatory meanings. The basis on which all these alleged meanings rest is that the reader would have drawn the inference that the plaintiffs had been willing participants in the production of the photographs, either by posing for them personally or by agreeing that their faces should be superimposed on the bodies of others. But it is conceded on the plaintiffs’ behalf, and is indeed obvious, that no reader could possibly have drawn any such inference if he had read beyond the first paragraph of the text. Thus the essential basis on which Mr Craig’s argument in support of the appeal rests is that, in appropriate circumstances, it is possible and legitimate to identify a particular group (70) of readers who read only part of a publication which conveys to them a meaning injurious to the reputation of a plaintiff and that in principle the plaintiff should be entitled to damages for the consequent injury he suffers in the estimation of this group.

177

178

PART 3 Defamation and the Protection of Reputation

It is well settled, as Mr Craig accepts, that, save in the case of a legal innuendo dependent on extrinsic facts known to certain readers, no evidence is admissible as to the sense in which readers understood an allegedly defamatory publication. No legal innuendo is here alleged. But here, so Mr Craig’s argument runs, it goes without saying and no evidence is required to establish that, out of the many millions constituting the readership of a mass circulation newspaper like the ‘News of the World’, a significant proportion, when they saw the page of which the plaintiffs complain, would have done no more than to have read the headlines and looked at the photographs. It will be convenient to refer to this group as the ‘limited readers.’ The argument before your Lordships was substantially confined to the effect of the publication on the minds of the limited readers. They would, Mr Craig submits, have drawn an inference defamatory of the plaintiffs as actors willing to participate in pornographic films and it should be left to a jury to estimate the size of the group constituted by the limited readers and to award damages accordingly for the injury which the plaintiffs’ reputation must have suffered in the estimation of this group. The first formidable obstacle which Mr Craig’s argument encounters is a long and unbroken line of authority the effect of which is accurately summarised in Duncan & Neill on Defamation, 2nd ed (1983), p 13, para 4.11 as follows:

Copyright © 2015. Oxford University Press. All rights reserved.

In order to determine the natural and ordinary meaning of the words of which the plaintiff complains it is necessary to take into account the context in which the words were used and the mode of publication. Thus a plaintiff cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage.

… (71) The theme of Mr Craig’s argument runs on the following lines. All the earlier authorities, he submits, are explicable on the basis that the allegedly defamatory matter with which they were concerned was located somewhere in a document in which there was no likelihood that it would be read in isolation. In such a situation it is natural and proper to look for the meaning conveyed to the reader by considering the publication as a whole. The techniques of modern tabloid journalism, however, confront the courts with a novel situation with which the law has not hitherto had to grapple. It is plain that the eye-catching headline and the eye-catching photograph will first attract the reader’s attention, precisely as they were intended to do, and equally plain that a significant number of readers will not trouble to read any further. This phenomenon must be well known to newspaper editors and publishers, who cannot, therefore, complain if they are held liable in damages for any libel thus published to the category of limited readers. At first blush this argument has considerable attractions, but I believe that it falls foul of two principles which are basic to the law of libel. The first is that, where no legal innuendo is alleged to arise from extrinsic circumstances known to some readers, the ‘natural and ordinary meaning’ to be ascribed to the words of an allegedly defamatory publication is the meaning, including any inferential meaning, which the words would convey to the mind of the ordinary, reasonable, fair-minded reader. This proposition is too well established to require citation of authority. The second principle, which is perhaps a corollary of the first, is that, although a combination of words may in fact convey different meanings to the minds of different readers, the jury in a libel action, applying the criterion which the first principle dictates, is required to determine the single meaning which the publication conveyed to the notional reasonable reader and to base its verdict and any award of damages on the assumption that this was the one sense in which all readers would have understood it. … (72) It is precisely the application of the principle so clearly expounded in these passages which, in a libel action where no legal innuendo is alleged, prevents either side from calling witnesses to say what they understood the allegedly defamatory publication to mean. But it would surely be even more destructive of the principle that a publication has ‘the one and only meaning that the readers as reasonable men should have collectively understood the words to bear’ to allow the plaintiff, without evidence, to invite the jury to infer that different groups of readers read different parts of the entire publication and for that reason understood it to mean different things, some defamatory, some not. Whether the text of a newspaper article will, in any particular case, be sufficient to neutralise the defamatory implication of a prominent headline will sometimes be a nicely balanced question for the jury to decide and will depend not only on the nature of the libel which the headline conveys and the language

CHAPTER 7 Liability for Defamation

of the text which is relied on to neutralise it but also on (73) the manner in which the whole of the relevant material is set out and presented. But the proposition that the prominent headline, or as here the headlines plus photographs, may found a claim in libel in isolation from its related text, because some readers only read headlines, is to my mind quite unacceptable in the light of the principles discussed above. I have no doubt that Mr Craig is right in his assertion that many ‘News of the World’ readers who saw the offending publication would have looked at the headlines and photographs and nothing more. But if these readers, without taking the trouble to discover what the article was all about, carried away the impression that two well known actors in legitimate television were also involved in making pornographic films, they could hardly be described as ordinary, reasonable, fair-minded readers. I would dismiss the appeal. Appeal dismissed. [Lord Goff of Chieveley, Lord Jauncey of Tullichettle and Lord Mustill concurred with Lord Bridge of Harwich. In separate reasons for judgment, Lord Nicholls of Birkenhead agreed with Lord Bridge of Harwich.]

QUESTION 1 How realistic is the House of Lords approach to the ordinary, reasonable reader’s ascertainment of the meaning of a defamatory matter? See, for example, Kirby J’s criticisms of this decision in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 574–75.

7.2.6

Natural and ordinary meaning

Copyright © 2015. Oxford University Press. All rights reserved.

In many cases, a matter will be defamatory in its natural and ordinary meaning. The natural and ordinary meaning of a defamatory matter comprises the literal meaning of the words themselves, as well as any implications, inferences or otherwise indirect meanings which may be drawn from the words used.128 On occasion, the literal meaning of the matter will be defamatory. For example, the statement, ‘X is a murderer’, if published and untrue, is in and of itself defamatory. More often, however, the defamatory meaning of the matter will only emerge indirectly, by implication or by inference. For example, the statements: Y was found stabbed to death in her home. A short time before she was thought to have died, X was seen leaving Y’s home, carrying a bloodied knife.

arguably convey the same imputation, ‘X is a murderer’, but do so indirectly.

7.2.7

True innuendoes

Liability for defamation can be based not only on the natural and ordinary meaning of a matter. It can also be based on a ‘true innuendo’. A true innuendo is a meaning that arises from the defamatory matter only because the ordinary, reasonable reader has knowledge of extrinsic facts that make the matter defamatory. If a plaintiff wishes to plead a true innuendo, he or she needs to particularise the meaning upon which he or she relies, as well as proving the extrinsic facts which make the matter defamatory. The concept of ‘true innuendo’ is dealt with by Brennan J in the following extract from Reader’s Digest Services Pty Ltd v Lamb.129

128 Jones v Skelton [1964] NSWR 485 at 491 per curiam, PC; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 153 at 165 per Hunt CJ at CL. 129 (1982) 150 CLR 500.

179

180

PART 3 Defamation and the Protection of Reputation

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500

Copyright © 2015. Oxford University Press. All rights reserved.

[The plaintiff, Sir Larry Lamb, was a journalist. He brought defamation proceedings against Reader’s Digest Services Pty Ltd in respect of statements in a book, Great Cases of Scotland Yard—Volume I. Lamb alleged the statements conveyed imputations, in their natural and ordinary meaning, that he had betrayed the confidence of an old friend in a time of distress; that he had exploited a friend’s tragedy for a sensational newspaper story; and that he had obstructed a police investigation for his own journalistic reasons. Evidence of the ethical standards of journalists was admitted over the objection of Reader’s Digest Services. At first instance, the jury found in favour of Lamb. Reader’s Digest Services unsuccessfully appealed to the New South Wales Court of Appeal against the admission of this evidence. It then appealed to the High Court of Australia.] BRENNAN J (at 504): If an imputation of breach of ethical standard or code had been pleaded, the respondent would have been put to proof that an ethical (505) standard or code existed and that the conduct imputed to the respondent had breached it. It would have been a true innuendo and the challenged evidence would have been admissible to establish the extrinsic facts to support it. Assuming such an imputation to be defamatory, a further cause of action for making that defamatory imputation would have been alleged in addition to the cause of action upon which the respondent recovered his judgment (Lewis v Daily Telegraph Ltd ), though both causes of action would have arisen from the same publication (see the Defamation Act 1974 (NSW), s 9(2)(a)). And then, had it been established that such an imputation had been made and that it was defamatory, a higher sum could have been awarded as damages for making that defamatory imputation (see s 9(5), and Pedley v Cambridge Newspapers Ltd, at p 797). … Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be (506) determined by asking whether hypothetical referees—Lord Selborne’s reasonable men (Capital and Counties Bank v Henty, at p 745) or Lord Atkin’s right-thinking members of society generally (Sim v Stretch, at p 671 or Lord Reid’s ordinary men not avid for scandal (Lewis v Daily Telegraph Ltd)—would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v Deane, at p 833, being a standard common to society generally (Miller v David; Myroft v Sleight; Tolley v JS. Fry & Sons Ltd, at p 479). Appeal dismissed. [Gibbs CJ, Stephen, Murphy and Wilson JJ agreed with Brennan J.]

QUESTION 1 In what circumstances might a plaintiff plead a true innuendo? What are the advantages and disadvantages to pleading a true innuendo?

7.2.8

Implications and inferences

Implications and inferences are part of the natural and ordinary meaning of defamatory matter. They are broadly categorised as ‘false innuendoes’, in contrast to ‘true innuendoes’. In turn, defamation law draws a distinction between implications and inferences. This distinction may become important in the context of imputations of suspicion and guilt, as to which see below at 7.2.10.

CHAPTER 7 Liability for Defamation

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Copyright © 2015. Oxford University Press. All rights reserved.

[The plaintiff was a prominent New South Wales solicitor who sued Amalgamated Television Services Pty Ltd for defamation arising out of the broadcast of a report, ‘The Dark Side’, on the Channel Seven current affairs program, Witness. Marsden claimed the broadcast conveyed a range of serious imputations about him, including that he had sexual intercourse with under-age boys, some of whom were eventually the perpetrators of the brutal murder of Anita Cobby. Amalgamated Television Services challenged the form of a number of Marsden’s pleaded imputations.] HUNT CJ at CL (at 166): What must be emphasised is that it is the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded by the plaintiff. In determining what is reasonable in any case, a distinction must be drawn between what the ordinary reasonable reader, listener or viewer (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader, listener or viewer could reach by taking into account his or her own belief which has been excited by what was said. It is the former approach, not the latter, which must be taken: Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 WN (Pt 1) 223 at 235; [1969] 1 NSWR 771; Mirror Newspapers Ltd v World Hosts Pty Ltd (at 641 642); Mirror Newspapers Ltd v Harrison (at 301); Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669 at 677; John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR (167) 706 at 719; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 455. The publisher is not held responsible, for example, for an inference which the ordinary reasonable reader, listener or viewer draws from an inference already drawn from the matter complained of, because it is unreasonable for the publisher to be held so responsible: Lewis v Daily Telegraph Ltd (at 259–260, 274, 286); Mirror Newspapers Ltd v Harrison (at 299–300). That is an issue which has assumed some importance in this case. It is necessary to emphasise the important distinction between an implication and an inference. An implication is included in and is part of that which is expressed by the publisher. It is something which the reader (or listener or viewer) understands the publisher as having intended to say. An inference is something which the reader (or listener or viewer) adds to what is stated by the publisher; it may reasonably or even irresistibly follow from what has been expressly or impliedly said, but it is nevertheless a conclusion drawn by the reader (or listener or viewer) from what has been expressly or impliedly said by the publisher: cf Lubrano v Gollin and Co Pty Ltd (1919) 27 CLR 113 at 118; Rose v Hvric (1963) 108 CLR 353 at 358. It is the reader’s (or listener’s or viewer’s) own conclusion. Attention to this distinction, in the context of the capacity to defame issue, seems to have been drawn for the first time in my judgment in Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 at 12, when I pointed out that such a distinction appeared to have been accepted by Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 279–280: see Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 at 12. That distinction was subsequently accepted in that context by this Court in Harrison v Mirror Newspapers Ltd [1981] 1 NSWLR 620 at 627. The High Court found it unnecessary to discuss the distinction in the appeal to that court in Mirror Newspapers Ltd v Harrison (at 300), and the distinction therefore stands. An inference is drawn from an inference when the reader, listener or viewer draws an inference which is available in the matter complained of and then uses that inference as a basis (at least in part) from which a further inference is drawn. The publisher is held responsible for the first of those inferences but not for the second because—as I have already said—it is unreasonable for the publisher to be held so responsible. In Mirror Newspapers Ltd v Harrison (at 300), the High Court illustrated the process which leads to an inference upon an inference in the case where the matter complained of states that the plaintiff had been charged with an offence. The first inference available from that statement (for which the publisher is held responsible) is that the police believed the plaintiff to be guilty or had a ground for charging him. (The phrase ‘reasonable cause’ is substituted for ‘ground’ at page 301.) The second inference, which is based at least in part upon that first inference (and thus is not one for which the publisher is held responsible because it is unreasonable to do so), is that the plaintiff is in fact guilty of the offence charged. (The cases referred to by the High Court are Lang v Australian Consolidated Press Ltd and Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16.)

181

182

PART 3 Defamation and the Protection of Reputation

That requirement of reasonableness must apply in every case. There can, however, be no unreasonableness involved in making the publisher responsible for an inference drawn by the reader (or listener or viewer) from a statement which the publisher is reasonably understood to have intended to imply in the matter complained of.

7.2.9

Bane and antidote

A defendant might argue that a matter does not bear a defamatory meaning on the basis of ‘bane and antidote’. It is an application of the principle that a matter must be understood in context. The foundational statement of principle is that of Alderson B in Chalmers v Payne, where his Lordship stated: But the question here is, whether the matter be slanderous or not, which is a question for the jury; who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff’s character. In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together.130

The leading Australian decision on this concept is the judgment of the New South Wales Court of Appeal in Morosi v Broadcasting Station 2GB Pty Ltd, which is extracted below.

Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418n

Copyright © 2015. Oxford University Press. All rights reserved.

[The facts emerge sufficiently from the extract below.] SAMUELS JA (at 418): At about a quarter past seven in the morning of 1st August, 1975, Mr Ormsby Wilkins, who was then a well known news commentator employed by the defendant, made a broadcast over radio station 2GB in the following terms: ‘I suppose that those people who are able to look at a television set—a very high proportion of them—must have been tuned to the Willesee programme last night to watch a close-up study of Miss Junie Morosi, as she prefers to be known. Mike [Willesee], in his low-key but very direct approach, asked her questions about herself which came as near to the knuckle as one could come. He more or less asked her if she loved [politician] Jim Cairns; he suggested, in his disarmingly frank way, that people were going to speculate that the baby might be Jim’s. He asked her if she was any kind of an undercover operator, using the phrase “Mata Hari”; and he reminded her that Jim Cairns’ fortunes have slumped alarmingly during Cairns’ relationship with her. Result: Mike did a great job—but he never laid a glove on her. She fenced a little, as she was entitled to do, but when he persisted she answered him in as direct and intelligent and reasonable way as anyone could have asked, or expected she should. And as Mike continued to probe, so she continued to answer calmly without hardly even a trace of nervousness. (419) I’m speaking about her and this interview for obvious reasons. Hers is the most notorious woman’s name in the country and now that she’s to have a baby there will be a spate of dirty jokes about her, and a variety of speculations as to who is the father, because everybody knows that Junie Morosi is an immoral adventurer … adventuress … who has slept with a variety of notable politicians, and most recently has been sleeping with Jim Cairns. In fact, of course, nobody knows any such thing. There is indeed not even the faintest suggestion that she has ever had any such relationship with any of the men she has known—as though it would be anybody else’s business that she had—that, in fact, there is no stain of any kind on her character. She has been involved in some failed business ventures, and that’s about the worst that can be said against her.

130 (1835) 2 CM & R 158 at 159; (1835) 150 ER 67 at 68.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 7 Liability for Defamation

Junie Morosi showed once again that she’s an intelligent, courageous, sensitive and, of course, very handsome woman. She’s a threat and a challenge to any man prepared to strive for her favours and her regard. She has, one repeats, contributed to Dr Cairns’ downfall, but it was his decision to pursue the friendship in the way he did. She was quite entitled to say, in all fairness: “Well, if that’s the way you want it, I will play it your way”. Jack Egerton says: “Jim was a mug”, and he was—but Jim Cairns would say, I’ve no doubt, he preferred to be a mug of that kind rather than a smart alick … that’s the Cairns’ style. He probably should never have been in the dirty game of politics; rather a writer and speaker and persuader should be his most effective role. With all his errors, and they’ve been many and grievous, he and Miss Morosi till this moment emerge with more dignity and less soil on them than those of us who may choose to make sniggering jokes about her. I’m Ormsby Wilkins.’ … Mr Shand submits that the publication is incapable of conveying any meaning or imputation defamatory of the plaintiff. He says that the ordinary reasonable listener of average intelligence (who is the relevant stereotype), considering the broadcast as a whole (which is the correct criterion), could not have regarded it as bearing any imputation discreditable to Miss Morosi. He concedes (as he is bound to do) that there is at least one passage in the material—and that is the portion contained in quotation marks in par 3 of the statement of claim commencing with the words ‘hers is the most notorious woman’s name in the country’— which, if regarded independently of the context, is capable of defamatory meaning. But, the argument runs, the bane inherent in those words is entirely cured by the antidote provided by the context of the whole statement in which they are included; see Chalmers v Payne, in the judgment of Alderson B. Shortly, the submission, therefore, is that far from being an attack on the plaintiff the broadcast was a vehement defence of her. It was not pejorative but eulogistic. The discreditable assertions were made only for the purpose of vigorously refuting them and it was only in this sense that the listener with the qualities which the law imputes to him could reasonably have understood what Mr Wilkins said. I do not doubt that there are occasions when a publication which seeks to refute a calumny which it expressly states may be held incapable of conveying any defamatory meaning. Bik v Mirror Newspapers Ltd is an example. But such cases must be comparatively rare. The inquiry upon which the Court must embark differs from that involved in the threshold question which more commonly arises. In each case, the question is whether the material is capable of a defamatory meaning, and in each case guidance is provided by the test formulated by Lord Selborne in Capital and Counties Bank Ltd v George Henty & Sons, and its derivatives; for example, the statement by Lord Reid in Lewis v Daily Telegraph Ltd. The difference, however, is this. In the ordinary case, the material to be examined consists of the words of the publication in their natural and ordinary meaning (I leave aside any question of innuendoes in the true sense) which may or may not support an imputation of a defamatory kind. But in a case such as this the material already contains a defamatory imputation; and the inquiry is whether that effect is overcome by contextual matter of an emollient kind so as to eradicate the hurt and render the whole publication harmless. It follows that, in a case such as the present, what is involved is essentially the weighing up and comparison of bane and antidote, to repeat Baron Alderson’s evocative formula. It (420) is a question of degree and of competing emphasis. I do not find the cases to which we were referred of much assistance. As Mr Shand frankly admitted, they disclose a not altogether coherent picture. It may be easier to arrive at an answer where the publication contains an express disclaimer, as in Stubbs Ltd v Russell, or where the antidote consists in a statement of fact destructive of the ingredients from which the bane has been brewed. In the end each publication must stand on its own. In the present case (and having heard the tape of Mr  Wilkins’ broadcast) I cannot be satisfied that it was not open to the ordinary reasonable listener to understand the words of the publication in a sense defamatory of the plaintiff; and I have in mind the words of Lord Halsbury in Nevill v Fine Art and General Insurance Co Ltd. Apart from the words on which the plaintiff principally founds, I think the sentence ‘she is a threat and a challenge to any man prepared to strive for her favours and her regard’ is capable of diminishing the potency of the antidote. But I do not think that any purpose is really served by a scrupulous analysis of what was said. It is more a matter of impression, taking into account the attributes of the notional listener. I do

183

Copyright © 2015. Oxford University Press. All rights reserved.

184

PART 3 Defamation and the Protection of Reputation

not think that it can be said that the antidote so manifestly achieved its purpose that the issue should have been withdrawn from the jury. The submission, therefore, fails. … The second new trial point is this. His Honour said in the course of the summing-up: ‘The plaintiff, on the other hand, starts by saying: “Well, what business was it of Mr Wilkins to mention rumours about me on the radio at a quarter past seven on the morning of 1st August, 1975”’; and later he repeated certain of the submissions made by counsel for the plaintiff, and in the course of doing so said: ‘Counsel says to you that there is simply no basis upon which people can on radio stations in the morning start saying that there are rumours about people, even if in the next breath they say there is nothing to them.’ Mr Shand says that these statements would have given the jury the distinct impression that the plaintiff was entitled to succeed, unless the defendant established some legal right, or at least some moral justification, to say what he did. This submission, I think, is without substance. Sheppard J was recapitulating the nub of the plaintiff’s case, which was at this point a renunciation of self-appointed champions whose advocacy simply exacerbated the impact of existing rumours. It is true that Mr Wilkins’ intention or motives had nothing to do with the case; a proposition which Mr Shand not only accepts but emphasises, as he did at the trial, and one which the learned judge plainly put to the jury. Nonetheless, in his speech to the jury—understandably in the warmth of an address and without, I am sure, intending to go further than he might—Mr Shand may be found in an uneasy straddle between the reasonable impact of the broadcast, which was relevant, and the intention which informed it, which was not, For example, he said to the jury: ‘What Mr Wilkins was doing was coming to this lady’s aid, seeking to dispel a lot of ugly rumours which had been circulating about her, putting his foot firmly upon them and grinding them into the ground.’ (421) On the following page, he said that Mr Wilkins was seeking to ‘put the lid on the whole thing’. Later he said that Mr Wilkins was acting honestly, sincerely and, in fact, was championing the cause of Miss Morosi. Then again, Mr Wilkins was discharging the right which 2GB had, the right of radio stations to air a matter of public debate. Later Mr Wilkins is described as seeking to silence the critics and making ‘a good red-blooded attack’ upon them. Finally, he set out, it was said, to champion the cause of this lady and ‘the advantage he got, albeit he is not here to witness the ultimate outcome, was an action for damages for the pains he took to assist her’. All of this was put in aid of the meaning which it was said the publication conveyed. It is easy to see, I think, that a legitimate answer to these encomiums lavished upon Mr Wilkins was that apparently made by the plaintiff’s counsel, who might indeed, if I might be permitted to use a homely phrase, have said: ‘With friends like this, who needs enemies?’ His Honour was merely reminding the jury of what was said in answer to the role ascribed to Mr Wilkins. There is no ground for the suggestion that the jury would have interpreted the judge’s remarks in any other way, or considered them as thrusting upon the defendant the burden of establishing some additional case which had never previously been mentioned and to which no further reference was made. I do not think that this was any misdirection … Appeal dismissed. [Moffitt P and Hutley JA agreed with Samuels JA.]

QUESTION 1 Does a proper application of ‘bane and antidote’ merely require a balancing of positive and negative imputations in a matter or is something more necessary?

7.2.10 Imputations of suspicion and guilt The media routinely report on the occurrence, the investigation and the prosecution of crime. Such reporting gives rise to a particular difficulty in relation to imputations of suspicion and guilt. It can be viewed as an application of the principles relating to implications and inferences, which were discussed above at 7.2.8. The following extracts, one from the

CHAPTER 7 Liability for Defamation

High Court of Australia, the other from the New South Wales Court of Appeal, demonstrate the difficult issues of principle that can sometimes arise in relation to the reporting of crime.

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293

Copyright © 2015. Oxford University Press. All rights reserved.

[John Harrison was arrested for the brutal bashing of state Labor parliamentarian, Peter Baldwin. He commenced defamation proceedings against Mirror Newspapers Ltd in the Supreme Court of New South Wales, arising out of an article about his arrest published in The Daily Mirror. Harrison alleged that the article conveyed the imputations that he was involved in the bashing and that he was guilty of a criminal offence. At first instance, Hunt J held that the article was incapable of conveying these imputations. The New South Wales Court of Appeal unanimously allowed an appeal. Mirror Newspapers appealed to the High Court.] GIBBS CJ (at 295): I have had the advantage of reading the reasons for judgment prepared by my brother Mason, and, subject to the reservation which I am about to express, I am in agreement with them. It is not necessary, for the purpose of the present case, to decide whether a statement that a person has been arrested and charged with an offence is capable of bearing the imputation that the police officer who made the arrest and laid the charge had reasonable cause to suspect the person charged of having committed the offence. No doubt the statement would convey to an ordinary reasonable man that the police suspected that the person arrested had committed the offence. However, although an ordinary man might think that the police officer laying the charge ought to have had reasonable cause for his suspicion, it does not necessarily follow that he would read into the words the imputation that the police officer did in truth have such reasonable cause; for example, a police officer might, in the ordinary course of events, have proceeded on a mistaken view of the facts. I am not at present satisfied that a statement of this kind would carry the further imputation that the suspicion of the informant that the person charged had committed the offence was based on reasonable grounds and I would leave that question open until it falls for decision. I would allow the appeal and restore the order of Hunt J. MASON J: One of the issues here is of some importance in the law of defamation: what imputations are capable of being raised by a newspaper report that, after intensive police investigation, a man has been arrested and is expected to be charged with offences of conspiracy and fraud? … (300) As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows (301) that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted. In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader’s understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its

185

186

PART 3 Defamation and the Protection of Reputation

importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader. Although Sugerman ACJ in Rochfort stated that a report of the kind discussed is incapable of bearing an imputation other than what it actually states, namely that the plaintiff has been arrested and charged with an offence, I think that it is capable of bearing the imputation that the police suspected him of having committed the offence and that they had reasonable cause for doing so. That in my opinion is what the ordinary reasonable reader would understand to be conveyed by such a report. His understanding would, as it happens, reflect the conditions according to which in New South Wales a constable is empowered to arrest without a warrant. By s 352(2) of the Crimes Act 1900 (NSW) a constable is entitled to apprehend without warrant ‘any person whom he, with reasonable cause, suspects of having committed’ an offence. The provisions of the Justices Act 1902 (NSW) regulating the laying of information for indictable offences, which must be on oath, and the laying of informations or complaints for summary offences, which need not be on oath, as a preliminary to (302) the issue of a warrant or summons, do not speak of reasonable cause. But there can be no doubt there must be reasonable cause for the informant’s belief that the plaintiff has committed the offence. When the plaintiff is arrested pursuant to a warrant under s 23 or s 59 of the Justices Act, the issue of the warrant is a consequence of the exercise of a judicial discretion by the justice or magistrate issuing the warrant (Ex parte Qantas Airways Ltd; Re Horsington, at pp 301, 305–306; Halsbury’s Laws of England, 4th ed (1976) vol 11, par 95). But the ordinary reasonable reader, unaware of this refinement, will still conclude that it is the informant who suspects, with reasonable cause, that the plaintiff has committed the offence. … (303) BRENNAN J: For the reasons which Mason J has given, I agree that the article pleaded is incapable of supporting either of the imputations which are here in issue. Though I would join the Chief Justice in reserving for future consideration the question whether a report stating merely that a person has been arrested and (304) charged by police with a particular offence is capable of bearing an imputation to the ordinary reasonable reader that the police officer who made the arrest had reasonable cause for suspecting that the person arrested had committed that offence, the article complained of in this case is not so limited in its text. Appeal allowed. [Wilson J agreed with Mason J.]

Copyright © 2015. Oxford University Press. All rights reserved.

Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669

[The appellant, Francesco Sergi, brought proceedings against the Australian Broadcasting Commission in relation to a report broadcast on the current affairs program, Nationwide. The report showed two photographs of Sergi, one in a group, taken from The Daily Telegraph newspaper. In the commentary, the reporter stated that the newspaper had reported findings of the Woodward Royal Commission that the five men photographed in the group were involved in drug cultivation and dealing and were responsible for the disappearance and murder of anti-drugs campaigner, Donald Mackay. The ABC challenged the capacity of certain imputations to be conveyed by the broadcast before Hunt J. Sergi appealed to the New South Wales Court of Appeal against Hunt J’s rulings on capacity.] GLASS JA (at 676): We are confronted here with a vexed area in the law of defamation which has been traversed but not fully explored by judgments of the High Court, the House of Lords and this Court. Guidance is to be sought principally in Mirror Newspapers Ltd v Harrison (1982) 56 ALJR 808; 42 ALR 487; Lewis v Daily Telegraph Ltd [1964] AC 234; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 and Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16. In my opinion it is necessary to distinguish three separate categories of statement that the plaintiff has been charged with a criminal offence. They are: (a) A statement that the plaintiff has been charged so expressed as to be incapable of supporting the imputation that reasonable grounds exist for suspecting he had committed the offence.

CHAPTER 7 Liability for Defamation

(b) A statement that the plaintiff has been charged so expressed as to be capable of supporting that further imputation. (c) A statement that the plaintiff has been charged so expressed as to be (677) capable of supporting the further and more damaging imputation that the charge was well founded thereby imputing guilt. It is clearly the view of Hunt J that no statements would ever fall into the first category because the further imputation that a reasonably grounded suspicion is held is necessarily always present. One can agree that a mere statement of the plaintiff that he has been charged necessarily imputes that a police officer or some other informant suspects him. But to impute that such suspicion was reasonably based contributes, in my view, a new dimension of meaning. In Mirror Newspapers Ltd v Harrison (1982) 56 ALJR 808, at 809; 42 ALR 487, at 488, Gibbs CJ and Brennan J (at 813; 495) reserved for future consideration the question whether a bare statement that the plaintiff had been charged could impute that the policeman in question had reasonable grounds for his suspicion although Mason J was of opinion that it was so capable (at 812; 493). However, the defendant’s statement instead of being bare may be clothed in the language of disclaimer, eg ‘the plaintiff has been charged but I am confident that the suspicion of the police is unfounded’. If it be argued that the imputation of reasonable cause may be drawn by the reader notwithstanding the use of clear language repudiating it, the defendant is entitled to say that the alleged further imputation cannot be charged against him since it is not derived from anything he published but from the readers’ own beliefs and prejudices: Harrison (at 811, 812; 492, 493). It is unnecessary to multiply examples which would show how the reasonableness of the police suspicion may be disavowed with greater or less emphasis. The communication of the fact that a charge has been levelled against the plaintiff located in its particular web of language will require a ruling on whether it is or is not capable of bearing the further imputation that police suspicion was grounded on reasonable cause. Distinctions of exquisite delicacy will have to be made depending on small differences in the language employed but it will be remembered that they do not, any more than rulings on whether negligence can be inferred, constitute the stuff of law and should after the trial be relegated to decent obscurity. But it would in my view be an unmerited slur on the resources of the English language to hold a priori that no report of a charge against the plaintiff, however cautiously articulated, could succeed in dissociating the publisher from the suggestion that the police suspicion was reasonably based.

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 Is a statement that a person has been arrested and charged with an offence capable of conveying the imputation that the person is guilty of that offence? 2 Is a statement that a person has been arrested and charged with an offence capable of conveying the imputation that the police have grounds (reasonable or otherwise) to suspect that the person is guilty of that offence? 3 To what extent is it necessary to identify who holds the suspicion of guilt? 4 To what extent is it necessary to identify whether that suspicion of guilt is reasonably held?

7.2.11 The tests for what is defamatory At common law, there is no single test for determining what is defamatory. (The national, uniform defamation laws do not attempt to define what is defamatory, with the consequence that the common law tests continue to apply.)131 It is important to note at the outset that, just as the ordinary, reasonable reader is taken to adopt a uniform view of the meaning of the words used, so too the ordinary, reasonable reader, in assessing the defamatory quality of the imputations conveyed by the matter, will apply a uniform moral or social standard.132 How 131 As to earlier legislative attempts to define what is defamatory, see Defamation Act 1889 (Qld) s 4 (repealed); Defamation Act 1957 (Tas) s 5 (repealed). 132 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 per Brennan J.

187

Copyright © 2015. Oxford University Press. All rights reserved.

188

PART 3 Defamation and the Protection of Reputation

tenable this approach is in a pluralistic society, and the extent to which the application of a different, sectional standard may be relied upon, need to be explored. The starting point is generally considered to be Parke B’s dictum in Parmiter v Coupland. According to Parke B, a publication is defamatory if it is ‘calculated to injure the reputation of another, by exposing him to hatred, ridicule or contempt’.133 It is important to note that the term ‘calculated’ here does not mean ‘subjectively intended’, but rather ‘objectively likely to’ cause harm to reputation. Whether a publication is defamatory is assessed not by determining whether actual damage to reputation has occurred but whether the publication has the requisite tendency to cause damage to reputation.134 However, this formulation was subsequently criticised on the basis that it was too narrow a test of what is defamation. After all, hatred and contempt particularly are strong emotions. A publication could be defamatory even if it did not elicit such a response from the ordinary, reasonable reader.135 As a result, in Sim v Stretch, Lord Atkin proposed a test for what is defamatory based on whether the words published would ‘tend to lower the plaintiff in the estimation of right-thinking members of society generally’.136 Other, similar formulations have been suggested at various times. In Slatyer v Daily Telegraph Newspaper Co Ltd, Griffith CJ observed that the phrase ‘right-thinking’ was ambiguous, instead proposing a test of whether the defamatory matter injured the plaintiff’s reputation in the opinion of a reasonable reader of fair, average intelligence.137 In Gardiner v John Fairfax & Sons Pty Ltd, Jordan CJ articulated the test for what is defamatory as being the publication of ‘anything which is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the plaintiff]’.138 In most instances, the application of these various tests of what is defamatory will yield the same result. Nevertheless, this collection of tests should indicate that there is no single test for what is defamatory. The position is further complicated by the fact that, even though these tests, taken together, constitute what might be described as the principal tests for what is defamatory, they do not comprehensively state all the tests for what is defamatory recognised at common law. Clearly, the tests already outlined contain an element of disparagement of the plaintiff. Disparagement is generally considered to be necessary in order for an imputation to qualify as being defamatory.139 However, it will become apparent that there are certain categories of defamatory imputations that do not require an element of disparagement. This section of the chapter will analyse the issues relevant to the tests for defamatory meaning. There are special considerations relating to imputations reflecting upon professional reputations or ‘business defamation’ generally that need to be examined. The defamatory quality of imputations that may lead to the plaintiff being shunned and avoided or being portrayed in a ridiculous light also need to be explored separately.

133 (1840) 6 M & W 104 at 108; 151 ER 340 at 342. 134 Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 at 767–68 per Lord Penzance; at 772 per Lord Blackburn. 135 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 at 487 per Atkin LJ; Sim v Stretch [1936] 2 All ER 1237 at 1240 per Lord Atkin. 136 [1936] 2 All ER 1237 at 1240. 137 (1908) 6 CLR 1 at 7. 138 (1942) 42 SR(NSW) 171 at 172. 139 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452–53 per Hunt J.

CHAPTER 7 Liability for Defamation

The leading Australian authority now on the tests for what is defamatory is the High Court’s decision in Radio 2UE Sydney Pty Ltd v Chesterton, which is relevantly extracted below.

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 (footnotes omitted)

[Journalist Ray Chesterton sued Sydney radio station, 2UE, in respect of statements made by veteran broadcaster, John Laws. Chesterton identified six imputations arising from the broadcast, three of which concerned his professional reputation, and three of which concerned his personal reputation. At trial, the jury found that all six imputations were conveyed and were defamatory. 2UE appealed the matter all the way to the High Court of Australia.] FRENCH CJ, GUMMOW, KIEFEL AND BELL JJ (at 466): The common law recognises that people have an interest in their reputation and that their reputation may be damaged by the publication of defamatory matter about them to others. In Uren v John Fairfax & Sons Pty Ltd Windeyer J explained that compensation for an injury to reputation operates as a vindication of the plaintiff to the public, as well as a consolation. Spencer Bower recognised the breadth of the term “reputation’ as it applies to natural persons and gave as its meaning:

Copyright © 2015. Oxford University Press. All rights reserved.

“[T]he esteem in which he is held, or the goodwill entertained towards him, or the confidence reposed in him by other persons, whether in respect of his personal character, his private or domestic life, his public, social, professional, or business qualifications, qualities, competence, dealings, conduct, or status, or his financial credit …”.

A person’s reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect. Lord Atkin proposed such a general test in Sim v Stretch, namely that statements might be defamatory if “the words tend to lower the plaintiff in the estimation of right-thinking members of society generally”. An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as (467) too narrow. It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff’s reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society. The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer v The Daily Telegraph Newspaper Co Ltd, although Griffith CJ expressed some concern about the ambiguity of the expression “right thinking members of the community”. The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was confirmed by this Court in Mirror Newspapers Ltd v World Hosts Pty Ltd, Chakravarti v Advertiser Newspapers Ltd and by Callinan and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic. Gummow and Hayne JJ in Gacic referred to the likelihood that the imputations might cause “ordinary decent folk” in the community to think the less of the plaintiff. Putting aside Lord Atkin’s additional requirement of being “right-thinking”, the hypothetical audience, that is to say the referees of the issue of whether a person has been defamed, has been regarded as composed of ordinary reasonable people, whom Spencer Bower described as “of ordinary intelligence, experience, and education”. Such persons have also been described as “not avid for scandal”and “fair-minded”. They are expected to bring to the matter in question their general knowledge and experience of worldly affairs. (468) In Reader’s Digest Services Pty Ltd v Lamb Brennan J explained that any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community: “Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation … being a standard common to society generally …”

189

Copyright © 2015. Oxford University Press. All rights reserved.

190

PART 3 Defamation and the Protection of Reputation

This appeal raises questions as to whether the general test for defamation has application to imputations concerning a person’s business or professional reputation, or whether it is limited to those concerning the character or conduct of that person. If injury to a person’s business or professional reputation is to be adjudged having regard to different considerations, referable to the business or profession of that person, a further question arises as to whether the hypothetical referees are to be drawn from a class of persons who have particular knowledge associated with the business or profession. … (477) The concept of “reputation” in the law of defamation comprehends all aspects of a person’s standing in the community. It has been observed that phrases such as “business reputation” or “reputation for honesty” may sometimes obscure this fact. In principle therefore the general test for defamation should apply to an imputation concerning any aspect of a person’s reputation. A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff. An imputation which defames a person in their professional or business reputation does not have a different effect. It will cause people to think the less of that person in that aspect of their reputation. For any imputation to be actionable, whether it reflects upon a person’s character or their business or professional reputation, the test must be satisfied. The reference in the general test, as stated in Sim v Stretch, to a plaintiff being “lowered in the estimation” of the hypothetical referee does not imply the exercise of a moral judgment, on their part, about the plaintiff because of what is said about that person. It does not import particular standards, those of a moral or ethical nature, to the assessment of the imputations. It simply conveys a loss of standing in some respect. The expression “right-thinking” should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them. The expression has been criticised. Griffith CJ in Slatyer v The Daily Telegraph Newspaper Co Ltd considered it to be ambiguous, but thought that it was intended to refer to a person of “fair average intelligence” and otherwise accepted the test as stated in Sim v Stretch. Murphy J in Reader’s Digest Services Pty Ltd v Lamb also thought its (478) meaning was unclear. Bray CJ in Potts v Moran considered that it involved “question-begging assumptions and circuity of reasoning”. The term most clearly implies a standard of decency in a person. The references in Gardiner v John Fairfax & Sons Pty Ltd and in John Fairfax Publications Pty Ltd v Gacic to the hypothetical referees as being ordinary decent persons, or folk, appear to accept this to be the case. Such a description may serve to distinguish a person in society who abides by its standards, values and rules, from a person who does not. A difference of perspective about the position of an informer to police illustrates this point. It was said of such a person that “[t]he very circumstances which will make a person be regarded with disfavour by the criminal classes will raise his character in the estimation of right-thinking men”. The expression does not necessarily import a particular social standard. It may be seen as a benchmark by which some views would be excluded from consideration as unacceptable. It confirms that the hypothetical referee is a person who will apply general community standards. It may be taken to refer to ordinary decent persons. It is important to distinguish between the general test for defamation and any general community standards which may be relevant in a particular case. Some such standards may be necessary to the assessment of the effect of an imputation upon the reputation of the plaintiff, but they do not form part of the test. Hodgson JA said that it was necessary to separate the concepts of the ordinary reasonable reader and the standards which they might apply. This should be restated as a separation of the general test from the standards which the ordinary reasonable person might consider relevant and apply. … Any standards which might be applied by the ordinary reasonable reader will vary according to the nature of the imputation. It should not be assumed that such standards are limited to those of a moral

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 7 Liability for Defamation

or ethical kind, such as may reflect upon a person’s (479) character. It should not be assumed that moral standards have no relevance to imputations concerning a person’s business or professional reputation. And it should not be assumed that it will be necessary in every case to apply a standard in order to conclude that a plaintiff’s reputation has been injured. There are many standards held within the general community which are not of a moral or ethical kind but which may be relevant to an assessment of whether a person’s standing in the community has been lowered… The distinction sought to be drawn between the standards which might apply to imputations concerning a person’s business or professional reputation and those as to their character may be more theoretical than real. Moral or ethical standards may be relevant to imputations about a person’s business or professional reputation, for example those concerning a person’s honesty or fidelity in the conduct of a business or profession, failure to conform to relevant ethical standards pertaining to that profession or which suggest misconduct in the discharge of professional duties. Some statements may convey more than one meaning and bring into question moral or ethical standards as well as conveying a lack of ability to carry on a business or profession. A charge of unfitness for office furnishes an example. Closer to the present case, a statement that a person has been fired by their employer may provide another. That moral or ethical standards held by the general community may be relevant to imputations which reflect upon a person’s business or professional reputation does not suggest a true dichotomy as between (480) imputations of that kind and those as to character, with different standards applying to each. Rather it confirms as practicable the general test as applying in all cases involving all aspects of reputation. In such cases the ordinary reasonable person may be expected to draw upon such community standards as may be relevant, in order to answer the question whether there has been injury to that reputation. In keeping with that test it may be said such standards are those by which a person’s standing in the community, the esteem in which others hold them, is lowered. The focus upon moral or ethical standards, in discussions about standards of the community, no doubt reflects the fact that they are the standards most often identified as relevant in actions for defamation. There are obviously other standards, for example as to the behaviour expected of persons within the community, which may not involve a sense of wrongdoing. In some cases injury to reputation may appear so obvious that a standard, which may unconsciously be applied, is not identified. And in some cases such a conclusion may be possible without the need to identify a standard. It may be obvious that people will be thought the less of simply because of what is said about them. … (481) This case does not involve these fields of discourse. The only distinctive character of the class of persons suggested as necessary to assess imputations of the kind here in question, it may be inferred, is special knowledge of the business or profession in question. The issue is not whether general community standards apply. It is whether the ordinary reasonable person has knowledge of the facts necessary to determine the meaning of an imputation in a business or professional context. … (483) There can be no doubt that the jury would have understood, from the general directions given by her Honour, that they were to assess any injury to the plaintiff’s reputation resulting from the imputations and they were to undertake that assessment from the point of view of ordinary reasonable decent members of the community. The only distinction that is likely to have been obvious to the jury was that drawn by her Honour as between the two different aspects of reputation to which different imputations were to be attributed. The jury would not have understood that they were to ask whether the plaintiff was injured financially in the practice of his profession. It was made abundantly clear that they were to consider the effect upon his professional reputation in connection with the imputations in question. In that regard they had been told that the question was whether ordinary reasonable members of the community would think less of the plaintiff. No miscarriage of justice resulted from the trial judge’s directions. Appeal dismissed. [Heydon J delivered a concurring judgment.]

191

192

PART 3 Defamation and the Protection of Reputation

QUESTIONS 1 What is now the status of the ‘right-thinking member of the community’ approach to the ‘ordinary, reasonable reader’ test? 2 What standards should be applied to a defamation claim involving professional or business reputation, where the plaintiff relies upon the natural and ordinary meaning of the matter?

7.2.12 Shun and avoid It emerges from the following extract from the Court of Appeal decision in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd that a matter might be defamatory if it tends to lead the ordinary, reasonable reader to shun and avoid the plaintiff, even if the matter does not disparage the plaintiff.140

Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581

Copyright © 2015. Oxford University Press. All rights reserved.

[The plaintiff was the Princess Irina Alexandrovna of Russia, a member of the Russian royal family living in exile in Paris. She was married to Prince Felix Youssoupoff, an aristocrat centrally involved in the assassination of Rasputin. In 1932, Metro-Goldwyn-Mayer Pictures Ltd produced and released a film called Rasputin the Mad Monk. In the film, a character called Princess Natasha, a member of the Russian royal family, is shown being seduced or raped by Rasputin. She is married to Prince Paul Chegodieff, a character depicted as being centrally involved in the assassination of Rasputin. The Princess Youssoupoff commenced defamation proceedings against MGM in the English courts. At the trial before Avory J, the jury found that the Princess Youssoupoff had been sufficiently identified in the film (as to the requirements of identification in defamation cases, see below at 7.3) and that she had been defamed. The jury awarded her £25,000. MGM appealed to the Court of Appeal.] SCRUTTON LJ (at 584): Now the second point is this, and it takes some courage to argue it, I think: suppose that the jury are right in treating Princess Irina, the plaintiff, as the Princess Natasha in real life, the film does not contain anything defamatory of her. There have been several formulae for describing what is defamation. The learned Judge at the trial uses the stock formula ‘calculated to bring into hatred, ridicule, or contempt,’ and because it has been clearly established some time ago that that is not exhaustive because there may be things which are defamatory which have nothing to do with hatred, ridicule, or contempt he adds the words ‘or causes them to be shunned or avoided.’ I, myself, have always preferred the language which Mr Justice Cave used in Scott v Sampson (8 QBD 491), a false statement about a man to his discredit. I think that satisfactorily expresses what has to be found… … If libel alone is for the jury on those lines, why is it said that the jury in this case have come to a wrong decision? I desire to approach this argument seriously if I can, because I have great difficulty in approaching it seriously. I understand the principal thing argued by the defendants is this: ‘This procedure, as it contains some spoken words, is slander and not libel. Slanders are not as a rule actionable unless you prove special damage. No special damage was proved in this case. Consequently, the plaintiff must get within the exceptions in which slander is actionable without proof of special damage.’ One of those exceptions is the exception which is amplified in the Slander of Women Act, 1891—namely, if the slander imports unchastity or adultery to a woman—and this is the argument as I understand it: ‘To say of a woman that she is raped does not impute unchastity.’ From that we get to this, which was solemnly put forward, that to say of a woman of good character that she has been ravished by a man of the worst possible character is not defamatory. That argument is solemnly presented to the jury, and I only wish the jury could have expressed, and that we

140 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452–53 per Hunt J.

CHAPTER 7 Liability for Defamation

could know, what they thought of it, because it seems to me to be one of the most legal arguments that were ever addressed to, I will not say a business body, but a sensible body. That, really, as I understand it, is the argument upon which is based the contention that no reasonable jury could come to the conclusion that to say of a woman that she had been ravished by a man of very bad character when as a matter of fact she never saw the man at all and was never near him is not defamatory of the woman. I really have no language to express my opinion of that argument. I therefore come, on the second point, to the view that there is no ground for interfering with the verdict of the jury (assuming the identification to stand, as I have assumed), that the words and the pictures in the film are defamatory of the lady whom they have found to be Princess Irina. SLESSER LJ (at 587): … I, for myself, cannot see that from the plaintiff’s point of view it matters in the least whether this libel suggests that she has been seduced or ravished. The question whether she is or is not the more or the less moral seems to me immaterial in considering this question whether she has been defamed, and for this reason, that, as has been frequently pointed out in libel, not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on her part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on her part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour. One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectful consideration from the world. It is to shut one’s eyes to realities to make these nice distinctions … Appeal dismissed. [In separate reasons for judgment, Greer LJ agreed with Scrutton and Slesser LJJ.]

QUESTIONS

Copyright © 2015. Oxford University Press. All rights reserved.

1 In respect of what type of imputations do you think a test of ‘shunning and avoiding’ could be used to establish defamatory character in contemporary society? 2 In Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536, Hunt J stated (at 546): It would also be fair to suggest that, when a woman is raped, she has been dishonoured in the same sense of being the subject of shame or disgrace. That was the basis of the decision in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, and it would probably still be held to be so today—despite some measure of academic criticism of that decision.

However, more recently, in Galea v Amalgamated Television Services Pty Ltd (unreported, SC(NSW), Levine J, 20747/97, 20 February 1998), Levine J stated: With respect, this well known decision of the Court of Appeal must be considered with a great deal of reservation towards the end of the twentieth century … … It is inappropriate and often dangerous to pronounce upon no more than academic considerations however it cannot go without remark that it could be a very serious question indeed today whether or not a statement that a person (male or female) had been raped was one capable of lowering the victim in the estimation of right thinking members of the community or causing such community members to shun and avoid him or her.

Do you think Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd would be decided in the same way today? Why or why not?

193

194

PART 3 Defamation and the Protection of Reputation

7.2.13 Ridicule As the following extract from Ettingshausen v Australian Consolidated Press Ltd demonstrates, it can be defamatory of the plaintiff to expose the plaintiff to more than a trivial degree of ridicule. In doing so, there is no requirement that the plaintiff’s reputation is disparaged.141

Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443

[The facts emerge sufficiently from the extract below.] LEVINE J (at 444): The plaintiff (Mr Andrew Ettingshausen) is a well-known Rugby League footballer. He was a member of the Australian team (the Kangaroos) which toured overseas during the last Northern winter. He complains in this defamation action of matter published in the defendant’s ‘HQ’ magazine in April of this year. A list of features appears on the left hand side of the magazine cover and, at its foot, the list says ‘PLUS: … and some naked Kangaroos’. On the contents page, there is a photograph of the Australian captain (Mal Meninga), in his football gear, with a reference to the relevant article ‘In the Land of League, 94’ and, under the sub heading ‘FEATURES’, the entry reads:

Copyright © 2015. Oxford University Press. All rights reserved.

94. Hunks Gratuitous nudity, bad language and some fine pectorals … On tour with the Kangaroos (the footballers, not the marsupials).

The first two pages of the article consist of a black and white photograph of three members of the team under the showers: Ben Elias, Laurie Daley and the plaintiff (whose surname is misspelt), described collectively as ‘Shower power’. The title of the article, ‘hunks’, is in large red letters partially covering the upper torsos of Daley and the plaintiff. The opening paragraphs are printed in yellow over part of Daley’s body and almost but not completely over the remainder of the plaintiff’s body. Elias is partially facing the other two men; Daley is side on, facing Elias. The plaintiff is standing with his body facing the camera, his head turned towards Elias and his arms crossed over the front of his body just below his chest. The photograph is grainy in quality, and the scene appears to have been lit only from the top and behind. Nevertheless, below the printing there is a shape between the plaintiff’s legs which (despite the defendant’s submission to the contrary) is certainly capable of being interpreted as his penis. Shadows, and the point at which the photograph is cropped, prevent the other two men from suffering the same embarrassment. The author of the article (James Kerr) writes: With unqualified access, I saw everything, could ask anything. Yet, upon my return to Australia, I was asked two questions almost exclusively. ‘How big is big Mal?’ and ‘What does ET look like in the showers?’ Well, in the showers the soap ripples down washboard bellies, needle jets tease pert pectorals, delicate maps of veins pulse over clumped biceps, and the steam-shrouded whiteness is dotted with dark pubic areas, soaped and scrubbed. All the players carry deep bruises and cuts, and the implacable tiredness of more than 80 minutes on the field. Big Mal is, indeed, big, the biggest, and ET is built like a Greek God, statuesque, with fine muscles slung low about his hips.

‘ET’ is stated to be the plaintiff’s nickname. … (447): I turn now to imputation (b). For convenience, I repeat its terms: (b) The plaintiff is a person whose genitals have been exposed to the readers of the defendant’s magazine ‘HQ’, a publication with a widespread readership.

141 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 453 per Hunt J.

CHAPTER 7 Liability for Defamation

This imputation does not assert any moral blame for the exposure upon the plaintiff himself. It is well accepted law that, to be defamatory of a person, the imputation conveyed concerning him need not assert blame if it nevertheless tends to make other persons ‘shun or avoid’ the plaintiff—for example, by attributing to him that he is insane: Morgan v Lingen (1863) 8 LT 800; or by attributing to her that she has been raped: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587. The word ‘imputation’ may properly be used with reference to any act or condition asserted of or attributed to the plaintiff: Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91–92; Petritsis v Helenic Herald Pty Ltd [1978] 2 NSWLR 174 at 183; Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 675. The condition of the plaintiff which imputation (b) expresses is simply that, as a result of the exposure of his genitals, he has been held up (or exposed) to ridicule. Imputation (b) relies upon the oft quoted statement of principle expressed by Parke B, in Parmiter v Coupland (1840) 6 M and W 105 at 108; 151 ER 340 at 342: … A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule, is a libel.

The phrase ‘is calculated to injure’ used by Parke B should be understood (448) in the sense of ‘has the effect of injuring’. This definition has been criticised for being too narrow: see, eg, Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 at 477, 486–487; Sim v Stretch (1936) 52 TLR 669 at 671. But it has never been suggested that the description is too wide. Some of the older cases provide examples of defamation by exposing the plaintiff to ridicule, although there is little discussion in them of the principle involved; see, eg, Cook v Ward (1830) 6 Bing 409; 130 ER 1338; Snyder v New York Press Co Ltd 121 NYS 944 (1910); Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367 at 370, 374; Zbyszko v New York American Inc 239 NYS 411 (1930) at 413. … (449): Applying the principle discussed in Burton v Crowell Pub Co to the present case, I am satisfied that imputation (b) is capable of defaming the plaintiff. Upon the assumption that the ordinary reasonable reader did not conclude that the plaintiff deliberately permitted the photograph to be taken of him with his genitals exposed for reproduction in a publication with a widespread readership—which is the only basis upon which this imputation will fall to be considered—the publication of this imputation is in my view capable of subjecting the entirely blameless plaintiff to more than a trivial degree of ridicule. It was not seriously argued to the contrary. Accordingly, the imputation is capable of defaming the plaintiff.

Copyright © 2015. Oxford University Press. All rights reserved.

7.2.14 Professional reputation A plaintiff need not only be disparaged in his or her personal reputation. Defamation can reflect adversely upon a plaintiff’s business or professional reputation, as the following extract from Drummond-Jackson v British Medical Association demonstrates.

Drummond-Jackson v British Medical Association [1970] 1 All ER 1094

[The plaintiff, Stanley Lithgow Drummond-Jackson, was a dental surgeon with rooms in Wimpole Street. He brought defamation proceedings against the British Medical Association over an article published in the British Medical Journal under the headline, ‘Physiological responses to intermittent methohexitone for conservative dentistry’. He also sued the eminent authors of the article. The British Medical Association unsuccessfully applied to have Drummond-Jackson’s statement of claim struck out on the ground that it disclosed no reasonable cause of action. It appealed to the Court of Appeal.]

195

196

PART 3 Defamation and the Protection of Reputation

Copyright © 2015. Oxford University Press. All rights reserved.

LORD PEARSON (at 1103): How can it be argued that this article could not reasonably be given any meaning defamatory of the plaintiff in his profession as a dentist? I think it can only be so argued on the basis of a narrow view being taken as to the scope of defamation of a person in his trade, business or profession. Many reported cases are concerned with the question whether defamation of goods involves defamation of the trader who sells the goods: Harman v Delany (1731) 2 Stra 898; Ingram v Lawson (1840) 6 Bing NC 212; Edsall v Russell (1842) 4 Man & G 1090; Evans v Harlow (1844) 5 QB 624; Société Française des Asphaltes v Farrell (1885) Cab & El 563; Empire Typesetting Machine Co of New York v Linotype Co Ltd (1898) 79 LT 8 and sub nom Linotype Co Ltd v British Empire Typesetting Machine Co Ltd (1899) 81 LT 331; Griffiths v Benn, 27 TLR 346, 350 and Bendle v United Kingdom Alliance (1915) 31 TLR 403. … (1104): I doubt whether the analogy sought to be drawn in the present case between a trader’s goods and a professional man’s technique is sound. Goods are impersonal and transient. A professional man’s technique is at least relatively permanent, and it belongs to him: it may be considered to be an essential part of his professional activity and of him as a professional man. In the case of a dentist it may be said: if he uses a bad technique, he is a bad dentist and a person needing dental treatment should not go to him. In any case, words may be defamatory of a trader or business man or professional man, though they do not impute any moral fault or defect of personal character. They can be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity: Harman v Delany 2 Stra 898; Edsall v Russell, 4 Man & G 1090; Botterill v Whytehead (1879) 41 LTNS.588; the Linotype case, 79 LT 8, 9 and 81 LT 331, 333; South Hetton Coal Ltd v North-Eastern News Association [1894] 1 QB 133; Griffiths v Benn, 27 TLR 346; Dauncey v Holloway [1901] 2 KB 441, 447 and Tournier v National Provincial & Union Bank of England Ltd [1924] 1 KB 461, 477, per Scrutton LJ. It can be suggested that the article complained of in the present case impliedly imputes to the plaintiff lack of judgment and lack of efficiency in the conduct of his professional activity, inasmuch as he has adopted and practised and recommended a method of anaesthetising patients which (as the article says) is dangerous for the patients and may impede good dentistry. That suggestion is worthy to be considered by the jury or the judge acting as a jury, and should not be withdrawn from them or him. Appeal dismissed. [In separate reasons for judgment, Sir Gordon Willmer agreed with Lord Pearson. Lord Denning MR dissented.]

QUESTION 1 In light of the High Court of Australia’s decision in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, extracted above at 7.2.11, are defamation claims involving professional reputations treated differently from other defamation claims?

7.2.15 Sectional standards The starting-point for determining whether a matter is capable of being, and is in fact, defamatory is the uniform moral or social standard embodied in the ‘ordinary, reasonable reader’ test.142 However, there might be cases in which a different standard ought to apply. These are usually cases involving contentious issues, about which there are deeply divided views in the community. In these cases, it might be appropriate to apply a sectional standard. The leading decision in Australian defamation law on this issue is Glass JA’s judgment in Hepburn v TCN Channel Nine Pty Ltd,143 extracted below.

142 See above at 7.2.3. 143 [1983] 2 NSWLR 682.

CHAPTER 7 Liability for Defamation

Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682

Copyright © 2015. Oxford University Press. All rights reserved.

[The plaintiff, Dr Hepburn, was the ‘medical superintendent’ of the Preterm Family Planning Clinic. She brought defamation proceedings in the Supreme Court of New South Wales against TCN Channel Nine Pty Ltd in respect of a number of broadcasts on the 60 Minutes current affairs program in the first half of 1982. She claimed that the segments conveyed various imputations that she was an abortionist. At first instance, Hunt J refused to allow the imputation, ‘The plaintiff is an abortionist’, to be presented to the jury. Hepburn appealed to the New South Wales Court of Appeal.] HUTLEY JA (at 686): That to say of any person that she is an ‘abortionist’ does not give rise to an imputation fit to be submitted to a jury for it to determine whether it is defamatory is, to me, startling. I understand the word ‘abortionist’ to mean a person who, with some regularity, terminates pregnancies. A person who legally terminates pregnancies may be called an abortionist. It does not necessarily import that the person so characterized is doing that illegally, though it may. As any abortion is regarded as wicked by a substantial part of the population on moral grounds, to say of a person that he is an abortionist may bring him into hatred, ridicule or contempt of ordinary reasonable people. As the objection to abortion is on moral grounds, to a substantial part of the community, legality is relatively irrelevant. The respondent sought to rely upon the distinction drawn by the High Court in a case involving alleged defamation by a newspaper between the reader’s understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices (Mirror Newspapers Ltd v Harrison (1982) 56 ALJR 808, at 811, 812; 42 ALR 487, at 492, per Mason J) to suggest that unless confined to illegal abortionists, the defamatory quality came not from what was said but from the prejudices of the hearer. The fact that some reasonable members of the public may regard the defamatory aura which surrounds any abortion as the result of prejudice does not mean that when the word is used, the publisher is not uttering it with its defamatory meaning. It may carry the defamatory imputation even to those uncommitted to the particular moral code. There are words which carry overtones of disapproval though the activity is perfectly legal; for example, ‘kept woman’: Gatley on Libel and Slander 7th ed (1974), s 187, at 93, 94. To support fascism was probably not illegal, at least until laws prohibiting the advocacy of racial superiority were enacted, but to call a man a fascist could have been defamatory unless justifiable. Similarly with ‘abortionist’, it may be defamatory even of a person who only performs legal abortions. Indeed, Hunt J notes that the Macquarie Dictionary labels the word as being usually pejorative, surely of itself sufficient to require the imputation to be left to the jury for their determination as to how the word was understood by the ordinary reasonable hearer … (688) … The imputation that a person is an abortionist is, in my opinion, substantially different from the imputation that he is an illegal abortionist. Though, to a substantial part of the community, the allegation that a person is an abortionist may not damage his reputation, unless understood as meaning an illegal abortionist; to others, the opposite may be the rule. GLASS JA (at 693): I agree with the orders proposed by Hutley JA for the reasons which he has assigned. Much of the argument on appeal was devoted to imputation (c) viz that the plaintiff was an abortionist. It was incumbent on the plaintiff, so the argument ran, to define the precise sense in which the term was used, the sense complained of was that she performed illegal abortions and, when the imputation was so narrowed, it coincided with imputation (a) and was therefore objectionable for duplication: Supreme Court Rules, 1970, Pt 67, r 11(3). I see no reason why the plaintiff should be compelled to define the sense in which the defendant employed a general expression. If the plaintiff is castigated as a criminal, criminality is predicated of him in all its amplitude. He is not faced with the need to choose between the lower end of the range which will moderate his damages and the upper end which, in the context of the publication, the jury may not accept. The defendant is expected to know what his language conveyed and that, in adopting an epithet with a spread of meanings, he will be understood as imputing them all.

197

Copyright © 2015. Oxford University Press. All rights reserved.

198

PART 3 Defamation and the Protection of Reputation

The term abortionist applied to a medical practitioner can impute that she terminates pregnancies with or without lawful authority. The defendant may be able to persuade the jury that the contextual framework limited the meaning to lawful conduct. But even if it did, I am of opinion that the jury could, acting reasonably, treat as defamatory the imputation that pregnancies were lawfully terminated by the plaintiff. There is no need to document the existence in the community of a deep factional divide on the issue of abortion. The pro-abortion lobby approves the existing grounds for lawful termination of pregnancies and seeks to have them extended. The anti-abortion lobby contends that all abortion is morally wrong and that no abortion should be lawful. So the description of the plaintiff as a lawful abortionist will excite both approbation and disapprobation in different sections of the community. How does the law of defamation accommodate these discrepant social attitudes? There is a body of English authority which suggests that the standard of opinion is that of ‘right thinking people generally’: Tolley v J S Fry & Sons Ltd [1930] 1 KB 467, at 479; Sim v Stretch [1936] 2 All ER 1237, at 1240; 52 TLR 669, at 671. The corollary to this proposition was that an imputation of conduct which disparaged the plaintiff only in the eyes of a limited class was not defamatory; Byrne v Deane [1937] 1 KB 818; Myroft v Sleight (1921) 90 LJKB 883; Clay v Roberts (1863) 8 LT 397. In the United States, on the other hand, an imputation can be defamatory if it injures a man in the eyes of ‘a considerable and respectable class in the community’ though it be only a minority, Peck v Tribune Co 214 US 185, at 190 (1909), in which Holmes J said ‘liability is not a question of a majority vote’. In Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7, Griffith CJ disapproved of the use of the term ‘right thinking’ reader unless it were to be equated with a reader of fair average intelligence. I take this to be a rejection of the notion that a moral consensus exists upon what constitutes creditable or discreditable behaviour. It has been argued in this country that principle requires that regard should be paid to actual (694) community attitudes, right or wrong, ‘The Criterion of Defamation’ G L Fricke (1958) 32 ALJ 7. In the absence of any binding pronouncement of the High Court I would hold the view that it is proper for the law of defamation to recognize that there are many subjects in a pluralist society upon which contradictory attitudes exist—eg uranium mining and State aid for private schools to name two others—and that it would be futile for the judges to arbitrate between them. As Fleming says, by adopting the standard of the ‘right thinking’ man the question becomes not what people actually think but what they should think, Law of Torts, 5th ed (1977), at 530. It is defamatory to describe a person in terms which to the general public are innocuous, if they diminish him in the eyes of those aware of special facts, provided publication is made to those persons. Consistency in my view requires that a man can justly complain that words, which lower him in the estimation of an appreciable and reputable section of the community, were published to members of it, even though those same words might exalt him to the level of a hero in other quarters. Where a television programme has been beamed to a large audience it can be presumed, without special proof, that its viewers will include some who advocate the ‘right to life’ and abhor the destruction of foetuses, whatever the circumstances. In the estimation of such persons the plaintiff can claim to have been disparaged even if abortionist meant lawful abortionist. If it also meant unlawful abortionist, she can also claim to have been denigrated in the eyes of a different but substantial section of the viewers who support the existing law but do not want it extended. Of course, I omit from consideration the question whether the imputation in either of its aspects can be justified so far as concerns this particular plaintiff. For these reasons I would allow the submission of imputation (c) to the jury. Appeal allowed.

QUESTIONS 1 Think of an imputation about a contentious social, moral or political issue. How might a sectional standard be applied to it to assess its defamatory quality? How might the ‘ordinary, reasonable reader’ test, as conventionally understood, be applied to it? Would you reach a different conclusion as to the imputation’s defamatory quality, depending upon the test applied? 2 Is the application of a sectional standard, in the terms canvassed by Glass JA in Hepburn v TCN Channel Nine Pty Ltd, an effective solution to the problems posed by seeking to apply the ‘ordinary, reasonable reader’ test, as conventionally understood, in a pluralistic society?

CHAPTER 7 Liability for Defamation

Case study: Imputations of homosexuality Because social, moral and political views change over time, so what is considered defamatory changes. Some imputations are clearly so serious that they are prima facie defamatory. Imputations of murder144 and paedophilia145 are examples of this. Other imputations, which were held to be defamatory, have lost their defamatory quality because of decisive changes in social, moral or political attitudes. Imputations of witchcraft146 and communism147 are examples of this. However, the defamatory quality of still other imputations is more contentious, because the underlying issues remain controversial or at least contestable and societal attitudes towards them remain fluid. This section of the chapter seeks to provide a case study on imputations of homosexuality. Societal attitudes towards homosexuality have shifted significantly, but probably not decisively, over the last 50 years. Differing moral views about homosexuality remain in the Australian community. Whether a bare imputation of homosexuality is capable of being defamatory or is in fact defamatory has been the subject of consideration in a number of recent cases. Until the last decade or so, the defamatory capacity of an imputation of homosexuality was unquestioned. There were a number of decided cases in which plaintiffs received damages for false allegations of homosexuality being made against them.148 Perhaps the most famous case involved flamboyant American entertainer, Liberace, who sued The Daily Mirror for defamation in the English courts over the following item in its ‘Cassandra’ column, published in September 1956: He is the summit of sex—the pinnacle of masculine, feminine and neuter. Everything that he, she and it can ever want … This deadly, winking, sniggering, snuggling, chromium-plated, scentimpregnated, luminous, quivering, giggling, fruit-flavoured, mincing, ice-covered heap of mother love has had the biggest reception and impact on London since Charlie Chaplin arrived at the same station, Waterloo, on September 12, 1921.

Copyright © 2015. Oxford University Press. All rights reserved.

Bizarrely, Liberace was awarded £8,000 damages by the jury. The recent line of authority commenced with the decision of Levine J in Horner v Goulburn City Council.149 In this case, two council employees—Ronald Horner, the general manager, and Neville Usher, the human resources manager—brought defamation proceedings against their employer, as well as the Director of Corporate Services, Harold Rosevear. They claimed a letter by Rosevear, attached to Usher’s performance review, defamed them by suggesting that they were engaged in a homosexual relationship and that this relationship was having an adverse impact on staff morale.150 The Council challenged the defamatory capacity of an imputation of homosexuality. Addressing this issue, Levine J concluded: Community attitudes to an assertion of a homosexual relationship may range from sympathetic tolerance and understanding to an irrational abhorrence. Whether the former represents a perception from the ‘ivory tower’ and the latter an ‘avidity for scandal’ cannot be concluded. I do not consider that it can conclusively be said that even towards the end of this century’s last decade that there can be, among ordinary members of the community, a view that to say of a person that that person is in a homosexual relationship is not disparaging or is not likely to lower that person in the estimation of such people. I do not hold that the imputations of a homosexual relationship are not capable of being defamatory.151

144 See, for example, John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at 109 per Kirby J. 145 See, for example, Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [55]–[56] per curiam. 146 See, for example, Loukas v Young [1968] 3 NSWR 549 at 550 per Taylor J. 147 See, for example, Braddock v Bevins [1948] 1 KB 580 at 588–89 per Lord Greene MR; Cross v Denley (1952) 52 SR(NSW) 112 at 114–15 per Owen J; Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 687 per Hutley JA. See also John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at 109 per Kirby J. 148 Kerr v Kennedy [1942] 1 KB 409; Harrison v Galuszko (unreported, SC(WA), No 1490/91, Adams AM, 8 November 1991). 149 Unreported, SC(NSW), No 21287 of 1997, Levine J, 5 December 1997. 150 Ibid at 1–2. 151 Ibid at 4.

199

200

PART 3 Defamation and the Protection of Reputation

In Rivkin v Amalgamated Television Services Pty Ltd,152 Bell J had to deal with the same question. The prominent businessman, Rene Rivkin, brought defamation proceedings against Amalgamated Television Services Pty Ltd arising out of a report on the Channel Seven current affairs program, Witness. Rivkin claimed the broadcast conveyed the defamatory imputations, inter alia, that he had engaged in homosexual intercourse with his chauffeur, Gordon Wood, and was reasonably suspected by police of this conduct.153 Channel Seven challenged the defamatory capacity of a bare imputation of homosexual intercourse to be defamatory. It pointed to the decriminalisation of homosexual intercourse in New South Wales in 1984; the introduction of provisions into the Anti-Discrimination Act 1977 (NSW), proscribing discrimination and vilification on the basis of homosexuality; the amendment of the definition of ‘de facto relationship’ to include homosexual couples for the purposes of the Property (Relationships) Act 1984 (NSW); the amendment of the Migration Act 1958 (Cth) to allow the entry into Australia of homosexual couples as ‘interdependent relationships’; and the proscription of discrimination on the basis of sexual preference under the Workplace Relations Act 1996 (Cth).154 Rivkin argued that these legislative changes, at a federal and a state level, were irrelevant to the issue of whether the ordinary, reasonable viewer would think less of a person against whom such an allegation had been made. Bell J concluded: In [Channel Seven’s] submission it is no longer open to contend that the shared social and moral standards with which the ordinary reasonable member of the community is imbued include that of holding homosexual men (or men who engage in homosexual sex) in lesser regard on account of that fact alone. I accept that submission. This is not to say that the assertion that a man is a homosexual (or that he has engaged in homosexual sex) may not give rise to a defamatory imputation such as hypocrisy, the abuse of a position of power or trust, infidelity, or the like in the context of the publication or by way of true innuendo.155

Rivkin was granted leave to re-plead his imputation. At the jury trial in late May 2001, conducted pursuant to the Defamation Act 1974 (NSW) s 7A (repealed), the jury found the following defamatory imputation was conveyed:

Copyright © 2015. Oxford University Press. All rights reserved.

(c) That the plaintiff engaged in homosexual intercourse with Gordon Wood, a man who was an employee of his, much younger than him, who viewed him as a father figure, upon whom he lavished gifts and who was engaged to be married.

At a later hearing, Cripps AJ determined that Channel Seven’s defences of unlikelihood of harm and common law and statutory qualified privilege failed156 and awarded Rivkin $150,000 damages.157 In Obermann v ACP Publishing Pty Ltd,158 Levine J expressed agreement, in passing, with Bell J’s observations in Rivkin v Amalgamated Television Services Pty Ltd.159 The difficulty of reconciling Levine J’s stated positions in Horner v Goulburn City Council and Obermann v ACP Publishing Pty Ltd was raised squarely as an issue in Kelly v John Fairfax Publications Pty Ltd.160 In this case, the ‘Naked City’ column in The Sun-Herald published a photograph of a half-naked man, strapped to the top of a piano, in Hyde Park, preparing to participate in the Gay and Lesbian Mardi Gras.161 The columnists, 152 153 154 155 156

157 158 159 160 161

[2001] NSWSC 432. Ibid at [3]. Ibid at [19]–[20]. Ibid at [30]. As to the failure of the defence of unlikelihood of harm, pursuant to the Defamation Act 1974 (NSW) s 13 (repealed), see Rivkin v Amalgamated Television Services Pty Ltd [2002] NSWSC 496 at [20]; as to the failure of the defence of common law qualified privilege, see Rivkin v Amalgamated Television Services Pty Ltd at [22]; as to the failure of the defence of statutory qualified privilege, pursuant to the Defamation Act 1974 (NSW) s 22 (repealed), see Rivkin v Amalgamated Television Services Pty Ltd at [43]. As to the defence of unlikelihood of harm or triviality generally, see below at 8.8; as to the defence of common law qualified privilege generally, see 8.5.1; as to the defence of statutory qualified privilege generally, see 8.5.6. Rivkin v Amalgamated Television Services Pty Ltd [2002] NSWSC 496 at [64]. [2001] NSWSC 1022. Ibid at [21]. [2003] NSWSC 586. Ibid at [2]–[4].

CHAPTER 7 Liability for Defamation

Alex Mitchell and Candace Sutton, stated that the man in the photograph was Rob Kelly, a senior partner at the law firm Gadens, and the Queensland Performing Arts Trust Chairman.162 While it may have been a man named Rob Kelly atop the piano, it was not the solicitor and patron of the arts, Rob Kelly, detailed by The Sun-Herald. The publication was an unfortunate case of mistaken identity.163 The happily married heterosexual Rob Kelly, erroneously identified by The Sun-Herald, brought defamation proceedings against John Fairfax Publications Pty Ltd. He claimed the article conveyed the imputation, inter alia, that he was a homosexual. Canvassing the line of authorities on the defamatory capacity of such an imputation, Levine J respectfully disagreed with Bell J’s conclusion in Rivkin v Amalgamated Television Services Pty Ltd and reaffirmed his earlier position in Horner v Goulburn City Council.164 His Honour left the issue for a jury to determine as a question of fact. At the s 7A jury trial, the jury found that the imputation of homosexuality was conveyed but was not defamatory. However, the jury also found that the defamatory imputations that Kelly was a hypocrite and a liar had also been conveyed by means of a true innuendo, based on the fact that Kelly was a happily married heterosexual who held himself out as such. In John Fairfax Publications Pty Ltd v Rivkin,165 Kirby J expressed the view, in obiter dicta: In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person’s reputation to publish such an imputation is related to time, personality and circumstance. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory.166

Copyright © 2015. Oxford University Press. All rights reserved.

Most recently, Cole J of the District Court of South Australia refused to find an imputation of homosexuality to be defamatory in Tassone v Kirkham. However, her Honour did find that imputations of promiscuity, loose moral character, preparedness to engage in anonymous sex with strangers and misuse of workplace email to solicit sex were defamatory.167 The plaintiff prison officer was awarded $75,000 damages.168 As the case was from a jurisdiction in which there are no juries in civil litigation, Cole J did not need to distinguish between defamatory capacity and meaning.

Further reading Arend, Patrice S, ‘Defamation in an Age of Political Correctness: Should a False Public Statement that a Person is Gay be Defamatory?’ (1997) 18 Northern Illinois University Law Review 99. Fogle, Randy M, ‘Is Calling Someone “Gay” Defamatory? The Meaning of Reputation, Community Mores, Gay Rights, and Free Speech’ (1993) 3 Law and Sexuality 165. Jones, Marina Lloyd, ‘Imputations of Homosexuality in Defamation Actions’ (2001) 5 TeleMedia 94. Knight, Dean R, ‘“I’m Not Gay: Not That There’s Anything Wrong With That”: Are Unwanted Imputations of Gayness Defamatory?’ (2006) 37 Victoria University of Wellington Law Review 249.

162 163 164 165 166 167 168

Ibid at [5]. Ibid at [7]. Ibid at [40]. (2003) 201 ALR 79 at 140. John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at 109. [2014] SADC 134 at [35]. Ibid at [68], [80].

201

202

PART 3 Defamation and the Protection of Reputation

McNamara, Lawrence, ‘Bigotry, Community and the (In)visibility of Moral Exclusion: Homosexuality and the Capacity to Defame’ (2001) 6 Media and Arts Law Review 271. Yatar, Eric KM, ‘Defamation, Privacy and the Changing Social Status of Homosexuality: Re-thinking Supreme Court Gay-Rights Jurisprudence’ (2003) 12 Law and Sexuality 119.

7.3

Identification

7.3.1 Introduction

In order for a plaintiff to establish a defendant’s liability for defamation, it is not sufficient for a plaintiff to prove that the matter for which the defendant is responsible bore a defamatory meaning. The plaintiff also needs to establish that he or she was identified in the defamatory matter or, as it is sometimes expressed, the defamatory matter was published ‘of and concerning’ the plaintiff.169 The failure by a plaintiff to establish identification leads to the failure of the plaintiff’s claim, as identification is an essential element of the tort of defamation.170 This section of the chapter deals with the principles relevant to the issue of identification.

7.3.2

General principles

The judgment of Jordan CJ in Consolidated Trust Co Ltd v Browne, extracted below, contains a useful exposition of the relevant principles of identification for the purposes of defamation law.

Consolidated Trust Co Ltd v Browne

Copyright © 2015. Oxford University Press. All rights reserved.

(1948) 49 SR(NSW) 86

[The respondent, Browne, produced a circular called ‘Things I Hear’. The gossip sheet claimed that the new owners of a block of flats, the Wintergarden, 57 Darlinghurst Road, who also owned Birtley Towers, had produced a set of rules for residents ‘which should make any former concentration camp inmate feel thoroughly at home’. The first appellant, Consolidated Trust Co Ltd, was the beneficial owner of the shares in the second appellant, Fifty-Seven Darlinghurst Road Pty Ltd. The evidence before the Court also showed that Consolidated Trust owned Birtley Towers and Fifty-Seven Darlinghurst Road owned the Wintergarden. No evidence was adduced that anyone who knew this read the article. Browne applied for a non-suit, which was granted by the trial judge. Consolidated Trust and Fifty-Seven Darlinghurst Road appealed to the Full Court of the Supreme Court of New South Wales.] JORDAN CJ (at 89): The question in the present case is whether it is essential to prove anything more, and, in particular, to prove that the third party knew, or knew of the existence of, the person defamed and who he is, and thought that it referred to him. One would have thought that so elementary a question would have been resolved by a superfluity of authority, yet the exact point does not seem to have ever arisen for decision, no doubt because it is the practice, invariably in defamation actions until those now before us, to give evidence for the plaintiff which prevents the point from arising. From a collation of such of the authorities as appear to be relevant, I have come to the conclusion that the law on the point is as follows. If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that it was published, and publication to one person is 169 Knupffer v London Express Newspapers Ltd [1944] AC 116 at 118 per Viscount Simon LC; Cross v Denley (1952) 52 SR(NSW) 112 at 115–16 per Owen J. 170 Cross v Denley (1952) 52 SR(NSW) 112 at 116 per Owen J.

CHAPTER 7 Liability for Defamation

enough. It is unnecessary to prove that the person to whom it was published had any knowledge of the person defamed, or that the matter complained of led him to think the less of that person. If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances … (90) The rules appear to be based on a view that if matter, which on the face of it is capable of being regarded as defaming a particular person who is mentioned by name, is proved to have been published to anyone whomsoever, the tort of libel is committed and the complainant is entitled to a verdict; but if the matter, on the face of it, is not capable of being regarded as defamatory, or if defamatory as defaming a particular person, it cannot be regarded as having been published unless it is proved to have been published to someone possessing special knowledge which would suffice to enable him to realise that the matter was defamatory, or defamatory of the plaintiff, as the case may be. That is not to say that the mere fact that the name is not mentioned makes it essential to call a witness to prove that he identified the complainant by the description. To take an example used in argument, in an action against a widely circulated newspaper for an alleged libel upon a plaintiff contained in an article which described him only as ‘the Prime Minister of Australia’, it would be unnecessary to call a witness to prove that he had received the issue of the newspaper and knew who the Prime Minister was. In such a case the nature of the description would be such that special knowledge would be unnecessary to identify the person indicated: Jones v E Hulton & Co But the less revealing the description the greater the danger of omitting proof of identification. It is hardly necessary to add that it would be, to say the least, imprudent for a plaintiff who expected to obtain substantial damages to abstain from proving the scope of the publication and its effect, in accordance with the usual practice in actions of defamation: cf Sunkissed Bananas (Tweed) Ltd v Banana Growers’ Federation Co-operative Ltd. Appeal dismissed. [Street J concurred with Jordan CJ. In separate reasons for judgment, Davidson J agreed that the appeal should be dismissed. In relation to indirect identification, see below at 7.3.7.]

Copyright © 2015. Oxford University Press. All rights reserved.

7.3.3

Relevance of defendant’s intention

Just as the defendant’s intention to defame the plaintiff is not determinative of the issue of whether the plaintiff has in fact been defamed, so too the defendant’s intention to identify the plaintiff is not determinative of the issue of whether the plaintiff has in fact been identified.171 The issues are first whether the defamatory matter is reasonably capable of identifying the plaintiff, which is determined by the judge,172 and second whether the defamatory matter in fact identified the plaintiff, which is determined by the jury, where one is empanelled.173 Like the questions as to the defamatory capacity and meaning, these questions are determined by the application of the ‘ordinary, reasonable reader’ test.

7.3.4

Direct identification

Ordinarily, where a plaintiff is directly named in a defamatory matter, the plaintiff will have no difficulty establishing the requirement of identification.174 However, there are a number 171 E Hulton & Co v Jones [1910] AC 20 at 23–24 per Lord Loreburn LC; Newstead v London Express Newspaper Ltd [1940] 1 KB 377 at 396 per du Parcq LJ; Morgan v Odhams Press Ltd [1970] 1 WLR 1239 at 1242 per Lord Reid. 172 Newstead v London Express Newspaper Ltd [1940] 1 KB 377 at 395 per du Parcq LJ; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242–43 per Lord Reid (as to this requirement and whether it is, strictly speaking, a question of law). 173 Newstead v London Express Newspaper Ltd [1940] 1 KB 377 at 387 per Sir Wilfrid Greene MR. 174 Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 89 per Jordan CJ.

203

204

PART 3 Defamation and the Protection of Reputation

of instances where the apparent, direct identification of the plaintiff will pose particular problems. These are: (i) where the defamatory matter has been published to a small audience and it is unclear whether any recipient knew of the plaintiff (see below); (ii) where the defendant intends to refer to a particular person but the defamatory matter is capable of referring to other persons of the same name;175 (iii) where the defendant intends to refer to a fictitious person but the defamatory matter is capable of referring to a real person or persons of the same name.176

Cross v Denley (1952) 52 SR(NSW) 112

Copyright © 2015. Oxford University Press. All rights reserved.

[The plaintiff, Cross, operated a business in Auburn under the name ‘X-press Printery’. The defendant, Denley, operated a business in Lidcombe under the name, ‘Denley Print’. Denley was engaged by a group calling itself the ‘Peace Movement’ to print pamphlets attacking an anti-communist, Hollywood film, The Red Danube, which was then screening in cinemas. Because he did not want to be associated with the pamphlets, Denley placed the legend ‘Express Print, Auburn’ on them, rather than his own registered imprint. The pamphlets were distributed at a screening. This attracted the attention of the media, with a newspaper article publishing the contents of the pamphlet, including the name of the printer allegedly responsible for the production of the pamphlets. Cross commenced defamation proceedings against Denley in the District Court of New South Wales, relying principally on the distribution of the pamphlets at the cinema. Denley claimed that he did not know of Cross or his business but the trial judge did not believe him. At first instance, the jury found in favour of Cross and awarded him £500. Denley appealed to the Full Court of the Supreme Court of New South Wales.] OWEN J (at 116): … Where a defamatory statement refers to a plaintiff by name or, without mentioning him by name, describes him in such a way that the man in the street reading or hearing it would know to whom it referred—as for example where without mentioning names the statement is defamatory of a person who is described as the holder of a particular office—and it is a matter of general notoriety who the holder of that office is—evidence that some one or more persons who read or heard the statement understood it as referring to the plaintiff is unnecessary. But where, as here, the plaintiff could only be identified by that small percentage of the community which happened to know that he was a printer using the imprint ‘X-press Printery’, it must be shown that some one or more of those to whom the pamphlet was published had that special knowledge. The case in this respect is on all fours with Consolidated Trust Co Ltd v Browne, and, so far as publication at the theatre is concerned, the plaintiff failed to prove an essential element necessary to establish the tort of defamation. In these circumstances he cannot, in my opinion, successfully contend that that missing element in the tort sued upon was supplied by evidence that at a later date some readers of the newspaper publication possessed the special knowledge which enabled them to read the news item as referring to the plaintiff. If the publication by the newspaper was a publication for which the defendant was responsible in the sense that he was to be regarded as the publisher of it along with the newspaper proprietor, the plaintiff’s remedy was to sue him, not for the publication at the theatre, but for a tort committed by him by publishing the defamatory matter in the newspaper. Appeal allowed. [Street CJ and Herron J agreed with Owen J.]

175 See below at 7.3.5. 176 See below at 7.3.6.

CHAPTER 7 Liability for Defamation

7.3.5

Where the publisher intended to refer to one person but the matter is capable of referring to other persons of the same name

It is possible for a publisher to be held liable for defamation in circumstances where the publisher intended to refer to one real person but the matter is capable of referring to one or more real persons of the same name, as the following extract from Lee v Wilson demonstrates.177

Lee v Wilson (1934) 51 CLR 276

Copyright © 2015. Oxford University Press. All rights reserved.

[In late October 1933, The Star newspaper published an article under the headline, ‘PENTRIDGE PRISONER’S GRAVE CHARGE. ALLEGED PAYMENT TO POLICE’. The article concerned evidence given by a prisoner, John Kelly, to a board of inquiry into police corruption, that he had paid a bribe to ‘Detective Lee’. Kelly intended to refer to a constable in the Motor Registration Branch of the Victorian Police Force. However, there were two other police officers named Lee. The first plaintiff, Arthur Lonsdale Lee, was a senior constable and the second plaintiff, Clifford Lee, was a constable. Both police officers were attached to the Criminal Investigation Branch. Although there was no rank of detective in the Victorian Police Force, members of the Criminal Investigation Branch were known as detectives. The plaintiffs brought defamation proceedings in the County Court of Victoria against the proprietors and publishers of The Star, Messrs Wilson and Mackinnon. At first instance, the trial judge disallowed a question that was intended to establish that the article intended to refer to the constable in the Motor Registration Branch. The trial judge proceeded to find in favour of the plaintiffs and awarded each of them £50 damages. The Full Court of the Supreme Court of Victoria allowed an appeal against the trial judge’s decision. The plaintiffs appealed to the High  Court of Australia.] DIXON J (at 287): This appeal from that order raises for our decision the substantial question whether, in an action of libel by a plaintiff who corresponds to the description contained in the defamatory matter published by the defendant, and who has been identified with the description by readers knowing him, it is a defence that in fact there is another person who also sufficiently corresponds to the description, and who is actually the person intended to be referred to by the author of the libel, or by the defendant who published it … It is the publication, not the composition of a libel, which is the actionable wrong. Often the person sued for publishing is not the writer. The injury done by a libel arises from the effect produced upon its readers. These considerations naturally led to a rigorous application to libels of the rule that the meaning of a document should be determined independently of the actual intention which the writer entertained. The acceptance of a criterion of liability which adopted, not the intention actuating the writer, but the understanding produced in the reader, was aided by the rule, which can be traced back to an early time, that for the interpretation of a libel evidence could be received of particular circumstances affecting (288) its meaning, and of the actual interpretation which persons conversant with those circumstances affixed to it. But in all documents a marked distinction exists between ascertaining what are the ideas conveyed concerning the persons or physical objects referred to, and identifying the persons and objects so referred to. The latter process consists in correctly associating an existing person or thing with a description contained in the document. Where the description or means of identification consists in or includes proper names, it must often be the case that more than one person can be found to answer it. If the document must have a legal effect on one only of these persons, no means exists of determining to which it refers, except by an inquiry into the contents of the writer’s mind. But until two or more are found who do answer the description, or to whom it applies indifferently or in an equal degree, no occasion arises for such an inquiry … The cause of action consists in publication of the defamatory matter of and concerning the plaintiff. It might be

177 See also Newstead v London Express Newspaper Ltd [1940] 1 KB 377 at 385 per Sir Wilfrid Greene MR; at 395–96 per du Parcq LJ.

205

Copyright © 2015. Oxford University Press. All rights reserved.

206

PART 3 Defamation and the Protection of Reputation

thought, therefore, that, in any event, this warranted or required some investigation of the actual intention of the publisher. But his liability depends upon mere communication of the defamatory matter to a third person. The communication may be quite unintentional, and the publisher may be unaware of the defamatory matter. If, however, the publication is made in the ordinary exercise of some business or calling, such as that of booksellers, newsvendors, messengers, or letter carriers, and the defendant neither knows nor suspects, nor using reasonable diligence ought to know or suspect the defamatory contents of the writing, proof of which facts lies upon him, his act does not amount to publication of a libel. It is scarcely consistent with this doctrine to look for the publisher’s actual intention, even for the purpose of applying the libel to one to the exclusion of another or other persons, either of whom the description it contains would effectively denote. If it be necessary to find which, of several equally described, was the person actually meant, the intention of the writer, not of the publisher, would appear to govern the answer. An actual intention, whether in writer or publisher, of referring to the plaintiff cannot be treated as irrelevant. Indeed, where the words are capable of relating to the plaintiff, but (289) it is uncertain whether they actually do so, the fact that they are used with him in view appears to be decisive. The reason may be that if words are capable of being read as referring to the plaintiff, and are intended to be so read, it must be presumed in his favour that they actually were so read. … (290) … in my opinion, they express a test which makes the tort of libel consist in the operation of defamatory matter as an actual disparagement of the plaintiff’s reputation. This principle logically applied appears to me to require the conclusion that a description on its face designating one person only may, nevertheless, be a libel of two or more, if, being capable of denoting each of them, it is reasonably understood by one group of people to refer to one of them, and by another group to another and so on. No doubt there was much to be said against the adoption of the principle, but, having been adopted, it gives rise to consequences which may not be avoided. Even if some departure occurred from the older views of the grounds of liability for defamation, it was a development readily arising from the already established rules for ascertaining the meaning of defamatory writings, and determining the liability for their publication, the rules I began by describing. It is true that hitherto two persons have not in fact recovered in respect of defamatory matter purporting to deal with the character or conduct of one person only. … (295) I feel constrained to the conclusion that the law now is that, if defamatory words, capable of relating to more than one person, are found actually to disparage each of them among the respective groups of the community which know them, because the words are reasonably understood to refer to each of them, then they may all maintain actions, and this notwithstanding that the writer or publisher intended to refer to still another person whom his words are also capable of meaning. Appeal allowed. [In separate reasons, Starke J, and in joint reasons, Evatt and McTiernan JJ, agreed with Dixon J.]

QUESTION 1 Sir Wilfrid Greene MR concluded his judgment in Newstead v London Express Newspaper Ltd in the following terms: After giving careful consideration to the matter, I am unable to hold that the fact that defamatory words are true of A, makes it as a matter of law impossible for them to be defamatory of B, which was in substance the main argument on behalf of the appellants. At first sight this looks as though it would lead to great hardship. But the hardships are in practice not so serious as might appear, at any rate in the case of statements which are ex facie defamatory. Persons who make statements of this character may not unreasonably be expected, when describing the person of whom they are made, to identify that person so closely as to make it very unlikely that a judge would hold them to be reasonably capable of referring to someone else, or that a jury would hold that they did so refer. This is particularly so in the case of statements which purport to deal with actual facts. If there is a risk of coincidence it ought, I think, in reason to be borne not by the

CHAPTER 7 Liability for Defamation

innocent party to whom the words are held to refer but by the party who puts them into circulation. In matters of fiction, there is no doubt more room for hardship. Even in the case of matters of fact it is no doubt possible to construct imaginary facts which would lead to hardship. There may also be hardship if words, not on their face defamatory, are true of A, but are reasonably understood by some as referring to B, and as applied to B are defamatory. But such cases must be rare. The law as I understand it is well settled, and can only be altered by legislation.178

What problems do publishers encounter and what risks are they exposed to by the application of the principles enunciated in Lee v Wilson and Newstead v London Express Newspaper Ltd? How satisfactory do you find these principles and the outcomes to which they might lead?

7.3.6

Where the publisher intended to refer to a fictitious person but the matter is capable of referring to a real person of the same name

A publisher is not only exposed to liability where he or she uses a name intending to refer to a particular person but it could reasonably be taken to refer to other real persons of the same name. He or she could also be exposed to liability where he or she uses a name, intending it to be fictitious but it could reasonably be taken to refer to a real person. This is demonstrated by the House of Lords decision in E Hulton & Co v Jones, which is extracted below.

E Hulton & Co v Jones [1910] AC 20

Copyright © 2015. Oxford University Press. All rights reserved.

[The respondent, Thomas Artemus Jones, was a barrister on the North Wales circuit. He brought defamation proceedings against the appellants, being the printers, proprietors and publishers of the newspaper The Sunday Chronicle, in respect of an article published about Artemus Jones, an adulterous churchwarden from Peckham, misbehaving at a car rally in Dieppe. The Sunday Chronicle claimed the character in the article was fictitious. However, the respondent was a previous contributor to The Sunday Chronicle. At first instance before Channell J, the jury found in favour of Jones and awarded him £1,750 damages. An appeal to the Court of Appeal was dismissed. The appellants appealed to the House of Lords.] LORD LOREBURN LC (at 23): My Lords, I think this appeal must be dismissed. A question in regard to the law of libel has been raised which does not seem to me to be entitled to the support of your Lordships. Libel is a tortious act. What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it. A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has none the less imputed something disgraceful and has none the less injured the plaintiff. A man in good faith may publish a libel believing it to be true, (24) and it may be found by the jury that he acted in good faith believing it to be true, and reasonably believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however excellent his intention. If the intention of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it need be relevant in considering whether it is defamatory of the plaintiff. The writing, according to the old form, must be malicious, and it must be of and concerning the plaintiff. Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot shew that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff. His intention in both respects equally is inferred from what he did. His remedy is to abstain from defamatory words. Appeal dismissed. [Lord Atkinson and Lord Gorell concurred with Lord Loreburn LC. In separate reasons for judgment, Lord Shaw of Dunfermline also agreed with Lord Loreburn LC.]

178 Newstead v London Express Newspaper Ltd [1940] 1 KB 377 at 388.

207

208

PART 3 Defamation and the Protection of Reputation

7.3.7

Indirect identification

In many instances, a plaintiff will be directly named in a publication, although, as the preceding cases have demonstrated, this can nevertheless cause its own legal difficulties. Not infrequently, a matter will not directly name a plaintiff. It is still possible for such a plaintiff to establish that he or she has been identified. The leading authority on this issue remains the House of Lords decision in Morgan v Odhams Press Ltd,179 which is extracted below.

Morgan v Odhams Press Ltd [1971] 1 WLR 1239

Copyright © 2015. Oxford University Press. All rights reserved.

[A journalist from the Sunday People newspaper became aware that a young woman named Margo Murray was assisting police with an investigation into dog doping in greyhound racing circles, having disclosed her own involvement in such conduct. She was to be the principal witness for the prosecution. The journalist, Gabbert, took Murray into hiding. However, Murray left the lodgings provided by Gabbert and went to stay in Willesden Green with the appellant, Johnny Morgan. While she was staying with Morgan, six people saw her or were introduced to her by Morgan. On occasion, she looked visibly distressed. She eventually returned to the lodgings provided by Gabbert. Gabbert published his story in his newspaper. The following day, the second appellant, Peter Astaire, published his own follow-up story in The Sun newspaper, which was published by the first appellant, Odhams Press Ltd. Astaire’s article did not mention Morgan by name but did state that Murray had been abducted by members of the dog-doping gang and had been kept in a house in Finchley. The article was not specific about the time at which the facts it related occurred. Morgan sued Odhams Press and Astaire for defamation. At first instance, the jury found in favour of Morgan, awarding him £4,750 damages. The Court of Appeal set aside the jury verdict on the basis that the article was incapable of identifying Morgan. Morgan appealed to the House of Lords.] LORD REID (at 1242): It must often happen that a defamatory statement published at large does not identify any particular person and that an ordinary member of the public who reads it in its context cannot tell who is referred to. But readers with special knowledge can and do read it as referring to a particular person. A number of matters are not in dispute in this case. It does not matter whether the publisher intended to refer to the plaintiff or not. It does not even matter whether he knew of the plaintiff’s existence. And it does not matter that he did not know or could not have known the facts which caused the readers with special knowledge to connect the statement with the plaintiff. Indeed the damage done to the plaintiff by the publication may be of a kind which the publisher could not have foreseen. That may be out of line with the ordinary rule limiting damage for which a tortfeasor is liable, but that point does not arise in this case. On the other hand when people come and say that they thought that the plaintiff was referred to by a statement which does not identify anyone there must be some protection for a defendant who is thus taken unawares. It is now well settled that the plaintiff must give sufficient particulars of the special facts on which he or his witnesses rely. But that in itself may not be enough. It may be plain and obvious that no sensible person could, by reason of knowing these facts, jump to the conclusion that the defamatory words refer to the plaintiff. Then RSC, Ord 18, r 19 can be used to stop the case from going to trial. Otherwise the case goes to trial. The next protection for the defendant is that at the end of the plaintiff’s case the judge may be called upon to rule whether the words complained of are capable of referring to the plaintiff in light of the special facts or knowledge proved in evidence. The main question in this case is—how is he to make that decision? It is often said that because a question is for the judge to answer it must be a question of law. I have more than once stated my view that the meaning of words is not a question of law in the true sense, even in other departments of the law where a much (1243) stricter test of the meaning of words is adopted than in the law of libel. It is simply a question which our law reserves for the judge.

179 See also Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 7 Liability for Defamation

The question of how words should be read in libel cases was discussed in Lewis v Daily Telegraph Ltd [1964] AC 234 and I shall not repeat what was said there. We have to consider how ‘ordinary sensible men’ (per Lord Devlin at p 286) would understand the words. So here the judge had to consider how ordinary sensible men, having the special knowledge proved, could understand the words complained of. But the Court of Appeal imposed a farther, to my mind artificial, limitation—‘There must be some key or pointer in the article itself indicating that it refers to the plaintiff’ [1970] 1 WLR 820, 828. ‘There must be some words, some initials, some asterisks, some reference or other to him, such that the pleader can insert in these days, as he always did in the old days, the key words in brackets “(meaning thereby the plaintiff)”’ (p 829). ‘There must be something in the article which pointed to the plaintiff’ (p 831). ‘… the court must be satisfied that there is something in the article itself to serve as a peg upon which to hang the alleged identification of the plaintiff as the person referred to—something, in other words, which expressly or by implication points to the plaintiff’ (p 832). In my view, the second of these quotations cannot possibly be right. Suppose a statement that X is illegitimate, and an action by X’s mother. It seems to me obvious, and counsel did not contend otherwise, that if the statement is untrue, the law could not deny an action to the mother. But there is no word after which the pleader could insert (meaning thereby X’s mother). Then I ask what kind of peg, key or pointer would be sufficient. Suppose the statement is that ‘X was murdered at 10.5 pm (sic)—we know the time because his watch was smashed at that time and we know it was accurate—and at 10.10 a man believed to be the murderer was heard running on the pavement outside the house.’ The plaintiff left a party in the next door house at 10.10 and ran to catch a bus and he brings an action. Is ‘a man’ a sufficient peg? The pleader could add (meaning thereby the plaintiff). Or suppose the statement was ‘A man wearing a hat and a dark overcoat believed to be the murderer was seen …’ Is that a sufficient peg? Or ‘a tall man with a limp was seen …’ Is that sufficient? Just how much particularity must there be? Let me test the matter by supposing that the statements in the respondents’ article had been somewhat different. Suppose it had said that Margaret Murray had been kidnapped by the doping gang and taken to a house in Cricklewood on a date which corresponded with the date of her arrival at the appellant’s flat in Cricklewood and suppose that instead of going about with the appellant she had felt unwell and had remained in the flat but that her presence there was known to a number of people. There would be no pointer to the appellant: there are many thousands of houses in Cricklewood and to regard a reference to a house in an area where, say, 100,000 people reside as a pointer to any one or every one of them would be to reduce this new limitation to an insubstantial formality. But I would think it impossible to say that ordinary sensible people, who knew of the arrival of Margaret Murray at the appellant’s flat and that she had not gone out, would have been unreasonable in coming to the conclusion that the article meant that the appellant was one of, or was in league with the gang. Some people may think that the law has gone too far in holding that (1244) the publisher of a defamatory statement which identifies no one is liable if knowledge of special facts which the publisher could not know causes sensible people to think that the statement applies to someone the publisher had never heard of. That may be arguable: I express no opinion about it, further than to say that in deciding the question one would require to have in mind not only the innocent publisher but also the person who wishes to injure the reputation of the plaintiff but tries to avoid liability by disguising his libel so that it conveys nothing to the ordinary reader but causes those with special knowledge to infer that it is aimed at the plaintiff. If this new limitation is intended to distinguish between an innocent publisher and a publisher who has the plaintiff in mind it fails in its object. It would still leave the publishers of matter ex facie defamatory in its nature liable in at least three cases: where he uses what he thinks is a fancy name (E Hulton & Co v Jones [1910] AC 20), where the plaintiff happens to have the same name as the person to whom he intends to refer (Newstead v London Express Newspaper Ltd [1940] 1 KB 377) and here he happens to put in something which could be regarded by those with special knowledge as a pointer or peg although he never intended it to point to the plaintiff. I can see no substantial distinction between that case and the case where those with special knowledge are caused to infer that there is a reference to the plaintiff by the narration of facts and circumstances which coupled with that special knowledge do indicate the plaintiff.

209

210

PART 3 Defamation and the Protection of Reputation

The principal authority cited for this novel doctrine is Astaire v Campling [1966] 1 WLR 34. That was a very different kind of case. Defamatory statements had been made about Mr X: no one knew who he was. Then the defendant published something which gave a clue to his identity but he did not in any way adopt the earlier defamatory statements. It was obviously right to hold that he incurred no liability for libels published by others. Sellers LJ said, at p 39: It may well be, that in circumstances where the identity of a plaintiff is not expressly referred to in an article, extrinsic evidence may be given to establish identity, but it seems to me a wholly different matter to seek to add to the alleged libel defamatory views expressed and published by somebody else.

Diplock LJ said, at p 41:

Copyright © 2015. Oxford University Press. All rights reserved.

the statement of fact or expression of opinion relied upon as defamatory must be one which can be reasonably said to be contained in the statement in respect of which the action is brought and not merely in some other statement.

I can find nothing in the judgments which throws any light on the question with which I am now dealing, or which indicates that this question was in the mind of any of the learned judges. There was no peg or pointer in Cassidy v Daily Mirror Newspapers [1929] 2 KB 331 or in Hough v London Express Newspaper Ltd [1940] 2 KB 507. I see nothing wrong with these decisions. They do, however, show that the court recognises that rather far-fetched inferences may be made by sensible readers. I therefore reject the argument that the appellant must fail because the respondent’s article contained no pointer or peg for his identification. So I turn to the question whether this case ought to have been left to the jury. Six witnesses, of whom three were or had been in the police force and three owned businesses, said that they thought that this article referred (1245) to the plaintiff, the appellant. So on what ground is it to be said that the article could not reasonably be so understood, and that there was no case to go to the jury? The fact that a number of honest witnesses formed a certain view is by no means conclusive. It is only an item of evidence. It is for the judge to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff. Much must depend on the degree of deliberation and concentration with which that sensible man must be supposed to have read the article. If he must have done as a lawyer or a man of business would do in scrutinising an important document to discover its meaning, he might reach one result. If he should only be supposed to have read his daily newspaper in the way in which ordinary people generally do read it he might reach a different result. That is well illustrated in the present case. The article refers to a house in Finchley. The appellant’s flat is in Cricklewood some three miles away, though Finchley Road is only a mile away. Is the sensible reader bound to say to himself, this can’t refer to Morgan, or can he say, we all know that newspaper articles, though giving a good general impression, are often inaccurate in detail as is inevitable when stories have to be written at speed? And there is a discrepancy in time. The article says last week whereas the girl Murray arrived at the appellant’s house a week earlier. The article is written in a way which makes it a little difficult to follow the chronology. Is the sensible reader bound to observe this difference and, if he does, could he say to himself that the article published on Monday may have been written a couple of days earlier when ‘last week’ would have been accurate? Then there is the fact that the girl was often seen going about openly with the appellant and it is argued that this shows that she cannot have been kidnapped. But she was seen to be in a distressed and once in an almost hysterical condition. Could the sensible man not say to himself that that is quite consistent with a kidnapper having terrified the girl so that she did not try to resist or escape. It is quite true that the six witnesses gave different reasons for thinking that the article referred to the appellant and some were not very good reasons. But two of them were so impressed that separately they rang up the appellant to draw his attention to the article. He ‘exploded’ and denied that there was any truth in it. Apparently it did not occur to any of them that the article did not refer to the appellant at all. If we are to follow Lewis’ case [1964] AC 234 and take the ordinary man as our guide then we must accept a certain amount of loose thinking. The ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought.

CHAPTER 7 Liability for Defamation

Copyright © 2015. Oxford University Press. All rights reserved.

The publishers of newspapers must know the habits of mind of their readers and I see no injustice in holding them liable if readers, behaving as they normally do, honestly reach conclusions which they might be expected to reach. If one were to adopt a stricter standard it would be too easy for purveyors of gossip to disguise their defamatory matter so that the judge would have to say that there is insufficient to entitle the plaintiff to go to trial on the question whether that matter refers to him, but the ordinary reader with perhaps more worldly wisdom would see the connection and identify the plaintiff with consequent damage to his reputation for which the law would have to refuse him reparation. It may be that publishers (1246) ought to have a defence so that they are not liable if neither they nor the authors knew or ought to have known anything about the plaintiff or any special reasons which cause certain readers to identify him with the defamatory matter, but we are not concerned with that in this case. What has to be decided is whether it would have been unreasonable for a hypothetical sensible reader who knew the special facts proved to infer that this article referred to the appellant. I shall not set out those facts because it appears to me that in the end it all depends on the way in which one is required to assume that a sensible reader will react on reading this kind of article in a daily newspaper. If one must assume that he thinks and acts cautiously as a lawyer would do in his professional capacity then have no doubt that he would say that that inference is not justified in this case. But if one is entitled to be more realistic and take account of the way in which ordinary sensible people do in fact read their newspapers and draw inferences then equally I have no doubt such people would quite probably draw this inference. This case could only have been withdrawn from the jury if it was proper for the judge to say that all these six witnesses must be regarded as having acted unreasonably in reaching their conclusions. I see nothing in the evidence to justify that conclusion. In my view, it could only be reached by applying an unrealistic test of what is reasonable. I do not think that the law does or should require that. I am therefore of the opinion that the case was properly left to the jury. One other matter I must mention at this stage. One of the witnesses thought that the article referred to the appellant but completely disbelieved it: he thought it was rubbish. It was argued that he must be left out of account because no tort is committed by making a defamatory statement about X to a person who utterly disbelieves it. That is plainly wrong. It is true that X’s reputation is not diminished but the person defamed suffers annoyance or worse when he learns that a defamatory statement has been published about him. There may be no clear authority that publishing a defamatory statement is a tort whether it is believed or disbelieved. But very often there is no authority for an obvious proposition: no one has had the hardihood to dispute it. Appeal allowed.

7.3.8

Where the plaintiff is a member of a group against which the matter is directed

A defamatory matter may convey imputations about a group of persons without naming individual members. These imputations may give rise to a cause of action in defamation for the damage done to the collective reputation of the group as well as to the personal reputations of its members. Some examples of this type of publication have already been encountered in this chapter. For instance, allegations levelled against a partnership may reflect adversely upon the constituent partners;180 allegations levelled against a local government body, while not conferring the right to sue in defamation to protect the ‘governing reputation’ of the body, may confer a right on individual councillors or council officials;181 allegations

180 As to partnerships’ standing to sue for defamation, see above at 7.1.12. 181 As to government bodies’ standing to sue for defamation, see above at 7.1.11.

211

212

PART 3 Defamation and the Protection of Reputation

levelled against a corporation, which may not be actionable by the corporation itself, may be actionable by officers of the corporation.182 Beyond these possibilities, it is open for a member of a group to argue that his or her personal reputation has been damaged by imputations made against the group. Whether such a claim will succeed will depend upon whether the member of the group can be reasonably identified as a particular individual to which the defamatory matter refers.183 The classic example of an aspersion cast against a group not giving rise to a cause of action in defamation by individual members is Willes J’s dictum from Eastwood v Holmes, that ‘if a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual’.184 In other cases, imputations levelled against a group will be of such a nature so as to reflect adversely upon the personal reputations of each member of the group. In every case, the fundamental test is the reasonableness of the identification of the plaintiff from the defamatory matter. A useful exposition of these principles is provided by the House of Lords decision in Knupffer v London Express Newspaper Ltd, which is extracted below.

Knupffer v London Express Newspaper Ltd [1944] AC 116

Copyright © 2015. Oxford University Press. All rights reserved.

[The respondents published an article in the Express newspaper in early July 1941, which was highly critical of an organisation called ‘Mlado Russ’ or ‘Young Russia’. It alleged that this organisation was a pro-fascist group, operating to undermine communist rule and to further Nazi rule in the Soviet Union. Mr Knupffer was a Russian resident in London. He was the head of the British branch of Young Russia, which had 24 members. Internationally, the organisation had approximately 2,000 members. Knupffer brought defamation proceedings in relation to the article, even though the article did not name him directly. At first instance, the jury awarded Knupffer £3,500 damages. An appeal to the Court of Appeal was successful. Knupffer appealed to the House of Lords.]

LORD ATKIN (at 121): My Lords, I have read the opinion about to be delivered by my noble and learned friend Lord Porter, and agree with it and with the proposed motion that the appeal be dismissed. I add a few words, however, for I wish to emphasize the point that the judgments in the Court of Appeal appear to over-elaborate the law of libel as applicable to this case. I venture to think that it is a mistake to lay down a rule as to libel on a class, and then qualify it with exceptions. The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff. It is irrelevant that the words are published of two or more persons if they are proved to be published of him, and it is irrelevant (122) that the two or more persons are called by some generic or class name. There can be no law that a defamatory statement made of a firm, or trustees, or the tenants of a particular building is not actionable, if the words would reasonably be understood as published of each member of the firm or each trustee or each tenant. The reason why a libel published of a large or indeterminate number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded

182 As to corporations’ standing to sue for defamation, see above at 7.1.13. 183 Cf David Syme & Co v Canavan (1918) 25 CLR 234; Healy v Askin [1974] 1 NSWLR 436 with Lloyd v David Syme & Co [1986] 1 AC 350; Bjelke-Petersen v Warburton [1987] 2 Qd R 465. 184 (1858) 1 F & F 347 at 349; (1858) 175 ER 758.

CHAPTER 7 Liability for Defamation

generalizations is ingrained in ill-educated or vulgar minds, or the words are occasionally intended to be a facetious exaggeration. Even in such cases words may be used which enable the plaintiff to prove that the

Copyright © 2015. Oxford University Press. All rights reserved.

words complained of were intended to be published of each member of the group, or, at any rate, of himself. Too much attention has been paid, I venture to think, in the textbooks and elsewhere to the ruling of Willes J in 1858 in Eastwood v Holmes, a case at nisi prius in which the judge non-suited the plaintiff both because he thought there was no evidence that the words were published of the plaintiff and for other reasons, and, so far as the first ground is concerned, it appears to me on the facts to be of doubtful correctness. His words: ‘it only reflects on a class of persons’ are irrelevant unless they mean ‘it does not reflect on the plaintiff,’ and his instance ‘All lawyers were thieves’ is an excellent instance of the vulgar generalizations to which I have referred. It will be as well for the future for lawyers to concentrate on the question whether the words were published of the plaintiff rather than on the question whether they were spoken of a class. I agree that in the present case the words complained of are, apparently, an unfounded generalization conveying imputations of disgraceful conduct, but not such as could reasonably be understood to be spoken of the appellant. LORD PORTER (at 123): My Lords, this case raises once again the question which is commonly expressed (124) in the form: ‘Can an individual sue in respect of words which are defamatory of a body or class of persons generally?’ The answer as a rule must be ‘No’ but the inquiry is really a wider one and is governed by no rule of thumb. The true question always is: ‘Was the individual, or were the individuals, bringing the action personally pointed to by the words complained of?’ … The question whether the words refer in fact to the plaintiff or plaintiffs is a matter for the jury or for a judge sitting as a judge of fact, but as a prior question it has always to be ascertained whether there is any evidence on which a conclusion that they do so refer could reasonably be reached. In deciding this question the size of the class, the generality of the charge and the extravagance of the accusation may all be elements to be taken into consideration, but none of them is conclusive. Each case must be considered according to its own circumstances. I can imagine it being said that each member of a body, however large, was defamed where the libel consisted in the assertion that no one of the members of a community was elected as a member unless he had committed a murder. (125) Whatever the tribunal, the first question is: Are the words in conjunction with the relevant circumstances reasonably capable of being understood to apply to the plaintiff? In the present case that question must, I think, be answered in the negative. It is true that the appellant was and is a member of a body on which very grave reflections have been cast, that he is the representative of that body in England, and that there are only twenty-four members of it in this country, but the newspaper article makes no reference to England. It confines itself to allegations about ‘a minute body’ ‘established in France and the United States.’ Minute, no doubt, its membership of 2,000 is when compared with the vast population of Russia, but in itself it forms a considerable body. Out of that body there was nothing to point to the appellant, nor indeed to any individual in this country. Nor do I think the appellant’s case is improved by the allegations of his friends that ‘their minds turned to’ him when they read the article. Apart from the vagueness of the question, I can see no justification for an inference that he was the person aimed at. If it could be said, as it is conceded it could not, that each member of the body, wherever resident, could claim to be defamed, some case might be made on behalf of the appellant as one of its members, but as the evidence stands I see nothing to point to him in contra-distinction to the rest. Indeed, inasmuch as he is a member of the English group, he is the less likely to be referred to. I agree that the appeal should be dismissed. Appeal dismissed. [In separate reasons for judgment, Viscount Simon LC, Lord Thankerton and Lord Russell of Killowen agreed with these judgments.]

213

214

PART 3 Defamation and the Protection of Reputation

7.4

7.4.1

Publication Introduction

In order for the tort of defamation to be complete, the defendant must publish defamatory matter about the plaintiff. Although the term ‘publication’ can be used as a synonym for ‘matter’, being the thing published, it is better understood as the process of communicating defamatory matter in a comprehensible form to a third party. As Isaacs J stated in Webb v Bloch, ‘To publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle’.185 The leading High Court of Australia authority on the concept of publication is Dow Jones & Co Inc v Gutnick,186 which is extracted at 7.4.3 below.

Copyright © 2015. Oxford University Press. All rights reserved.

7.4.2

Who is a publisher and what constitutes publication?

Liability for publication of defamatory matter is very broad, indeed. Any person who voluntarily disseminates defamatory matter is prima facie liable as a publisher.187 Merely repeating defamatory matter originating from another person prima facie exposes the person repeating it to liability for defamation.188 Although primary distributors, such as newspaper, magazine and book publishers and radio and television broadcasters are routinely targeted by plaintiffs, subordinate distributors, such as booksellers, newsagents and libraries, also qualify as publishers for the purposes of defamation law. The latter category of publishers, like persons merely repeating defamatory matter, may avail themselves of a defence189 but they are still, in the first instance, publishers. Liability for defamation frequently arises from positive acts of publication. However, it is also possible for a person to be held liable as a publisher of defamatory matter where he or she omits to deal with defamatory matter originating from another person. In Byrne v Deane, the operators of a golf club, where allegedly defamatory verse about the plaintiff was anonymously posted on the clubroom wall, could be held liable as publishers for the purposes of defamation law because they were aware of the presence of the matter in question and within a reasonable time failed to take any steps to remove it.190 This becomes important for the liability of internet intermediaries for defamation.

Liability of internet intermediaries for defamation. Whether and when internet service providers (ISPs) or internet-based communication platforms like Google should be liable for their users’ online activities has been of increasing interest to courts, inviting consideration as to whether they should be considered a ‘publisher’ for the purposes of defamation law.

185 (1928) 41 CLR 331 at 363. 186 (2002) 210 CLR 575. 187 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 505 per Bridge LJ; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 647 per Callinan J. 188 R v Paine (1696) 5 Mod R 163; (1696) 87 ER 584 at 587; M’Pherson v Daniels (1829) 10 B & C 263; (1829) 109 ER 448 at 451–52 per Littledale J; Watkin v Hall (1868) LT 3 QB 396 at 401 per Blackburn J. 189 Subordinate distributors may be able to establish a defence of innocent dissemination, for instance, as to which see 8.7. 190 Byrne v Deane [1937] 1 KB 818 at 829 per Greer LJ, at 837–38 per Greene LJ. However, the English Court of Appeal, by majority, found that the verse in question was not capable of being defamatory of the plaintiff.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 7 Liability for Defamation

In Godfrey v Demon Internet Service [2001] QB 201, the plaintiff was an academic who complained about defamatory comments posted anonymously on a newsgroup. Godfrey contacted the host of the group, Demon Internet, to request the comments be taken down, which it refused to do. Morland J found the ISP was a publisher of defamatory matter, as it did not merely provide the internet service but also hosted the content. In Bunt v Tilley [2007] 1 WLR 1243, Bunt sued three personal defendants and three ISPs. In this case, unlike Godfrey v Demon Internet, the ISPs did not host the defamatory material. Rather Bunt’s claim was that in hosting the websites containing the defamatory material, the ISPs had enabled the personal defendants to publish. Following an application from the ISPs, the case against them was struck out. Eady J drew a distinction between publication on one hand and mere passive facilitation on the other. In providing the internet service, the ISPs were properly characterised as mere passive facilitators. In Metropolitan International Schools Ltd v Designtechnica Corp [2011] 1 WLR 1743, the defendant was not an ISP but the internet-based search engine, Google. The plaintiff company sought to sue Google for defamation on the basis that, when its name was entered into the Google search engine, the result would direct the user to defamatory matter originally posted in Designtechnica’s online forums. Eady J extended his reasoning in Bunt. Google could not control users’ search terms. Its results were generated automatically by computer programs. Accordingly, Eady J held that Google was not a publisher of the defamatory material, but a mere passive facilitator. In Tamiz v Google Inc [2013] 1 WLR 2151, the claimant again brought defamation proceedings against Google, this time in relation to comments posted on a blog hosted by Google’s ‘Blogger’ service. Google had been notified of the presence of the defamatory comments but declined to remove them. Eady J concluded that Google’s role was sufficiently analogous to that of an internet service provider to consider it a mere passive facilitator. However, the English Court of Appeal overturned the decision. Prior to the claimant’s notification, Richards LJ’s view was that Google was not a publisher of the defamatory material. However, after notification, his Lordship considered Google a secondary publisher, having been notified of defamatory matter on areas it controlled and having taken no steps to remove that matter within a reasonable period of time. Richards LJ did not reject the distinction drawn by Eady J between publishers and mere passive facilitators. Rather the decision suggested the proper approach is to consider whether the particular type of conduct constitutes publication. In Australia, the liability of search engines as publishers of defamatory matter was considered in Trkulja v Yahoo! Inc LLC [2012] VSC 88 and more recently in Trkulja v Google Inc LLC (No. 5) [2012] VSC 533. In Trkulja v Yahoo!, the search engine was ordered to pay the plaintiff $225,000 damages for results generated by users’ searches for the plaintiff’s name. The results suggested that the plaintiff was a criminal and involved in organised crime. Yahoo! did not take the point that it was not a publisher for the purposes of defamation law. However in a separate defamation proceeding brought by the same plaintiff, Google did make that argument. Beach J rejected the submission that Google was not a publisher. He distinguished Eady J’s judgement in Metropolitan International Schools Inc v Designtechnica Corp, in part because while search engines operate in an automated fashion, they operate ‘precisely as intended by those who own them and who provide their services’ (at [27]). Beach J awarded Trkulja $200,000 damages.

7.4.3

Multiple publication rule

A fundamental feature of Anglo-Australian defamation law is the ‘multiple publication’ rule. It is also known as the rule in Duke of Brunswick v Harmer.191 In that case, the Duke of Brunswick sent his manservant to the British Museum to obtain a copy of an issue of a periodical, Weekly Dispatch, which contained an article defamatory of the duke. The article was first published in 1830 but was brought to the duke’s attention in 1848. The Court held that each communication of the defamatory matter constitutes a separate cause of action. 191 (1849) 14 QBD 185; (1849) 117 ER 75.

215

216

PART 3 Defamation and the Protection of Reputation

Therefore, the defamatory matter had been communicated to the duke’s manservant in 1848 when he obtained a copy of the article. The ‘multiple publication’ rule has an important impact on the operation of limitation periods to defamation claims, as Duke of Brunswick v Harmer demonstrates, and for multistate defamation. The High Court of Australia’s decision in Dow Jones & Co Inc v Gutnick is the highest appellate affirmation of the ‘multiple publication’ rule as part of Australian law.

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 (footnotes omitted)

[The respondent, Gutnick, was a prominent Melbourne businessman with affairs in the United States and Israel. The appellant’s subscription magazine, Barron’s Online, published an article alleging that various religious charities with which Gutnick was associated were being used as fronts for money laundering. Gutnick brought defamation proceedings against Dow Jones in the Supreme Court of Victoria. He limited his claim to the damage done to his reputation in Victoria, where he was resident and where he principally conducted his business. Dow Jones claimed that the Supreme Court of Victoria did not have jurisdiction over the proceedings or, if it did, it should decline to exercise it on the ground that Victoria was forum non conveniens (‘a clearly inappropriate forum’). At first instance, Hedigan J rejected the application. An appeal to the Victorian Court of Appeal was unsuccessful. Dow Jones appealed to the High Court of Australia.] GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ (at 597): [11] ‘Publishing’ and its cognate words is also a term that gives rise to difficulty. As counsel for the interveners pointed out it may be useful, when considering where something is published to distinguish between the (publisher’s) act of publication and the fact of publication (to a third party), but even that distinction may not suffice to reveal all the considerations relevant to locating the place of the tort of defamation. …

Copyright © 2015. Oxford University Press. All rights reserved.

(600) Defamation [25] The tort of defamation, at least as understood in Australia, focuses upon publications causing damage to reputation. It is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care. Yet a publication made in the ordinary course of a business such as that of bookseller or news vendor, which the defendant shows to have been made in circumstances where the defendant did not know or suspect and, using reasonable diligence, would not have known or suspected was defamatory, will be held not to amount to publication of a libel. There is, nonetheless, obvious force in pointing to the need for the publisher to be able to identify, in advance, by what law of defamation the publication may be judged. But it is a tort concerned with damage to reputation and it is that damage which founds the cause of action. Perhaps, as Pollock said in 1887, the law went ‘wrong from the beginning in making the damage and not the insult the cause of action’ for slander but it is now too late to deny that damage by publication is the focus of the law. ‘It is the publication, not the composition of a libel, which is the actionable wrong.’ [26] Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act—in which the publisher makes it available and a third party has it available for his or her comprehension. [27] The bilateral nature of publication underpins the long-established common law rule that every communication of defamatory matter founds a separate cause of action. That rule has found reflection (601) from time to time in various ways in State legislation and it would be a large step now to depart from it. [28] If the place in which the publisher acts and the place in which the publication is presented in comprehensible form are in two different jurisdictions, where is the tort of defamation committed? That question is not to be answered by an uncritical application of some general rule that intentional torts

CHAPTER 7 Liability for Defamation

are committed where the tortfeasor acts or that they are committed in the place where the last event necessary to make the actor liable takes place. Nor does it require an uncritical adoption of what has come to be known in the United States as the ‘single publication’ rule, a rule which has been rejected by the Court of Appeal of New South Wales in McLean v David Syme & Co Ltd. Appeal dismissed [Kirby and Callinan JJ delivered separate reasons for judgment, dismissing the appeal.]

QUESTIONS 1 The High Court of Australia’s decision in Dow Jones & Co Inc v Gutnick was criticised in the United States for its jurisdictional overreach. Does a novel problem like internet defamation necessitate a novel solution or are existing principles adequate to address it? 2 Is the ‘multiple publication rule’ necessary? Could it be dispensed with or modified?

7.4.4 Republication In certain circumstances, a defendant may be liable not only for his or her own publication of defamatory matter but also for the republication of the same defamatory matter by others. The circumstances in which this may occur and how a plaintiff may plead republication were considered by Hunt J in Sims v Wran, which is relevantly extracted below.

Sims v Wran [1984] 1 NSWLR 317

Copyright © 2015. Oxford University Press. All rights reserved.

[The plaintiff was a journalist with the Australian Broadcasting Corporation. He brought defamation proceedings against the then Premier of New South Wales, Neville Wran, arising out of a press conference at which Wran refused to take questions from him relating to the Street Royal Commission into the dismissal of proceedings against Kevin Humphreys and associated allegations of judicial impropriety. Sims alleged that Wran’s statements imputed that he was an unprofessional and biased journalist, influenced by personal malice. Sims sought to have Wran held liable to the extent of the subsequent publication in the media of the statements made at the press conference.] HUNT J (at 320): Where a prominent politician such as the defendant makes a statement at a press conference, it may be taken without doubt that the natural and probable result of his act will be that his statement will be republished in the media, thereby making him responsible for that republication: Speight v Gosnay (1891) 60 LJQB 231 at 232; and usually in whatever form in which that republication takes place: Webb v Bloch (1928) 41 CLR 331 at 363–366. But, if the plaintiff intends to complain separately of that republication, he must plead each such republication in haec verba as a separate paragraph in his statement of claim, to enable the defendant to plead to it whatever defence may be appropriate to that particular publication. On the other hand, as I say, a plaintiff is entitled if he wishes to complain only of the original publication, but to seek to recover as a consequence of that original publication the damage which he suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication: Cutler v McPhail [1962] 2 QB 292 at 298, 299. But, if the plaintiff intends to do so, he is obliged to make his intention clear in his statement of claim: Pt 15, r 13(1). The difficulties which may otherwise arise are well illustrated by the case of McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513; 92 WN 611. The plaintiff in that case had alleged in his declaration simply that the matter complained of was published, and he had subsequently supplied particulars alleging that he complained of publication ‘in New South Wales (and other States)’. Asprey JA, held (at 521; 618) that, despite the particulars which were given, the rules of pleading then applicable dictated that only publication in New South Wales had been complained of. Mason and

217

218

PART 3 Defamation and the Protection of Reputation

Manning JJA held (at 528, 529, 625) that the plaintiff had complained of the entirety of the issue, including Victoria. The pleading rules are, of course, now more relaxed, but such a dispute (which arose only upon a new trial motion) should never have arisen at all. In the present case, the plaintiff was ordered by Yeldham J in effect to notify the defendant which course he proposed to follow, and to supply appropriate particulars. Those further particulars now supplied identify various republications on television and radio and in the press throughout Australia. Notwithstanding an unfortunate ambiguity in the last paragraph of the letter from the plaintiff’s solicitor, it is now clear that, as was originally indicated to me, the plaintiff complains of the publication of the defendant’s (321) statement at the news conference only as the basis for his action, but he relies upon the republication of that statement in the media throughout Australia, for which the defendant is alleged to be responsible, upon the issue of damages.

Copyright © 2015. Oxford University Press. All rights reserved.

7.4.5

Multistate publication

Prior to the introduction of the national, uniform defamation laws in 2005, the application of the choice of law in tort rule to defamation claims was a complex undertaking.192 In the previous decade, the common law choice of law in tort rules had undergone a significant revision. For a long time, the settled choice of law in tort rule in Australia was the rule in Phillips v Eyre.193 Under the rule in Phillips v Eyre, a claim in respect of a tort committed outside the forum could be brought in a court of the forum if the claim was actionable under the law of the forum (the lex fori) and the law of the place of the wrong (the lex loci delicti). This required a consideration of at least two different systems of law. If the claim gave rise to civil liability under both systems of law, the claim could be brought in the court of the forum, in which case the prevailing view was that the lex fori applied to the determination of the claim.194 The rule in Phillips v Eyre therefore necessitated a consideration of at least two systems of law. However, a particular feature of defamation had the potential to introduce a greater number of defamation laws. The tort of defamation is committed wherever publication occurs, in the sense of there being a communication of defamatory matter to a person other than the plaintiff.195 Because defamatory matter can be widely disseminated across Australia by means of national newspapers and radio and television networks, as well as internet technologies, the potential for claims involving up to eight different defamation laws was real. An international publication further multiplied the number of defamation laws potentially engaged by a defamation claim.

192 See, for example, Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6; (1973) 22 FLR 181; Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225. 193 (1870) LR 6 QB 1. 194 Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 42 per Windeyer J; Hartley v Venn (1967) 10 FLR 151 at 155–56 per Kerr J, SC(ACT); Kolsky v Mayne Nickless Ltd [1970] 3 NSWR 511 at 517 per curiam; Walker v WA Pickles Pty Ltd [1980] 2 NSWLR 281 at 289 per Glass JA; Pozniak v Smith (1982) 151 CLR 38 at 49–50 per Mason J; Gardner v Wallace (1995) 184 CLR 95 at 98–99 per Dawson J; Nalpantidis v Stark (1995) 65 SASR 454 at 473 per Debelle J; Thompson v Hill (1995) 38 NSWLR 714 at 741–42 per Clarke JA; contra Wilson v Nattrass (1995) 21 MVR 41 at 51 per Ashley J, SC(Vic), Full Ct. See also Martin Davies, ‘Exactly What is the Australian Choice of Law Rule in Torts Cases?’ (1996) 70 Australian Law Journal 711. As to the application of the rule in Phillips v Eyre in Australia, see generally John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 519–32 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 195 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 600–01, 605–07 per Gleeson CJ, McHugh, Gummow and Hayne JJ.

CHAPTER 7 Liability for Defamation

In the course of two landmark judgments, the High Court of Australia, by majority, recast the choice of law in tort rule. In John Pfeiffer Pty Ltd v Rogerson,196 the High Court abrogated the rule in Phillips v Eyre for torts committed within Australia, replacing it with the lex loci delicti. In Regie Nationale des Usines Renault SA v Zhang,197 the Court did likewise in respect of international torts. One of the principal aims of these reformulations of the rules governing choice of law in tort, stated in both of these cases, was to promote certainty and predictability in application and outcome.198 In the case of multistate defamation, the High Court’s restatement of the choice of law in tort rule did not have this effect—a fact the Court itself acknowledged in Pfeiffer v Rogerson.199 Applying the lex loci delicti as the choice of law in tort rule would still involve as many defamation laws as there are places of publication. Therefore, under both the rule in Phillips v Eyre and the lex loci delicti, multiple systems of defamation law would apply to the publication of a single matter and differential outcomes would be possible in respect of the publication of the same defamatory matter across borders, depending on the tests for liability and, more importantly, the requirements of the available defences. The national, uniform defamation laws overcome the difficulties presented by the common law by introducing a statutory choice of law rule for defamation claims,200 which is relevantly extracted below. However, the statutory choice of law rule is limited to publications within Australia, with the effect that the common law choice of law in tort rules continue to apply in respect of truly international defamatory publications.

Copyright © 2015. Oxford University Press. All rights reserved.

National defamation laws (1) If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication. (2) If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication. (3) In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account: (a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time, and (b) the extent of publication in each relevant Australian jurisdictional area, and (c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area, and (d) any other matter that the court considers relevant.

196 (2000) 203 CLR 503. 197 (2002) 210 CLR 491. 198 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 539–40 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; at 555 per Kirby J; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 517 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 199 John Pfeiffer Pty Ltd v Rogerson at 538–39 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 200 Civil Law (Wrongs) Act 2002 (ACT) s 123; Defamation Act 2006 (NT) s 10; Defamation Act 2005 (NSW) s 11; Defamation Act 2005 (Qld) s 11; Defamation Act 2005 (SA) s 11; Defamation Act 2005 (Tas) s 11; Defamation Act 2005 (Vic) s 11; Defamation Act 2005 (WA) s 11.

219

220

PART 3 Defamation and the Protection of Reputation

(4) For the purposes of this section, the ‘substantive law’ applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the rules prescribed by this section. (5) In this section: ‘Australian jurisdictional area’ means: (a) the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c), or (b) the geographical area of Australia that lies within the territorial limits of a particular Territory (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c), or (c) any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over which no State or Territory has legislative competence. ‘geographical area of Australia’ includes: (a) the territorial sea of Australia, and (b) the external Territories of the Commonwealth. ‘multiple publication’ means publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons.

Copyright © 2015. Oxford University Press. All rights reserved.

FURTHER READING Baker, JH, An Introduction to English Legal History, 4th edn, LexisNexis Butterworths, London, 2002, Ch 25. Baker, JH, The Oxford History of the Laws of England, Vol VI, Oxford University Press, Oxford, 2003, Ch 44. George, Patrick Defamation Law in Australia, 2nd edn LexisNexis Butterworths, Chatswood (NSW), 2012, Chs 2 and 3. Helmholz, RM, The Oxford History of the Laws of England, Vol I, Oxford University Press, Oxford, 2004, Ch 11. Kenyon, Andrew, ‘Imputation or Publication: The Cause of Action in Defamation Law’ (2004) 27 University of New South Wales Law Journal 100. Kenyon, Andrew, Defamation: Comparative Law and Practice, UCL Press, London, 2006. McNamara, Lawrence, Reputation and Defamation, Oxford University Press, Oxford, 2007. Mitchell, Paul, The Making of the Modern Law of Defamation, Hart Publishing, Oxford, 2005. Parkes, Richard and Mullis, Alistair (eds), Gatley on Libel and Slander, 12th edn, Sweet & Maxwell, London, 2013. Post, Robert C, ‘The Social Foundations of Defamation Law: Reputation and the Constitution’ (1986) 74 California Law Review 691. Price, David and Duodu, Korieh, Defamation Law, Procedure and Practice, 4th edn, Sweet & Maxwell, London, 2010. Rolph, David, ‘Perverse Jury Verdicts in New South Wales Defamation Trials’ (2003) 11 Torts Law Journal 28. Rolph, David, ‘Dirty Pictures: Defamation, Reputation and Nudity’ (2006) 10 Law Text Culture 101. Rolph, David, ‘A Critique of the National, Uniform Defamation Laws’ (2008) 16 Torts Law Journal 207. Rolph, David, Reputation, Celebrity and Defamation Law, Ashgate Press, Aldershot, 2008. Rolph, David, ‘Corporations’ Right to Sue for Defamation: An Australian Perspective’ (2011) 22 Entertainment Law Review 195.

8 Defences to Defamation INTRODUCTION

Copyright © 2015. Oxford University Press. All rights reserved.

If a plaintiff satisfies the elements of liability for defamation, as discussed in the previous chapter, the onus then shifts to the defendant to establish a defence on the balance of probabilities. This chapter examines the range of defences available to a defendant in a defamation proceeding. The defences to defamation are intended to promote and protect various public interests, notably freedom of expression,1 and to provide a balance to the protection of the plaintiff’s reputation. The national, uniform defamation laws enact a range of statutory defences to defamation. These coexist alongside the common law defences to defamation; the statutory defences are not codified.2 This chapter will examine the common law and statutory defences to defamation. The defences covered are justification (or truth); the Polly Peck and Hore-Lacy ‘defences’ (or pleadings); contextual truth; absolute privilege; qualified privilege; fair comment and honest opinion; innocent dissemination; and triviality or unlikelihood of harm.

8.1

8.1.1

Justification

History and rationale

At common law, truth is a complete defence to an action for defamation. (The defence of truth is also known as the defence of justification.) The rationale for this position is explained by Street ACJ in Rofe v Smith’s Newspapers Ltd: In England it is a complete answer to a civil action that the defamatory matter complained of was true. The reason upon which this rule of law rests, as I understand, is that, as the object of civil proceedings is to clear the character of the plaintiff, no wrong is done to him by telling the truth about him. The presumption is that, by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely brought down to it.3 1 2 3

As to freedom of expression, see Chapter 2. Civil Law (Wrongs) Act 2002 (ACT) s 134; Defamation Act 2006 (NT) s 21; Defamation Act 2005 (NSW) s 24; Defamation Act 2005 (Qld) s 24; Defamation Act 2005 (SA) s 22; Defamation Act 2005 (Tas) s 24; Defamation Act 2005 (Vic) s 24; Defamation Act 2005 (WA) s 24. (1924) 25 SR(NSW) 4 at 21–22.

221

222

PART 3 Defamation and the Protection of Reputation

As Patrick George pithily observed, ‘A truthful statement defines reputation rather than damages it.’4 Prior to the introduction of the national, uniform defamation laws, the proof of truth was insufficient to justify a publication in four out of the eight Australian jurisdictions. In the Australian Capital Territory, Queensland and Tasmania, a defendant had additionally to prove that the publication was for the public benefit;5 in New South Wales, a defendant had additionally to prove that the publication was in the public interest or was published on an occasion of qualified privilege.6 The additional requirement of public interest or benefit was a long-standing one in many of these jurisdictions. For instance, the element of public interest in the defence of justification was included in the first defamation legislation passed in New South Wales in 1847. It had long been thought that the inclusion of the element of public interest or benefit was intended to protect emancipated convicts from taunts about their criminal histories. However, more recent research casts doubt upon this view.7 The retention of this element of public interest or benefit was claimed to be important to provide a measure of indirect privacy protection, which was necessary in the absence of any effective, direct privacy protection. The reluctance of those jurisdictions possessing the requirement of public interest or benefit to dispense with it became one of the significant obstacles to the successive attempts to introduce national, uniform defamation laws over the last few decades. However, in the most recent reform process, which introduced the national, uniform defamation laws, all states and territories enacted a statutory defence of truth, restating the common law position. Proof of truth alone is now a complete defence to defamation across Australia.8

QUESTIONS

Copyright © 2015. Oxford University Press. All rights reserved.

1 What are the reasons for and against having a requirement of public interest or benefit in addition to proof of truth as part of the defence of justification? Which do you find more convincing? 2 Should defamation law be used to provide privacy protection, directly or indirectly?

8.1.2

Substantial truth

A defendant does not need to establish complete accuracy. He or she need only prove the substantial truth of the publication. The national, uniform defamation laws define the term ‘substantially true’ to mean ‘true in substance or not materially different from the truth’.9 This reflects the position at common law.

4 5

Patrick George, Defamation Law in Australia, 2nd ed., LexisNexis Butterworths, Chatswood, 2012, [19.1]. Civil Law (Wrongs) Act 2002 (ACT) s 59 (repealed); Defamation Act 1889 (Qld) s 15 (repealed); Defamation Act 1957 (Tas) s 15 (repealed). 6 Defamation Act 1974 (NSW) s 15 (repealed). 7 See WJV Windeyer, ‘The Truth of a Libel’ (1935) 8 Australian Law Journal 319 at 323; Patrick George, Defamation Law in Australia, LexisNexis Butterworths, Chatswood, 2006, [3.4]; cf Paul Mitchell, ‘The Foundations of Australian Defamation Law’ (2006) 28 Sydney Law Review 477 at 494. 8 Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2006 (NT) s 22; Defamation Act 2005 (NSW) s 25; Defamation Act 2005 (Qld) s 25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25; Defamation Act 2005 (Vic) s 25; Defamation Act 2005 (WA) s 25. 9 Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (NSW) s 4; Defamation Act 2005 (Qld) s 4(1), Sch 5; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4.

CHAPTER 8 Defences to Defamation

For the purpose of determining substantial truth, minor inaccuracies do not defeat the defence of justification. However, anything more than minor inaccuracies will.10 Two cases— one actual, one hypothetical—illustrate this point.

Alexander v North Eastern Railway Co (1865) 6 B&S 340; 122 ER 1221

The plaintiff was a manufacturer from Leeds. He was convicted of failing to have a proper ticket and refusing to pay his fare. His penalty was a fine, in lieu of which he could serve 14 days’ imprisonment. In a circular, the North Eastern Railway Co stated that Alexander’s alternative sentence was three weeks’ imprisonment. In libel proceedings brought by Alexander against North Eastern Railway Co, the Court (Cockburn CJ, Blackburn, Mellor and Shee JJ) unanimously held that the company had justified its publication. The inaccuracy was not sufficient to defeat the defence.

Sutherland v Stopes [1925] AC 47

Copyright © 2015. Oxford University Press. All rights reserved.

LORD SHAW OF DUNFERMLINE (at 79): … If I write that the defendant on March 6 took a saddle from my stable and sold it the next day and pocketed the money all without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness room, and that he did not sell it the next day but a week afterwards, but nevertheless he did, without my knowledge or consent, sell my saddle so taken and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury notwithstanding these errors in detail.

The defendant needs to prove the substantial truth not only of the words themselves but also the substance of them.11 If a defamatory sting is factually complex, the defendant must prove the truth of the facts comprising the sting. The failure to prove the truth of one or more of those facts leads to the failure of the defence of justification.12 If a publication conveys multiple defamatory stings, the defendant must justify all of them. The failure to prove the truth of one or more of them likewise leads to the failure of the defence of justification.13

QUESTION 1 In Anglo-Australian defamation law, the defendant bears the onus of proof as to the truth of defamatory matter. In other jurisdictions, such as the United States, the plaintiff bears the onus of proof as to the falsity of the defamatory matter. What impact, if any, does this difference in the onus of proof have in practice?

10 Potts v Moran (1976) 16 SASR 284 at 306 per Bray CJ, SC(SA), Full Court. 11 Sutherland v Stopes [1925] AC 47 at 79 per Lord Shaw of Dunfermline; Howden v ‘Truth’ and ‘Sportsman’ Ltd (1937) 58 CLR 416 at 420 per Dixon J, at 424–25 per Evatt J. 12 Potts v Moran (1976) 16 SASR 284 at 305 per Bray CJ, SC(SA), Full Court. 13 Howden v ‘Truth’ and ‘Sportsman’ Ltd at 420 per Dixon J; Potts v Moran at 305 per Bray CJ, SC(SA), Full Court; Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 at [71] per Beazley JA.

223

224

PART 3 Defamation and the Protection of Reputation

8.1.3

Relevance of intention

The intention of the defendant, such as the subjective belief of the defendant in the truth of what he or she publishes, is irrelevant. It is the objective truth or falsity of the defamatory matter that is determinative of whether a defence of justification has been established.14

Case study: The hard truth

Copyright © 2015. Oxford University Press. All rights reserved.

In late January 2005, British supermodel Kate Moss sued The Sunday Mirror over a story it published, which suggested that she had collapsed in a ‘cocaine coma’ at a charity fashion show in Barcelona in June 2001. She also sued Channel Five over a documentary, The Truth About Kate Moss, which made substantially similar allegations. In late July 2005, Moss and The Sunday Mirror reached a settlement, under the terms of which the newspaper accepted the allegations were untrue, apologised in open court to Moss and paid her substantial, undisclosed damages.15 The Sunday Mirror was unable to justify the specific nature of the allegations it made against Moss. However, in mid-September 2005, The Daily Mirror—the weekday version of The Sunday Mirror—published on its front page a still image, taken from a video of Moss apparently preparing lines of cocaine for snorting, under the headline, ‘COCAINE KATE’. The picture told the story. Within days of publication, Moss had lost lucrative contracts with H&M, Chanel and Burberry.16 Given the relationship between the newspapers, the inference that one newspaper was exacting revenge for the other, or that they were engaged in a conspiracy, was drawn by some commentators.17 Although she initially attempted to continue her defamation proceedings against Channel Five, Moss eventually discontinued them.18 Moss’s reputation proved resilient and the damage done evanescent. The Observer estimated that Moss’s pre-scandal income was £4.5 million per year but that her post-scandal income had leapt to £11 million. Although she initially lost contracts, she later gained substantial ones with Bulgari, Roberto Cavalli, Calvin Klein, Longchamp, Stella McCartney, Nikon and Virgin Mobile.19 In 2006, Forbes magazine ranked Moss at number 77 on its ‘Celebrity 100’ list, with estimated earnings of US$8 million. Moss’s position was an increase of 13 places from the previous year’s list. As Lea Goldman observed: ‘Despite drug abuse scandal, waif’s pay went up in past year’.20 In 2007, Forbes magazine ranked Moss at number 74 on its ‘Celebrity 100’ list, with estimated earnings of US$9 million, observing that: ‘As fleeting cocaine scandal fades, superwaif keeps lucrative contracts with Burberry and Dior’.21

QUESTION 1 Media outlets often complain that the proof of the truth of defamatory matter is difficult. Why might this be so?

14 E Hulton & Co v Jones [1910] AC 20 at 24 per Lord Loreburn LC. 15 ‘Sunday Mirror Apologies over Moss Cocaine Story’, The Guardian, 27 July 2005, np; ‘Model’s Libel Win’, The Times, 28 July 2005, 25. 16 Jack Malvern, ‘Cocaine Rows Put Model Kate’s Career on the Line’, The Times, 16 September 2005, 27; Fiona Hudson, ‘How Wild Kate Came Crashing Down’, Herald-Sun, 24 September 2005, 1, 23; Tim Luckhurst, ‘The Crucifixion of Kate’, Independent on Sunday, 25 September 2005, 11. 17 Luckhurst, above n 16; Eric Pfanner, ‘The Mirror Strikes Back: Moss Story is Just the Latest in Tabloid Scuffle’, International Herald Tribune, 26 September 2005, 3, 10. 18 Annabel Crabb, ‘Model’s Drug Cases Collide’, Sunday Age, 5 February 2006, 11; Fiona Cummins, ‘Kate Pulls out of Cocaine Libel Case’, The Daily Mirror, 31 March 2006, 5; Stephen Brook, ‘Moss Drops Five Libel Action’, The Guardian, 31 March 2006, np. 19 Polly Vernon, ‘The Fall and Rise of Kate Moss’, The Observer, 14 May 2006, np. 20 Lea Goldman, ‘The Celebrity 100’, Forbes, 3 July 2006, Vol 178, Issue 1, np. 21 Lea Goldman, Monte Burke and Kiri Blakeley (eds), ‘The Celebrity 100’, Forbes, 2 July 2007, Vol 179, Issue 1, np.

CHAPTER 8 Defences to Defamation

8.2

The Polly Peck defence

8.2.1 Introduction

The defence of justification requires a defendant to prove the substantial truth of the meaning or meanings relied upon by the plaintiff. In certain circumstances, the common law may allow a departure from the rigours of this requirement. The Polly Peck defence is the most important way in which the common law might allow a defendant to succeed without proving the substantial truth of the meaning or meanings pleaded by the plaintiff. Derived from the English Court of Appeal decision extracted below, the Polly Peck defence is perhaps one of the most controversial aspects of Australian defamation law. In Woodham v John Fairfax Publications Pty Ltd, Nicholas J opined: One may well wonder whether Lord Justice O’Connor could ever have anticipated that for two decades gallons of ink would be spent in judicial and academic analysis of his judgment in Polly Peck to no certain conclusion.22

Copyright © 2015. Oxford University Press. All rights reserved.

In Herald & Weekly Times Ltd v Popovic, Gillard AJA noted that the Polly Peck defence was frequently pleaded but rarely successful.23 His Honour went further, suggesting: ‘Unfortunately, there is a trend in this State that defence counsel feel that unless they have pleaded a Polly Peck defence, they have not done their job.’24 As the extract below demonstrates, the Polly Peck defence seeks to allow a defendant not to justify the meanings pleaded or particularised by the plaintiff, but rather to extract a ‘common sting’, at a higher level of abstraction, from the plaintiff’s meanings and to justify that ‘common sting’. It is sometimes conflated or confused with the Lucas-Box defence,25 derived from the English Court of Appeal’s decision in Lucas-Box v News Group Newspapers Plc.26 A Lucas-Box defence seeks to allow a defendant to deny the meaning pleaded or particularised by the plaintiff and to plead an alternative meaning.27 Both the Polly Peck and the Lucas-Box defences involve disputes between the parties as to the meaning to be attributed to the matter.

Polly Peck (Holdings) Plc v Trelford [1986] QB 1000

[The appellants, Asil Nadir and three of his companies, Polly Peck (Holdings) Plc, Wearwell Plc and Cornell Holdings Plc, brought defamation proceedings against Donald Trelford and The Observer Ltd, the editor and the publisher respectively of The Observer newspaper. They claimed that the whole or part of three articles in The Observer newspaper conveyed imputations of deceiving or negligently misleading shareholders. Trelford and The Observer Ltd relied upon the defences of fair comment and justification. In support of their defences, they provided particulars canvassing a range of issues, such as the profitability of Wearwell’s citrus fruit

22 (2005) Aust Torts Reports ¶81–822 at 68,152 per Nicholas J, SC(NSW). 23 (2003) 9 VR 1 at 62. 24 Ibid. 25 See, for example, Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 24 per Miles CJ; Sands v Channel Seven Adelaide Pty Ltd (2005) 91 SASR 466 at 478 per White J. See also Anthony JH Morris, ‘Polly Peck Defence: Its Future in Australia’ (2000) 74 Australian Law Journal 760 at 762. 26 [1986] 1 All ER 177; [1986] 1 WLR 147. 27 Lucas-Box v News Group Newspapers Plc [1986] 1 All ER 177; [1986] 1 WLR 147 at 151–53 per Ackner LJ.

225

226

PART 3 Defamation and the Protection of Reputation

exports, the prospects for Polly Peck’s Turkish television venture and the state of Polly Peck’s accounts. The appellants applied to have those particulars struck out which did not relate to the meanings upon which they relied. At first instance, Topley M dismissed the application. An appeal to Nolan J was unsuccessful. The appellants appealed to the Court of Appeal.] O’CONNOR LJ (at 1132): I am now in a position to state my conclusions. In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea, as he is required to do by RSC, Ord 82. It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain. Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification. Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication. What I have said in the context of justification can be applied by a parity of reasoning to fair comment, subject to what I say at the end of this judgment. In all cases it is the duty of the court to see that the defendant, in particularising a plea of justification or fair comment, does not act oppressively. Whether the particularisation of the plea is oppressive depends not only on the facts of each case, but also on the attitude of the plaintiff. I say this because a plaintiff can limit the extent and cost of inquiry at trial by making timely admissions of fact. Appeal dismissed. [Robert Goff and Nourse LJJ agreed with O’Connor LJ.]

Copyright © 2015. Oxford University Press. All rights reserved.

8.2.2 The Polly Peck defence in Australia The Polly Peck defence has been highly controversial in Australia. Initially, the Polly Peck defence was accepted as part of Australian defamation law.28 However, in their influential dicta in Chakravarti v Advertiser Newspapers Ltd, Brennan CJ and McHugh J trenchantly criticised the Polly Peck defence.

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519

[Manobendro Chakravarti was a former director of the State Bank of South Australia. He sued the Advertiser newspaper for defamation, arising out of two reports of evidence given before a royal commission into the near collapse of the bank. The first article alleged that the Chairman of the bank gave evidence relating to four bank executives. In fact, the evidence only related to two, not including Chakravarti. The second article suggested criminal conduct being committed in relation to a joint venture in Melbourne, with

28 Kennett v Farmer [1988] VR 991 at 1000 per Nathan J; National Mutual Life Association of Australasia Pty Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 768–69 per curiam; Kelly v Special Broadcasting Service [1990] VR 69 at 72–74 per Murphy J; TWT Ltd v Moore (1991) 105 FLR 350 at 355 per Higgins J; Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 21–24 per Miles CJ.

CHAPTER 8 Defences to Defamation

which Chakravarti was not in fact involved. Chakravarti wrote to the Advertiser, seeking to have the stories corrected. However, the Advertiser refused to publish his letters. At first instance, the trial judge found in favour of Chakravarti. On appeal, the Full Court of the Supreme Court of South Australia found in favour of Advertiser Newspapers. Chakravarti appealed, and Advertiser Newspapers cross-appealed, to the High Court of Australia.] BRENNAN CJ and McHUGH J (at 526): [6] The second matter arising out of the judgment of Gaudron and Gummow JJ concerns a defendant pleading and justifying meanings which the plaintiff has not pleaded. Since the decision of the English Court of Appeal in Polly Peck Plc v Trelford, courts in England and Australia have sanctioned a practice of permitting a defendant to (527) plead a meaning different from that contended for by the plaintiff and then justifying that different meaning. [7] The authority for this practice is found in the judgment of O’Connor LJ in Polly Peck … [8] With great respect to his Lordship, such an approach is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action. Leaving aside technical pleas such as pleas in abatement, defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of not guilty. Under the principles of pleading at common law, it could tender no issue and (528) would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant’s plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication. In our view, the Polly Peck defence or practice contravenes the fundamental principles of common law pleadings. In general it raises a false issue which can only embarrass the fair trial of the actions. This was the view of the Court of Common Pleas in Bremridge v Latimer. In Bremridge Byles J, a common law judge of great authority, said:

Copyright © 2015. Oxford University Press. All rights reserved.

The law is plain that, if you wish to dispute the sense given to the words in the libel, you must do so by the plea of not guilty, and, if you wish to justify, you must confess and avoid … Now, the issue raised by these pleas is plainly calculated to prejudice the plaintiff, who has a right to have the charge of ‘treachery’ tried, and not to be compelled to take part in an irrelevant inquiry.

[9] A similar view was taken by Blackburn J, another great common law judge, in Watkin v Hall where his Lordship said: I think the decision in Bremridge v Latimer correct, because in that case a portion of a newspaper article being set forth in the declaration, with an innuendo, the defendant endeavoured to shew that if the whole article was taken, the plaintiff would have had a different cause of action, and he sought, by his plea, to set out the whole article, and, so, to justify it as true in fact. That was a matter utterly irrelevant to the question at issue, whether he had published the libel charged in the declaration. The Court of Common Pleas refused to allow the plea.

… (529) [11] [Following an extract from Templeton v Jones [1984] 1 NZLR 448] This passage highlights what we regard as the fundamental defect in the reasoning in Polly Peck. Cooke J rejected the notion that the defendant can take severable parts of a publication each containing defamatory imputations, link them together, and give the publication a meaning at a sufficiently high level of abstraction to subsume the meanings of the severable parts. That is, a defendant cannot take a part of an article that wrongly alleges that the plaintiff has convictions for dishonesty and a part that imputes that the plaintiff has defrauded shareholders, assert that the article means that the plaintiff is dishonest, and then justify that meaning, perhaps by proving that the plaintiff had in fact defrauded the shareholders. On that hypothesis, it would be outrageous if the defendant could obtain a finding that the article was true in substance and in fact

227

228

PART 3 Defamation and the Protection of Reputation

when it plainly was not. Yet that is the sort of finding that must result from applying the central proposition of Polly Peck. That proposition is that: The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting.

[12] This proposition is contrary to the principle stated by Gatley on Libel and Slander which was approved by Evatt J in Howden v ‘Truth’ and ‘Sportsman’ Ltd. That principle is: The plea of justification must be not only as broad as the literal language of the libel, but as broad as the inferences of fact necessarily flowing from the literal language.

[13] No injustice is done by holding a defendant to the fundamental principles of pleading by requiring a defence to respond to the statement of claim. The Rules of the Supreme Court of South Australia require that a defence ‘specifically admit or deny every allegation of fact (including particulars) in the pleading to which the defence … (530) relates, and allegations which are not specifically denied shall be deemed to be admitted’. The rules thus confirm the common law principle that the defence must plead to the allegations in the statement of claim. Although the rules also require that a party should ‘specifically plead any fact or matter which raises issues of fact or any mixed question of fact and law not arising out of the preceding pleading’ (r 46.12(4)(c)), the issues to which this rule applies do not include issues which are irrelevant or embarrassing. [Gaudron and Gummow JJ, and Kirby J in a separate judgment, were willing to allow a greater degree of latitude in departing from the pleaded meanings than Brennan CJ and McHugh J.]

Copyright © 2015. Oxford University Press. All rights reserved.

8.2.3 The Hore-Lacy defence The divergent views of the judges in Chakravarti v Advertiser Newspapers Ltd, particularly the strong criticisms of the Polly Peck defence by Brennan CJ and McHugh J, necessitated a reconsideration of the status of the Polly Peck defence under Australian law. In David Syme & Co Ltd v Hore-Lacy, which is relevantly extracted below, the Victorian Court of Appeal sought to reconcile the differing views expressed in Chakravarti. In doing so, it created a narrower, indigenous version of the Polly Peck defence, which has come to be known by the shorthand term, the Hore-Lacy defence.

DAVID SYME & CO LTD v HORE-LACY (2000) 1 VR 667

[The plaintiff was the then President of the Fitzroy Football Club. He brought defamation proceedings against The Age newspaper over an article he alleged claimed that he lied about the state of the club’s financial affairs. The Age pleaded justification. The trial judge, Hedigan J, struck out part of its defence, as well as its particulars of justification. The Age appealed to the Victorian Court of Appeal.] ORMISTON JA (at 673): Allowing for the fact that Brennan CJ and McHugh J would permit cases to go to verdict where there are differences in nuance of meaning not considered embarrassing or prejudicial, the questions which remained unresolved are how the jury should be instructed and how far a judge may go beyond either the pleaded imputations or those imputations which are explicitly relied on at trial which the judge permits to be considered either by the jury or by himself or herself as the tribunal of fact. For the purpose of the present appeal, however, the largely dissenting expressions of opinion by Brennan CJ and McHugh J, though pertinent in many respects, cannot overcome the view of the majority that the tribunal of fact in a libel action is not confined strictly to the false innuendoes asserted by the plaintiff whether in pleading or in argument …

CHAPTER 8 Defences to Defamation

(675) It would therefore seem desirable, if it was not already required by authority, both that defendants should plead the meanings by way of false innuendo or imputation which they place upon the publication relied upon and that they should plead justification in terms which makes clear the version or versions of meaning of the publication to which that justification is directed. Whatever criticisms the minority levelled at the practice, it seems fortunately restricted to defamation actions and Chakravarti would at least restrict the extent to which imputations and false innuendoes which depart from those pleaded may be relied upon at trial. It would seem, moreover, that even the majority would permit a very limited departure from the case pleaded by the plaintiff; in other words, the jury will have to be told that they cannot find for the plaintiff unless they agree with the meaning or one of the meanings put forward on behalf of the plaintiff, or unless the meaning they would give the publication was only a nuance or variant, not substantially different or more serious from that proposed by the plaintiff. If that be correct, then a defendant should not need to, nor be permitted to, plead or rely on a meaning other than one which is not more serious and otherwise is not substantially different. Unfortunately, defamation actions are frequently cases of considerable subtlety. Again, unfortunately, many articles in the press (or elsewhere) these days are devised on the “no smoke without fire” premise, so that many allegations take a form which might be construed by the jury as alleging highly improper activity though on detailed analysis the elements (676) of the allegation would appear less serious. It is this sort of case which might go to the jury with the plaintiff pleading imputations of high impropriety and the defendant asserting that its meaning referred to less serious peccadillos which it wished to justify. The “smoke” could therefore be justified but it would remain for the jury (or judge) to decide whether the imputation was still one of “fire”. Particulars of a plea of truth of the less serious imputations of “smoke” would appear to be either bad or irrelevant if the only allegations on the record are the plaintiff’s imputations of “fire”, unless the defendant’s case of “smoke” explicitly forms part of its pleading.

Copyright © 2015. Oxford University Press. All rights reserved.

8.2.4

The current status of the Polly Peck and Hore-Lacy defences in Australia

The Polly Peck and Hore-Lacy defences have had a mixed reception in Australia. There was an outright rejection of the Polly Peck defence in Queensland.29 Given that the imputation was the cause of action under the Defamation Act 1974 (NSW) s 9 (repealed), it was widely thought or assumed that the Polly Peck defence had no scope for operation in that jurisdiction. In John Fairfax Publications Pty Ltd v Zunter, Handley JA expressed the view that the Polly Peck defence was not part of the common law of Australia.30 However, subsequently, in Li v Herald & Weekly Times Pty Ltd, Gillard J suggested that the Polly Peck defence was still a part of defamation law in that state.31 There is clearly a deep division of judicial opinion across Australia as to the existence and scope of the Polly Peck defence.32 The Hore-Lacy defence has gained wider, but not universal, acceptance. Intermediate appellate courts in Victoria, South Australia and Western Australia have endorsed the HoreLacy defence.33 Following the introduction of the national, uniform defamation laws, there 29 30 31 32

Robinson v Laws [2003] 1 Qd R 81. [2006] NSWCA 227 at [42]. (2007) Aust Torts Reports 81–887 at 69,502. Reflecting the lower level of defamation litigation in these jurisdictions, there have been few considerations of the place of the Polly Peck defence in the Northern Territory and Tasmania. As to the position in the Northern Territory, see Hart v Wrenn (1995) 5 NTLR 17. As to the position in Tasmania, see Caccavo Daft [2006] TASSC 36. The position in the Australian Capital Territory is somewhat more developed. See, for example, John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108; Betfair Ltd v Nason [2006] ACTSC 11. 33 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387.

229

230

PART 3 Defamation and the Protection of Reputation

have been decisions of the New South Wales Court of Appeal seeming to accept the HoreLacy defence as part of New South Wales defamation law.34 However, recently, in Bateman v Fairfax Media Publications Pty Ltd, McCallum J held that the Hore-Lacy defence or pleading was inconsistent with New South Wales defamation law pleading practice and procedure.35 The vexed issue of the precise status of the Polly Peck and Hore-Lacy defences under Australian law is one that awaits direct consideration and final resolution by the High Court of Australia.

Case study: Khashoggi v IPC Magazines Plc [1986] 3 All ER 577; [1986] 1 WLR 1412 The plaintiff, Soraya Khashoggi, was the former wife of Adnan Khashoggi, the Saudi Arabian plutocrat. The defendant publisher, IPC Magazines Ltd, published an article under the headline ‘What makes you divorce the richest man in the world’ in its title, Woman’s Own. Khashoggi obtained an interim injunction restraining publication. IPC Magazines sought to have the injunction discharged. Khashoggi complained only that the article falsely asserted that she had an extramarital affair with the named president of another nation. She did not complain about any of the other specific allegations in the article, which, in the words of Sir John Donaldson MR, were ‘capable of carrying the meaning that she was a lady of considerable enthusiasm’ (at 578 (All ER); at 141 (WLR)). The Court of Appeal held that IPC Magazines was entitled to examine all the stings conveyed by the article, including those not relied upon by Khashoggi, and to elicit a common sting of promiscuity and to seek to justify it. The Court discharged the injunction.

QUESTIONS 1 2 3 4

Copyright © 2015. Oxford University Press. All rights reserved.

8.3

8.3.1

What is meant by the Polly Peck defence? How does it differ from the Hore-Lacy defence? In what circumstances might these defences be properly raised? What are the objections to the Polly Peck defence? How convincing do you find them? Should the Polly Peck or the Hore-Lacy defence be accepted as part of Australian defamation law?

Contextual truth

Statutory defence of contextual truth

The national, uniform defamation laws introduce a statutory defence of contextual truth in the terms set out below.36 It is similar to the statutory defence of contextual truth that operated under the Defamation Act 1974 (NSW) s 16 (repealed). It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (‘contextual imputations’) that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 34 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at 541 per McColl JA; Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 at 172 per McColl JA; Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 at [153]–[156] per McClellan CJ at CL. 35 [2014] NSWSC 1380 at [49]–[50]. 36 Civil Law (Wrongs) Act 2002 (ACT) s 136; Defamation Act 2006 (NT) s 23; Defamation Act 2005 (NSW) s 26; Defamation Act 2005 (Qld) s 26; Defamation Act 2005 (SA) s 24; Defamation Act 2005 (Tas) s 26; Defamation Act 2005 (Vic) s 26; Defamation Act 2005 (WA) s 26.

CHAPTER 8 Defences to Defamation

8.3.2

The operation of the defence of contextual truth

The operation of the statutory defence of contextual truth is well explained by Hunt J (as his Honour then was) in the following extract from Jackson v John Fairfax & Sons Ltd. The judgment relates to the Defamation Act 1974 (NSW) s 16 but, with the exception of the requirement of public interest under that provision, his Honour’s analysis is applicable to the current provision.

Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36

Copyright © 2015. Oxford University Press. All rights reserved.

[The Australian Financial Review, a newspaper published by John Fairfax & Sons Ltd, printed a story about the plaintiff, Mr Jackson, alleging that he had been charged with conspiracy to cheat and defraud and aiding and abetting in the commission of a criminal offence. At the time the report was published, the charge had been withdrawn. Jackson brought defamation proceedings against John Fairfax & Sons, alleging that the article conveyed the imputation that he had conducted himself so as to warrant suspicion of, or belief in, his guilt or the laying of the charge against him. John Fairfax & Sons raised a defence of contextual truth, alleging that the article conveyed the contextual imputation that Jackson had behaved at one time so as to warrant such reactions at that time.] HUNT J (at 38): It is perhaps appropriate that I should at this stage describe a little more fully the defence of contextual truth, introduced by the 1974 Act (s 16), and relied upon in this case. It has not, so far as I am aware, been the subject of any judicial or other exegesis, notwithstanding the years which have passed since that Act came into operation. Its origin was the (UK) Defamation Act, 1952, s 5; but its effect is much wider and its expression is more elaborate. (39) The defence of contextual truth accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence has been established in relation to that imputation; it asserts that the imputation pleaded by the defendant is also conveyed by the matter complained of (such imputation being called the contextual imputation); the defence then asserts that, even though the plaintiff’s imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant’s contextual imputation upon the plaintiff’s reputation that the publication of the imputation of which he complains did not further injure his reputation. An easy example is the publication which describes the plaintiff (falsely) with having been charged with a criminal offence and which, by reason of additional material, also imputes (truly) that he is guilty of such offence. If the plaintiff sued and complained only of the imputation conveyed by the assertion that he had been charged with that offence, it would be open to the defendant, in accordance with s 16, to plead the contextual imputation that the plaintiff was in fact guilty of such an offence and that such contextual imputation was substantially true. Assuming that the contextual imputation also related to a matter of public interest or was published under qualified privilege, the defendant would succeed in the action complaining of the publication of the imputation pleaded by the plaintiff (and based upon the untrue assertion that he had been charged) if the jury were satisfied that, by reason of the substantial truth of the defendant’s contextual imputation, the untrue imputation pleaded by the plaintiff did not further injure his reputation. In coming to that decision, the jury would be required to weigh or to measure the relative worth or value of the several imputations pleaded by both the plaintiff and the defendant. There is little doubt that in this example the jury would find that, by reason of the substantial truth of the contextual imputation pleaded by the defendant, that pleaded by the plaintiff did not further injure his reputation. At the other end of the scale is the publication which describes the plaintiff (falsely) as a blackmailer and (truly) as having unlawfully remained in the country on an expired visa. If the plaintiff sued and complained only of the assertion that he was a blackmailer, a defence of contextual truth based upon the imputation that the plaintiff was an illegal immigrant would be doomed to failure. It would, in my view, be open to

231

232

PART 3 Defamation and the Protection of Reputation

Copyright © 2015. Oxford University Press. All rights reserved.

the trial judge in such circumstances to take such a defence away from the jury because there would be no rational basis upon which the jury could find in favour of the defendant. It is always for the judge to rule in regard to any particular issue whether there is a case to go to the jury: Jones v Skelton (1963) 63 SR (NSW) 644, at p 656; 80 WN 1061, at p 1070. In between these two extremes there must, of course, be many degrees. If the publication described the plaintiff (falsely) as a share swindler and (truly) as a rapist, the jury could well have considerable difficulty in weighing or measuring the relative worth or value of the two imputations conveyed. In those circumstances, it seems that the trial judge would be obliged to leave the issue to the jury. (I should make it clear that I have left completely to one side any question of partial justification apart from s 16: see Plato Films Ltd v Speidel [1961] AC 1090, at pp 1142, 1143.) It is, in my view, basic to the scheme of s 16 that both of the imputations in question (that is, the imputation pleaded by the plaintiff and (40) the contextual imputation pleaded by the defendant) must be conveyed by the matter complained of at the same time and that each must differ in substance from the other. This is fundamental to the whole operation of the 1974 Act. If the plaintiff’s imputation to which the defence of contextual truth is pleaded is rejected by the jury as not being the sense in which the matter complained of was understood by the ordinary reasonable reader, there must be judgment for the defendant (assuming that that is the only imputation relied upon by the plaintiff), and the defence of contextual truth never arises for consideration. It follows, therefore, that both imputations must be conveyed by the matter complained of before any question of contextual truth can arise. Unless both imputations are conveyed at the same time to the same ordinary reasonable reader, the jury will be unable to weigh or to measure the relative worth or value of the several imputations contended for by both parties. Moreover, as the imputation pleaded by the plaintiff must be taken to include all other imputations which do not differ from it in substance (Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, at p 771), it follows that each party’s imputation must differ in substance from that relied upon by the other. From this discussion, it is apparent that the following issues of law will arise in relation to a defence of contextual truth (it having already been found that the matter complained of is capable of conveying the imputation pleaded by the plaintiff to which the defence of contextual truth is pleaded by the defendant): (1) Does the contextual imputation relied upon by the defendant differ in substance from that pleaded by the plaintiff? (2) Is the contextual imputation capable of being conveyed by the matter complained of at the same time as and in addition to the imputation pleaded by the plaintiff? (3) Is the nature of the contextual imputation such that its substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff’s reputation that the imputation of which the plaintiff complains did not further injure that reputation? (4) Is there evidence upon which the jury could find that the contextual imputation is substantially true?

8.3.3

The practice of ‘pleading back’

Under the Defamation Act 1974 (NSW) s 16, the practice developed whereby a defendant ‘pleaded back’ the plaintiff’s imputations as part of its defence of contextual truth.37 If the defendant were able to justify some, but not all, of the plaintiff’s imputations, he or she could then rely on those justified imputations as part of its defence of contextual truth. In Hepburn v TCN Channel Nine Pty Ltd, Hunt J described the practice of ‘pleading back’ as ‘the whole purpose of the defence of contextual truth’.38 Initially, it was assumed that the practice of ‘pleading back’ would continue under the national, uniform defamation laws.39 37 Allen v John Fairfax & Sons Ltd (unreported, SC(NSW), Hunt J, 2 December 1988) at 14. 38 [1984] 1 NSWLR 386 at 397. 39 See, for example, Corby v Channel Seven Sydney Pty Ltd (unreported, SC(NSW), 20 February 2008) at [19]–[21] per Nicholas J.

CHAPTER 8 Defences to Defamation

However, this position was challenged in Fairfax Media Publications Pty Ltd v Kermode, which is relevantly extracted below.

FAIRFAX PUBLICATIONS PTY LTD v KERMODE (2011) 81 NSWLR 157

Copyright © 2015. Oxford University Press. All rights reserved.

[Taxi entrepreneur, Reg Kermode, brought defamation proceedings against The Sydney Morning Herald and journalist, Linton Besser, over print and online stories about him. He claimed that the stories alleged that he had improperly influenced politicians and public servants to obtain financial benefits and that he had acted improperly by making donations to the Australian Labor Party to protect his financial interests. Fairfax Media Publications and Besser sought to rely on the defence of contextual truth, inter alia, and plead back Kermode’s own imputations as part of that defence. Kermode objected to this approach. At first instance, Simpson J held that the practice of ‘pleading back’ was impermissible under the national, uniform defamation laws. Fairfax Media Publications and Besser appealed to the New South Wales Court of Appeal.] McCOLL JA (at 177): [75] The history of the adoption of uniform laws of defamation in Australia makes it clear that the 2005 Act was a compromise between the common law and statutory jurisdictions. Significantly for present purposes, New South Wales gave up the s 9 imputation cause of action as well as the qualifications of public interest and qualified privilege attached to the defences of truth (s 15, 1974 Act) and contextual truth (s 16, 1974 Act). Without being exhaustive as to the changes the 2005 Act effected to the law of defamation in this State, the common law now governs the identification of the cause of action (s 8, 2005 Act) and all common law defences are retained (s 6(2), s 24). Section 26 uses different language from s 16, language repeated in the defence of contextual truth in all other States and Territories’ defamation legislation. [76] It is apparent from the foregoing analysis of the justification defence at common law and under the 1974 Act that it is not appropriate to seek to discern the purpose or proper construction of s 26 from s 16 jurisprudence. While the conceptual foundation for the contextual truth defence which became s 16 to some extent informs an understanding of s 26, it cannot be decisive as to its operation in the context of the 2005 Act. [77] The shift from the defamatory imputation to the defamatory matter as the cause of action sets the context for understanding s 26. This is first apparent from the direction in s 26 to there being in the circumstances there provided a “defence to the publication of defamatory matter”. This refers to the single cause of action constituted by the publication of such matter “even if more than one defamatory imputation about the person is carried by the matter”: s 8, 2005 Act. It is language repeated, as I have earlier remarked, in each other defence under the 2005 Act. In contrast, a defence under s 16 (and s 15) of the 1974 Act went to the “imputation complained of”. [78] This markedly different language highlights the sea-change the 2005 Act has wrought to defamation law in this State. Although s 26 created a new defence for all Australian jurisdictions other than this State, it is framed by s 8 in terms of the common law cause of action. A defence of contextual truth must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, (178) that is to say all of the plaintiff’s stings: see [ 47 ] above. Thus s 26 postulates that the defence of contextual truth must carry contextual imputations “in addition to” those “of which the plaintiff complains”. [79] Secondly, when the tribunal of fact comes to the weighing exercise the contextual truth defence entails (see [73], s 26(b)) it must be able to conclude that because of the substantial truth of the contextual imputations “the defamatory imputations”—that is to say the plaintiff’s cause of action—do not further harm the plaintiff’s reputation. Once again the focus is on comparing the defendant’s contextual imputations with the plaintiff’s cause of action. [80] Thirdly, the use of the definite article in both sub-paragraphs of s 26 (“the defamatory imputations”) focuses attention on the plaintiff’s imputations as a group—emphasising that the defence has to respond to all the plaintiff’s imputations (cause of action). In contrast, s 16 of the 1974 Act used the indefinite article, directing the defence to “any imputation complained of”, thus permitting the pleading-back of any other of a plaintiff’s imputations to another.

233

234

PART 3 Defamation and the Protection of Reputation

[81] Fourthly, the words “in addition to …”, as the primary judge pointed out (at [38], [40]), correctly in my view, cannot be “contorted to include imputations pleaded by the plaintiff”. To conclude that the phrase “in addition to … etc” connotes an imputation the plaintiff has not relied upon does no more than ascribe its ordinary meaning to it. This is reinforced by the use, in the same paragraph (s 26(a)) of further alternative language emphasising the distinction between the plaintiff’s and the defendant’s imputations: “one or more other imputations…”, the latter being defined as the “contextual imputations”. Kaye J took the same approach to the construction of s 26 in the Defamation Act 2005 (Vic) in Newnham v Davis (No. 2) [2010] VSC 94 (at [48])—where the point presently under consideration did not arise. [82] Finally, I do not discern any legislative intention in the extrinsic materials to which I have referred that the s 26 defence was to continue the pleading-back practice which prevailed under s 16 of the 1974 Act. Rather, in my view, the structure of the 2005 Act and the language of s 26 belie any such intention. The New South Wales Attorney General said, in the Second Reading Speech to the Bill which became the 2005 Act, in reference to cl 26 that there would be a defence of contextual truth under the 2005 Act, that there had been one under the 1974 Act and that “[t]he purpose of the defence [was] basically to prevent plaintiffs from taking relatively minor imputations out of their context within a substantially true publication”. That position is still open under s 26. [83] Nor, with respect, would I take any comfort from the Explanatory Note to conclude, as did the primary judge (at [32]), that that note suggested “that the intention of the NSW Legislature was, effectively, to re-enact s 16, with appropriate modifications to reflect the variations effected to the defence of truth.” Rather, the Explanatory Note (at [35] above) suggested that the proposed contextual truth defence created a new position for States and Territories in which hitherto, as I have explained, only “nuance” imputations could be pleaded by defendants. That new position overcame the common law deficiency discussed above. Appeal dismissed. [Beazley and Giles JJA concurred.]

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 What are the possible consequences of the New South Wales Court of Appeal’s decision in Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157? How might this case affect the way that plaintiffs plead their cases in the future? What impact might this have on the defences which might be raised? 2 Does the statutory defence of contextual truth require legislative reform? Could the problem identified in Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 be overcome by adopting a different interpretation of the statutory provision?

8.3.4

The interaction between the statutory defence of contextual truth and the Polly Peck defence

Given that the statutory defence of contextual truth is a variant of the defence of justification, there is a live issue as to how it might interrelate with the Polly Peck defence. This was usefully considered by Simpson J in the following extract from Jones v John Fairfax Publications Pty Ltd.

Jones v John Fairfax Publications Pty Ltd (2005) 67 NSWLR 434

[Prominent radio broadcaster, Alan Jones, brought defamation proceedings against John Fairfax Publications Pty Ltd in respect of an article published in The Sydney Morning Herald. John Fairfax Publications sought to amend its defence.]

CHAPTER 8 Defences to Defamation

SIMPSON J (at 444):

The Polly Peck defence

Copyright © 2015. Oxford University Press. All rights reserved.

[49] To my knowledge it has never previously been suggested that a Polly Peck defence is available in New South Wales, operating in tandem with s 16. At least, I was referred to no authority on the subject. The usual approach has been that s 16 represents the entirety of New South Wales law with respect to a defendant’s entitlement to defend a claim in defamation by relying upon the substantiation of imputations other than those pleaded by the plaintiff. [50] It would be an understatement to say that the decision in Polly Peck has not commanded universal admiration in Australia: see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 526 [6]; David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; Woodger v Federal Capital Press of Australia Pty Ltd (1992) 106 FLR 183 at 188. However, it has on many occasions been (445) applied in Australian jurisdictions and no superior court has ever held that it is, in respect of any Australian jurisdiction, bad law: see the discussion by Levine J in Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at 100 [40]–[53]. Notwithstanding the absence of any authoritative pronouncements as to the availability of a Polly Peck defence in New South Wales, there is good reason why, under the Act, the consensus has been that it is excluded for New South Wales. [51] In Polly Peck, it was made clear that under the principles there stated a defendant may not do what s 16 of the Act explicitly permits a defendant to do in New South Wales: that is, rely upon publication of an imputation different in kind or in substance from that sued upon by the plaintiff, and, by justifying that other imputation, showing that publication of the plaintiff’s imputation did not further injure the plaintiff’s reputation. O’Connor LJ wrote in Polly Peck (at 1032): ‘Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.’ [52] What Polly Peck permits a defendant to do is to identify such alternative meanings as it would have been open to the plaintiff to rely upon (even if the plaintiff has not done so) and seek to justify those meanings. This is really a way of saying that the defendant may identify and justify shades and gradations of the imputation(s) pleaded by the plaintiff, but may not defend the claim by identifying and justifying imputations of a different character: Manock v Advertiser News-Weekend Publishing Co Ltd (2004) 88 SASR 495 at 514 [54]. Or, on the Polly Peck approach, a defendant may identify a ‘common sting’ of a publication and seek to justify that sting. Or the defendant may take issue with the meaning attributed to the words in the publication by the plaintiff and seek to establish that the words published bear a different meaning and that in that meaning, the words are true. In the paragraph immediately preceding that just extracted, O’Connor LJ also wrote (at 1032): … In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true …

[53] What the defendant may not do under Polly Peck is to identify a defamatory imputation or imputations additional to, or ‘separate and distinct’ from, that or those attributed to the publication by the plaintiff, and seek to justify that imputation or those imputations. Yet that is precisely what s 16 permits a defendant in New South Wales to do. [54] Put another way, and using language more familiar in the New South Wales defamation law, what Polly Peck permits a defendant to do is to seek to justify an imputation or imputations not different in substance from that or those pleaded by the plaintiff. This can have no application in New South Wales. By the Supreme Court Rules, Pt 67, r 11(3), a plaintiff is not permitted to rely upon two or more imputations ‘unless the imputations differ in substance’ (emphasis added). In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771, the Court of Appeal held: ‘Upon the proper construction of the rules, (446) an imputation specified in a statement of claim must be taken to include all imputations which do not differ in substance.’ [55] This leaves no room in New South Wales for the application of Polly Peck principles. Just as a plaintiff may rely upon the different shades and gradations of meanings in imputations so long as those

235

236

PART 3 Defamation and the Protection of Reputation

shades and gradations do not differ in substance, so, too, may a defendant seek to justify the various shades and gradations of meaning of those imputations. [56] Nor, given the way in which defamation proceedings are conducted, under New South Wales law, would it be possible to a defendant to: ‘… aver that in their context the words bear a meaning different from that alleged by the plaintiff’ and that in that meaning what was published was substantially true. That is because, pursuant to s 7A(3), the jury has already determined that the meaning attributed to the publication by the plaintiff was conveyed. The defendant is bound by that determination. [57] And it is completely alien to the New South Wales process to suggest that a defendant might identify ‘a common sting’ and seek to justify that common sting. That is quite contrary to the process that requires a plaintiff to identify the imputation or imputations which he or she alleges are conveyed, and to sue on that or those as the cause of action. [58] Implicit in the defendants’ written submissions is a recognition of the difficulties they face in relying on a Polly Peck defence in New South Wales. They therefore argued that, for constitutional reasons, and notwithstanding the implications of the Act, the defence is available in New South Wales. I will return to this argument.

QUESTION 1 Given that there is now a statutory defence of contextual truth enacted across Australia under the national, uniform defamation laws, is there still any scope for the Polly Peck defence?

8.4

Copyright © 2015. Oxford University Press. All rights reserved.

8.4.1

Absolute privilege

Absolute privilege—the common law position

In certain, recognised circumstances, defamation law allows a defendant to avoid liability for what would otherwise be defamatory on the basis that the occasion on which the matter is published is one where the public interest in the protection of freedom of expression or the protection of publication outweighs the public interest in the protection of reputation. Such an occasion is referred to as privileged. There are two types of privilege—absolute privilege and qualified privilege. Publication on an occasion of absolute privilege means that the defendant has complete protection from liability in defamation. Absolute privilege cannot be abused or lost by the defendant’s improper motive. The defendant’s improper motive in publication is irrelevant if a publication occurs on an occasion of absolute privilege. This may be contrasted with qualified privilege, where the privilege is qualified in the sense that the benefit of the defence may be lost if the defendant abuses the occasion by acting for an improper motive. The background to the common law defence of absolute privilege is explained by the joint judgment of Brennan CJ, Dawson, Toohey and Gaudron JJ in Mann v O’Neill, relevantly extracted below.

Mann v O’Neill (1997) 191 CLR 204

[Dr Arnold Mann was an unsuccessful litigant in the Small Claims Court in the Australian Capital Territory who had appeared before the magistrate, James O’Neill. Mann wrote to the Commonwealth Attorney-General, the Chief Magistrate and the Minister for Justice, questioning O’Neill’s mental capacity. O’Neill commenced defamation proceedings against Mann in the Supreme Court of the Australian Capital Territory. The

CHAPTER 8 Defences to Defamation

Copyright © 2015. Oxford University Press. All rights reserved.

proceedings were later transferred to the Federal Court of Australia. At first instance, Heerey J found that the letters were covered by the defence of absolute privilege. By majority, an appeal to the Full Federal Court (Beaumount and Ryan JJ, Carr J dissenting) was allowed. Mann appealed to the High Court of Australia.] BRENNAN CJ, DAWSON, TOOHEY AND GAUDRON JJ (at 211): It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that (212) it extends to any document published on an ‘occasion properly incidental [to judicial proceedings], and necessary for [them]’. It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act ‘in a manner similar to that in which a Court of justice acts’. Various considerations are relevant to the question whether proceedings are quasi-judicial. However, the overriding consideration is ‘whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern’. The privilege extends to members of tribunals and to ‘advocates, litigants, and witnesses’. And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings. It is sometimes said that absolute privilege is founded on public policy considerations. It may be that, so far as concerns communications between officers of State in the course of their official duties, absolute privilege attaches by reason of broad considerations of (213) public policy and convenience. However, a more precise basis was identified for that aspect of the privilege in Gibbons v Duffell, it being said in that case that absolute privilege attaches because it is ‘indispensable to the effective performance of … official functions.’ Whatever the position with respect to communications between officers of State, absolute privilege attaches to statements made in the course of parliamentary and judicial proceedings for reasons of necessity. Thus, it has been said that absolute parliamentary privilege arises from ‘inherent necessity’. And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the ‘safe administration of justice’. It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’. Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the (214) kind that dictates that judicial proceedings are absolutely privileged. And it is that consideration that leads to the rejection of the argument that absolute privilege attaches to the letter to the Attorney-General because it is analogous to a notice of appeal.

QUESTIONS 1 In what circumstances might a defence of absolute privilege arise? How extensive are occasions of qualified privilege? 2 What are the reasons why defamatory statements made in the course of parliamentary proceedings are protected by absolute privilege? 3 What are the reasons why defamatory statements made in the course of judicial proceedings are protected by absolute privilege?

237

238

PART 3 Defamation and the Protection of Reputation

8.4.2

Absolute privilege—the statutory position

Under the national, uniform defamation laws, there is now a statutory basis for the defence of absolute privilege.40

National defamation laws (1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege. (2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if: (a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to): (i) the publication of a document by order, or under the authority, of the body, and (ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law, and (iii) the publication of matter while giving evidence before the body, and (iv) the publication of matter while presenting or submitting a document to the body, or (b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to): (i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and (ii) the publication of matter while giving evidence before the court or tribunal, and (iii) the publication of matter in any judgment, order or other determination of the court or tribunal, or (c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section, or (d) the matter is published by a person or body in any circumstances specified in Schedule 1.

8.5 Copyright © 2015. Oxford University Press. All rights reserved.

8.5.1

Qualified privilege

Common law defence of qualified privilege

The background to the common law defence of qualified privilege was explained by the joint judgment of Gleeson CJ, Hayne and Heydon JJ in Bashford v Information Australia (Newsletters) Pty Ltd, which is relevantly extracted below.

Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366

[The respondent, Information Australia (Newsletters) Pty Ltd, published the subscription newsletter, the Occupational Health and Safety Bulletin. In late May 1997, the Bulletin published an article about the outcome of proceedings under the Trade Practices Act 1974 (Cth) in the Federal Court of Australia. The article stated that ‘RA Bashford’ had been held liable. However, RA Bashford Consulting Pty Ltd had in fact been held liable. Mr Bashford brought defamation proceedings against Information Australia (Newsletters) Pty Ltd, relying upon the common law defence of qualified privilege, inter alia.] 40 Civil Law (Wrongs) Act 2002 (ACT) s 137; Defamation Act 2006 (NT) s 24; Defamation Act 2005 (NSW) s 27; Defamation Act 2005 (Qld) s 27; Defamation Act 2005 (SA) s 25; Defamation Act 2005 (Tas) s 27; Defamation Act 2005 (Vic) s 27; Defamation Act 2005 (WA) s 27.

CHAPTER 8 Defences to Defamation

GLEESON CJ, HAYNE AND HEYDON JJ (at 370): [1] Central to the resolution of the issues in this appeal is the proper application of principles regulating the availability of the common law defence of qualified privilege to a claim for defamation. …

(372) An occasion of qualified privilege?

[9] The principles to be applied in determining whether the occasion of publication of matter about which complaint is made was an occasion of qualified privilege are well known. The authorities that state those (373) principles are equally well known. Frequent reference is made to the statement of Parke B in Toogood v Spyring: In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.

Copyright © 2015. Oxford University Press. All rights reserved.

Reciprocity of duty or interest is essential. [10] These principles are stated at a very high level of abstraction and generality. ‘The difficulty lies in applying the law to the circumstances of the particular case under consideration.’ Concepts which are expressed as ‘public or private duty, whether legal or moral’ and ‘the common convenience and welfare of society’ are evidently difficult of application. When it is recognised, as it must be, that ‘the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact’, it is clear that in order to apply the principles, a court must ‘make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication’. … (377) [22] Qualified privilege gives no licence to defame. It denies the inference of malice that ordinarily follows from showing that false and injurious words have been published. If the occasion is privileged the further question which arises is whether the defendant ‘has fairly and properly conducted himself in the exercise of it’. In a trial of all issues in a defamation action by judge and jury, the question whether the occasion is privileged is a question of law for the judge; the question whether the occasion was used for the purpose of the privilege is a question of fact for the jury. That is, it is for the jury in such a trial to decide the issue of malice. If the judge rules that the occasion is privileged, ‘the burden of shewing that the defendant did not act in respect of the reason of the privilege, but for some other and indirect reason, is thrown upon the plaintiff’. But if the occasion is held to have been privileged, the question of malice will ordinarily remain to be answered. If that is so, it cannot be said that the defendant had some licence to defame.

QUESTIONS 1 2 3 4

What is the purpose of the defence of qualified privilege? How does the defence of qualified privilege differ from the defence of absolute privilege? What are the requirements of a common law defence of qualified privilege? Given the requirements of the common law defence of qualified privilege, is it likely to be of use to media defendants? Why? 5 If there is a judge and a jury in a defamation case, what aspects of the common law defence of qualified privilege are determined by the judge and what aspects by the jury?

239

240

PART 3 Defamation and the Protection of Reputation

8.5.2

Right of reply as an occasion of qualified privilege

One of the ways in which a media defendant might be able to rely upon the common law defence of qualified privilege is in circumstances where a person exercises a right of reply. The use of the common law defence of qualified privilege in the context of the exercise of a right of reply is demonstrated by the extract from the High Court of Australia’s judgment in Loveday v Sun Newspapers Ltd. The High Court has most recently considered the right of reply as an occasion of qualified privilege in Harbour Radio Pty Ltd v Trad, which is also extracted below. The extent of the right of reply is explored in the extract from Kennett v Farmer below.41

Loveday v Sun Newspapers Ltd (1938) 59 CLR 503

Copyright © 2015. Oxford University Press. All rights reserved.

[The appellant, Frederick Loveday, who was the secretary of the Canterbury District Unemployed Relief Council, sued Sun Newspapers Ltd and the town clerk of Canterbury Municipal Council, Edgar Jay, for defamation in the Supreme Court of New South Wales. The Sun newspaper published an article including a statement from Loveday, attacking Canterbury Municipal Council for its refusal to provide him with work. In this same article, Jay provided a statement alleging that the reason Loveday had been refused work was because of his ‘general unsatisfactory conduct, which included abuse of gangers and the spreading of restlessness among his fellow employees’. At first instance, Maxwell J nonsuited Loveday in respect of both Sun Newspapers and Jay. An appeal to the Full Court of the Supreme Court was dismissed. Loveday appealed to the High Court of Australia.] LATHAM CJ (at 511): An occasion is the subject of qualified privilege if both the plaintiff and the defendant have an interest in the subject matter to which the alleged libel relates and if the publication of the libel is made in protection of the defendant’s interest. In the present case it is plain that the plaintiff was interested in the administration by the Canterbury Municipal Council of the system of employing relief workers. He had been a relief worker himself and had been dismissed from his employment as such. The defendant Jay was the executive officer of the council which administered the relief system. He had an interest in defending his own reputation, as well as the reputation of his council, in relation to the administration of that system. If either Jay or the council were attacked in relation to that administration Jay was entitled to reply to the attack and the occasion would be privileged. The publication charged against both defendants is the publication in the Sun newspaper. No claim is based upon any alleged publication by Jay to any reporter. The allegation is that Jay caused to be published in the Sun newspaper the material of which complaint is made. (512) The publication as it appears in the Sun newspaper is on its face a reply to the attack admittedly made upon the municipal council by the unemployed relief council. It is said, however, that there is no evidence that Jay knew that the municipal council had been attacked, and that therefore he is unable to rely upon the defence of qualified privilege which is available to defendants who reply to attacks upon their reputation or property. It is true that there is no evidence in the plaintiff’s case that Jay was aware of the attack, but the evidence shows that he authorized Sun Newspapers Ltd as his agent to publish the statement of which complaint is made. Indeed, this is the basis of the plaintiff’s case against Jay. The other defendant, acting as his agent, did publish his statement in the newspaper, plainly in reply to the attack made by the authority of the plaintiff upon the municipal council. The plaintiff’s agent, Sun Newspapers Ltd, did know of the attack, and Jay must be regarded as having authorized the other defendant to publish his reply if the occasion arose. The occasion did arise and the reply was published accordingly. All the requirements of the defence of qualified privilege in such a case are therefore satisfied, even if knowledge of an attack by a defendant (or his agent for publication) is an essential requirement. 41 See also Echo Publications Pty Ltd v Tucker [2007] NSWCA 73.

CHAPTER 8 Defences to Defamation

It has been argued that, even if the occasion was privileged, there was evidence of malice which ought to have been left to the jury. On this point, in my opinion, the decision of the learned trial judge is plainly right. There was no evidence of any express malice. The statement of which complaint is made was published in the press. It cannot, however, be urged in this case that the extent of publication was in excess of the necessity of the case so as to provide evidence of malice. The plaintiff himself had chosen the public press for the purpose of giving publicity to his complaint and he cannot complain if the defendant uses the same medium for reply (Norton v Hoare [No. 1]; see also Adam v Ward).

HARBOUR RADIO PTY LTD v TRAD (2012) 247 CLR 31 (footnotes omitted)

GUMMOW, HAYNE AND BELL JJ (at 48): The foundation of the privilege [33] The statement of principle by Dixon J at first instance in Penton looks to the foundation of the privilege and should be accepted. In that case, by way of response to attacks made by the plaintiff under parliamentary privilege upon the press coverage of the escape of Japanese prisoners of war at Cowra, the newspaper, of which the defendant was editor, responded that the plaintiff was “maliciously and corruptly untruthful” and “a dishonest, calculating liar”. In the action in the original jurisdiction of this Court the question was whether the form of this libel took it outside the qualified privilege claimed for the occasion, so that the plea should be struck out. This was a question on which the Court divided. What is presently of importance is that Dixon J said:

Copyright © 2015. Oxford University Press. All rights reserved.

“The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence.” (Emphasis added.)

In this passage it is the phrase “and it is done bona (49) fide” which indicates the distinct role of malice to defeat what otherwise would be a good plea. The phrase “be commensurate with” reflects what was said by Earl Loreburn in Adam v Ward. [34] Earlier, in Loveday v Sun Newspapers Ltd Starke J had said that the privilege is not absolute, and that the answer by the person attacked “must be relevant to the attack and must not be actuated by motives of personal spite or ill will”. In Bashford v Information Australia (Newsletters) Pty Ltd, Gleeson CJ, Hayne and Heydon JJ asked “whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence”. These notions of what is “commensurate with the occasion”, “relevant to the attack”, and “sufficiently connected” reflect the idea captured by Parke B in Toogood v Spyring in the phrase “fairly warranted by any reasonable occasion or exigency”. [35] That the matter complained of is sufficiently connected to the privileged occasion to attract the defence may appear upon any one of several considerations. The matter may be sufficiently connected with the content of the attack, or it may go to the credibility of the attack, or to the credibility of the person making that attack. Questions of degree inevitably will be presented.

Conclusions respecting qualified privilege [36] Mr Trad had attacked 2GB by placing at least part of the blame for the Cronulla Riots upon the “tabloid journalism” practised by one particular talk-back radio station, namely 2GB. It was a relevant and

241

242

PART 3 Defamation and the Protection of Reputation

reasonable response by 2GB to direct attention to the credibility of the attacker by imputing hypocrisy to Mr Trad as one who himself incited people to commit acts of violence and to have racist attitudes, and as one who at the peace rally had stirred up hatred against a 2GB reporter, causing him concern about his personal safety (imputations (a), (b) and (c)). [37] Imputation (j) ranges more widely but is linked to para [16] of the broadcast. In identifying Mr  Trad as one who himself deliberately gives out misinformation about the Islamic community, it also seeks to undermine his credibility in complaining at the peace rally of the mistreatment of the community by 2GB. Imputations (d) and (g) are also linked by the pleading to para [16]. This text indicates that the imputations involved more than, as counsel for Mr Trad put it in this Court, 2GB “just having a crack at him”. The misinformation was said to be of such a degree of seriousness as to render him a dangerous person, thus further undermining his credibility; further, it was disgraceful for Mr Trad at the peace rally to purport to represent the (50) Islamic community in his attack upon 2GB when he had been marginalised by that community. Imputations (d) and (g) were protected by qualified privilege. [38] Accordingly, the primary judge correctly concluded that 2GB’s defence of qualified privilege applied to imputations (a), (b), (c), (d), (g) and (j). [39] Imputation (k) is obscurely expressed. Such coherence as it does have is provided by the portion of the 2GB broadcast set out in par [24]. The imputation seems to fix upon the relationship between Mr Trad and the media as the source of the relevant reciprocity of interest. The point then made appears to be that Mr Trad rose to prominence in Islamic community affairs by use of the facilities provided by the media, yet at the peace rally he criticised the media. Imputation (k) exceeded the occasion of the privilege. The Court of Appeal correctly decided that it was not a retort by way of vindication which was fairly warranted by the occasion. [40] With respect to imputation (h), the Court of Appeal was correct in deciding that to publish of Mr Trad that he was a pest, without more, was not a relevant response to the attack on 2GB. Counsel for Mr Trad correctly emphasised that the charge of being a pest in no way reflected on Mr Trad’s credibility in making the charges against 2GB. [41] The result is that the primary judge should have held that imputations (h) and (k) were not protected; the Court of Appeal was correct with respect to imputations (h) and (k) but erred in rejecting the defence in respect of imputation (c)…

Copyright © 2015. Oxford University Press. All rights reserved.

KIEFEL J (at 76): The requirement of relevance [130] It has never been suggested that the defence of qualified privilege is absolute. It is not unbounded and may be lost on proof of actual malice. An attack upon a defendant’s reputation does not provide an occasion for defamatory remarks having no connection to the attack or the need for the defendant to vindicate himself or herself. But it is not necessary to confine the scope of the privilege by other considerations, such as whether the response goes too far, is unreasonable or is out of proportion to the attack. Such considerations are essentially subjective and may create uncertainty as to the operation of the defence, which is largely a question of law. Moreover, such considerations may have the effect of blurring the boundary between facts relevant to the privilege and facts relevant to the issue of malice. A test of relevance is necessarily objective and does not confuse matters pertaining to the subjective question of whether a defendant was improperly motivated, and therefore malicious in using the words complained of, with matters (77) from which it may be concluded that the words were spoken on an occasion of qualified privilege. When words are found to have been spoken on an occasion of privilege, the onus of proving malice on the part of the defendant shifts to the plaintiff. If the plaintiff discharges the onus the privilege is defeated. Absent proof of malice, the privilege operates to protect statements which have the required connection to the occasion. The cases decided by this Court in the context of defamatory statements in reply consistently refer only to a test of relevance as a limitation upon the defence of qualified privilege.

CHAPTER 8 Defences to Defamation

Kennett v Farmer [1988] VR 991

Copyright © 2015. Oxford University Press. All rights reserved.

[Farmer was a journalist with The Bulletin magazine. In October 1985, he published an article alleging that the plaintiff, Jeff Kennett, the then Leader of the Opposition in the Victorian Parliament, had conspired with the State Governor and the leader of a minor party to block supply to the Cain Labor government in the Upper House. Kennett denied the allegation on Derryn Hinch’s radio program. Immediately after Hinch’s interview with Kennett, Farmer was interviewed by Hinch and restated the allegation. Farmer also repeated the allegation in other media interviews. Kennett brought defamation proceedings against Farmer in the Supreme Court of Victoria. Farmer sought to rely upon the defence of qualified privilege.] NATHAN J (at 1002): I now deal with the second series of amendments sought, and they relate to the defence of qualified privilege. F applies to expand its pleading in respect of qualified privilege in the following way. The original defence, as was the original statement of claim, was addressed to the alleged defamation occurring in the various Australian States. Different defences were required for each jurisdiction, but in respect of all of them, F alleged that his comments were published under qualified privilege at common law. F now seeks to amplify that pleading by adding the particulars, already referred to. For the purposes of convenience, I have treated the radio programme and all the television interviews as an omnibus, because the particulars are substantially the same. The gravamen of Mr Gillard’s attack on these particulars is that they disclose no defence known to the law. The proposition is that privilege may attach to the reply to a defamatory statement (the so-called retort), but it does not extend to the reply or riposte to the retort. In the case before me, the source defamation was F’s article in The Bulletin. The response made by K on the various programmes was the retort to that attack and privilege would attach to it. However, when on the same programmes, but at a slightly later time, F replied to K’s response, it is contended no privilege attached and hence a defence is not available. It was not necessary in the proceedings before me for Mr Gillard to argue, as must be his case, that F’s ripostes were themselves an original defamation made in a situation to which no privilege could attach. I shall repeat the factual background of these arguments as it makes them easier to understand. F’s article alleged that K told him he could and would block Supply to the Government. K in the programmes said that he had never said this to F and if F said that he had said such a thing then he was not telling the truth. F in riposte said in substance that what K was now saying was not what he had originally told him and he was either telling an untruth on the programmes or had told him an untruth at an earlier time. For the purposes of this judgment, I have had to distil the essential factual dispute to the above statement, although there are adornments to the above precis which do not affect the logic of the arguments. (1003) F contends that it was he who was attacked by K in the course of K responding to the article, and that in turn, all he, F was doing was exercising his right of self defence. The type of privilege claimed here is referred to by the text-writers as a ‘communication made in self defence’ or ‘communication in pursuance or protection of an interest’. The legal theory upon which the privilege rests is the principle that a person is entitled to defend himself against attack, but only to the extent which is commensurate with the nature of the attack made upon him. It was best and authoritatively stated by Lord Oaksey in Turner v Metro-GoldwynMayer Pictures Ltd [1950] 1 All ER 449, at p 470: There is, it seems to me, an analogy between the criminal law of self defence and a man’s right to defend himself against written or verbal attacks. In both cases he is entitled, if he can, to defend himself effectively and he only loses the protection of the law if he goes beyond defence and proceeds to offence. That is to say the circumstances in which he defends himself, either by acts or by words, negative the malice which the law draws from violent acts or defamatory words. If you are attacked with a deadly weapon you can defend yourself with a deadly weapon or with any other weapon which may protect your life. The law does not concern itself with niceties in such matters. If you are attacked by a prize fighter you are not bound to adhere to the Queensbury Rules in your defence.

243

Copyright © 2015. Oxford University Press. All rights reserved.

244

PART 3 Defamation and the Protection of Reputation

K says the monumental nature of F’s attack upon him in The Bulletin warranted an immediate and wide-ranging defence which was privileged, and that F cannot now be heard to complain about it. Indeed, the source defamation (if it was) is of the gravest nature. It amounts to an allegation that K conspired with the Queen’s representative and another to oust a democratically elected Government, and that to do so, K, as the Leader of the Opposition, would organise the blocking of Supply to that Government. K contends, and there is much merit to the argument, that F must have contemplated a swift and vigorous response because of the public way in which the initial attack had been made. Arguing from principles as there appears to be no case law on the subject, Mr Gillard contended that K’s qualified privilege to reply could not extend to F’s ripostes. I have come to the conclusion those arguments are sound, but if, as a jury might find, that K’s retorts were not commensurate with the nature of the attack made upon him or were in the nature of a fresh and distinct defamatory allegation against F, then F could be privileged in his own retorts to K’s alleged defamations. I conclude that a riposte to an allegedly defamatory retort, itself made in response to a source defamation, is not protected by qualified privilege for the following reasons. (1) To allow an initial defamer to have a right of reply to the retort of the victim would defeat the policy upon which the privilege of a communication made in pursuance or protection of an interest is founded. The reverse side of the proposition reveals the error. If the victim by responding gives to the defamer a qualified privilege to riposte he would severely inhibit his own rights of self defence. If a victim, in protecting his own interests and defending himself opened up that defence to a further right of another defamatory attack upon him, not only would he be apt not to exercise the right of self defence, but equity would demand that his rejoinder to the riposte would also be privileged (so long as it too was commensurate with the defamatory nature of the riposte). Thus the so-called public interest in allowing vigorous exchanges between political personalities would overwhelm the individual interests of less well-known litigants in these and other cases. It is not the law to allow for one class of defence to be restricted to a particular class of litigants, such as ‘public figures’. That American principle has no application here. (1004) (2) A defamer permitted a privileged riposte would, in effect, benefit from his own tortious act. Assuming the original defamation was unjustified and one to which the victim retorted, if the defamer were allowed a riposte, then he would be benefiting from his original tort by having the right of second reply. This position would be contrary to a fundamental principle of the law of torts, namely that a tortfeasor is not entitled to benefit from his own wrong doing. If that proposition needs any authority, it is to be found in Salmond on the Law of Torts, 19th ed, p 568 et seq. (3) A guileful defamer could entice a victim into replying knowing that his riposte would be qualifiedly privileged and thus the defamer would be certain of at least two strikes against the victim, the victim’s defence being overwhelmed by the riposte. It would be churlish of the Court not to recognise that the victim’s rejoinder to the riposte might well be beyond that which the TV and print editors consider the public’s attention span. The electronic media, in particular, deal with the public issue of the moment, perhaps measured in days rather than weeks. The print media permits a more measured exchange, but the courts are familiar with editor’s notations that ‘this correspondence is now closed’. (4) A victim exercising his right of self defence would be impliedly consenting to a further attack or riposte being made upon him. It would be churlish of this Court not to recognise the current and provocative way in which public affairs are now conducted. The electronic media now permits almost instant reply and comment upon purported defamations. Whether such a comment or reply is carried by the electronic media is not determined by the alleged defamer or the victim, but is decided upon by editors and sub-editors who publish or broadcast that which they deemed to be newsworthy. It is in the nature of journalism, whether in the print or electronic media, to elicit a response to any given comment. Thus if the concept of qualified privilege is extended beyond the right of self defence to a riposte and then a rejoinder and then a surrejoinder, the participants could be enticed into a mutually satisfying exchange of defamations which would neither educate or inform the public. The privilege should not be extended so as to subvert the theoretical foundations upon which it rests, nor to debase the reputations of either defamer or victim: see Adam v Ward [1917] AC 309.

CHAPTER 8 Defences to Defamation

QUESTION 1 Does the High Court of Australia’s decision in Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 introduce a new requirement that a reply to an attack be reasonable as well as relevant? Given the interests the defence of qualified privilege seeks to balance, should a requirement of reasonableness be imposed when a person purports to make a reply to an attack?

8.5.3

Fair and accurate reports of court and parliamentary proceedings

At common law, a fair and accurate report of court or parliamentary proceedings is permitted.42 Under the national, uniform defamation laws, there is now a statutory variant of this defence in the following terms.43

Copyright © 2015. Oxford University Press. All rights reserved.

National defamation laws (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern. (2) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was, or was contained in, an earlier published report of proceedings of public concern, and (b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and (c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair. (3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. (4) In this section, ‘proceedings of public concern’ means: (a) any proceedings in public of a parliamentary body, or (b) any proceedings in public of an international organisation of any countries or of the governments of any countries, or (c) any proceedings in public of an international conference at which the governments of any countries are represented, or (d) any proceedings in public of: (i) the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations, or (ii) any other international judicial or arbitral tribunal, or (e) any proceedings in public of a court or arbitral tribunal of any country, or (f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country, or (g) any proceedings in public of a local government body of any Australian jurisdiction, or (h) proceedings of a learned society, or of a committee or governing body of the society, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about: (i) a member or members of the society, or (ii) a person subject by contract or otherwise by law to control by the society, or

42 See, for example, Kimber v Press Association Ltd [1893] 1 QB 65 at 68 per Lord Esher MR. 43 Civil Law (Wrongs) Act 2002 (ACT) s 139; Defamation Act 2006 (NT) s 26; Defamation Act 2005 (NSW) s 29; Defamation Act 2005 (Qld) s 29; Defamation Act 2005 (SA) s 27; Defamation Act 2005 (Tas) s 29; Defamation Act 2005 (Vic) s 29; Defamation Act 2005 (WA) s 29.

245

Copyright © 2015. Oxford University Press. All rights reserved.

246

PART 3 Defamation and the Protection of Reputation

(i) proceedings of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about: (i) a member or members of the association, or (ii) a person subject by contract or otherwise by law to control by the association, or (j) proceedings of a trade association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about: (i) a member or members of the association, or (ii) a person subject by contract or otherwise by law to control by the association, or (k) any proceedings of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act 2001 of the Commonwealth held anywhere in Australia, or (l) any proceedings of a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office, or (m) any proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman, or (n) any proceedings in public of a law reform body of any country, or (o) any other proceedings conducted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a provision of a law of the jurisdiction corresponding to this section, or (p) any proceedings of a kind specified in Schedule 3. (5) In this section: ‘law reform body’ of a country means a body (however described and whether or not permanent or fulltime) established by law to conduct inquiries into, and to make recommendations on, reforming the laws of that country. ‘learned society’ means a body, wherever formed: (a) the objects of which include the advancement of any art, science or religion or the advancement of learning in any field, and (b) authorised by its constitution: (i) to exercise control over, or adjudicate on, matters connected with those objects, and (ii) to make findings or decisions having effect, by law or custom, in any part of Australia. ‘ombudsman’ of a country means a person (however described and whether or not permanent or fulltime) authorised by law to investigate complaints about the actions or other conduct of any public officials or public bodies of that country. ‘relevant objects’ of a learned society, sport or recreation association or trade association means: (a) in relation to a learned society—objects of the kind referred to in paragraph (a) of the definition of ‘learned society’ in this subsection, or (b) in relation to a sport or recreation association—objects of the kind referred to in paragraph (a) of the definition of ‘sport or recreation association’ in this subsection, or (c) in relation to a trade association—objects of the kind referred to in paragraph (a) of the definition of ‘trade association’ in this subsection. ‘sport or recreation association’ means a body, wherever formed: (a) the objects of which include the promotion of any game, sport, or pastime to the playing of which or exercise of which the public is admitted as spectators or otherwise and the promotion or protection of the interests of people connected with the game, sport, or pastime, and

CHAPTER 8 Defences to Defamation

(b) authorised by its constitution: (i) to exercise control over, or adjudicate on, matters connected with the game, sport, or pastime, and (ii) to make findings or decisions having effect, by law or custom, in any part of Australia. ‘trade association’ means a body, wherever formed: (a) the objects of which include the promotion of any calling, that is to say, a trade, business, industry or profession and the promotion or protection of the interests of people engaged in any calling, and (b) authorised by its constitution: (i) to exercise control over, or adjudicate on, matters connected with a calling or the conduct of people engaged in the calling, and (ii) to make findings or decisions having effect, by law or custom, in any part of Australia.

8.5.4

Lange qualified privilege

The identification of the implied freedom of political communication arising from the text and structure of the Commonwealth Constitution raised the issue of how such a freedom might interact with defamation law. The first high appellate consideration of this issue, in the cases of Theophanous v Herald & Weekly Times Ltd44 and Stephens v West Australian Newspapers Ltd,45 did not deliver a clear majority position. Three years later, the High Court of Australia revisited the issue of the impact of the implied freedom of political communication on defamation law in a rare joint judgment of all seven members in Lange v Australian Broadcasting Corporation, which is relevantly extracted below. Rather than serving as a positive defence, the implied freedom of political communication was used by the High Court to adapt the common law defence of qualified privilege in relation to the publication of matter about government or political matters. Strictly speaking then, the Lange qualified privilege defence is not a new category of qualified privilege but rather an extension of the existing common law defence.

Copyright © 2015. Oxford University Press. All rights reserved.

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

[The plaintiff was the former Prime Minister of New Zealand, David Lange. The defendant broadcaster, the Australian Broadcasting Corporation, aired an episode of its current affairs program, Four Corners. Lange commenced proceedings against the ABC in the Supreme Court of New South Wales, alleging that the report conveyed imputations that he had abused his public office and was unfit to hold public office. The ABC sought to amend its defence to rely upon the implied freedom of political communication, inter alia. The action was removed to the High Court of Australia, pursuant to the Judiciary Act 1903 (Cth) s 40.] BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ (at 571): Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest

44 (1994) 182 CLR 104. 45 (1994) 182 CLR 211.

247

Copyright © 2015. Oxford University Press. All rights reserved.

248

PART 3 Defamation and the Protection of Reputation

in receiving it. The common convenience and welfare of Australian society are advanced by discussion— the giving and receiving of information—about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government. Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level. Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political (572) parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable. Thus, the extended category of common law qualified privilege ensures conformity with the requirements of the Constitution. The real question is as to the conditions upon which this extended category of common law qualified privilege should depend. At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communication. But, apart from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. Because privileged occasions are ordinarily occasions of limited publication—more often than not occasions of publication to a single person—the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory. But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers. No doubt it is arguable that, because qualified privilege applies only when the communication is for the common convenience and welfare of society, a person publishing to tens of thousands should be able to do so under the same conditions as those that apply to any person publishing on an occasion of qualified privilege. But the damage that can be done when there are thousands of recipients of a communication is obviously so much greater than when there are only a few recipients. Because the damage from the former class of publication is likely to be so much greater than from the latter class, a requirement of reasonableness as contained in s 22 of the Defamation Act, which goes beyond mere honesty, is properly to be seen as reasonably appropriate (573) and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires. Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the Defamation Codes of Queensland and Tasmania. And it was the test of reasonableness that was invoked in the joint judgment in Theophanous. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 8 Defences to Defamation

the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege. In Theophanous, the joint judgment also required the defendant to prove that it was unaware of the falsity of the matter published and that it did not publish the matter recklessly. That is a requirement that has little practical significance. The defendant must establish that its conduct in making the publication was reasonable in all the circumstances of the case. In all but exceptional cases, the proof of reasonableness will fail as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication. It may be that, if a statutory provision were to require the additional elements of want of knowledge of falsity and absence of recklessness, as required by Theophanous, it would not, on that account, infringe the freedom of communication which the Constitution requires. For present purposes, it is necessary only to state that their absence from s 22 of the Defamation Act cannot have the consequence that the provisions of that Act infringe the constitutional freedom. Moreover, these are not requirements of the common law, as it has traditionally been understood, and there is no reason why they should be engrafted on the expanded common law defence of qualified privilege. (574) Having regard to the interest that the members of the Australian community have in receiving information on government and political matters that affect them, the reputations of those defamed by widespread publications will be adequately protected by requiring the publisher to prove reasonableness of conduct. The protection of those reputations will be further enhanced by the requirement that the defence will be defeated if the person defamed proves that the publication was actuated by common law malice to the extent that the elements of malice are not covered under the rubric of reasonableness. In the context of the extended defence of qualified privilege in its application to communications with respect to political matters, ‘actuated by malice’ is to be understood as signifying a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose. In Theophanous, the Court held that, once the publisher proved it was unaware of the falsity of the material, had not acted recklessly, and had acted reasonably, malice could not defeat the constitutional defence. But once the concept of actuating malice is understood in its application to government and political communications, in the sense indicated, we see no reason why a publisher who has used the occasion to give vent to its ill will or other improper motive should escape liability for the publication of false and defamatory statements. As we have explained, the existence of ill will or other improper motive will not itself defeat the privilege. The plaintiff must prove that the publication of the defamatory matter was actuated by that ill will or other improper motive. Furthermore, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff’s onus of proof of this issue. 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 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. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has 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.

249

250

PART 3 Defamation and the Protection of Reputation

QUESTIONS 1 In what circumstances might the extended common law defence of qualified privilege, identified in Lange v Australian Broadcasting Corporation, arise? 2 Does the implied freedom of political communication apply to state, territory and local government or is it confined to communication relating to the federal level of government only? 3 How does the High Court of Australia adapt the common law defence of qualified privilege to apply to publications about government or political matters? 4 What are the requirements of the defence of ‘Lange qualified privilege’? 5 How is the reasonableness of the publisher’s conduct to be determined? Is reasonableness too onerous a standard in principle or in practice?

8.5.5

Defeating the defence of common law qualified privilege

Unlike the defence of absolute privilege, the defence of qualified privilege may be defeated if the publisher abuses the occasion for which the privilege is conferred, by acting for an improper motive or ‘malice’.46 ‘Malice’ as a term of art was famously expounded by Lord Diplock in Horrocks v Lowe, which is relevantly extracted below.

Horrocks v Lowe

Copyright © 2015. Oxford University Press. All rights reserved.

[1975] AC 135

LORD DIPLOCK (at 149): My Lords, as a general rule English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction: if he cannot prove that defamatory matter which he published was true, he is liable in damages to whomever he has defamed, except where the publication is oral only, causes no damage and falls outside the categories of slander actionable per se. The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit—the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege. So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice’ is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests. The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive

46 As to improper motive generally, see Roberts v Bass (2002) 212 CLR 1 at 30–41 per Gaudron, McHugh and Gummow JJ.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 8 Defences to Defamation

(150) evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person. Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, ‘honest belief.’ If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest,’ that is, a positive belief that the conclusions they have reached are true. The law demands no more. Even a positive belief in the truth of what is published on a privileged occasion—which is presumed unless the contrary is proved—may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant’s dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true. Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They (151) find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that ‘express malice’ can properly be found. There may be evidence of the defendant’s conduct upon occasions other than that protected by the privilege which justify the inference that upon the privileged occasion too his dominant motive in publishing what he did was personal spite or some other improper motive, even although he believed it to be true. But where, as in the instant case, conduct extraneous to the privileged occasion itself is not relied on, and the only evidence of improper motive is the content of the defamatory matter itself or the steps taken by the defendant to verify its accuracy, there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity. Juries should be instructed and judges should remind themselves that this burden of affirmative proof is not one that is lightly satisfied. The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege

251

252

PART 3 Defamation and the Protection of Reputation

is founded. Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam v Ward [1917] AC 309, 326–327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference.

QUESTIONS 1 What constitutes ‘malice’ or improper motive for the purposes of defeating the defence of qualified privilege? 2 Which party bears the onus of proof in relation to ‘malice’ or improper motive? Why is this the case?

Copyright © 2015. Oxford University Press. All rights reserved.

8.5.6

Statutory defence of qualified privilege

The national, uniform defamation laws introduce a statutory defence of qualified privilege in the following terms.47 The statutory defence differs from the common law defence of qualified privilege in that the statutory variant turns upon the reasonableness of the publisher’s conduct in the circumstances of publication, whereas the common law version turns upon the reciprocity of duty and interest between publisher and recipients. Whether the statutory defence of qualified privilege will be effective is open to question. The statutory variant enacted by the national, uniform defamation laws is closely modelled on the Defamation Act 1974 (NSW) s 22 (repealed). Defendants relying upon that section were notoriously unsuccessful.48

National defamation laws (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the ‘recipient’) if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

47 Civil Law (Wrongs) Act 2002 (ACT) s 139A; Defamation Act 2006 (NT) s 27; Defamation Act 2005 (NSW) s 30; Defamation Act 2005 (Qld) s 30; Defamation Act 2005 (SA) s 28; Defamation Act 2005 (Tas) s 30; Defamation Act 2005 (Vic) s 30; Defamation Act 2005 (WA) s 30. 48 See, for example, Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 706–07 per Moffitt P; at 712 per Reynolds JA; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 797–99 per curiam; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 339–40 per Gleeson CJ and

CHAPTER 8 Defences to Defamation

(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) 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, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

8.6

Fair comment and honest opinion

Copyright © 2015. Oxford University Press. All rights reserved.

8.6.1 Introduction

The common law defence of fair comment is important because it provides recognition and protection to the exercise of the individual’s right to freedom of expression.49 It is particularly important to the media, as many of their formats depend upon the publication of comment and opinion, such as political commentary and book, film, theatre and restaurant reviews. There are several requirements a defendant must prove in order to establish a defence of fair comment: 1 There are statements of comment, not fact. 2 The statements of comment relate to a matter of public interest. 3 The statements of comment are based upon facts truly stated, sufficiently indicated or notorious. 4 The comments are the honestly held opinion of the commentator, even if they are ­prejudiced or wrong-headed.50

49 Carr v Hood (1808) 1 Camp 355n; (1808) 170 ER 983 at 984 per Lord Ellenborough; Orr v Isles [1965] NSWR 677 at 696–97 per Taylor J; Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 191 per King CJ. 50 John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports ¶81-879, 67,454 per Giles JA; Joseph v

253

254

PART 3 Defamation and the Protection of Reputation

8.6.2

The distinction between fact and comment

The defence of fair comment protects statements of comment, not fact. The distinction between fact and comment in practice can be difficult to make. Whether a statement is one of fact or comment will depend upon the context in which the statement is made. The rationale for the need to distinguish between fact and comment is explained in the following extract from the joint judgment of Gummow, Hayne and Heydon JJ in Channel Seven Adelaide Pty Ltd v Manock.

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245

[The respondent, Dr Colin Manock, gave evidence for the prosecution at the trial and retrial of Henry Keogh for the murder of Anna-Jane Cheney. Keogh was ultimately convicted. In early March 2004, the appellant, Channel Seven Adelaide Pty Ltd, broadcast an advertisement for a forthcoming report. The broadcast comprised only a few sentences and was accompanied by images. Manock brought defamation proceedings against Channel Seven Adelaide in the District Court of South Australia, alleging that the advertisement conveyed the imputation that he had deliberately concealed evidence. Channel Seven Adelaide unsuccessfully applied to plead extensive particulars in support of its defence of fair comment. Ultimately, the Full Court of the Supreme Court of South Australia, ruled in favour of Manock. Channel Seven Adelaide appealed to the High Court of Australia.]

Copyright © 2015. Oxford University Press. All rights reserved.

GUMMOW, HAYNE AND HEYDON JJ (at 262): [35] Distinguishing fact and comment: In Brent Walker Group Plc v Time Out Ltd Bingham LJ said: The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule … that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated. [Emphasis added.]

In Goldsbrough v John Fairfax & Sons Ltd Jordan CJ said that for the defence of fair comment to succeed, ‘it is essential that the whole of the words in respect of which it is relied on should be comment’. He continued: It must be indicated with reasonable clearness by the words (263) themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts. [Emphasis added.]

A ‘discussion or comment’ is to be distinguished from ‘the statement of a fact’. ‘It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated’. As the passages quoted from Bingham LJ and Jordan CJ above illustrate, the distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion. Cussen J described the primary meaning of ‘comment’ as ‘something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc’. It

CHAPTER 8 Defences to Defamation

follows that 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. Thus, in the words of Field J: … [C]omment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed and from which his conclusion may be reasonably inferred. If a statement in words of a fact stands by itself naked, without reference, either expressed or understood, to other antecedent or surrounding circumstances notorious to the speaker and to those to whom the words are addressed, there would be little, if any, room (264) for the inference that it was understood otherwise than as a bare statement of fact. [Emphasis added.]

[36] The question of construction or characterisation turns on 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’—not ‘an exceptionally subtle’ recipient, or one bringing to the task of ‘interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at’. [37] The present circumstances create two particular difficulties for the defendant in resisting the conclusion that the material was fact, not comment. First, it is harder for a viewer of television to distinguish fact and comment than it is for a person reading printed material, as Blackburn CJ noted: It is obvious that a television viewer receives a succession of spoken words and visual images, which he is unable to have repeated for the purpose of reflection or clarification; whereas a reader of printed material normally has it all before him at will, and has unlimited facilities for re-reading. In my opinion it is important in the case before me, when considering whether there is material which can be perceived to be comment, as distinct from fact, but based upon stated fact, to remember that the viewer sees and hears the material simultaneously, and only once. [Emphasis added.]

Secondly, the ‘ordinary’ recipient at whom the defendant here was aiming is to be identified remembering that the defendant was using a commercial television channel to broadcast in prime time a brief promotion of a television programme to be viewed at prime time.

Copyright © 2015. Oxford University Press. All rights reserved.

8.6.3

Reasonableness as an element of the defence of fair comment?

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245

[The facts are stated above at 8.6.2.] GUMMOW, HAYNE AND HEYDON JJ (at 290): Could the criticisms in paras 3.19–3.39 lead an honest person to think that the plaintiff had deliberately concealed evidence? [88] The defendant submitted that an ‘honest person, allowing for the fact that that person might be prejudiced and hold exaggerated or obstinate views, could, on the basis of the pleaded accumulation of such a large number of inconsistencies and inadequacies, hold the opinion that there had been some deliberate concealment on the part of the plaintiff’. [89] This submission must be rejected. [90] First, the test propounded does not accord with classic statements of the law. Thus in Goldsbrough Jordan CJ said comment could not be fair ‘if the opinion is one that a fair-minded man might not reasonably form upon the facts on which it is put forward as being based’ (emphasis added). And in O’Shaughnessy v Mirror Newspapers Ltd Jacobs and Mason JJA said: ‘[D]efamatory matter which appears to be a comment on facts stated or known but is not an inference or conclusion which an honest man, however biased

255

256

PART 3 Defamation and the Protection of Reputation

or prejudiced, might reasonably draw from the facts so stated or known will not be treated as comment’ (emphasis added). In final address it was submitted for the defendant that on appeal in that case the High Court said that ‘reasonableness was not a requirement of the test’. But neither at the place indicated by the submission nor elsewhere did the High Court explicitly deny what Jacobs and Mason JJA had said. It is true that Barwick CJ, McTiernan, Menzies and Owen JJ stated as a test for fair comment that it be an ‘honest expression of opinion … as an inference open to a fair-minded person’, without any reference to the adverb ‘reasonably’, but this omission appears to lack significance: there was no specific attack by the court on Jacobs and Mason JJA’s test, there were no submissions from counsel about its correctness, and in the course of argument Barwick CJ adopted a similar test in saying that one question was ‘whether what was said travelled beyond what a reasonable and honest man might in the circumstances have thought or said’ (emphasis added). [91] Secondly, an accumulation of items of allegedly inadequate or incompetent work, none of which is said to be a piece of deliberate concealment, is incapable of leading an honest person reasonably—or, for that matter, a fair-minded person acting honestly—to the conclusion that there was deliberate concealment. As indicated earlier, to reach that conclusion would be a grave result. An honest person acting reasonably, or a fair-minded person acting honestly (291), would look for more than instances of incompetence, however many there were said to be. [92] These are further reasons for striking out paras 3.1–3.39.

8.6.4

Statutory defences of honest opinion

In addition to the common law defence of fair comment, a defendant may raise statutory defences of honest opinion.51 The statutory defences of honest opinion under the national, uniform defamation laws are substantially similar to the statutory defences of comment under the Defamation Act 1974 (NSW) ss 32–34 (repealed). However, unlike those provisions, the statutory defences of honest opinion do not codify the law relating to comment.

Copyright © 2015. Oxford University Press. All rights reserved.

National defamation laws (1) It is a defence to the publication of defamatory matter if the defendant proves that: (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. (2) It is a defence to the publication of defamatory matter if the defendant proves that: (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. (3) It is a defence to the publication of defamatory matter if the defendant proves that: (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.

51 Civil Law (Wrongs) Act 2002 (ACT) s 139B; Defamation Act 2006 (NT) s 28; Defamation Act 2005 (NSW) s 31; Defamation Act 2005 (Qld) s 31; Defamation Act 2005 (SA) s 30; Defamation Act 2005 (Tas) s 31; Defamation Act 2005 (Vic) s 31; Defamation Act 2005 (WA) s 31.

CHAPTER 8 Defences to Defamation

(4) A defence established under this section is defeated if, and only if, the plaintiff proves that: (a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published, or (b) in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or (c) in the case of a defence under subsection (3)—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. (5) For the purposes of this section, an opinion is based on ‘proper material’ if it is based on material that: (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29. (6) 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.

QUESTIONS 1 This section creates three separate defences of honest opinion. How do these defences differ from each other? In what circumstances would each of these defences apply? 2 How do these statutory defences of honest opinion differ from the common law defence of fair comment? 3 Do the common law defence of fair comment and the statutory defences of honest opinion strike an appropriate balance between the competing interests underlying them?

8.7 Copyright © 2015. Oxford University Press. All rights reserved.

8.7.1

Innocent dissemination

The common law defence of innocent dissemination

At common law, a defendant may rely on the defence of innocent dissemination if he or she can prove that: 1 he or she did not know, or ought not to have known, that the publication contained defamatory matter; 2 he or she did not know, or ought not to have known, that the publication was of a ­character that was likely to contain defamatory matter; and 3 this lack of knowledge was not due to negligence on his or her part.52 The defence of innocent dissemination is available to subordinate distributors of defamatory matter.53 The concept of publication is broadly defined to hold any person or entity liable for defamation if he or she voluntarily disseminates defamatory matter.54 This 52 Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR; at 358 per Bowen LJ; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 175 per A L Smith LJ; at 179–80 per Romer LJ; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 585–86 per Brennan CJ, Dawson and Toohey JJ. 53 Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 175 per Romer LJ; McPhersons Ltd v Hickie (1995) Aust Torts Reports ¶81–348 at 62,498 per Priestley JA; at 62,499 per Powell JA, CA(NSW); Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 588 per Brennan CJ, Dawson and Toohey JJ. 54 As to the requirements of publication in defamation law, see 7.4.

257

258

PART 3 Defamation and the Protection of Reputation

potentially exposes a large number of persons and entities to liability for defamation. The defence of innocent dissemination was designed, in part, to ameliorate the potential harshness of liability for publication so broadly defined. Examples of subordinate distributors who may attempt to rely upon the defence of innocent dissemination, with mixed success, include newspaper vendors,55 lending libraries,56 book distributors,57 supermarkets and department stores.58 The earlier, juridical view was that innocent dissemination was a plea of ‘no publication’.59 The preferable, modern view is that, rather than being a plea of ‘no publication’, innocent dissemination is a free-standing defence to defamation.60

Copyright © 2015. Oxford University Press. All rights reserved.

8.7.2

The defence of innocent dissemination and the challenge of technology

When the defence of innocent dissemination emerged in the late nineteenth century, it was assumed that it would not be available to publishers and printers, implicitly because both publishers and printers could not claim to have no knowledge that the publications for which they were responsible contained defamatory matter. In respect of printers, this was based on the printing technology used at the time, which requires printers physically to compose boards of words and letters to strike onto sheets of paper. Printing technology has clearly and decisively changed over the course of the last century. The impact of these technological changes on the common law defence of innocent dissemination has been somewhat variable. For instance, in McPhersons Ltd v Hickie,61 the New South Wales Court of Appeal allowed an appeal against a decision striking out the defence of innocent dissemination pleaded by the printer of an allegedly defamatory book. The Court held that the printer should be afforded the opportunity to adduce evidence as to the changes in printing technology with a view to changing or modifying the rule in relation to printers, rather than merely applying the traditional rule. The highest appellate consideration of the common law defence of innocent dissemination in Australia is the High Court’s decision in Thompson v Australian Capital Television Pty Ltd. This case not only confirmed the basic requirements of this defence but also canvassed the challenges posed by technology to innocent dissemination—in this case, live television broadcasts.

55 Emmens v Pottle (1885) 16 QBD 354; Mallon v WH Smith & Son (1893) 9 TLR 627; Haynes v De Beck (1914) 31 TLR 115; Sun Life Assurance Co of Canada v WH Smith & Son Ltd (1933) 150 LT 211; Goldsmith v Sperrings Ltd [1977] 2 All ER 566; [1977] 1 WLR 478. 56 Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170; Martin v Trustees of the British Museum (1894) 10 TLR 338. 57 Weldon v ‘The Times’ Book Co Ltd (1911) 28 TLR 143. 58 Bottomley v FW Woolworth & Co Ltd (1932) 48 TLR 521. 59 Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 178 per Vaughan Williams LJ; at 179–80 per Romer LJ; McPhersons Ltd v Hickie (1995) Aust Torts Reports ¶81–348 at 62,499 per Powell JA, CA(NSW). 60 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 586–89 per Brennan CJ, Dawson and Toohey JJ. 61 (1995) Aust Torts Reports ¶81–348.

CHAPTER 8 Defences to Defamation

Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574

[The appellant, Edward Thompson, brought defamation proceedings in the Supreme Court of the Australian Capital Territory in respect of an interview on The Today Show broadcast in late February 1984. In the interview, Thompson’s step-daughter accused him of having an incestuous relationship with her since she was aged seven years and of fathering the child she bore when she was aged 14 years. The television program was made and broadcast live in New South Wales by TCN Channel Nine Pty Ltd and was relayed directly, under licence, into the Australian Capital Territory by the first respondent, Australian Capital Television Pty Ltd. Australian Capital Television Pty Ltd relied, inter alia, upon the defence of innocent dissemination. The trial judge, Gallop J, upheld the defence of innocent dissemination but the Full Court of the Federal Court of Australia rejected it. The matter was appealed to the High Court of Australia.] BRENNAN CJ, DAWSON AND TOOHEY JJ (at 585):

Innocent dissemination It is more than one hundred years since the Court of Appeal in England in Emmens v Pottle held that the vendor of a newspaper is not liable for a libel contained in the newspaper if he can prove that he did not know that it contained a libel; that his ignorance was not due to any negligence on his part; and that he did not know, and had no ground for supposing, that the newspaper was likely to contain libellous matter. The decision may have been given ex tempore; counsel for the defendant vendors were not called upon. The language, especially that of Bowen LJ, is colourful: A newspaper is not like a fire; a man may carry it about without being bound to suppose that it is likely to do an injury.

His Lordship’s conclusion was founded on lack of knowledge on the part of the vendors of the libellous nature of the newspaper and absence of reason to suppose that it was likely to have contained libellous matter. Lord Esher MR rationalised rather than explained the decision by saying of the defendants: If they were liable, the result would be that every common carrier who carries a newspaper which contains a libel would be liable for it, even if the paper were one of which every man in England would say that it was not likely to contain a libel. Copyright © 2015. Oxford University Press. All rights reserved.

In fairness to Lord Esher, he added: To my mind the mere statement of such a result shews that the proposition from which it flows is unreasonable and unjust.

If unreasonable and unjust, the proposition could not, in his Lordship’s view, be part of the common law of England. In Vizetelly v Mudie’s Select Library Ltd Romer LJ (586) acknowledged that although the decision in Emmens v Pottle ‘worked substantial justice’, it did not satisfactorily explain the departure from ‘well settled law that a man who publishes a libel is liable to an action, although he is really innocent in the matter, and guilty of no negligence’. The judgments in Vizetelly itself hardly offer a satisfactory statement of principle. The explanation they offer is by reference to publication, the implication being that the innocent disseminator has not in truth published the libel in question. Indeed the judgment of Romer LJ goes beyond implication, for his Lordship said of the person who is not the printer or main publisher: [I]f he succeeds in shewing (1) that he was innocent of any knowledge of the libel contained in the work disseminated by him, (2) that there was nothing in the work or the circumstances under which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel, and (3) that, when the work was disseminated by him, it was not by any negligence on his part that he did not know that it contained the libel, then, although the dissemination of the work by him was prima facie publication of it, he may nevertheless, on proof of the before-mentioned facts, be held not to have published it.

259

260

PART 3 Defamation and the Protection of Reputation

The plea of ‘never published’ relied upon in Emmens v Pottle and later cases ‘has introduced a measure of confusion’. The authors of Duncan & Neill on Defamation comment:

Copyright © 2015. Oxford University Press. All rights reserved.

It is submitted that it would be more accurate to say that any disseminator of a libel publishes the libel but, if he can establish the defence of innocent dissemination, he will not be responsible for that publication.

Despite its somewhat muddied origins, the defence of innocent dissemination has become well accepted in the United Kingdom. In Australia Emmens v Pottle has the somewhat reluctant endorsement of the New South Wales Court of Appeal in McPhersons Ltd v Hickie, although Powell JA saw no reason in logic why the defence upheld in the English case should not also be available to a printer who had no reason to know and no reason to suspect that the printed material contained or was likely to contain libellous matter. Nevertheless, in both Emmens v Pottle and Vizetelly printers were regarded as outside the ambit of the defence of innocent dissemination. (587) The printing technology of the time made it inevitable that the printer would know the contents of what was being printed. With changes in technology, the logic of treating printers in the same way as distributors was accepted by the Faulks Committee in the United Kingdom and by the Australian Law Reform Commission. The logic is irresistible so long as the printer qualifies as a subordinate publisher, a concept that is discussed a little later in this judgment. The technology of printing has changed dramatically since the turn of the century. And the situation presently before the Court, namely television broadcasting, is one that could hardly have been envisaged then. What principles should apply to the situation where a television program is sold by one channel (the producer) to another channel for further screening where no circumstances of agency arise? The appellant argued that Emmens v Pottle established a ‘special rule governing special people’ and that it had no application to the electronic media. In particular, the appellant contended that the rule protected an innocent disseminator who bought and sold the same physical object whereas Channel 7 received an electronic transmission by microwave link and effected a new and independent electronic transmission, albeit of the same program material. The correct analogy, so the argument ran, is with a printer who prints something identical to but not the same physical object as he receives. The appellant pointed to the sophisticated technology and staff available to a television station to view material before it is rebroadcast. To allow the defence to a television station in the position of Channel 7, it was said, would enable a television network to structure its affairs so that its solvent operating company is the rebroadcaster while the original publisher is an overseas or impecunious company. These arguments found favour with Burchett and Ryan JJ in the Full Court. Their Honours concluded: In our opinion, a television company broadcasting a programme in its area—a programme which may never have been published in that area otherwise—although it may have been received from a different company that had produced it, is a world away from the subordinate distributor to whom Gatley says the defence of innocent dissemination may be available.

Their Honours went on to say that if, contrary to their conclusion, the defence was available to Channel 7, it had not been made out in all the circumstances. That aspect only calls for determination if one takes a different view as to the availability of the defence. (588) The two questions—the availability of the defence and whether it has been made out—are run together in some discussions of the matter, both in judgments and commentaries. The availability of the defence of innocent dissemination to Channel 7 depends upon it being a subordinate publisher. The idea of subordinate publisher seems to derive from Vizetelly where Romer LJ said: The result of the cases is I think that, as regards a person who is not the printer or the first or main publisher of a work which contains a libel, but has only taken, what I may call, a subordinate part in disseminating it, in considering whether there has been publication of it by him, the particular circumstances under which he disseminated the work must be considered.

CHAPTER 8 Defences to Defamation

At this point in his judgment Romer LJ turns to the question of knowledge, not treating it as a separate question but rather as going to the issue of whether or not there has been a publication. The idea that an innocent subordinate disseminator does not intend to publish is echoed in such decisions as McLeod v St Aubyn and Sun Life Assurance Co of Canada v W H Smith & Son Ltd, though the former was concerned with contempt of court proceedings … The first question—the availability of the defence—is answered by determining whether Channel 7 was, in the circumstances, a subordinate publisher. Burchett and Ryan JJ observe: (589) The defence of innocent dissemination has not previously been thought available to a television company broadcasting material which it did not produce.

The reason is, as pointed out in the commentary on the American Second Restatement, Torts in relation to radio and television broadcasting companies: For their own business purposes they initiate, select and put upon the air their own programs; or by contract they permit others to make use of their facilities to do so, and they cooperate actively in the publication. Their activity is similar to that of a newspaper, which employs its own reporters or writers to prepare matter to be published, or by contract agrees to publish matter, such as advertisements, prepared and controlled by others.

The Restatement concludes: One who broadcasts defamatory matter by means of radio or television is subject to the same liability as an original publisher.

It must be recognised that the Restatement is speaking of the usual way in which television companies operate. There is no reason in principle why a mere distributor of electronic material should not be able to rely upon the defence of innocent dissemination if the circumstances so permit. In that respect we agree with Miles J in the Full Court who, agreeing with the trial judge, said:

Copyright © 2015. Oxford University Press. All rights reserved.

[T]here is no logical reason, in accordance with the ordinary processes of the development of the law through judicial decision, why the defence of innocent dissemination or innocent republication should be restricted to printed material and not extended to television broadcasts.

The situation in the present case is that the broadcast of ‘The Today Show’ was live to air from the studios of Channel 9 in Sydney. It was received by a microwave link at Channel 7’s transmitting site on Black Mountain in the Australian Capital Territory and relayed from there by a further microwave link to the studios of Channel 7 in the Australian Capital Territory. From those studios it was broadcast to viewers in the Australian Capital Territory and nearby parts of New South Wales. It is true that Channel 7 did not participate in the production of the original material constituting the program. But Channel 7 had the ability to control and supervise the material it televised. Channel 7’s (590) answer is that time did not permit monitoring the content of the program between its receipt at Black Mountain and its telecast from the studios in the Australian Capital Territory. That may well be so but it by no means follows that Channel 7 was merely a conduit for the program and hence a subordinate disseminator. It was Channel 7’s decision that the telecast should be near instantaneous, a decision which was understandable given the nature and title of the program but which was still its decision. Without, at this point, trespassing into the second question, namely, whether the defence of innocent dissemination was made out, the nature of a live to air current affairs program carries a high risk of defamatory statements being made. In those circumstances it would be curious if Channel 7 could claim to be a subordinate disseminator because it adopted the immediacy of the program. It did that for its own purposes, that is, to telecast to viewers in the Australian Capital Territory and adjoining areas. The agreement it made with PBL did not, as we have already observed, oblige Channel 7 to broadcast the program. Pursuant to the agreement Channel 7 acquired a licence ‘to broadcast by television transmission only’ episodes of a current affairs program, ‘The Today Show’. It broadcast for its own purposes, not as agent for PBL or Channel 9, and it ‘authorised’ the broadcast in any meaningful sense that term has.

261

262

PART 3 Defamation and the Protection of Reputation

8.7.3

The statutory defence of innocent dissemination

The national, uniform defamation laws introduced a statutory defence of innocent dissemination in the following terms.62

Copyright © 2015. Oxford University Press. All rights reserved.

National defamation laws (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and (b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and (c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant. (2) For the purposes of subsection (1), a person is a ‘subordinate distributor’ of defamatory matter if the person: (a) was not the first or primary distributor of the matter, and (b) was not the author or originator of the matter, and (c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published. (3) Without limiting subsection (2)(a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of: (a) a bookseller, newsagent or news-vendor, or (b) a librarian, or (c) a wholesaler or retailer of the matter, or (d) a provider of postal or similar services by means of which the matter is published, or (e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter, or (f) a provider of services consisting of: (i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded, or (ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, or (g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control, or (h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.

QUESTIONS 1 What are the common features of the common law and statutory defences of innocent dissemination? 2 How does the statutory defence of innocent dissemination differ from the common law defence? In particular, how does the statutory defence address the limitations of the common law defence in relation to technology?

62 Civil Law (Wrongs) Act 2002 (ACT) s 139C; Defamation Act 2006 (NT) s 29; Defamation Act 2005 (NSW) s 32; Defamation Act 2005 (Qld) s 32; Defamation Act 2005 (SA) s 30; Defamation Act 2005 (Tas) s 32; Defamation Act 2005 (Vic) s 32; Defamation Act 2005 (WA) s 32.

CHAPTER 8 Defences to Defamation

8.8

8.8.1

Triviality

The defence of triviality

If a plaintiff establishes a defendant is liable for defamation, damage to the plaintiff’s reputation is presumed.63 The seriousness of a defamation may be gauged by the level of damages awarded.64 Less serious defamation may attract an award of nominal damages.65 In order to discourage trivial actions for defamation,66 a defence of triviality was enacted in some jurisdictions prior to the introduction of the national, uniform defamation laws.67 This provided a complete defence to claims in respect of defamatory publications that were unlikely to cause harm to the plaintiff’s reputation. A defence of triviality has now been introduced across Australia in terms similar to the Defamation Act 1974 (NSW) s 13 (repealed).68 However, because of the terms in which the defence is cast, it is difficult to establish in respect of mass media publications.69 Beazley JA in Jones v Sutton in the extract below provides a useful review of the applicable principles and authorities in relation to the defence of triviality.

Jones v Sutton (2004) 61 NSWLR 614

[The appellant, Darren Jones, was a councillor and former mayor of Warringah Council. He brought defamation proceedings against a fellow councillor and mayor, Ruth Sutton, in the District Court of New South Wales. The proceedings concerned a conversation Sutton had with another councillor on a bus to the annual Local Government Association meeting in Dubbo, that councillor’s subsequent republication of the conversation to Jones and another person and a conversation in the councillors’ lounge following a council meeting. Jones claimed the publications conveyed imputations that he was knowingly involved in a questionable property dealing and that he deserved condemnation because he provided trucks to be used by Warringah Council. At first instance, the jury found that Jones had been defamed but Gibson DCJ found that Sutton had established a defence of unlikelihood of harm, pursuant to the Defamation Act 1974 (NSW) s 13. (As to the respective roles of judge and jury in a defamation trial, see 7.1.16.) Jones appealed to the New South Wales Court of Appeal.]

Copyright © 2015. Oxford University Press. All rights reserved.

BEAZLEY JA (at 618): Issues on the notice of contention The correct test for the application of s 13

[11] Section 13 of the Defamation Act provides: 13 Unlikelihood of harm It is a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm.

63 64 65 66

As to the presumption of damage, see 7.1.7. As to the assessment of damages for defamation, see 9.1.2. As to nominal damages for defamation, see Chapter 9 ‘Introduction’. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports ¶80–691 at 68,946 per Moffitt P; McMullen v TCN Channel Nine Pty Ltd (2001) Aust Torts Reports ¶81–584 at 66,213 per Dunford J, SC(NSW). 67 See Civil Law (Wrongs) Act 2002 s 58 (repealed); Defamation Act 1974 (NSW) s 13 (repealed); Defamation Act 1889 (Qld) s 20 (repealed); Defamation Act 1957 (Tas) s 9(2). 68 Civil Law (Wrongs) Act 2002 (ACT) s 139D; Defamation Act 2006 (NT) s 30; Defamation Act 2005 (NSW) s 33; Defamation Act 2005 (Qld) s 33; Defamation Act 2005 (SA) s 31; Defamation Act 2005 (Tas) s 33; Defamation Act 2005 (Vic) s 33; Defamation Act 2005 (WA) s 33. 69 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800 per curiam; McMullen v TCN Channel Nine Pty Ltd (2001) Aust Torts Reports ¶81–584 at 66,214 per Dunford J, SC(NSW); Harrigan v Jones (2001) Aust Torts Reports ¶81–621 at 67,289 per Mathews AJ, SC(NSW).

263

264

PART 3 Defamation and the Protection of Reputation

[12] In Morosi, the Court (at 799) explained the operation of the section in these terms: … [Section 13] is concerned with ‘the circumstances of the publication’ and the likelihood of harm. It looks to those circumstances as at the time of publication, and requires the tribunal of fact, being aware of those circumstances, to consider prospectively as it were, the likelihood of harm ensuing, and not whether harm did actually ensue … The subsequent acts or statements of persons from which it appears, or may be inferred, that the person defamed was or was not upset by the defamatory publication can have only a limited bearing on whether that person’s reputation was likely to be damaged or his feelings were likely to be hurt.

[13] The Court (at 800) referred to the section as providing a defence to ‘trivial actions for defamation’: He said that examples where the defence might apply include publications of limited extent, particularly where ‘a slightly defamatory statement’ was made in private circumstances, to a limited number of persons and with jocular effect. It may be relevant that the persons to whom the statement was published were aware of the plaintiff’s reputation. However, s 13 is not limited to publication involving trivial matters or content. [14] In the later decision of Perkins v New South Wales Aboriginal Land Council (Badgery-Parker J, 15 August 1997, unreported), Badgery-Parker J explained why it is that publications of serious content that are defamatory may still be caught by s 13. He said (at 27):

Copyright © 2015. Oxford University Press. All rights reserved.

… The question to which s 13 directs attention is whether the circumstances of the publication were such that the plaintiff was unlikely to suffer harm. It appears to me, with respect, that the characterisation of the defamation as trivial involves circularity of reasoning: a defamation, no matter what the substance of the imputation, will be trivial only if the circumstances of its publication were such that the plaintiff was unlikely to suffer harm. Obviously, since the circumstances include, as the court said in Morosi, the nature of what was published, the defence is less likely to be made out where the content of the imputation is serious than when the content of the imputation is trivial, but it is misleading, in my view, to embark upon a consideration of s  13 from the stand point that its application is only in respect of trivial defamations. The question whether a defamation is trivial can only be answered after, not before, the circumstances of the publication have been evaluated in terms of s 13.

[15] His Honour concluded that the major circumstance of the publication that would make it unlikely that the plaintiff would suffer harm, apart from content, was the extent of publication, the nature of the recipients and their relationship with the plaintiff. He said (at 27): ‘… It would be relatively easy to make out the defence in circumstances where the publication was to a small number of persons well acquainted with the plaintiff and able themselves to make a (619) judgment of their own knowledge as to the likelihood that there was any substance in the imputation conveyed’. [16] The approach taken to s 13 in Morosi was applied by the Court in Chappell, where Moffitt P said (at 68,947) (Samuels JA and Priestley JA agreeing): For the defence to be available the ‘circumstances of the publication’ must be ‘such that the person defamed was not likely to suffer harm’. The words ‘such that’ are important. The quality of the circumstances of the publication must be the factor which renders it unlikely that the person defamed will suffer harm. Whereas a defamatory imputation is actionable per se, without damage (sec 8–9), so that a defendant cannot defeat an action even if he were able to prove that there was no actual damage, the defence under sec 13 is directed entirely to the circumstances of the publication…. The issue is directed to the quality of the publication in respect of its proneness to cause harm. The words of sec 13 are ‘was not likely to suffer harm’ and not ‘did not suffer harm’ (meaning ‘probably did not suffer harm’). The quality of the circumstances of the publication determines at the moment of publication whether it is or is not actionable; Morosi (supra at p 799). (emphasis added.)

[17] These principles were again accepted as correct by this Court in King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305. In that case the defendants appealed against the trial judge’s refusal to leave the s 13 defence to the jury. Mahoney JA said (at 310): … Section 13 might have provided that there was a defence if ‘in all the circumstances’ the person defamed was not likely to suffer harm from the publication. In such a case, his prior

CHAPTER 8 Defences to Defamation

bad reputation would be proved to show that he was not likely to suffer harm from the instant imputation. But, as Moffitt P pointed out in his judgment, [in Chappell] the section did not so provide. It provided a defence only where, by reason of more restricted matters, viz, the circumstances of the publication, the plaintiff was not likely to suffer harm.

[18] However, earlier in his judgment (at 309) his Honour stated: ‘The s 13 defence involves that the defendant show that, for the reasons stated, the plaintiff, at the time of publication, “was not likely to suffer harm”. This places a significant burden upon the defendant: he must negative not merely that there would be great or substantial harm but that there be “harm” at all’. (emphasis added.) [19] This passage gives rise to the principal issue argued on the appeal. Gibson DCJ considered that the passage was binding on her and stated the test for s 13 in terms that were different from and ‘potentially inconsistent’ with Morosi and Chappell. The difference was said to be that Morosi and Chappell decided that the matter to be determined under the section was whether the circumstances of the publication were such that the plaintiff was not likely to suffer harm whereas, her Honour considered that according to this passage in King v McKenzie, a defendant had to prove that ‘the plaintiff was not likely to suffer any harm at all’. She said this ‘directly contradicts the words of the section (“unlikely”)’. [20] Her Honour also considered that the Court of Appeal in Skalkos v Assaf (2002) Aust Torts Reports 81–644 (68,942), repeated the need for a defendant to establish ‘no harm at all’ under s 13. Her Honour’s interpretation of Skalkos v Assaf  fortified her conclusion that the ‘no harm at all’ test, purported to be laid down in King v McKenzie, was binding on her and that (620) notwithstanding the potential inconsistency with Chappell, she was required to apply ‘its very strict test’. Her Honour commented however that the potential inconsistency between the two tests was irrelevant in this case. It is clear that her Honour meant by this that, on either test, the defence had been made out. [21] The appellant submitted that her Honour was wrong in finding that the test in King v McKenzie was inconsistent with Chappell and, it follows, with Morosi. Considerable time was devoted to this issue during the course of the appeal. In my opinion, it is resolved more simply than the argument might have indicated. [22] In King v McKenzie, Mahoney JA (at 310) (in the passage set out at 619 [16] supra) said that the proper approach to s 13 was as stated in Chappell. The Court also refused leave to reargue Chappell. In doing so, Mahoney JA (Meagher JA agreeing) said (at 311): [Counsel for the appellants submitted] that the Chappell case was wrongly decided and that he should have leave to re-argue the correctness of it….

Copyright © 2015. Oxford University Press. All rights reserved.

… Chappell’s case decided that the s 13 defence exists only where the fact that the plaintiff ‘was not likely to suffer harm’ arose because of ‘the circumstances of the publication …’ … In my opinion, Chappell’s case was correctly decided … As a matter of statutory construction, it is I think clear that it is to be by reason of the circumstances of the publication that the plaintiff was not likely to suffer harm, for the purposes of the defence. There is no reason requiring departure from the ordinary meaning of the section.

Clarke JA also considered that leave should not be given to reargue Chappell, although he did so on different grounds. [23] Mahoney JA’s deliberation (at 309), which is the focus of this issue, was obiter. In that passage his Honour was not dealing with the test to be applied for the purposes of s 13 but rather with the extent of the proof required to establish the defence. He pointed out that a defendant bore a significant burden in seeking to do so, in that it was not only great or substantial harm that had to be negatived. It is possible, that in stating that the defendant had to negative ‘that there be “harm” at all’ his Honour overemphasised the point. It is more likely, however, as submitted by the appellant, that what his Honour meant was that what had to be negatived was that there was ‘likely to be harm at all’. His Honour’s omission to insert the word ‘likely’ is not an omission of any moment—as I have said, his Honour’s consideration was focussed on the extent of ‘the harm’ referred to in the section, not upon whether the circumstances were such that the plaintiff was not likely to suffer harm. [24] Accordingly, the better view of King v McKenzie, is that there is no inconsistency with Morosi and Chappell. But even if there is an inconsistency, the Court in King v McKenzie did not purport to overrule Chappell. Rather the Court said it applied the test there stated and did so without qualification. If the passage (at 309) states the principle inconsistently with those two cases, then its effect is not to qualify as a new

265

Copyright © 2015. Oxford University Press. All rights reserved.

266

PART 3 Defamation and the Protection of Reputation

or different principle that changed the existing law and which must be applied. Rather, its effect is merely a mis-statement which should be ignored. Accordingly, the trial judge in this case was required to apply the law as stated in Morosi and Chappell, and should have ignored any mis-statement or confusion in the passage (at 309) in King v McKenzie. … (621) ... [26] The second matter to which I wish to make reference is the role that reputation has to play in relation to s 13. [27] In Morosi, the Court said (at 800) that it may be that publication to a small group of people who had knowledge of the plaintiff’s reputation and their acceptance of that reputation as properly reflecting the plaintiff’s personality, is relevant to the circumstances of the publication. [28] This was considered extensively by Moffitt P in Chappell, where his Honour held (at 68,950) that prior bad reputation, as such, was not relevant to the defence under s 13, because it is not a ‘circumstance of the publication’. It is something that existed prior to the communication. However, reputation may have some role to play in s 13, depending upon who the recipients are of the defamatory publication and the circumstances in which it was made. This is because the recipient of the communication is proximate to it. It is arguable that any special characteristics of him or her as recipient such as personal knowledge of the person defamed may be caught up in the circumstances of the publication. Thus, a defamation to a group of friends in a bar may attract s 13: see Moffitt P in Chappell (at 68,948). [29] Hunt J, sitting at first instance, also dealt with the question of reputation in the context of s 13 in Singleton v John Fairfax & Sons Ltd [No 1] [1983] 2 NSWLR 722, where he said that bad reputation, in an appropriate case, may be taken into account as one of the circumstances of the publication. His Honour did not make a general statement that bad reputation was relevant for the purposes of s 13. It depended upon the circumstances. I am not satisfied that his Honour stated the principle any more widely than did Moffitt P in Chappell. To the extent that his Honour’s statements on this might be considered to be wider, then Chappell, as a judgment of this Court is, of course, binding. [30] In King v McKenzie, therefore, Mahoney JA was correct when he said that Chappell held that prior bad reputation was not one of the circumstances of the publication. [31] Accordingly, her Honour’s comment (at [49]) that Mahoney JA’s statement in King v McKenzie that ‘bad reputation of the plaintiff was therefore not one of the circumstances of the publication appears to contradict the passages in Morosi and Singleton’ does not accurately reflect the authorities. I should add, her Honour’s comment does not touch upon any issue in the proceedings as (622) there was no allegation of bad reputation, so it is unclear whether her Honour’s observation was intended to be merely a comment or whether she thought there was more relevance in the point. [32] However, there is, a more fundamental reason why the debate as to whether her Honour wrongly applied King v McKenzie is not to the point. Although her Honour referred both to Chappell and to King v McKenzie and purported to apply both tests she thought were or possibly were derived from each, she applied a different test altogether. This is apparent from various passages in her Honour’s judgment, including the following. [33] Her Honour (at [53(6)]) referred to situations where the defence might apply. She referred to ‘circumstances particular to the recipients to the publication [so that] the plaintiff’s reputation does not suffer any harm (King v McKenzie (at 309G))’. Next (at [53(8)]) her Honour said: ‘The defendant must establish that the plaintiff did not suffer harm at all’ (King v McKenzie (at 309G); Skalkos v Assaf (at 68,536)) (emphases added). Then (at [64]) her Honour said: ‘The issue is whether the circumstances of the publication are such that the plaintiff was, to use the words of the section, not likely to suffer harm which the Court of Appeal has held (King v McKenzie (at 309G)) “requires proof that the plaintiff suffered no harm at all”. (Emphasis added.) [34] A test stated in these terms is wrong. Whatever view is taken of the passage in King v McKenzie (at 309), it still states the test in terms of ‘proneness’ to cause harm. The authorities are clear that the section is not concerned with whether harm was occasioned, as her Honour stated was required. As the Court said in Morosi (at 799), s 13 requires the Court to look at the circumstances at the time of publication and ‘to consider prospectively … the likelihood of harm ensuing’. Appeal allowed. [Santow JA and Stein AJA agreed with Beazley JA. Special leave to appeal to the High Court of Australia was refused. See Sutton v Jones [2005] HCATrans 966.]

CHAPTER 8 Defences to Defamation

QUESTIONS 1 What are the elements of the defence of triviality? 2 In what circumstances might a defence of triviality be established? 3 What factors are relevant or irrelevant to an assessment of whether a defence of triviality has been established? 4 The Defamation Act 1974 (NSW) s 13 (repealed) required the defendant to demonstrate that the plaintiff was ‘not likely to suffer harm’ in the circumstances of publication. In Jones v Sutton, Beazley JA held that this phrase meant ‘the absence of a real chance’ or ‘the absence of a real possibility of harm’, rather than ‘more probable than not that the [plaintiff] will not suffer harm’. The defence of triviality under the national, uniform defamation laws requires that a defendant demonstrates that a plaintiff was ‘unlikely to sustain any harm’. Should the difference in statutory language here lead to the development and application of different tests for this defence?

FURTHER READING

Copyright © 2015. Oxford University Press. All rights reserved.

Doley, Cameron and Mullis, Alastair (eds), Carter-Ruck on Libel and Privacy, 6th edn, LexisNexis, London, 2010. George, Patrick, Defamation Law in Australia, 2nd ed., LexisNexis Butterworths, Chatswood (NSW), 2012. Gillooly, Michael, The Third Man: Reform of the Australasian Defamation Defences, Federation Press, Leichhardt (NSW), 2004. Gould, Kim, ‘Statutory Qualified Privilege Succeeds, but Too Early for the Media to Go “Dancing in the Streets”’ (2011) 16 Media and Arts Law Review 241. Gould, Kim, ‘The Statutory Triviality Defence and the Challenge of Discouraging Trivial Defamation Claims on Facebook’ (2014) 19 Media and Arts Law Review 113. Parkes, Richard, and Mullis, Alastair, (eds), Gatley on Libel and Slander, 12th edn, Sweet & Maxwell, London, 2013.

267

268

9 Remedies for Defamation

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION If a plaintiff succeeds in establishing the defendant’s liability in defamation, and the defendant fails to prove his or her defences, the plaintiff is entitled to a remedy. As defamation is a tort—a common law cause of action—such a plaintiff is entitled to an award of damages as of right.1 The award of damages need not be substantial. There are a number of cases over many centuries in which the successful plaintiff received only nominal or derisory damages.2 In many cases, however, a successful plaintiff will receive substantial damages. At common law, there has developed a substantial body of case law dealing with the principles to be applied to the assessment of damages for defamation. Since the introduction of the national, uniform defamation laws, there are now also important statutory provisions affecting the assessment of damages which also require consideration. Although they are the principal remedy,3 damages are not the only remedy available for defamation. In certain circumstances, a plaintiff may be able to obtain an interlocutory injunction to restrain the publication of defamatory matter. However, the grant of such a remedy is comparatively rare.4

1 Wisdom v Brown (1885) 1 TLR 412; Gray v Motor Accident Commission (1998) 196 CLR 1 at 33 per Kirby J. 2 For recent cases in which nominal damages were awarded, see Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 ($10 damages); Grobbelaar v News Group Newspapers Ltd [2002] 4 All ER 732; [2002] 1 WLR 3024 (£1 damages); Bahonko v Sterjov [2007] FCA 1244 ($50 damages). For earlier cases in which nominal damages were awarded, see Martin v Benson [1927] 1 KB 771 (1¾ pence damages); Dering v Uris [1964] 2 QB 669 (halfpenny damages). 3 Broome v Cassell & Co Ltd [1972] AC 1027 at 1070 per Lord Hailsham of St Marylebone LC; John v MGN Ltd [1997] QB 586 at 607 per curiam. 4 For recent cases in which an interlocutory injunction was sought but refused, see The Star Hotel Holdings Pty Ltd v Newcastle Newspapers Pty Ltd [2001] NSWSC 53; Meriton Apartments Pty Ltd v SBS Corporation [2002] NSWSC 915; Cromwells Auctions and Appraisers Pty Ltd v John Fairfax Publications Pty Ltd [2002] NSWSC 948; Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 144; Duncan v Allen & Unwin [2004] NSWSC 1069; Annabel v Seven Network (Operations) Ltd [2005] ACTSC 54; Zacharia v Channel Seven Sydney Pty Ltd [2006] NSWSC 663; Kelly v Graham [2007] QSC 172; Heartcheck Australia Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 555; Advanced Medical Institute Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 793; True Value Solar (SA) Pty Ltd v Seven Network Ltd [2011] SASC 91; Crisp v Fairfax Media Ltd [2012] VSC 615; Moran v Schwartz Publishing Pty Ltd [2014] WASC 334. For recent cases in which an interlocutory injunction was granted or continued, see Australian Broadcasting Corporation v Hanson [1998] QCA 306; Hemmes v Seven Network Ltd [2000] NSWSC 246; ING (Australia) Ltd v Muscat [2003] NSWSC 1133; Tate v Duncan-Strelec [2013] NSWSC 1446; Stokes v Ragless [2014] SASC 56.

CHAPTER 9 Remedies for Defamation

In addition to damages and injunctions, the national, uniform defamation laws provide for an ‘offer of amends’ procedure as an alternative dispute resolution mechanism. At various times, other remedies, such as court-ordered corrections, apologies, rights of reply and declarations of falsity, have been propounded by law reform bodies and academics. This chapter seeks to examine the relevant principles and statutory provisions relating to the award of damages. It will also address the principles governing the grant of injunctions in defamation cases. It deals with the offer of amends procedure under the national, uniform defamation laws and considers further remedial alternatives to the traditional remedies of damages and injunctions.

9.1

Copyright © 2015. Oxford University Press. All rights reserved.

9.1.1

Damages

Who assesses damages?

At common law, the jury, not the judge, was responsible for the assessment of damages.5 The rationale for this was that the jury was better able to represent the community and to reflect community attitudes.6 Appellate judges could not interfere with jury awards in defamation cases merely because they themselves would have awarded a different amount. They could only set aside a jury award if satisfied that it was either manifestly inadequate or manifestly excessive, in the sense that no jury, properly instructed, could have awarded the amount they did.7 However, during the late 1980s and the early 1990s, there were a number of high-profile defamation cases, both in the United Kingdom and in Australia, in which juries awarded sizeable damages to plaintiffs.8 In New South Wales, one effect of this series of cases was the removal of the function of the assessment of damages from juries.9 Now, across Australia, following the introduction of the national, uniform defamation laws, trial judges alone in all jurisdictions assess damages for defamation. In the Australian Capital Territory, the Northern Territory and South Australia, there are no juries in civil proceedings at all.10 In the five remaining jurisdictions, the legislation specifically confers the task of assessing damages on the trial judge sitting alone.11 The principles in relation to appellate interference with a jury verdict apply to appellate interference with a trial judge’s assessment of damages for defamation, mutato mutandis.12

5 6 7

8 9 10 11 12

Davis v Shepstone (1886) 11 App Cas 187 at 191, PC; Bray v Ford [1896] AC 44 at 50 per Lord Watson; at 52 per Lord Herschell; Broome v Cassell & Co Ltd [1972] AC 1027 at 1065 per Lord Hailsham of St Marylebone LC. Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584 per Scrutton LJ. Praed v Graham (1889) 24 QBD 53 at 55 per Lord Esher MR; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 585 per Scrutton LJ, CA; Triggell v Pheeney (1951) 82 CLR 497 at 516 per Dixon, Williams, Webb and Kitto JJ; Broome v Cassell & Co Ltd [1972] AC 1027 at 1065 per Lord Hailsham of St Marylebone LC; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61–62 per Mason CJ, Deane, Dawson and Toohey JJ. As to the position in Australia, see Patrick George, Defamation Law in Australia, 2nd edn, LexisNexis Butterworths, Chatswood, 2012, [31.2]. As to the position in the United Kingdom, see Harvey McGregor, McGregor on Damages, 17th edn, Sweet & Maxwell, London, 2003, [39–023]–[39–026]. Defamation Act 1974 (NSW) s 7A(4)(a) (repealed). As to the abolition of juries in defamation proceedings in these jurisdictions, see 7.1.16. Defamation Act 2005 (NSW) s 22(3); Defamation Act 2005 (Qld) s 22(3); Defamation Act 2005 (Tas) s 22(3); Defamation Act 2005 (Vic) s 22(3); Defamation Act 2005 (WA) s 22(3). Rook v Fairrie [1941] 1 KB 507 at 513–14 per Sir Wilfrid Greene MR; Fielding v Variety Inc [1967] 2 QB 841 at 853 per Salmon LJ.

269

270

PART 3 Defamation and the Protection of Reputation

QUESTIONS 1 What are the reasons for allowing juries to assess damages for defamation? 2 What are the reasons for allowing trial judges sitting alone to assess damages for defamation? 3 Do you think juries or trial judges sitting alone are better placed to assess damages for defamation? Why?

9.1.2

Assessment of damages

At common law, damages for defamation are ‘at large’. This means that the damages are not limited to provable, pecuniary losses13 and may take into account what the plaintiff should receive as well as what the defendant ought to be made to pay.14 As with other torts, damages for defamation are assessed on a ‘once and for all basis’. In relation to compensatory damages, this means that compensatory damages seem to provide a remedy for both the past and future harm occasioned by the publication of defamatory matter.15 The tribunal of fact assessing damages may take into account the whole of the defendant’s conduct, from the time of publication up until the time of the verdict.16 The assessment of damages for defamation is not a mathematical exercise. Rather, it is largely a matter of impression.17 The ordinary principles of causation and remoteness in tort apply to the assessment of damages for defamation.18 It is not merely the fact of a defamation verdict in favour of the plaintiff that is important. The quantum of damages has to be sufficiently substantial ‘to convince a bystander of the baselessness of the charge’ levelled against the plaintiff by the defendant’s defamatory publication.19

QUESTION 1 How effective are damages as a remedy for defamation? What other, potentially more effective remedies or forms of redress, legal or otherwise, might a prospective plaintiff want?

Copyright © 2015. Oxford University Press. All rights reserved.

9.1.3

Available heads of damages

Broadly, at common law, there are three heads of damages available in a defamation claim: compensatory, aggravated and exemplary damages. The purpose of each of these heads of damages and the circumstances in which each type of damages might be awarded needs to be examined in turn.

13 Fielding v Variety Inc [1967] 2 QB 841 at 850-51 per Lord Denning MR; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 228 per Toohey J. However, see also John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 142 per McHugh JA. 14 Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151 per Windeyer J, citing with approval Forsdike v Stone (1868) LR 3 CP 607 at 611 per Willes J. 15 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 238 per Toohey J. 16 Praed v Graham (1889) 24 QBD 53 at 55 per Lord Esher MR. 17 Broome v Cassell & Co Ltd [1972] AC 1027 at 1072 per Lord Hailsham of St Marylebone LC; John v MGN Ltd [1997] QB 588 at 608 per curiam. 18 Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd (2001) 79 SASR 451 at 470 per Gray J. 19 Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham of St Marylebone LC. See also John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 142 per McHugh JA.

CHAPTER 9 Remedies for Defamation

9.1.4

Compensatory damages—common law principles

Compensatory damages provide a remedy for non-economic and economic losses resulting from defamation. In most defamation cases, compensatory damages in the nature of noneconomic loss are the most significant, and usually the only, head of damages awarded to a successful plaintiff.20 Compensatory damages for non-economic loss comprise damages for injury to reputation and damages for hurt feelings.21 Damage to reputation is presumed to flow from the publication of defamatory matter, therefore it does not need to be proven. This is consistent with the principle that defamation seeks to address the tendency of the publication to cause harm to reputation, rather than being limited to the actual harm done to reputation.22 As well as seeking to place the plaintiff in the position he or she would have been in, had the tort not been committed, compensatory damages for defamation may also serve, in part, a punitive or a deterrent function.23 This becomes particularly important when considering the distinction between compensatory and exemplary damages.24 Compensatory damages for actual, pecuniary losses suffered as a consequence of the publication of defamatory matter may be recovered,25 but are rarely claimed.26 The statutory caps on damages for defamation which have been introduced are directed towards damages for non-economic loss, therefore compensatory damages for economic losses can still be claimed to their full extent.27 The purposes for which an award of damages in a defamation case serve are complex.28 The purposes of an award of compensatory damages in a defamation claim have been notably considered in a series of three influential High Court judgments.

Uren v John Fairfax & Sons Pty Ltd

Copyright © 2015. Oxford University Press. All rights reserved.

(1966) 117 CLR 118

[The plaintiff was a prominent Australian Labor Party politician. He brought defamation proceedings in the Supreme Court of New South Wales against the publisher of The Sun-Herald in relation to an article published in two of the three editions of that newspaper. The article was published in the two editions under the respective headlines, ‘LABOR LINK WITH RED SPY—CANBERRA CHARGE’ and ‘SPY DUPED LABOR MPs’.

20 Rook v Fairrie [1941] 1 KB 507 at 516 per Sir Wilfrid Greene MR; John v MGN Ltd [1997] QB 588 at 607 per curiam. 21 McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104 per Pearson LJ; at 107 per Diplock LJ; John v MGN Ltd [1997] QB 588 at 607 per curiam; Broome v Cassell & Co Ltd [1972] AC 1027 at 1073 per Lord Hailsham of St Marylebone LC. Damages under this head can be awarded for grief, distress, loss of pride, loss of self-confidence (McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104 per Pearson LJ), anxiety and annoyance (Fielding v Variety Inc [1967] 2 QB 841 at 855 per Salmon LJ). Damages under this head can be awarded even if there is no real injury to the plaintiff’s reputation: Fielding v Variety Inc at 855 per Salmon LJ. 22 See 7.1.7. 23 Rookes v Barnard [1964] AC 1129 at 1228 per Lord Devlin; Gray v Motor Accidents Commission (1998) 196 CLR 1 at 34 per Kirby J; The Gleaner Co Ltd v Abrahams [2004] 1 AC 628 at 643 per curiam. 24 As to exemplary damages for defamation, see below 9.1.7. 25 McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104 per Pearson LJ. 26 Rook v Fairrie [1941] 1 KB 507 at 516 per Sir Wilfrid Greene MR. 27 As to the statutory caps on damages for non-economic loss in defamation cases, see 9.1.5. 28 Rook v Fairrie [1941] 1 KB 507 at 515 per Sir Wilfrid Greene MR; John v MGN Ltd [1997] QB 588 at 607 per curiam.

271

272

PART 3 Defamation and the Protection of Reputation

At the trial before Maguire J, John Fairfax & Sons Pty Ltd abandoned its defence and apologised to Uren. The only issue for the jury was the quantum of damages. Maguire J directed the jury that it was open to them to award exemplary damages in the present case. The jury awarded Uren £5,000 damages in respect of the first article and £8,000 damages in respect of the second article. Fairfax appealed to the Full Court of the Supreme Court of New South Wales. The Full Court held that Maguire J’s direction was wrong and that the damages awarded were manifestly excessive. It ordered a new jury trial limited to the assessment of damages. Uren appealed to the High Court of Australia. In the course of his judgment, Windeyer J made some remarks about the purpose of damages in defamation law, which have been frequently cited.] WINDEYER J (at 150): When it is said that in an action for defamation damages are given for an injury to the plaintiff’s reputation, what is meant? A man’s reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways—as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money … Appeal dismissed.

Carson v John Fairfax & Sons Pty Ltd

Copyright © 2015. Oxford University Press. All rights reserved.

(1993) 178 CLR 44

[The plaintiff was a partner at a large commercial law firm in Sydney. His firm represented Tectran Corporation Pty Ltd, which was involved in a long-running dispute with Dr Leszek Rajski. The Sydney Morning Herald published two articles, one in late April 1987 under the headline ‘Dr Rajski: a war on many fronts’ and one in early May 1988 under the headline ‘The criminal phase of the Rajski case’. Carson commenced defamation proceedings against John Fairfax & Sons Pty Ltd and journalist John Slee, claiming that the first article imputed that he had wrongfully threatened defamation proceedings against an expert witness and another party’s solicitor and that the second article imputed that he was involved in a conspiracy to obstruct justice by evading the service of criminal process. At trial before Loveday J, the jury awarded Carson $200,000 damages in respect of the first article and $400,000 damages in respect of the second article. By majority (Kirby P and Priestley JA, Mahoney JA dissenting), the New South Wales Court of Appeal set aside the verdicts and ordered a new trial, limited to the issue of damages. Carson appealed to the High Court of Australia. In the course of their joint judgment, Mason CJ, Deane, Dawson and Gaudron JJ made some oft-quoted observations about the purposes of damages in defamation law.] MASON CJ, DEANE, DAWSON AND GAUDRON JJ (at 60): … Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that ‘the amount of a verdict is the product of a mixture of inextricable considerations’. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to (61) the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. ‘The gravity of the libel, the social standing of the parties and the availability of alternative remedies’ are all relevant to assessing the quantum of damages necessary to vindicate the appellant. Appeal dismissed.

CHAPTER 9 Remedies for Defamation

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327

[The plaintiff was a prominent ophthalmic surgeon. In the seminal Australian medical negligence case, Rogers v Whitaker (1992) 175 CLR 479, Rogers was found liable for his failure to warn his patient, Whitaker, about a risk of sympathetic ophthalmia, leading to blindness, involved in the proposed surgery. There was no suggestion that he operated negligently or that his recommendation of the treatment was negligent. Whitaker was awarded damages plus interest. Subsequently, the Federal Commissioner of Taxation assessed the interest as taxable income. Whitaker unsuccessfully challenged the assessment in the Federal Court of Australia. In his judgment, Hill J referred in passing to Rogers v Whitaker. The Daily Telegraph published an article about the Federal Court proceedings under the headline, ‘Blind Justice’. The article stated in a number of places and ways that Whitaker had been blinded by a surgeon’s negligence. Rogers brought defamation proceedings against Nationwide News Pty Ltd in the District Court of New South Wales. At first instance, Tupman J awarded Rogers $250,000 damages. The New South Wales Court of Appeal allowed an appeal on the basis that Nationwide News Pty Ltd had established a statutory defence of fair protected report under the Defamation Act 1974 (NSW) s 24 (see further at 7.5.3 above) but also expressed the view that the award of damages was manifestly excessive. Rogers appealed to the High Court of Australia. In the course of his judgment, Hayne J made some observations about the purposes of damages in defamation law, which have been subsequently endorsed in the decided cases.] HAYNE J (at 349): [66] In searching for the standard against which manifest excess of an award of damages for defamation can be judged, account must be taken of three basic propositions. First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury. It is necessary to say something about each of these propositions.

Copyright © 2015. Oxford University Press. All rights reserved.

The worth of reputation [67] Defamation may cause identifiable economic consequences for the person who is defamed. This was not said to be the case in this matter. In the present, as in so many cases of defamation, the wrong that was done to the appellant was alleged to have caused him personal distress and hurt and to have caused harm to his personal and his professional reputation; it was not alleged that his professional earnings had diminished by an identified amount. Assigning a money sum as sufficient to remedy those harms and to vindicate the appellant’s reputation translates losses which have no market value into amounts of money. Of course, defamation is not the only area of the law in which this is done. Damages for pain and suffering suffered in consequence of personal injury or for the loss of liberty brought about by wrongful imprisonment are two other cases in which this is done. But in neither defamation nor in other cases of non-pecuniary loss can any standard of evaluation be employed except one that is described in qualitative and therefore necessarily imprecise terms. The damages that may be awarded ‘are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man’. [68] The measure of what is reasonable compensation, if not supplied by (350) the collective wisdom of a jury, must be distilled from within the transactions of the law. That is, the standard against which an allegation that damages for defamation are manifestly excessive must be judged is a standard which is to be found within the administration of the law. It is not some external standard supplied, for example, by transactions within a market. Because reputation is not bought and sold, it is only in the courts that money values are assigned to the consequences of infliction of harm to reputation.

Comparisons between awards for defamation [69] Two of the three purposes served by an award of damages for defamation are to provide consolation to the person defamed for the personal distress and hurt which has been done, and reparation for the harm done to that person’s reputation. Necessarily, then, the amount awarded for defamation should reflect

273

274

PART 3 Defamation and the Protection of Reputation

the effect which the particular defamation had on the individual plaintiff. It follows that the drawing of direct comparisons between particular cases is apt to mislead, just as the drawing of direct comparisons in personal injury cases can also mislead. Comparison assumes that there is sufficient identity between the effect which each defamation had on the particular plaintiff, whereas in fact circumstances alter cases. The amount allowed in each case should reflect the subjective effect of the defamation on the plaintiff. Unless that is recognised, the courts fall into ‘that form of the judicial process that Cardozo J deprecated, the mere matching of the colours of the case in hand against the colours of samples spread out upon a desk’. The consideration of other cases can yield no norm or standard derived from the amounts awarded in those other specific cases. Nonetheless, as Windeyer J said in relation to the assessment of damages for personal injuries: Of course no two cases are exactly alike … One award is never really a precedent for another case. But we would I think be ignoring facts if we were to say that judges when asked to consider whether a particular verdict is beyond the bounds of reason—either excessive or inadequate— are unmindful of what was done in other cases, similar or dissimilar. If we were to say that, we would I consider deceive ourselves, as well as belie statements in judgments of high authority.

Appeal allowed.

QUESTIONS 1 What are the purposes for which compensatory damages are awarded in defamation claims? 2 How do these purposes differ from the purposes for which compensatory damages are awarded in other claims in tort? 3 To what extent may an award of compensatory damages contain a punitive or a deterrent element? 4 What factors are relevant to the assessment of compensatory damages in a defamation claim? 5 Given the stated purposes for which compensatory damages are awarded for defamation, how effective are awards of defamation damages in achieving those purposes?

Copyright © 2015. Oxford University Press. All rights reserved.

9.1.5

Compensatory damages—statutory provisions

Now, under the national, uniform defamation laws, damages for defamation in the nature of non-economic loss are capped. The legislation provides for a maximum award of $250,000 damages for non-economic loss in defamation cases.29 However, it also provides for a mechanism for the annual indexation of that amount.30 This indexation mechanism mirrors that which has been enacted for personal injuries claims in some jurisdictions as part of the tort law reforms which occurred in the early 2000s.31 The national, uniform defamation laws also require a judge, when assessing damages for defamation, to ensure that there is a rational relationship between the amount of damages awarded and the harm suffered.32 29 Civil Law (Wrongs) Act 2002 (ACT) s 139F(1); Defamation Act 2006 (NT) s 32(1); Defamation Act 2005 (NSW) s 35(1); Defamation Act 2005 (Qld) s 35(1); Defamation Act 2005 (SA) s 33(1); Defamation Act 2005 (Tas) s 35(1); Defamation Act 2005 (Vic) s 35(1); Defamation Act 2005 (WA) s 35(1). 30 Civil Law (Wrongs) Act 2002 (ACT) s 139F(3)–(9); Defamation Act 2006 (NT) s 32(3)–(8); Defamation Act 2005 (NSW) s 35(3)–(7); Defamation Act 2005 (Qld) s 35(3)–(8); Defamation Act 2005 (SA) s 33(3)–(8); Defamation Act 2005 (Tas) s 35(3)–(8); Defamation Act 2005 (Vic) s 35(3)–(8); Defamation Act 2005 (WA) s 35(3)–(8). 31 Personal Injuries (Liabilities and Damages) Act 2003 (NT) ss 27, 28; Civil Liability Act 2002 (NSW); Wrongs Act 1958 (Vic) ss 28G, 28H. As to limitations on damages for non-economic loss in personal injury claims in other jurisdictions, see Civil Liability Act 2003 (Qld) ss 61, 63; Civil Liability Act 1936 (SA) s 52; Civil Liability Act 2002 (Tas) s 27; Civil Liability Act 2002 (WA) ss 9, 10. 32 Civil Law (Wrongs) Act 2002 (ACT) s 139E; Defamation Act 2006 (NT) s 31; Defamation Act 2005 (NSW) s 34; Defamation Act 2005 (Qld) s 34; Defamation Act 2005 (SA) s 32; Defamation Act 2005 (Tas) s 34; Defamation Act 2005 (Vic) s 34; Defamation Act 2005 (WA) s 34.

CHAPTER 9 Remedies for Defamation

The cumulative effect of these provisions is a pragmatic solution to the seemingly intractable problem of the proper relationship between the level of damages for non-economic loss in defamation and personal injury claims, which has perplexed judges and academics for several decades.33 The national, uniform defamation laws have now been in operation for a sufficient period of time to make some assessment on their impact on damages, based on the decided cases. There have been over 60 defamation cases in which damages have been assessed since the introduction of the national, uniform defamation laws. At the time of writing, no award of damages has exceeded the cap on damages for non-economic loss on the basis of a need to grant aggravated damages.34 In the rare instance where an award of damages has exceeded the statutory cap, there were either multiple plaintiffs or multiple causes of action.35 Few awards of damages have approached the statutory cap.36 It is common for awards of damages to be within a range of $50,000 to $100,000—some way off the maximum available.37

QUESTIONS 1 In light of the purposes an award of defamation damages is intended to serve, is it appropriate to cap damages for defamation? Why or why not? 2 The legislated maximum for damages for non-economic loss for personal injuries was $350,000. Why is there a differential between the starting point for capped damages for defamation and personal injuries? Is it justifiable? 3 What relationship, if any, should exist between the level of damages for non-economic loss in defamation and personal injury claims?

9.1.6

Aggravated damages

Copyright © 2015. Oxford University Press. All rights reserved.

Aggravated damages are a form of compensatory damages.38 (Indeed, they are, on occasion, referred to as ‘aggravated compensatory damages’.) They are awarded in circumstances where the defendant’s conduct and the circumstances and manner of the tort increase the harm or injury done to the plaintiff.39 The focus of the inquiry as to whether to award aggravated damages is upon the impact on the plaintiff, not the nature and quality of the 33 As to the position in Australia, see Coyne v Citizen Finance Ltd (1991) 172 CLR 211; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327. As to the position in the United Kingdom, see Sutcliffe v Pressdram Ltd [1991] 1 QB 153; Rantzen v Mirror Group Newspapers Ltd [1994] QB 670; John v MGN Ltd [1997] QB 586; Kiam v MGN Ltd [2003] QB 181; The Gleaner Co Ltd v Abrahams [2004] 1 AC 628. 34 As to aggravated damages, see 9.1.6. 35 See, for example, Cripps v Vakras [2014] VSC 279. 36 For some examples of the largest awards under the national, uniform defamation laws, see Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632 ($200,000 damages, including aggravated damages); Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 ($240,000 damages for non-economic loss, $15,000 damages for economic loss). 37 See, for example, Ryan v Premachandran [2009] NSWSC 1186 ($80,000 damages); Cantwell v Sinclair [2011] NSWSC 1244 ($75,000 damages, including aggravated damages); Cornes v Ten Group Pty Ltd (2011) 114 SASR 1 ($85,000 damages). 38 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 240 per Hutley JA; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74 per Hunt J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 50–51 per Mason CJ, Deane, Dawson and Toohey JJ; Gray v Motor Accidents Commission (1998) 196 CLR 1 at 34–35 per Kirby J. 39 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 130 per Taylor J; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653 per Samuels JA; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 50 per Mason CJ, Deane, Dawson and Toohey JJ; State of New South Wales v Ibbett (2006) 231 ALR 485 at 492 per curiam.

275

276

PART 3 Defamation and the Protection of Reputation

defendant’s conduct.40 As with general compensatory damages, an award of aggravated damages may take into account the defendant’s conduct from the time of publication up until the time of judgment.41 The fundamental test for whether aggravated damages ought to be awarded is whether the defendant’s conduct is lacking in bona fides or is otherwise improper or unjustifiable.42 The types of conduct which may support the award of aggravated damages include: • • • • • •

the defendant’s knowledge of the falsity of the imputations levelled against the plaintiff;43 the defendant’s conduct of his or her case;44 the failure to apologise;45 the making of an inadequate apology;46 the recklessness of the defendant’s publication;47 and the sensationalist nature of the publication.48

It is important to note that these are illustrations of the types of conduct which might support an award of aggravated damages. Whether a defendant’s engagement in one or more of these forms of conduct in fact support an award of aggravated damages depends upon the particular circumstances of the case and whether, in that context, the defendant’s conduct is improper, unjustifiable or lacking in bona fides. Under the national, uniform defamation laws, aggravated damages may still be awarded  and, more importantly, are not subject to the statutory cap on damages for non-economic loss.49

Damages for Defamation

Copyright © 2015. Oxford University Press. All rights reserved.

In McMahon v John Fairfax Publications Pty Ltd [2013] NSWSC 933, the plaintiff, Bryan McMahon, was a wellknown Sydney solicitor whose legal practice had entered into administration in 2007 and who had himself filed for bankruptcy at the same time. McMahon brought defamation proceedings against The Australian Financial Review and two of its journalists in relation to two articles published in October 2007. The articles concerned his financial affairs and that of his legal practice. The jury found that the articles contained defamatory imputations that McMahon had failed to meet his tax obligations, that he was a ‘major scalp’

40 Gray v Motor Accidents Commission (1998) 196 CLR 1 at 7 per Gleeson CJ, McHugh, Gummow and Hayne JJ. Contrast the position in relation to exemplary damages. See 9.1.7. 41 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 240 per Hutley JA; Clark v Ainsworth (1996) 40 NSWLR 463 at 468 per Sheller JA. 42 Triggell v Pheeney (1951) 82 CLR 497 at 514 per Dixon, Williams, Webb and Kitto JJ; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653 per Samuels JA; Clark v Ainsworth (1996) 40 NSWLR 463 at 466 per Sheller JA; Spautz v Butterworth (1996) 41 NSWLR 1 at 17 per Clarke JA. 43 Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738 per Walsh JA; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75 per Hunt J. 44 Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 739 per Walsh JA; Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 242–43 per Hutley JA. 45 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 243 per Hutley JA, at 250–51 per Glass JA; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 659–60 per Samuels JA; Clark v Ainsworth (1996) 40 NSWLR 463 at 466–69 per Sheller JA. 46 Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 at 312 per Higgins J. 47 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 244 per Hutley JA. 48 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 79 per Hunt J. 49 Civil Law (Wrongs) Act 2002 (ACT) s 139F(2); Defamation Act 2006 (NT) s 32(2); Defamation Act 2005 (NSW) s 35(2); Defamation Act 2005 (Qld) s 35(2); Defamation Act 2005 (SA) s 33(2); Defamation Act 2005 (Tas) s 35(2); Defamation Act 2005 (Vic) s 35(2); Defamation Act 2005 (WA) s 35(2).

CHAPTER 9 Remedies for Defamation

in a crackdown on unpaid tax by the Australian Taxation Office and that he had engaged in misconduct in the management of his law firm. It also rejected the defences of justification and contextual truth. McCallum J proceeded to assess the damages, awarding McMahon $300,000 damages, finding that the failure of the proprietor and the journalists to apologise and their conduct during the proceedings aggravated the harm. In Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928, the plaintiff, Kim Ahmed, was the wife of a Sydney fish and chip shop owner, Emran Ahmed. Mr Ahmed had been convicted of assaulting a teenage girl in 2007. Mrs Ahmed brought defamation proceedings against Harbour Radio Pty Ltd and presenter Ray Hadley over two separate broadcasts on Hadley’s morning radio programme on 2GB in 2008 and 2009. The jury found that the broadcasts conveyed the imputations that Mrs Ahmed was a person of low, contemptible character, that she brought a false apprehended violence order against the father of the teenage girl her husband assaulted, that she condoned the criminal conduct of her husband and that she should be driven out of business. Nicholas AJ found that the pleaded defences of justification and honest opinion failed. His Honour awarded Ahmed $280,000 damages.

9.1.7

Exemplary damages

Copyright © 2015. Oxford University Press. All rights reserved.

At common law, exemplary damages are available for defamation.50 Exemplary damages are also known as punitive, penal, vindictive or retributory damages.51 Exemplary damages are not compensatory in purpose.52 Indeed, they are a windfall to the plaintiff who receives them.53 Rather, exemplary damages serve the twin purposes of punishment and deterrence, both of the particular defendant and of the general public.54 They are awarded in circumstances where the defendant’s conduct demonstrates a high-handed or contumelious disregard for the plaintiff’s rights.55 They also act as a mark of the court’s disapprobation of the defendant’s conduct.56 Consequently, given the stringency of the applicable tests, exemplary damages are awarded rarely.57 The focus of the inquiry as to whether to award exemplary damages is on the nature and quality of the defendant’s conduct, not the subjective reaction of the plaintiff.58 A number of judges, academics and law reform bodies have criticised exemplary damages as being an anomalous or an anachronistic part of tort law.59 Until recently, exemplary 50 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 158 per Owen J. 51 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 81 per Isaacs J; Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 262 per Knox CJ, Gavan Duffy and Starke JJ; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 158 per Owen J; Broome v Cassell & Co Ltd [1972] AC 1027 at 1073 per Lord Hailsham of St Marylebone LC. 52 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 77 per Knox CJ; Rookes v Barnard [1964] AC 1129 at 1228 per Lord Devlin. 53 Lamb v Cotogno (1987) 164 CLR 1 at 9–10 per curiam. 54 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 81 per Isaacs J; Rookes v Barnard [1964] AC 1129 at 1228 per Lord Devlin; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 130 per Taylor J; Lamb v Cotogno (1987) 164 CLR 1 at 9 per curiam. 55 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 77 per Knox CJ; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129 per Taylor J; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 461 per Gibbs CJ. 56 Lamb v Cotogno (1987) 164 CLR 1 at 13 per curiam; Gray v Motor Accidents Commission (1998) 196 CLR 1 at 29 per Kirby J. 57 Gray v Motor Accidents Commission (1998) 196 CLR 1 at 6 per Gleeson CJ, McHugh, Gummow and Hayne JJ. 58 Ibid at 7 per Gleeson CJ, McHugh, Gummow and Hayne JJ. Contrast the position in relation to aggravated damages. See 9.1.6. 59 See, for example, Lamb v Cotogno (1987) 164 CLR 1 at 9 per curiam; Allan Beever, ‘The Structure of Aggravated and Exemplary Damages’ (2003) 23 Oxford Journal of Legal Studies 87; Standing Committee of Attorneys-General Working Group of State and Territory Officers, Proposal for Uniform Defamation Laws, July 2004, Recommendation 18.

277

278

PART 3 Defamation and the Protection of Reputation

damages for defamation continued to be awarded.60 However, under the national, uniform defamation laws, exemplary or punitive damages are no longer able to be awarded for defamation.61 This reflects the position which prevailed under the Defamation Act 1974 (NSW) s 46(3)(a) (repealed).

QUESTIONS 1 Is the abolition of exemplary damages for defamation a desirable development? Why or why not? 2 In Uren v John Fairfax & Sons Pty Ltd, Windeyer J stated (at 149–50): Compensation is the dominant remedy if not the purpose of the law of torts today. But fault still has a place in many forms of wrongdoing. And the roots of tort and crime in the law of England are greatly intermingled. Some things that today are seen as anomalies have roots that go deep, too deep for them to be easily uprooted.

To what extent has the abolition of exemplary damages in defamation claims across Australia removed the punitive function of an award of damages for defamation? 3 In his Blackstone Lecture, entitled ‘Sex, Libels and Video-surveillance’, delivered at Pembroke College, Oxford, on 13 May 2006, Lord Justice Sedley of the English Court of Appeal stated: There are equal and opposite cases to be made for, on the one hand, not letting libel damages become a cornucopia for the wronged and, on the other, not making libel so cheap that the media can treat the publication of falsehoods as simply a cost-benefit exercise.

Discuss.

Copyright © 2015. Oxford University Press. All rights reserved.

9.1.8

The distinction between aggravated and exemplary damages

It is sometimes difficult to distinguish between aggravated and exemplary damages— historically, analytically and practically.62 The same facts may be used to support the award of both heads of damages.63 The distinction can be maintained by bearing in mind the different purposes which each head of damages is intended to serve.64 Whatever the difficulties and objections, the House of Lords decision in Rookes v Barnard,65 and the subsequent divergence of English and Australian law on exemplary damages, have made the preservation of the distinction between aggravated and exemplary damages important to maintain.66 The need to maintain the distinction has been amplified by the introduction of national, uniform defamation laws, which allow aggravated damages but proscribe exemplary damages for defamation.67 60 For recent examples of defamation cases in which exemplary damages were awarded, see Shepherd v Walsh [2001] QSC 358 ($20,000 exemplary damages); Martin v Trustrum [2003] TASSC 22 ($5,000 exemplary ­damages); Cullen v White [2003] WASC 153 ($25,000 exemplary damages). For recent examples of d ­ efamation cases in which exemplary damages were sought but not awarded, see Todd v Swan Television and Radio Broadcasters Pty Ltd (2001) 25 WAR 284; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1. 61 Civil Law (Wrongs) Act 2002 (ACT) s 139H; Defamation Act 2006 (NT); Defamation Act 2005 (NSW) s 37; Defamation Act 2005 (Qld) s 37; Defamation Act 2005 (SA) s 35; Defamation Act 2005 (Tas) s 37; Defamation Act 2005 (Vic) s 37; Defamation Act 2005 (WA) s 37. 62 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 per Windeyer J; Lamb v Cotogno (1987) 164 CLR 1 at 8 per curiam. 63 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 130 per Taylor J. 64 As to the purposes of awards of aggravated and exemplary damages, see 9.1.6 and 9.1.7 respectively. 65 [1964] AC 1129. 66 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 460–61 per Gibbs CJ; Gray v Motor Accidents Commission (1998) 196 CLR 1 at 35 per Kirby J. See also Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Lamb v Cotogno (1987) 164 CLR 1; cf Rookes v Barnard [1964] AC 1129; Broome v Cassell & Co Ltd [1972] AC 1027. 67 See 9.1.6–9.1.7. See also Gray v Motor Accidents Commission (1998) 196 CLR 1 at 35 per Kirby J.

CHAPTER 9 Remedies for Defamation

9.2

Copyright © 2015. Oxford University Press. All rights reserved.

9.2.1

Injunctions

Interlocutory injunctions

If a plaintiff becomes aware of defamatory matter prior to its publication, he or she may wish to restrain publication by obtaining an interlocutory injunction. As an injunction is an equitable remedy, it may be issued in the exercise of the court’s discretion. It is not awarded as of right, as damages are. Unlike damages, which are the primary remedy for defamation, interlocutory injunctions to restrain the apprehended publication of defamatory matter are comparatively rare. Prior to the enactment of the Common Law Procedure Act 1854 (UK), common law courts had no power to grant injunctive relief. Not until the Judicature Act 1873 (UK) could courts of chancery deal with matters touching upon defamation. Thus, the principles governing the grant of interlocutory injunctions in defamation cases only emerged in the final decades of the nineteenth century. Although prefigured by the decision in William Coulson & Sons v James Coulson & Co,68 the fundamental case in this area of law is considered to be the English Court of Appeal’s decision in Bonnard v Perryman,69 which is extracted below. Courts in England and New Zealand have consistently followed Bonnard v Berryman.70 In Australia, until the High Court’s decision in Australian Broadcasting Corporation v O’Neill,71 there was a division of judicial opinion among courts, both at first instance and on intermediate appeal, as to the proper approach to be adopted in dealing with an application for an interlocutory injunction in a defamation claim. Two competing approaches emerged. The first has been broadly characterised as the ‘rigid’ approach. In this series of cases, defamation was treated as a special category, requiring consideration of the distinctive features of defamation cases.72 The second has been broadly characterised as the ‘flexible’ approach. In this series of cases, the idea that defamation was a special category was rejected. Instead the judges sought merely to apply the general principles governing the grant of interlocutory injunctions in all cases.73 ABC v O’Neill provided the High Court with the opportunity to resolve this uncertainty.

68 (1887) 3 TLR 846. 69 [1891] 2 Ch 269. 70 As to the position in England, see Sim v HJ Heinz & Co Ltd [1959] 1 WLR 313; Fraser v Evans [1969] 1 QB 349 at 360–61 per Lord Denning MR; Hubbard v Vosper [1972] 2 QB 64 at 96–97 per Lord Denning MR; Wallersteiner v Moir [1974] 3 All ER 217 at 230; [1974] 1 WLR 991 per Lord Denning MR; Bestobell Paints Ltd v Bigg [1975] FSR 421; Khashoggi v IPC Magazines Ltd [1986] 3 All ER 577; Holley v Smyth [1998] QB 726; Greene v Associated Newspapers Ltd [2005] QB 972. As to the position in New Zealand, see McSweeney v Berryman [1980] 2 NZLR 168 at 175 per Barker J; New Zealand Mortgage Guarantee Co Ltd v Wellington Newspapers Ltd [1989] 1 NZLR 4 at 7 per Cooke P; Ron West Motors Ltd v Broadcasting Corporation of New Zealand (No 2) [1989] 3 NZLR 520 at 541 per Cooke P; TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129 at 132–33 per Richardson P. 71 (2006) 227 CLR 57. 72 See, for example, Stocker v McElhinney (No 2); Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344; Lovell v Lewandowski [1987] WAR 81; Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199; Australian Broadcasting Corporation v Hanson [1998] QCA 306. 73 National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; Marsden v Amalgamated Television Services Pty Ltd (unreported, CA(NSW), Priestley, Handley and Cole JJA, 2 May 1996); Jakudo Pty Ltd v South Australian Telecasters Ltd (1998) 69 SASR 440.

279

280

PART 3 Defamation and the Protection of Reputation

Bonnard v Perryman [1891] 2 Ch 269

Copyright © 2015. Oxford University Press. All rights reserved.

[The plaintiffs, Gustave Bonnard and Arthur Deakin, traded as the Mercantile and General Trust. They brought defamation proceedings against the publisher, Charles Perryman, and the printer, Clement Allen, of the weekly newspaper, The Financial Observer and Mining Herald. Bonnard and Deakin claimed a newspaper article conveyed the defamatory imputations that they had been involved in fraudulent or dishonest conduct in relation to the promotion of the Sykes Brewery, the City of Baltimore United Breweries and Providence and National Worsted Mills Ltd and that they had bribed or conspired with the proprietors or editors of a rival newspaper, The Financial News. In addition to a claim for £5,000 damages, they sought an injunction. At first instance, North J granted the injunction. Perryman appealed to the English Court of Appeal.] LORD COLERIDGE CJ (at 284): … But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. We entirely approve of, and desire to adopt as our own, the language of Lord Esher, MR, in Coulson v Coulson— ‘To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable’. In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable. Moreover, the decision at the hearing may turn upon the question of the general character of the Plaintiffs; and this is a point which can rarely be investigated satisfactorily upon affidavit before the trial—on which further it is not desirable that the Court should express an opinion before the trial. Otherwise, an injunction might be granted before the (285) trial in a case in which at the trial nothing but nominal damages, if so much, could be obtained. Upon the whole we think, with great deference to Mr Justice North, that it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial and determination of the plea of justification. The appeal, therefore, must be allowed, and the order discharged; the costs in this Court and in the Court below to be costs in the cause. [Lord Esher MR and Lindley, Bowen and Lopes LJJ joined in Lord Coleridge CJ’s judgment. Kay LJ dissented.]

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

[The respondent, James O’Neill, was serving a life sentence of imprisonment for the murder of a boy in 1975. A former police officer, turned documentary film-maker, Gordon Davie, gained O’Neill’s confidence for the purpose of making a documentary about O’Neill’s life. Under a misapprehension as to the nature of the documentary, O’Neill cooperated with Davie. The resulting documentary, The Fisherman, suggested, inter alia, that O’Neill had been involved in the disappearance of the Beaumont children from Glenelg Beach on Australia Day, 1966. The documentary was shown at a film festival in Hobart in January 2005.

CHAPTER 9 Remedies for Defamation

The appellant, the Australian Broadcasting Corporation, bought the rights to it and scheduled it to screen nationally in April 2005. O’Neill applied to the Supreme Court of Tasmania for an interlocutory injunction to restrain the broadcast. At first instance, Crawford J granted the injunction. An appeal to the Full Court of the Supreme Court of Tasmania was, by majority (Evans and Blow JJ, Slicer J dissenting), dismissed. The ABC appealed to the High Court of Australia.]

Copyright © 2015. Oxford University Press. All rights reserved.

GLEESON CJ AND CRENNAN J (at 60): [1] This appeal concerns the application, in what has long been recognised as the special context of a defamation action, of the principles according to which the discretionary remedy of an interlocutory injunction is granted. … (at 67) [17] … The general public interest in free speech is involved. The trial judge was prepared to accept that there was a strong possibility that the imputations could be shown to be true. The defence of justification remains unresolved. The respondent’s general character, or if the difference be material, reputation, is such that, even if he succeeded at trial, the damages awarded for the publication the subject of the interlocutory application could well be nominal. [18] Lord Coleridge CJ’s conclusion was that ‘it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial’. That form of expression does not deny the existence of a discretion. Inflexibility is not the hallmark of a jurisdiction that is to be exercised on the basis of justice and convenience. Formulations of principle which, for purposes of legal analysis, gather together considerations which must be taken into account may appear rigid if the ultimate foundation for the exercise of the jurisdiction is overlooked. Nevertheless, so long as that misunderstanding is avoided, there are to be found, in many Australian decisions, useful reminders of the principles which guide the exercise of discretion in this area. One of the best known statements of principle is that of Walsh J, before he became a member of this Court, in Stocker v McElhinney [No 2]. After referring to the 5th edition of Gatley on Libel and Slander, and citing Bonnard v Perryman, he said: (1) Although it was one time suggested that there was no power in the court, under provisions similar to those contained in [the Act governing procedure in the Supreme Court of New South Wales] to grant an interlocutory injunction, in cases of defamation, it is settled that the power exists in such cases. (2) In such cases, the power is exercised with great caution, and (68) only in very clear cases. (3) If there is any real room for debate as to whether the statements complained of are defamatory, the injunction will be refused. Indeed, it is only where on this point, the position is so clear that, in the judge’s view a subsequent finding by a jury to the contrary would be set aside as unreasonable, that the injunction will go. (4) If, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon any such ground as privilege, or of truth and public benefit, or even that the plaintiff if successful, will recover nominal damages only, the injunction will be refused.

[19] The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed. In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved. Where one such issue is justification, it is commonly an issue for jury decision.

281

282

PART 3 Defamation and the Protection of Reputation

In (69) addition, the plaintiff’s general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded. … (71) … [30] It is difficult to resist the conclusion that, in their natural and proper concern for fairness to the respondent, the judges who decided the case in his favour have fallen into the error of treating the criminal trial process as the only proper context in which matters of the kind presently in question may be ventilated. More fundamentally, however, (72) it is apparent that they failed to take proper account of the public interest in free communication of information and opinion, which is basic to the caution with which courts have approached the topic of prior restraint of allegedly defamatory matter. [31] The public interest in free speech goes beyond the public benefit that may be associated with a particular communication. The failure to recognise this was an error of principle on the part of the judges who found in favour of the respondent … The public interest in free speech is explained not least by reference to the fact that freedom of speech and freedom of the press were important aspects of the constitutional struggles which came to rest with the Act of Settlement 1701. Subsequently, courts of equity were not willing to enjoin publication of defamatory matter, not (73) only because that would usurp the authority of juries, but also because they were most reluctant to be asked ‘to exercise the powers of a censor’. This latter consideration remains important in our democracy. [32] It is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech. It is another matter for a court to interfere with the right of free speech by prior restraint. In working out the consequences of abuse of such freedom, the law strikes a balance between competing interests, which include an individual’s interest in his or her reputation. When, however, a court is asked to intervene in advance of publication wider considerations are involved. This is the main reason for the ‘exceptional caution’ with which the power to grant an interlocutory injunction in a case of defamation is approached. It is not reflected in the reasoning of Crawford J, or the majority of the Full Court. It is only in the reasoning of Slicer J that it was influential.

Copyright © 2015. Oxford University Press. All rights reserved.

Reputation [33] There is a further reason why this case was a most unpromising candidate for this unusual form of relief. It concerns the final matter referred to by Lord Coleridge CJ in Bonnard v Perryman. This is a case in which, if the intended publication were to proceed, and if it were found to involve actionable defamation, it may be that an award of only nominal damages would follow. The three imputations upon which the respondent relied in argument before Crawford J, and which were the basis of the Full Court’s decision, have to be considered in the light of two significant matters. First, the respondent is a convicted murderer, who is serving a life sentence, and who has confessed to another murder. To say of him that he is suspected of the murder of the Beaumont children, and that he is a multiple murderer, might not attract an award of substantial damages, especially if, as Crawford J was willing to assume, those imputations could be shown to be true. Secondly, as at 28 April 2005, the date of the threatened publication the subject of the interlocutory injunction, there had already been extensive publication of matters involving allegations of the most serious nature against the respondent.

Conclusion and orders [34] The primary judge, and the majority in the Full Court, erred in principle in two respects in their approach to the exercise of the discretionary power to grant an interlocutory injunction in the special circumstances of a defamation case. They failed to take proper account of the significance of the value of free speech in considering the question of prior restraint of publication, and they failed to take proper account of the possibility that, if publication occurred and was found to (74) involve actionable defamation, only nominal damages might be awarded. The appeal should be allowed. GUMMOW AND HAYNE JJ (at 85): [75] One sequel was the production of a body of case law in Australia dealing with what was said in Bonnard as if interlocutory injunction applications in defamation actions occupy a field of their own and are somehow more than but one of the species of litigation to which the principles in Beecham apply.

CHAPTER 9 Remedies for Defamation

[76] The body of Australian case law itself does not follow a single pattern, as Kennedy J explained in Lovell v Lewandowski. The judgment of Blow J (with whom Evans J agreed) in the Full Court in the present litigation distinguished between ‘rigid’ and ‘flexible’ rules of practice in this regard. The former are associated with the decision of Walsh J in Stocker v McElhinney [No 2]. His Honour there said that an interlocutory injunction would be granted in cases of defamation only if the judge were of the view that a subsequent jury verdict to the contrary would be set aside as unreasonable, and that an injunction would be refused: [i]f, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon any such ground as privilege, or of truth and public benefit, or even that the plaintiff, if successful, will recover nominal damages only.

[77] Stocker was decided before the decision of this Court in Beecham. It also was decided before the adoption in New South Wales of the Judicature system and in reliance upon the jurisdiction then found in the New South Wales equivalent of the provisions of the 1854 Act. [78] The second or ‘flexible’ view of the exercise of the interlocutory injunction power in these cases is exemplified in Chappell v TCN Channel Nine Pty Ltd and in cases following and applying (86) it. These cases rightly stress the application in this field of the general principles exemplified in Beecham. However, they give rise to two difficulties. [79] The first difficulty is that the cases which advocate ‘flexibility’ tend to give insufficient weight to the range of significant rights asserted on applications to restrain quia timet defamatory publications. A plaintiff asserts interests in character and reputation, while the defendant may assert what are special considerations derived from seventeenth and eighteenth century events which have been regarded in Britain as part of its constitutional history. [80] Two special (and related) considerations which underpinned the denial of jurisdiction in the Court of Chancery to enjoin publication of defamatory matter were identified by Lord Cottenham LC in Fleming v Newton. He asked:

Copyright © 2015. Oxford University Press. All rights reserved.

how the exercise of such a jurisdiction can be reconciled with the trial of matters of libel and defamation by juries under the 55 Geo III, c 42, or indeed with the liberty of the press. That act appoints a jury as the proper tribunal for trial of injuries to the person by libel or defamation; and the liberty of the press consists in the unrestricted right of publishing, subject to the responsibilities attached to the publication of libels, public or private.

The reference to ‘the liberty of the press’ reflected the statement by Lord Mansfield in R v Shipley that ‘[t]he liberty of the press consists in printing without any previous licence, subject to the consequences of law’. The statutory system of press licensing in England had lapsed in 1695 and thirteen proposals over the next decade for its revival had come to nothing. (The unsuccessful attempts by Governor Darling to institute a press licensing system are a landmark in the constitutional history of New South Wales.) … (87) [82] The remarks by Lord Cottenham LC in Fleming v Newton manifest the reluctance by the courts of equity to participate in any indirect reinstatement of a licensing system by a method of prior restraint by injunctive order. The injunction (interlocutory or final) was a prior restraint and the decision was that of a judge alone. The jurisdictional objection was to disappear later in the nineteenth century, but distaste for prior restraint and respect for the role of the jury remained significant for the administration of the interlocutory injunction … [83] The second difficulty with the ‘flexible’ approach is that it leads too readily to an assumption that all that is involved here is the exercise of an unbounded discretion, which thereafter is insusceptible of appellate interference. The course of the present litigation demonstrates that hazard.

The present case [84] The ‘rigid’ approach of Stocker was rejected by the primary judge. However, his Honour proceeded on the basis that he had ‘an unfettered discretion’ … (88) [85] Several points are to be made here. First, the issue was not whether to deny the plaintiff interlocutory relief would be to encourage ‘trial by media’ or an outcome identified by some other evidently pejorative description. The issue differed in form and substance. It was whether, having regard to the

283

284

PART 3 Defamation and the Protection of Reputation

nature of the rights asserted, including the special considerations, well rooted in Australian law, which caution equitable intervention to impose a prior restraint upon publication, and other relevant matters including the apparent weakness or strength of the proposed defence under s 15 of the 1957 Act, the plaintiff’s case appeared sufficiently strong to pass on to the second inquiry, respecting the balance of convenience. The pursuit of these two inquiries by a court of equity in the circumstances of the particular case is hindered, not advanced, by the taking of the apparent refuge offered by such terms as ‘rigid’ and ‘flexible’. [86] Secondly, the ABC correctly submits that the primary judge conflated the requirement of ‘public benefit’ in s 15 of the 1957 Act with the more general, and more profound, issue involved in the policy of the law respecting prior restraint of publication of allegedly defamatory matter. [87] The stance taken by the courts against prior restraint was not adopted in innocence of the malign influence, on occasion, which may be exerted by media of mass communication. Indeed, in R v Shipley, Lord Mansfield, after speaking of the liberty to print without previous licence, continued: The licentiousness of the press is Pandora’s Box, the source of every evil. Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State.

… (89) [89] There is a further matter. As the Chief Justice and Crennan J explain in their reasons, the general character of Mr O’Neill may well assume such importance at a trial as to be followed by an award of no more than nominal damages. That prospect is a powerful factor in considering the balance of convenience to favour the denial of interlocutory relief. Appeal allowed. [Kirby and Heydon JJ dissented.]

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 What special considerations might be taken into account when deciding whether or not to grant an interlocutory injunction to restrain the publication of defamatory matter? What weight should be ascribed to each of these considerations? 2 Following the High Court’s decision in ABC v O’Neill, is defamation a special case for the purpose of granting an interlocutory injunction or do general equitable principles apply? 3 Why are interlocutory injunctions rarely granted in defamation cases? Should they be more readily available? 4 How should a court approach a claim for an injunction where a cause of action in defamation is available but another cause of action is also open on the facts? What if considerations particular to injunctions for defamation are not applicable to that other cause of action? Should a plaintiff be able to obtain an injunction based on that other cause of action, even though a cause of action in defamation would ordinarily lead to the refusal of an injunction?

9.3

Offers of amends

Consistent with its stated object of promoting speedy, non-litigious methods of dispute resolution over the publication of defamatory matter,74 the national, uniform defamation laws introduce an offer of amends procedure.75 Under the offer of amends regime, a publisher may make an offer of amends to an aggrieved person, either in relation to the 74 Civil Law (Wrongs) Act 2002 (ACT) s 115(d); Defamation Act 2006 (NT) s 2(d); Defamation Act 2005 (NSW) s 3(d); Defamation Act 2005 (Qld) s 3(d); Defamation Act 2005 (SA) s 3(d); Defamation Act 2005 (Tas) s 3(d); Defamation Act 2005 (Vic) s 3(d); Defamation Act 2005 (WA) s 3(d). 75 Civil Law (Wrongs) Act 2002 (ACT) s 124; Defamation Act 2006 (NT) s 11; Defamation Act 2005 (NSW) s 12; Defamation Act 2005 (Qld) s 12; Defamation Act 2005 (SA) s 12; Defamation Act 2005 (Tas) s 12; Defamation Act 2005 (Vic) s 12; Defamation Act 2005 (WA) s 12.

CHAPTER 9 Remedies for Defamation

Copyright © 2015. Oxford University Press. All rights reserved.

whole of the defamatory matter or limited to particular defamatory imputations contained within the defamatory matter.76 The offer of amends may be made in one of two ways. First, if the aggrieved person issues a ‘concerns notice’, being a written document particularising the defamatory imputation he or she claims are conveyed by the defamatory matter, the publisher may make an offer of amends within 28 days of receipt of the notice. Second, if the aggrieved person has commenced defamation proceedings against the publisher, the publisher may make an offer of amends prior to its filing of a defence in those proceedings.77 There are formal requirements for a valid offer of amends. Such an offer must contain an offer to publish a reasonable correction. It may also contain, inter alia, an offer to publish an apology, to pay compensation or to submit to the jurisdiction of a named arbitrator or court to assess damages.78 An offer of amends may be withdrawn prior to its acceptance and may be renewed at a later date, either on the same or on different terms.79 The effect of an aggrieved person accepting an offer of amends is that he or she cannot then pursue a claim in defamation against the publisher in respect of the same defamatory matter.80 The effect of an aggrieved person’s refusal to accept an offer of amends is that the publisher can raise the offer of amends by way of defence in any defamation proceedings brought by the aggrieved person. In order for a publisher to rely on such an offer, it must demonstrate that the offer of amends was made as soon as practicable, that the publisher was ready and willing to give effect to the terms of the offer and that the offer was reasonable in all the circumstances.81 The factors relevant to the assessment of the reasonableness of the offer are whether any correction or apology was published prior to the trial, including the relative prominence of the correction or apology and the defamatory matter, the lapse of time between the publication of the defamatory matter and any correction or apology, and whether the correction or apology was limited or complete.82 Legal practitioners have reported that the offer of amends regime under the national, uniform defamation laws has proven effective in resolving disputes without the need for a fully litigated hearing.83 76 Civil Law (Wrongs) Act 2002 (ACT) s 125; Defamation Act 2006 (NT) s 12; Defamation Act 2005 (NSW) s 13; Defamation Act 2005 (Qld) s 13; Defamation Act 2005 (SA) s 13; Defamation Act 2005 (Tas) s 13; Defamation Act 2005 (Vic) s 13; Defamation Act 2005 (WA) s 13. 77 Civil Law (Wrongs) Act 2002 (ACT) s 126; Defamation Act 2006 (NT) s 13; Defamation Act 2005 (NSW) s 14; Defamation Act 2005 (Qld) s 14; Defamation Act 2005 (SA) s 14; Defamation Act 2005 (Tas) s 14; Defamation Act 2005 (Vic) s 14; Defamation Act 2005 (WA) s 14. 78 Civil Law (Wrongs) Act 2002 (ACT) s 127; Defamation Act 2006 (NT) s 14; Defamation Act 2005 (NSW) s 15; Defamation Act 2005 (Qld) s 15; Defamation Act 2005 (SA) s 15; Defamation Act 2005 (Tas) s 15; Defamation Act 2005 (Vic) s 15; Defamation Act 2005 (WA) s 15. 79 Civil Law (Wrongs) Act 2002 (ACT) s 128; Defamation Act 2006 (NT) s 15; Defamation Act 2005 (NSW) s 16; Defamation Act 2005 (Qld) s 16; Defamation Act 2005 (SA) s 16; Defamation Act 2005 (Tas) s 16; Defamation Act 2005 (Vic) s 16; Defamation Act 2005 (WA) s 16. 80 Civil Law (Wrongs) Act 2002 (ACT) s 129; Defamation Act 2006 (NT) s 16; Defamation Act 2005 (NSW) s 17; Defamation Act 2005 (Qld) s 17; Defamation Act 2005 (SA) s 17; Defamation Act 2005 (Tas) s 17; Defamation Act 2005 (Vic) s 17; Defamation Act 2005 (WA) s 17. 81 Civil Law (Wrongs) Act 2002 (ACT) s 130(1); Defamation Act 2006 (NT) s 17(1); Defamation Act 2005 (NSW) s 18(1); Defamation Act 2005 (Qld) s 18(1); Defamation Act 2005 (SA) s 18(1); Defamation Act 2005 (Tas) s 18(1); Defamation Act 2005 (Vic) s 18(1); Defamation Act 2005 (WA) s 18(1). 82 Civil Law (Wrongs) Act 2002 (ACT) s 130(2); Defamation Act 2006 (NT) s 17(2); Defamation Act 2005 (NSW) s 18(2); Defamation Act 2005 (Qld) s 18(2); Defamation Act 2005 (SA) s 18(2); Defamation Act 2005 (Tas) s 18(2); Defamation Act 2005 (Vic) s 18(2); Defamation Act 2005 (WA) s 18(2). 83 Andrew Kenyon, ‘Six Years of Australian Uniform Defamation Law: Damages, Opinion and Defence Meanings’ (2012) 35 University of New South Wales Law Journal 31, 35.

285

286

PART 3 Defamation and the Protection of Reputation

9.4

Alternative remedies for defamation

9.4.1 Introduction

In 2004, the Attorney-General’s Department made a number of proposals for the introduction of alternative or complementary remedies for defamation. The stated purpose of the proposed reforms was to emphasise and enhance the vindicatory function of defamation law and to de-emphasise the place of damages.84

QUESTIONS 1 Why do you think the national, uniform defamation laws do not include alternative remedies for defamation? 2 How successful do you think the national, uniform defamation laws have been in reducing the focus on damages as the principal remedy for defamation?

Copyright © 2015. Oxford University Press. All rights reserved.

9.4.2

Right of reply

One of the alternative remedies for defamation considered by the Attorney-General’s Department was the conferral of a right of reply on defamed persons. The AttorneyGeneral’s Department identified two reasons for such a remedy. First, it was submitted that it was desirable to ensure that the public heard both sides of a story. Second, it was suggested that giving a defamed person a right of reply would ‘help defuse feelings of frustration that often result in litigation’.85 However, rather than making the right of reply legally enforceable, the AttorneyGeneral’s Department decided it was preferable instead to provide ‘a strong incentive’ for publishers to allow defamed persons to exercise such a right. It proposed a scheme whereby a person who claimed to be defamed in a ‘news medium’ could request that the defendant ‘publish, or cause to be published, in the same medium as the publication complained of, with substantially similar prominence, and at the earliest opportunity, a reply’.86 It contemplated there would be legislative definition as to key terms, such as ‘news medium’, ‘substantially similar prominence’ and ‘the earliest opportunity’, as well as guidance as to the maximum length of replies.87 A defendant’s publication of a reply would reduce or eliminate any damages payable to a plaintiff in any contested litigation.88 Conversely, any unreasonable refusal by a defendant to publish a reply could be taken into account in the assessment of damages and might lead to the award of indemnity costs against the defendant. The Attorney-General’s Department also proposed that a defendant who published a right of reply should have an ‘absolute immunity’ from defamation claims brought by third parties arising from the publication of the reply.89

84 Australian Government, Attorney-General’s Department, Revised Outline of a Possible National Uniform Defamation Law, July 2004, 32. 85 Ibid. 86 Ibid 87 Ibid. 88 Ibid. 89 Ibid.

CHAPTER 9 Remedies for Defamation

QUESTIONS 1 Why do you think a right of reply was not included in the national, uniform defamation laws in their enacted form? 2 What practical problems might be encountered in devising a statutory right of reply?

9.4.3 Corrections In its proposal for national, uniform defamation laws, the Attorney-General’s Department canvassed the possibility of court-ordered corrections. It considered that such an order should only be made after the court had heard the evidence and found in favour of the plaintiff. The court could then order a defendant to publish a correction which had ‘substantially similar prominence’ to the defamatory matter and was likely to reach the same audience. In addition, to encourage further use of this alternative remedy to damages, the Attorney-General’s Department suggested that, if a plaintiff sought only a correction order and was successful, he or she should be entitled to indemnity costs from the defendant.90 Correction orders were the one alternative remedy the Standing Committee of AttorneysGeneral’s Working Group of State and Territory Officers considered in detail in its reform proposal. The SCAG Working Group recommended that the court should have the power to order the publication of a correction but that the defendant should have the option of paying damages in lieu of any such order. The reasons advanced by the SCAG Working Group for adopting this position were concerns that the media would be resistant to courtordered corrections; that such a remedy would be an unjustifiable intrusion into the freedom of the press; and that court resources might be better utilised supporting a voluntary, rather than a mandatory, system for the publication of corrections.91 Ultimately, when the national, uniform defamation laws were introduced, there were no statutory provisions dealing with the power of a court to order the publication of a correction.

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 What are the advantages and disadvantages of court-ordered corrections? Consider the perspectives of both prospective plaintiffs and defendants. 2 Why might the media be opposed to court-ordered corrections? Is their concern that court-ordered corrections represent an unreasonable intrusion upon the freedom of the press well-founded? 3 If correction orders were introduced as an alternative remedy for defamation, should they be mandatory or should a publisher be allowed to pay damages in lieu?

FURTHER READING Bartl, Benedict and Nicol, Dianne, ‘The Grant of Interlocutory Injunctions in Defamation Cases in Australia following the Decision in Australian Broadcasting Corporation v O’Neill’ (2006) 25 University of Tasmania Law Review 156. Fleming, John G, ‘Retraction and Reply: Alternative Remedies for Defamation’ (1978) 12 University of British Columbia Law Review 15. 90 Ibid 34. 91 SCAG Working Group of State and Territory Officers, Proposal for Uniform Defamation Laws, July 2004, [4.11], Recommendation 19.

287

288

PART 3 Defamation and the Protection of Reputation

Copyright © 2015. Oxford University Press. All rights reserved.

George, Patrick, Defamation Law in Australia, 2nd edn, LexisNexis Butterworths, Chatswood, 2012, Chs 31–40. McGregor, Harvey, McGregor on Damages, 19th edn, Sweet & Maxwell, London, 2014, Ch 44. Parkes, Richard, and Mullis, Alastair, (eds), Gatley on Libel and Slander, 12th edn, Sweet & Maxwell, London, 2013, Ch 9. Rolph, David, ‘Showing Restraint: Interlocutory Injunctions in Defamation Cases’ (2009) 14 Media and Arts Law Review 255. Rolph, David, ‘Irreconcilable Differences? Interlocutory Injunctions for Defamation and Privacy’ (2012) 17 Media and Arts Law Review 170.

10

Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION In the previous three chapters, the principles of liability for defamation, as well as the available defences and remedies, have been analysed in detail. Defamation is perhaps the most significant form of civil liability of which media outlets need to be aware. However, defamation is not the only cause of action which can arise from publications causing reputational harm. In addition, media publications may cause other types of harm, such as economic loss or psychiatric injury. This chapter explores other causes of action which provide plaintiffs with a measure of protection against reputational damage and other forms of harm. This chapter will first examine the tort of injurious falsehood—a separate cause of action to defamation, strikingly similar to it in some respects but tellingly different in others. It will then explore the potential liability of media outlets at common law for negligent publications and under statute for misleading or deceptive conduct. The focus of this chapter is twofold. It introduces the elements of liability, the available defences and potential remedies for each of these causes of action, as well as considering the interaction between each of these causes of action and the tort of defamation. Given the restrictions now imposed on the right of corporations to sue for defamation under the national, uniform defamation laws,1 a knowledge of these alternative causes of action is arguably more important than ever.

10.1 Injurious falsehood

10.1.1 The historical development of injurious falsehood The modern tort of injurious falsehood developed out of the earlier, narrower cause of action, slander of title or slander of goods.2 Injurious falsehood is also known as malicious falsehood. It is now a tort which embraces slander of title and slander of goods but which 1 2

As to the restrictions on the right of corporations to sue for defamation, see 7.1.14. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 423 per Kirby J; Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191 at 223 per Weinberg J. See also Carolyn Sappiddeen and Prue Vines (eds), Fleming’s The Law of Torts, 10th edn, Lawbook Co, Pyrmont, 2011, 796; JH Baker, An Introduction to English Legal History, 4th edn, Butterworths, London, 2002, 458.

289

290

PART 3 Defamation and the Protection of Reputation

has a broader operation than those causes of action.3 The tort in its current form was established in the English Court of Appeal’s decision in Ratcliffe v Evans.4 The historical development of injurious falsehood is neatly encapsulated in the following extracts from the leading High Court of Australia authority on injurious falsehood, Palmer Bruyn & Parker Pty Ltd v Parsons.5

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

[The appellant, Palmer Bruyn & Parker Pty Ltd, was a surveyor and a planning development consultant. It was retained by the fast food chain, McDonald’s, in relation to a proposed outlet at Wallsend. The respondent, Keith Parsons, was a member of the Newcastle City Council. He prepared a bogus letter, purporting to be written by an employee of Palmer Bruyn & Parker and containing outlandish statements, and circulated it to fellow councillors of the same party. McDonald’s became aware of the letter and reported the matter to the police. The Newcastle Herald published an article about the investigation into the letter. McDonald’s terminated its agreement with Palmer Bruyn & Parker, not because it questioned the firm’s integrity but because the newspaper article could create lingering, negative perceptions. Palmer Bruyn & Parker commenced proceedings for injurious falsehood against Parsons in the District Court of New South Wales. At first instance, Taylor DCJ dismissed the claim on the basis that the termination of the agreement was not the natural and probable consequence of the original publication. An appeal to the New South Wales Court of Appeal was dismissed. Palmer Bruyn & Parker appealed to the High Court of Australia.]

GUMMOW J (at 405): The tort of injurious falsehood [57] The tort of ‘injurious falsehood’ (a term coined by Salmond) has its origins in actions for ‘slander of title’. This involved aspersions cast upon the plaintiff’s ownership of land which resulted in the plaintiff being unable to lease or sell the land. Despite the use of the term ‘slander’ and its ‘unfortunate’ association with the law of defamation, ‘slander of title’ appears to have been recognised as an action on the case for the special damage resulting from the defendant’s interference. The action was slowly enlarged in the nineteenth century, until the position was reached in 1892 where, in Ratcliffe v Evans, the modern foundation of the tort, Bowen LJ could say:

Copyright © 2015. Oxford University Press. All rights reserved.

[t]hat an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title.

This passage was taken to be an accurate statement of the law respecting injurious falsehood by this Court in Hall-Gibbs Mercantile (406) Agency Ltd v Dun and later in Sungravure Pty Ltd v Middle East Airlines Airliban. KIRBY J (at 423): The tort of injurious falsehood [108] History of the tort: The civil wrong for which the appellant sued grew out of an action on the case concerned, in its early days, with providing redress for ‘slander of title’ or ‘slander of goods’. Until quite recently the tort was commonly referred to as ‘malicious falsehood’ and ‘Malicious Publication of False Non-Defamatory Matter causing Actual Damage’. In the United States, it was sometimes classified amongst business torts under the description of ‘disparagement’. However, gradually the generic description of ‘injurious falsehood’ has been accepted including in the United States. Falsehood is clearly an element

3 4 5

Bride v KMG Hungerfords (1991) 109 FLR 256 at 280 per Murray J, SC(WA); Joyce v Sengupta [1993] 1 WLR 337 at 341 per Sir Donald Nicholls V-C; Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191 at 223 per Weinberg J. [1892] 2 QB 524. (2001) 208 CLR 388.

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

of the tort. So is malice, in the sense of an intent to injure another without just cause or excuse or by some indirect, dishonest or improper motive. And so is injury, in keeping with the strict requirement to show that, as a result of the falsehood, actual damage has been suffered. [109] In Ratcliffe v Evans, Bowen LJ, delivering the opinion of the English Court of Appeal, defined injurious falsehood as:

Copyright © 2015. Oxford University Press. All rights reserved.

written or oral falsehoods … where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage … To support it, actual damage must be shewn, for it is an action which only lies in respect of such damage as has actually occurred.

[110] In 1910 in Hall-Gibbs Mercantile Agency Ltd v Dun, all (424) members of this Court accepted that statement of the law as accurate, although the definition in that case ultimately turned on the construction of the Defamation Law of Queensland 1889. Griffith CJ found that it was ‘unnecessary to consider English cases of disparagement’. He added that it would be ‘time enough to deal with them when they arise’. It has taken a time; but now, at last, the case has presented. [111] Hall-Gibbs was considered again in Sungravure Pty Ltd v Middle East Airlines Airliban SAL. Once again there was a statutory complication. Section 5 of the Defamation Act 1958 (NSW) had assimilated into a codified tort of defamation any imputation by which a person was ‘likely to be injured in his profession or trade’. The section made it clear that the ‘imputation may be expressed either directly or by insinuation or irony’. Because of the terms of the legislation, it was unnecessary for this Court in Sungravure to explore the elements of the common law tort of injurious falsehood. Accordingly, that decision does not throw light on the problem presented by this appeal. [112] The Defamation Act 1958 (NSW) was repealed by the Defamation Act 1974 (NSW) (s 4(1)). The present proceedings were conducted upon the assumption that such repeal revived the pre-existing common law of injurious falsehood and reinstated the tort for which the appellant sued the respondent. This is also the basis on which the Court of Appeal of New South Wales acted in this case, as it had previously. By s 4(2) of the 1974 Act, it was enacted that: ‘The law relating to defamation, in respect of matter published after the commencement of this Act, shall be as if the Defamation Act 1958 had not been passed and the common law … shall have effect accordingly.’ This provision leaves unanswered questions. The first arises because the saving provision makes no express reference to ‘the law in relation to injurious falsehood’. The second is that the ‘common law’ that has ‘effect’ might arguably include the common law presumption against revival of the previous common law abolished by the earlier statutory codification. However, as neither of these points was litigated in these proceedings at any level, I am prepared to pass them by. I will proceed upon the basis that the (425) common law of injurious falsehood applies in New South Wales and did so at the time of the publication of the respondent’s letter.

10.1.2 The elements of the cause of action in injurious falsehood There are a number of elements a plaintiff must prove in order to establish a claim for injurious falsehood:6 • There must be a false statement made by the defendant about the plaintiff’s goods or business. • There must be a publication of that statement to a person other than the plaintiff. 6 See Ratcliffe v Evans [1892] 2 QB 524 at 527–28 per Bowen LJ; Bride v KMG Hungerfords (1991) 109 FLR 256 at 280 per Murray J, SC(WA); Joyce v Sengupta [1993] 1 WLR 337 at 341 per Sir Donald Nicholls V-C; Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 692 per Gleeson CJ; Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388 at 393 per Gleeson CJ; at 404, 407 per Gummow J; Kaplan v Go Daddy Group [2005] NSWSC 636 at [26] per White J. However, see also Palmer Bruyn & Parker v Parsons at 425 per Kirby J (seven elements). As to ‘malice’ particularly, see White v Baycorp Advantage Business Information Services Ltd (2006) 200 FLR 125 at 160 per Campbell J, SC(NSW).

291

292

PART 3 Defamation and the Protection of Reputation

• There must be ‘malice’ proven on the part of the defendant. • There must be actual damage proven by the plaintiff as a result of the defendant’s false statement. It is unclear whether the tort of injurious falsehood is limited to aspersions cast upon the plaintiff’s goods or business or whether it yet extends to false and malicious statements which interfere with any prospective advantage, commercial or non-commercial, to the plaintiff.7

10.1.3 The distinction between injurious falsehood and defamation The tort of injurious falsehood is similar to the tort of defamation in a number of important respects. However, the two torts also differ in material ways. For instance, the ‘single meaning’ rule, which is a fundamental feature of defamation law, does not apply to cases of injurious falsehood.8 The elements of the cause of action for injurious falsehood and the differences and similarities between injurious falsehood and defamation are usefully explored in the observations derived from the separate reasons for judgment of Gummow and Kirby JJ in Palmer Bruyn & Parker Pty Ltd v Parsons.9 They are also discussed in the case of Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc,10 which, in addition, provides a useful example of the competing causes of action in operation.

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

Copyright © 2015. Oxford University Press. All rights reserved.

[The facts appear above at 10.1.1.] GUMMOW J (at 404): [52] The elements of the action for injurious falsehood usually are expressed in terms which derive from Bowen LJ’s judgment in Ratcliffe v Evans, to which further reference will be made. Thus, generally, it is said that an action for injurious falsehood has four elements: (1) a false statement of or concerning the plaintiff’s goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement. … [58] Whist the same factual matrix may found actions in both defamation and injurious falsehood, there are important distinctions between them. In Joyce v Sengupta, Sir Donald Nicholls V-C said: The remedy provided by the law for words which injure a person’s reputation is defamation. Words may also injure a person without damaging his reputation. An example would be a claim that the seller of goods or land is not the true owner. Another example would be a false assertion that a person has closed down his business. Such claims would not necessarily damage the reputation of those concerned. The remedy provided for this is malicious falsehood, sometimes called injurious falsehood or trade libel. This cause of action embraces particular types of malicious falsehood such as slander of title and slander of goods, but it is not confined to those headings.

7 See Ballina Shore Council v Ringland (1994) 33 NSWLR 680 at 693 per Gleeson CJ; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 407 per Gummow J. Cf Carolyn Sappiddeen and Prue Vines (eds), Fleming’s The Law of Torts, 10th edn, Lawbook Co, Pyrmont, 2011, 796. See also Bride v KMG Hungerfords (1991) 109 FLR 256 at 280 per Murray J, SC(WA) (‘plaintiff’s economic well-being’). 8 Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2011] QB 497 at 508–09 per Sedley LJ. 9 (2001) 208 CLR 388. 10 (2002) 120 FCR 191.

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

It is for the plaintiff in injurious falsehood to establish falsity, malice and special damage, burdens not imposed upon the plaintiff by defamation. On the other hand, the inhibition upon the use of the injunction to restrain further publication of defamatory material does not apply to injurious falsehood; a rationale for the distinction is said to be that the latter tort protects proprietary and commercial rather than personal interests. [59] The action for injurious falsehood is in many respects more closely allied to deceit than it is to defamation. This was recognised by Sir John Salmond, who said: The wrong of deceit consists, as we have seen, in false statements made to the plaintiff himself whereby he is induced to act to his own loss. The wrong of injurious falsehood, on the other hand, consists in false statements made to other persons concerning the plaintiff whereby he suffers loss through the action of those others. The one consists in misrepresentations made to the plaintiff, the other in misrepresentations made concerning him. (Original emphasis.)

(407) Elements of the action [60] Reference already has been made to the four elements in the action. It is unnecessary to determine here whether the tort is broad enough to include any damaging falsehood which interferes with ‘prospective advantage, even of a non-commercial nature’, as Fleming would have it, so that the confinement of the first element to ‘the goods or business’ of the plaintiff is too narrowly expressed. The publication here concerned the conduct of the business or profession of the appellant. … (411) [73] The point of significance is that, whatever may be its origins, an action in injurious falsehood requires either that the defendant intended to cause the harm or that the harm may be the ‘natural and probable result’ of the publication of the false statement. Where it is established by evidence that the defendant intended to cause the harm that eventuated, and provided the other elements of the tort are satisfied, the defendant will generally be held liable for that harm. Evidence may also be given from which the court may infer the requisite intention. Thus, it is said as a general rule that a man is presumed to intend the natural consequences of his acts. As Pollock said:

Copyright © 2015. Oxford University Press. All rights reserved.

The wrong-doer cannot call on us to perform a nice discrimination of that which is willed by him from that which is only consequential on the strictly wilful wrong.

This is illustrated in Ratcliffe v Evans, where Bowen LJ equated ‘damage wilfully and intentionally done’ with the making of false statements where ‘they are calculated in the ordinary course of things to produce, and where they do produce, actual damage’. … [99] KIRBY J (at 419): This appeal concerns injurious falsehood. According to Professor Sawer, this is a ‘rare and anomalous tort’. It has been rarely considered by this Court or by other Australian appellate courts. In part, this is doubtless because, unaltered by statute, the cause of action obliges a plaintiff to prove ‘each and every’ one of its restrictive elements. In part, it is because facts giving rise to the tort will often lend themselves to proceedings in defamation where the elements to be proved are less restrictive and the (420) damages may be greater. In part, it may be because trade practices legislation, where it applies, affords causes of action of broader ambit and with wider remedies. However, in these proceedings, the only cause of action relied on was injurious falsehood. … (425) [114] In my opinion, there are seven elements to the tort. They are: (1) That the defendant published matter that was false; (2) That the falsity concerned the plaintiff or its property; (3) That such falsity was calculated to induce others not to deal with the plaintiff or was otherwise likely to damage the plaintiff; (4) That the publication was actuated by malice; (5) That the publication has the results complained of; (6) That those results included actual damage to the plaintiff; and

293

294

PART 3 Defamation and the Protection of Reputation

(7) That such damage was either: (a) The result which the person publishing the false matter intended; or (b) The natural and probable consequences of such publication. … [116] … In this instance, the topic must be revisited in the context of a cause of action of some antiquity with a number of peculiar features, including the necessity to (426) prove actual damage, such damage being the gist of the action. Injurious falsehood has distinguishing elements that mark it off from the tort of defamation, such as the obligation of the plaintiff to prove falsity, which is not presumed but must be affirmatively established. Although the same publication may give rise to an action both for defamation and injurious falsehood, defamation generally protects interests in personal reputation, whilst injurious falsehood may protect interests of an economic character. In the United States, the tort of injurious falsehood has received extensive elaboration, partly because of the constitutional limitations which the First Amendment of the Constitution has been held to impose upon any expansion of the tort of defamation. In this Court, the appellant did not explain why it had failed to bring proceedings in defamation against the respondent or the newspaper or both.’ Appeal dismissed.

Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191

[The applicants, Orion Pet Products Pty Ltd and Innotek Australia Pty Ltd, manufactured electronic dog collars. The collars were designed to train dogs not to bark, by administering an electric shock whenever a dog barked. The second respondent, Dr Hugh Wirth, was the President of the first respondent, the Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (the ‘RSPCA’). The RSPCA was campaigning to have electronic dog collars banned in Victoria. Orion Pet Products and Innotek Australia brought proceedings against the RSPCA and Wirth in the Federal Court of Australia, in respect of radio broadcasts, a website and a newspaper article. They pleaded causes of action in defamation, injurious falsehood and misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cth) s 52. The following extract relates to their claim for injurious falsehood.]

Copyright © 2015. Oxford University Press. All rights reserved.

WEINBERG J (at 223): The injurious falsehood claim [195] Innotek’s claim against the respondents for injurious falsehood alleged that the representations already relied upon for its claims under the Act were similarly false for the purposes of this tort. It was also claimed that these representations were made in the knowledge that they were untrue (or at least with reckless disregard as to their truth) and with the intention of discouraging purchasers from acquiring its products, and thereby destroying its business. The claim for injurious falsehood was, of course, brought in the accrued jurisdiction of the Court. [196] The tort of injurious falsehood had its origins towards the end of the 16th century in cases involving a challenge to the plaintiff’s title to land, thereby prejudicing his efforts to dispose of it. From this association the tort acquired the name ‘slander of title’. Gradually, its scope expanded to cover disparaging remarks not only as to title, but also as to the quality of land or goods. Thus knowingly making a false assertion that the plaintiff’s products were inferior, a lie calculated to injure that person in his trade, could give rise to liability. [197] J Fleming, in The Law of Torts (9th ed, 1998), comments that today the tort is broad enough to encompass any damaging falsehood which interferes with prospective advantage, even of a non-commercial nature. The modern term for the tort is that coined by Salmond, ‘injurious falsehood’. [198] In some respects, this tort bears a marked resemblance to defamation. Both involve a false and harmful imputation concerning the plaintiff which is made to a third party. They differ, however, in that the law of defamation protects interests in personal reputation while injurious falsehood protects interests in the disposability of a person’s property, products or business. Defamation is generally actionable without proof of damage. Falsehood is presumed and liability is strict. In an action for injurious falsehood, the

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

plaintiff must prove that he sustained actual economic loss, that the offending statement was false, and that it was made with intent to cause injury without lawful justification. The requisite state of mind is often described as malice. [199] Injurious falsehood, then, according to Fleming, consists in the publication of (224) false statements, whether oral or in writing, concerning the plaintiff or his property, calculated to induce others not to deal with him. The falsehood must relate to the plaintiff’s goods, and must be published with ‘malice’. Originally, the averment of malice was said to have been only a superfluous pleading form, meaning nothing more than that the words were published with intent to disparage the plaintiff’s title. Later however, it came to be treated as a separate element, and, as Fleming comments at p 780: … today the dominant view seems to be that malice, in the sense of some indirect, dishonest or improper motive, or at any rate an intent to injure without just cause or excuse, must be proved by the plaintiff. It is sufficient evidence of malice that the defendant knew the disparaging statement to be false … Conversely, an honest belief in an unfounded claim is not actionable; nor is mere carelessness (in contrast to recklessness or conscious indifference to truth) …

[200] In WVH Rogers, Winfield and Jolowicz on Tort (14th ed, 1994), the learned authors comment that malice is never easy to define in the law of tort. They say (at pp 307–308):

Copyright © 2015. Oxford University Press. All rights reserved.

The requirement is fulfilled if the defendant knows that the statements is false or if he is reckless, ie makes the statement not caring whether it is true or false … However, even if the defendant does believe that untrue statement there may still be malice if he is actuated by some indirect, dishonest or improper motive …

[201] The leading case regarding this tort is Ratcliffe v Evans [1982] [sic] 2 QB 524. Though an action for injurious falsehood may be available in conjunction with an action for defamation, a publication need not be defamatory to ground an action for injurious falsehood. [202] Halsbury’s Laws of Australia, Vol 10, [145–835]–[145–845] asserts that malice may not be inferred from the fact of publication but will be inferred where a false publication was made with an intent to injure without just cause, and knowledge of the falsity or reckless indifference as to its truth or falsity. No action will lie where the false publication was made with mere lack of care or with an honest belief in its truth. [203] Innotek’s claim against the respondents for injurious falsehood overcomes the first hurdle, namely proof of a false publication. I have already found that a number of the factual allegations made by Mr Apostolides regarding its products were false. Its electronic dog collars do not inflict a 3,000 volt shock upon dogs. Nor do they inflict burns, or cause 60 kg dogs to flip into the air, or to suffer brain damage. These statements were made by the RSPCA through Mr Apostolides. They were published in the Herald Sun article as he knew they would be, and as he intended. [204] It is plain that a number of these statements were directed against Innotek’s own products, and not against electronic dog training devices generally. Two of the photographs contained in the article were of Innotek collars, as Mr Apostolides, who arranged for them to be taken, well knew. [205] Although Innotek is not the sole manufacturer and supplier of electronic dog collars in this country, it is a major player in that market. It is obvious that an article in a tabloid newspaper such as the Herald Sun, containing a heading emblazoned with the emotive words ‘Tortured Pets’, and featuring Innotek’s distinctive collar in close proximity to injured dogs, was calculated to cause significant harm to its business. It was likely that such an article would dissuade prospective purchasers from acquiring its products. There was (225) evidence that this is precisely what occurred in Victoria after the article appeared. [206] However, in order to succeed in its claim for injurious falsehood, Innotek must prove that the statements made by Dr Wirth and Mr Apostolides were made with malice, that is with knowledge that they were false, or with reckless disregard as to their truth or falsity. … (226) [218] Mr Apostolides was the main source of the statements in the article which I have found to be false. Innotek must establish that, when he made those statements, he either knew that they were untrue, or made them without regard to their truth.

295

Copyright © 2015. Oxford University Press. All rights reserved.

296

PART 3 Defamation and the Protection of Reputation

[219] Having given careful consideration to this matter, I am not persuaded that Mr Apostolides made these statements with either state of mind. I should say at once that I have found his evidence concerning his remark to Mr Papps about the collars having a capacity to ‘put out’ 3,000 volts unconvincing. I prefer the evidence of Mr Papps who said that Mr Apostolides told him precisely what (227) he recorded in the article, namely that the collars could inflict a ‘3,000 volt shock’. The latter formulation is precisely what I would expect a layman, confronted with a report prepared by an electrical engineer which he found difficult to understand, to use. In my view, Mr Apostolides introduced the notion of ‘putting out’ 3,000 volts in order to mitigate the damaging effect of what he had said. Notwithstanding this fact, I cannot conclude that he was aware, when he spoke to Mr Papps, that what he was saying was false. [220] Nor do I think that Mr Apostolides ever adverted to the possibility that what he was saying about the 3,000 volt shock inflicted by the collars might be untrue. He struck me as having no idea of the difference between current and voltage. It might be said that he acted carelessly in telling Mr Papps that an Innotek collar had been tested and could inflict a 3,000 volt shock. Carelessness is not, however, tantamount to recklessness, and is certainly insufficient to give rise to liability for injurious falsehood. [221] Mr Apostolides’ statement to Mr Papps to the effect that dogs had died after using the collars was plainly misleading, if not false. So too was his observation that the RSPCA had seen several animals that had been hurt by the collars. Nonetheless, there was at least some basis upon which that observation could be said to rest. His statement that there had been ‘many cases’ in which the collars had inflicted burns was less defensible. He knew of only two such cases (van Ree and Armitage) and there were significant difficulties associated with each of them. There was no proper basis for his statement that a 60 kg dog had been flipped into the air, although it was said that some unnamed witnesses who had declined to provide statements claimed to have seen this occur. [222] At the same time, however, it is my view that Mr Apostolides genuinely believed that all of the factual allegations which he made about the collars were true. He believed that dogs had been burned as a result of their use. He also believed that they inflicted a 3,000 volt shock. These were damaging statements to make about Innotek’s products. However, though false, they were not made maliciously. [223] Mr Apostolides also genuinely believed, notwithstanding the inherent improbability of the assertion, that the Malamute had done ‘backflips’ when shocked by the collar. That statement was equally damaging to Innotek’s collars. Although false, and made carelessly, it was not made maliciously. [224] There is nothing in the evidence of Dr Wirth which suggested that he did not honestly hold the views which he expressed to Mr Papps, and on radio, regarding electronic dog collars. Much of what he had to say was opinion rather than fact. I reject the contention that he exhibited malice. [225] It follows that Innotek’s claim against the respondents for injurious falsehood must fail.’ [Orion Pet Products and Innotek Australia’s claim for misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cth) s 52 was also dismissed. As to a media outlet’s potential liability for misleading or deceptive conduct, see below at 10.3. However, Orion Pet Products and Innotek Australia’s claim for defamation succeeded, for which they were awarded $85,000 damages.]

QUESTIONS 1 What interest or interests does the tort of defamation protect? How do these differ from the interest or interests protected by the tort of injurious falsehood? 2 What are the similarities and differences between the torts of injurious falsehood and defamation? 3 What satisfies the requirement of intention for the purposes of injurious falsehood? 4 What satisfies the requirement of ‘malice’ for the purpose of the tort of injurious falsehood? What relationship, if any, does it bear to the requirement of ‘malice’ as a type of defeating conduct of defences to defamation, such as common law qualified privilege and fair comment (as to which, see 7.5.5)? 5 What defences, if any, might be able to be made to a claim for injurious falsehood? 6 What types of losses or harms might a plaintiff be able to identify in order to prove actual damage to its goods or business?

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

7 What is the applicable test for establishing the extent of a defendant’s liability for the tort of injurious falsehood? 8 Does the tort of injurious falsehood resemble other torts? If so, in what ways? 9 What advantages might there be for a plaintiff in bringing a cause of action for defamation as opposed to one for injurious falsehood?

10.1.4 Examples of statements amounting to injurious falsehood Examples of such statements from the decided cases include: a false assertion that the plaintiff’s products were inferior;11 a false assertion that the plaintiff’s employees were engaged in immoral conduct;12 a false assertion that the plaintiff’s employees had an infectious disease;13 a false assertion that the plaintiff has ceased to trade;14 a false assertion that the plaintiff’s house was haunted;15 a false assertion that the plaintiff was not available for future employment;16 a false assertion that the vendor of goods or land was not the true owner of those goods or land;17 • a false assertion that the plaintiff was complicit in the theft of goods, overcharged and managed its business incompetently;18 and • a false assertion that the plaintiff was engaged in fraud and conspiracy, was negligent, contravened relevant legislation and perverted the course of justice.19 • • • • • • •

10.1.5 Extent of liability in injurious falsehood

Copyright © 2015. Oxford University Press. All rights reserved.

In negligence, a tortfeasor is liable for all the damage flowing from his or her conduct, so long as the damage is not too remote. The test for remoteness of damage is reasonable foreseeability. In Palmer Bruyn & Parker Pty Ltd v Parsons,20 the High Court of Australia confirmed that the applicable test for a defendant’s liability in injurious falsehood, as with other intentional torts, is the natural and probable consequences of the defendant’s conduct.21

QUESTIONS 1 As a matter of principle, why does Australian tort law draw a distinction between the extent of a defendant’s liability for intentional and negligent torts? 2 Considering the respective tests to be applied, is a defendant’s liability greater for an intentional or a negligent tort?

11 12 13 14 15 16 17 18 19 20 21

Western Counties Manure Co v Laws Chemical Manure Co (1874) LR 9 Ex 218. Riding v Smith (1876) 1 Ex D 91 at 94 per Kelly CB. Ibid at 94 per Kelly CB. Ratcliffe v Evans [1892] 2 QB 524; Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84. Barrett v Associated Newspapers (1907) 23 TLR 666; Manitoba Press v Nagy (1907) 39 SCR 340. Shapiro v La Morta (1923) 40 TLR 201. Joyce v Sengupta [1993] 1 WLR 337 at 341 per Sir Donald Nicholls V-C. Kaplan v Go Daddy Group [2005] NSWSC 636. Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669. (2001) 208 CLR 388. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 413 per Gummow J.

297

298

PART 3 Defamation and the Protection of Reputation

10.1.6 Damages recoverable It is clear that economic losses to business or property flowing from the publication of the statements amounting to injurious falsehood are recoverable by an award of damages. However, there is divided authority on the issues of whether damages for non-economic loss (for instance, damages for hurt feelings) are available in an injurious falsehood claim.22

10.1.7 Other remedies The usual approach to the grant of interlocutory injunctions in defamation cases, confirmed in 2006 by the High Court of Australia in Australian Broadcasting Corporation v O’Neill,23 is that such relief is only awarded in the clearest cases.24 It may be that a plaintiff is able to obtain an interlocutory injunction to restrain a publication which arguably amounts to an injurious falsehood more readily than he or she would be able to obtain such relief in relation to an allegedly defamatory publication.25 This creates a paradoxical situation where corporations are concerned: the rationale for restricting corporations from being able to sue for defamation was that they could use the threat of defamation action to ‘chill’ speech, yet forcing corporations to rely on injurious falsehood means that they can stop speech altogether.26 The fact that, under the national, uniform defamation laws, corporations presumptively cannot sue for defamation does not mean that they cannot bring a claim in injurious falsehood, so long as they satisfy the elements of that cause of action.27

QUESTIONS

Copyright © 2015. Oxford University Press. All rights reserved.

1 Should damages for non-economic loss be recoverable in a claim for injurious falsehood? What reasons, as a matter of principle and policy, support or tend against recognising such a head of damages? 2 Should an interlocutory injunction be easier to obtain in injurious falsehood than it is in defamation? To what extent do the interests in issue for an application for an interlocutory injunction for each of these causes of action differ?

10.2 Negligence 10.2.1 Introduction

Historically, courts have taken the view that ‘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 …’.28 This raises the issue of when does a claim concern ‘mere loss of reputation’. There may be claims in which there can be both damage to reputation as well 22 See Bride v KMG Hungerfords (1991) 109 FLR 256 at 281 per Murray J, SC(WA). However, see Joyce v Sengupta [1993] 1 WLR 337 at 347–49 per Sir Donald Nicholls V-C. See also James v Faddoul [2007] NSWSC 821 at [18] per Price J. 23 (2006) 227 CLR 57. 24 As to the grant of interlocutory injunctions in defamation cases, see 9.2. 25 Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 801 per Hunt J; Edelsten v Australian Broadcasting Corporation (1984) Aust Torts Reports ¶80–672 at 68,822 per Hunt J; Kaplan v Go Daddy Group [2005] NSWSC 636 at [38]–[44] per White J. 26 See, for example, Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247. See further David Rolph, ‘Corporations’ Right to Sue for Defamation: An Australian Perspective’ (2011) 22 Entertainment Law Review 195. 27 Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 at [14] per Harrison J. 28 Foaminol Laboratories v British Artid Plastics [1941] 2 All ER 393 at 399 per Hallett J.

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

Copyright © 2015. Oxford University Press. All rights reserved.

as other forms of legally recognised harms, such as economic loss or psychiatric injury (as opposed to mere distress). Claims for negligently inflicted pure economic loss and pure mental harm are themselves increasingly recognised but still evolving as forms of civil liability.29 Alternatively, there may be claims in which there are disputes about the proper characterisation of the harm in question. The common law claim which competes or conflicts most frequently with defamation to provide a remedy for such harms is negligence. This part of the chapter analyses the availability of such a cause of action against a media outlet. The elements of a claim for negligence are well established and well known. The defendant must owe a duty of care to the plaintiff; the defendant must breach that duty of care by failing to take reasonable care with respect to the plaintiff’s interests; the plaintiff must suffer legally recognised damage; and there must be a causal connection between the defendant’s conduct and the plaintiff’s damage.30 These requirements can prove problematic in their application to media outlets. For instance, courts may be reluctant to impose a duty of care on a media outlet in respect of negligent reporting because of a concern not to distort the balance struck by other areas of law between freedom of speech and other competing interests31 or because of the possibility of indeterminate liability.32 Difficulties may also be presented in identifying and applying an appropriate standard of care to be expected of media outlets in respect of their reporting.33 Finally, it may be difficult to prove a causal connection between a media publication and the damage suffered by the plaintiff.34 This part of the chapter will concentrate on the overlap between negligence and defamation, contrasting the differing approaches on this issue under Australian and English law. This is perhaps the most significant issue relating to the media’s potential liability for negligence. It is an issue which has received high appellate consideration in Australia, the United Kingdom, New Zealand and Canada, leading to highly divergent approaches. One view is that defamation ‘covers the field’, thereby leaving no scope for liability in negligence.

29 As to negligently inflicted pure economic loss generally, see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; Perre v Apand Pty Ltd (1999) 198 CLR 180. As to liability for negligent misstatements generally, being a form of negligently inflicted pure economic loss, see Hedley Byrne & Co Ltd v Heller & Partners Ltd; L. Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; Tepko Pty Ltd v Water Board (2001) 206 CLR 1. See further RP Balkin and JLR Davis, Law of Torts, 4th edn, LexisNexis Butterworths, Chatswood (NSW), 2013, Ch 13; Francis Trindade, Peter Cane and Mark Lunney, The Law of Torts in Australia, 5th edn, Oxford University Press, South Melbourne, 2007, Ch 9. As to negligently inflicted psychiatric injury, see Tame v New South Wales (2002) 211 CLR 317 (extracted below at 10.2.2). See also Civil Law (Wrongs) Act 2002 (ACT) Pt 3.2; Civil Liability Act 2002 (NSW) Pt 3; Civil Liability Act 1936 (SA) ss 3, 33, 53; Civil Liability Act 2002 (Tas) Pt 8; Wrongs Act 1958 (Vic) Pt XI; Civil Liability Act 2002 (WA) Pt 1B. See further Balkin and Davis, above, [7.41]–[7.54]; Trindade, Cane and Lunney, above, Ch 9. 30 See generally Balkin and Davis, above n 29, Ch 7;  Trindade, Cane and Lunney, above n 29, Ch 8. 31 Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148 at 155–56 per Cooke P; Balfour v AttorneyGeneral [1991] 1 NZLR 519 at 529 per Hardie Boys J; South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 at 302 per Cooke P; Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 43 per Levine J. 32 Fleming v Securities Commission [1995] 2 NZLR 514 at 520 per Cooke P. The classic statement on the relevance of indeterminacy of liability to the imposition of a duty of care in negligence is that of Cardozo CJ in Ultramares Corporation v Touche 174 NE 441 at 444 (1931), suggesting that such a duty of care would not be imposed where it exposed a defendant to ‘liability in an indeterminate amount for an indeterminate time to an indeterminate class’. 33 Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148 at 156–57 per Cooke P; Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 44 per Levine J. 34 Bell-Booth Group Ltd v Attorney-General at 156–57 per Cooke P; Balfour v Attorney-General [1991] 1 NZLR 519 at 525–27 per Hardie Boys J; Fleming v Securities Commission [1995] 2 NZLR 514 at 525 per Cooke P.

299

300

PART 3 Defamation and the Protection of Reputation

This has been the approach adopted by Australian and New Zealand courts.35 The opposing view is that, if the elements of a claim in negligence are established, there is no sound public policy reason to deny an otherwise deserving plaintiff a remedy. This has been the approach adopted by English and Canadian courts.36

Copyright © 2015. Oxford University Press. All rights reserved.

10.2.2 The position under Australian law Prior to the dicta in the two High Court of Australia authorities extracted below, there was a division of judicial opinion as to the proper relationship between negligence and defamation. In Sattin v Nationwide News Pty Ltd,37 Levine J found that a cause of action in negligence should not be available in respect of the publication of false allegations in a mass media publication.38 In this case, the plaintiff, Janette Sattin, claimed that a photograph of her alongside a man described as her husband, who was not in fact her husband, falsely imputed that she was a bigamist or had lied to the photographer about her marital status.39 In holding that a cause of action in negligence was unavailable, Levine J followed the line of authorities in New Zealand40 and rejected the position in the United Kingdom.41 However, Levine J also held that a plaintiff could plead damages for personal injuries in a defamation claim.42 Levine J revisited this issue in GS v News Ltd.43 In this case, the plaintiff brought proceedings for negligence, inter alia, in respect of the publication of her name and photograph in The Australian newspaper. The plaintiff was a complainant in proceedings in the Medical Tribunal of New South Wales against her former psychiatrist and, as such, was entitled to the benefit of anonymity, pursuant to the then Medical Practice Act 1992 (NSW) Sch 2 cl 6.44 Levine J distinguished this case from his earlier judgment in Sattin v Nationwide News Pty Ltd on the basis that the allegations in that case were claimed to be false, thereby allowing a claim for defamation, whereas, in the present case, there had been no publication of false matter with the consequence that a claim for defamation was unavailable.45 Finally, in Wade v Victoria,46 Harper J followed the position under United Kingdom law47 and distinguished the position under New Zealand law.48 In this case, the plaintiff was a former police officer who had become involved in a gaming company, Olympic Amusements Pty Ltd. Olympic Amusements submitted an expression of interest for the provision of gaming machines in Queensland. The Criminal Justice Commission of Queensland, which was conducting background checks on principals of corporations applying for gaming

35 As to the position under New Zealand law, see Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148; Balfour v Attorney-General [1991] 1 NZLR 519; South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282; Fleming v Securities Commission [1995] 2 NZLR 514. 36 As to the position under Canadian law, see Young v Bella (2006) 261 DLR (4th) 516. 37 (1996) 39 NSWLR 32. 38 Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 43–44. 39 Ibid at 33 per Levine J. 40 Ibid at 35–37 per Levine J. 41 Ibid at 37–42 per Levine J. As to the position under United Kingdom law, see below at 10.2.3. 42 Ibid at 45. 43 (1998) Aust Torts Reports ¶81–466. 44 GS v News Ltd (1998) Aust Torts Reports ¶81–466 at 64,899 per Levine J, SC(NSW). 45 Ibid at 64,911–64,912 per Levine J, SC(NSW). 46 [1999] 1 VR 121. 47 Wade v Victoria [1999] 1 VR 121 at 128–30 per Harper J. 48 Ibid at 140–42 per Harper J.

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

Copyright © 2015. Oxford University Press. All rights reserved.

licences, solicited a reference from the Victoria Police about Wade.49 Wade alleged that the reference provided was false and misleading and, as a consequence, he was unable to obtain employment in the gaming industry, thereby suffering pure economic loss. Harper J found that, as a matter of law, the Victoria Police owed Wade a duty of care in negligence in respect of its reference.50 It is worth noting that all of these cases involve only preliminary pleading points; none is a final judgment on a fully argued claim. The division of judicial opinion has been seemingly resolved by dicta of the High Court in Sullivan v Moody51 and Tame v New South Wales.52 These dicta have been subsequently applied so as to prevent plaintiffs from pleading negligence against media outlets in superior courts.53 The only decided case in which an Australian court has finally determined that a plaintiff is entitled to recover damages against a media outlet is in the judgment of Hampel J in Doe v Australian Broadcasting Corporation.54 In that case, which involved strikingly similar facts to GS v News Ltd, Doe was the victim of marital rape. Her husband was prosecuted, convicted and sentenced to a term of imprisonment.55 Doe was named in three radio news bulletins broadcast on ABC Radio on the day the sentence was handed down.56 This occurred in contravention of the Judicial Proceedings Reports Act 1958 (Vic) s 4(1A), which made it an offence to publish matter likely to lead to the identification of a victim of a sexual offence. Doe brought proceedings against the ABC for, inter alia, negligence. Hampel J found that Sullivan v Moody57 and Tame v New South Wales58 did not preclude Doe from suing in negligence. These cases did not mean that defamation was her only cause of action, as Doe was suing in relation to the publication of true, not false, matter.59 Hampel J then proceeded to find that the ABC owed a duty of care to Doe not to inflict psychiatric injury through its negligent publication,60 that duty had been breached and that there was a causal connection between the ABC’s conduct and the exacerbation of Doe’s post-traumatic stress disorder.61 She awarded Doe $85,000 general damages,62 almost $6,000 damages for medical expenses and over $118,000 damages for loss of earnings.63 It should be noted that no superior court of record in Australia has yet found a media outlet liable in negligence to the subject of its reporting.

49 50 51 52 53

54 55 56 57 58 59 60 61 62 63

Ibid at 122 per Harper J. Ibid at 123 per Harper J. (2001) 207 CLR 562. (2002) 211 CLR 317. See, for example, Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 at [49] per James J (also ­striking out a claim for breach of contract). See also Dale v Veda Advantage Information Services and Solutions Ltd (2009) 176 FCR 456 at 519–21 per Lindgren J (specifically basing decision on incoherence of law caused by imposing pleaded duty of care). [2007] VCC 281. Doe v Australian Broadcasting Corporation [2007] VCC 281 at [1] per Hampel J. Ibid at [2] per Hampel J. (2001) 207 CLR 562. (2002) 211 CLR 317. Doe v Australian Broadcasting Corporation [2007] VCC 281 at [56], [58]–[66] per Hampel J. Ibid at [100]. Ibid at [167]–[171]. Ibid at [176]. Ibid at [184].

301

302

PART 3 Defamation and the Protection of Reputation

Sullivan v Moody (2001) 207 CLR 562

[Following the reporting of suspected child sexual abuse, the children of Sullivan and Thompson were examined by medical practitioners and social workers employed by the South Australian Department of Community Welfare. Sullivan and Thompson, the fathers of the children involved, were ultimately cleared of any suspicion of wrongdoing. They brought separate proceedings in negligence against those investigating the allegations of child sexual abuse in the Supreme Court of South Australia, claiming that they had suffered psychiatric injury and economic loss as a result of the investigators’ failure to take reasonable care. At first instance, Master Bowen Pain struck out the proceedings for failing to disclose a cause of action. Separate appeals to the Full Court of the Supreme Court of South Australia were dismissed by differently constituted benches. Sullivan and Thompson appealed to the High Court of Australia.]

Copyright © 2015. Oxford University Press. All rights reserved.

GLEESON CJ, GAUDRON, McHUGH, HAYNE AND CALLINAN JJ (at 576): The supposed duty of care [42] The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care. … (579) … [50] Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because (580) the defendant is a repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle … … [53] Developments in the law of negligence over the last thirty or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is ‘fair’ or ‘unfair’. There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted. [54] The present cases can be seen as focusing as much upon the (581) communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed. Appeal dismissed.

Tame v New South Wales (2002) 211 CLR 317

Copyright © 2015. Oxford University Press. All rights reserved.

[This judgment deals with two separate appeals heard together. For present purposes, the relevant case concerned Clare Tame’s proceedings against the state of New South Wales. In mid-January 1991, Tame was involved in a motor vehicle accident at Richmond. The driver at fault, Terence Lavender, had a blood alcohol reading of 0.14. Tame, a teetotaller, had a blood alcohol reading of nil. Due to an administrative error, Acting Traffic Sergeant Beardsley of the Windsor Police Station incorrectly recorded that both drivers had blood alcohol readings of 0.14. Within a month, he had discovered and corrected his error. As Lavender was uninsured, Tame sued the Nominal Defendant. The claim was handled by NZI Insurance. Tame sought payments for ongoing physiotherapy. NZI Insurance formed the view that this treatment was unnecessary. In challenging NZI Insurance’s attempt to terminate these payments, Tame discovered the error about her blood alcohol reading. She became convinced that this was the reason for NZI Insurance’s reluctance to pay for her physiotherapy. Tame became obsessed with this matter and eventually developed a psychotic depressive illness. She commenced proceedings against the state of New South Wales and Constable Morgan (whom she initially thought was responsible for the administrative error). At first instance, Garling J found in Tame’s favour, awarding her over $115,000 damages. An appeal to the New South Wales Court of Appeal was unanimously allowed. Tame appealed to the High Court of Australia.] GLEESON CJ (at 328): [2] In the first case, the respondent is sought to be made vicariously liable for the conduct of a police officer who made a clerical error in filling out a report about a traffic accident. The circumstances in which that error became a cause of psychiatric injury to the appellant will be examined below. The allegedly tortious act is that of the police officer in erroneously completing the accident report. He had no contact with the appellant, and made no communication to her. He entered some information about her in a routine form. That information was incorrect. The error was obvious. It was soon corrected; and it was never acted upon by anybody. The police officer’s conduct consisted in recording and communicating to third parties incorrect information about the appellant. He made a careless misstatement; but nobody relied upon it. The appellant’s reputation was not affected. There was no claim in defamation. … (335) [24] … the case seems to me to be governed by the same principles as resulted in the denial by this Court of the existence of a duty of care in Sullivan v Moody. [25] In the performance of his duties, Acting Sergeant Beardsley was completing an official report into the circumstances of a motor traffic accident. In the ordinary course, the report would be used in making a decision as to whether charges should be laid against anybody involved in the accident. The two people involved were Mr Lavender and Mrs Tame. Copies of the report would also be available, on request, and for a fee, to third parties, such as litigants, their solicitors and insurers. Primarily, however, this was an official police report of the incident, and of the result of police observations, inquiries and tests. [26] The primary duty of a police officer filling out such a report is to make available to his or her superiors, honestly and frankly, the results of the observations, inquiries and tests that were made. It would be inconsistent with such a duty to require the police officer to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report.

303

304

PART 3 Defamation and the Protection of Reputation

[27] Not only was there no such relationship between Acting Sergeant Beardsley and Mrs Tame as would make it reasonable to require that he should act in contemplation of the danger of psychiatric injury to her; the relationship between them was inconsistent with such a requirement. [28] Furthermore, as in Sullivan v Moody, this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation, and the same need to preserve legal coherence. In the events that occurred, Mrs Tame’s reputation was not harmed. But suppose it had been. Then the law would have engaged in an exercise of balancing the rights and responsibilities of Mrs Tame and Acting Sergeant Beardsley by reference to considerations many of which would be rendered irrelevant by the application of the law of negligence. … GAUDRON J (at 342): [58] The second matter which indicates that Acting Sergeant Beardsley did not owe a duty of care to Mrs Tame is the fact that the direct cause of her psychiatric illness was not the inaccurate recording of her blood alcohol level, but its communication to others. Thus, in this case as in Sullivan v Moody, ‘there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like’. And as in Sullivan v Moody, ‘[t]o apply the law of negligence in the present case would resolve that competition on an altogether different basis’. At the very least, the law of negligence with respect to psychiatric injury ought not be extended in a disconformity with other areas of the law. …

Copyright © 2015. Oxford University Press. All rights reserved.

McHUGH J (at 361): Coherence in the law [122] Mrs Tame’s psychiatric illness is the product of her concern for her reputation. There is no doubt that the publication of the P4 report to the insurer defamed her. She could have sued for damages for defamation. If successful, she could have recovered all the damages in that action that she sought in the present action including damages for her psychiatric illness. [123] In determining whether Acting Sergeant Beardsley owed a duty of care to Mrs Tame, it is proper to take into account—quite apart from the issue of reasonable foreseeability—that the law of defamation appears a more appropriate medium for dealing with the facts of her case than the law of negligently inflicted nervous shock. Her action arises out of a communication to a third party, her concern is with her reputation and the law of defamation has various defences that reconcile the competing interests of the parties more appropriately than the law of negligence. This Court already has already taken the view that, independently of policy issues relevant to the interests of the parties and persons like them, the need for the law to be coherent is a relevant factor in determining whether a duty of care exists. In Sullivan v Moody, the Court said that coherence in the law was a relevant factor in determining whether a duty of care existed. In Sullivan, the Court held that officers of the Department of Community Welfare owed no duty of care to a person affected by a communication made as the result of investigating, under a statutory power, a sexual assault allegation. [124] In the present case, Constable Morgan and Acting Sergeant Beardsley had a duty to prepare the P4 report for purposes relevant to the administration of justice. If other considerations pointed to a duty of care, it might be thought that nothing about preparing a P4 report was of sufficient public important to negate that duty of care. But it would be a mistake to treat the preparation of a P4 report in isolation from other recording duties imposed on police officers in investigating criminal activity. [125] Police officers are frequently obliged to record and use statements from witnesses and informants, statements that frequently damage the reputation of others. It seems preposterous to suggest that an officer has a duty of care in respect of such statements. Gathering and recording intelligence concerning the activities, potential activities and character of members of the criminal class is also central to the efficient functioning of a modern police force. Recording hearsay, opinions, gossip, suspicions and speculations as well as incontestable factual material is a vital aspect of police intelligence gathering. To impose a duty to take reasonable care to see that such information, (362) recorded by police officers, is correct would impose on them either intolerable burden or a meaningless ritual. It would often—perhaps usually—defeat the whole purpose of intelligence recording if the officer were required to check the accuracy of the material recorded. Often enough, checking the accuracy of the material would require contacting the very person who was the subject of an adverse recording.

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

[126] It is unnecessary to decide in this case whether the administrative obligations of Constable Morgan and Acting Sergeant Beardsley negated the existence of a duty of care. My strong inclination is that police officers recording material relating to the administration of criminal justice have no duty to be careful to those affected by the material recorded. They should not have the burden of determining whether they have a duty of care in respect of every recording they make in the course of their duties. A blanket rule of no duty of care seems more in accord with the efficient administration of criminal justice than a case by case examination of each recording. If material is recorded honestly but carelessly, no action for defamation will lie, and I see no reason why the law of negligence should alter that balance. …

Copyright © 2015. Oxford University Press. All rights reserved.

HAYNE J (at 399): [243] The common law has long shown a marked reluctance to allow damages for psychiatric as distinct from physical injury. Most often this reluctance is seen to be based in fears that exaggerated or false claims will be allowed: that judges or juries will be unable to discern error in diagnosing psychiatric injury or to distinguish between the injured and the malingerer. Sometimes the reluctance is seen to be based in the difficulty of distinguishing between emotional consequences, for which it has been held damages will not lie, and psychiatric consequences for which damages will be allowed. Developments in psychiatry are said now to have much reduced, if not altogether eliminated, these problems. [244] Sometimes, those fears have been expressed in different terms. ‘Floodgates’ arguments have been advanced. More recently, these floodgates arguments are based in what are asserted to be the possible consequences of wide media dissemination of tragic events, often dissemination by broadcasting those events as they are occurring. Television broadcasts of the destruction of the World Trade Centre buildings in New York on 11 September 2001 provide an obvious example of an horrific event broadcast to an immense audience as it was happening. Again, however, floodgates arguments can be understood as being based in fears about the capacity of courts to distinguish between cases of real and feigned injury. It may be suggested that references to indeterminate liability, and to imposing unreasonable burdens on defendants, serve only to mask fears of the kind described. If concerns about indeterminate liability or the burden (400) on defendants are not based in those fears, it is said, or at least implied, that there is no reason to distinguish between a negligently caused event leading to widespread physical injury (such as a release of poisonous fumes from a factory) and a negligently caused event which leads to numerous cases of psychiatric injury. Especially is that so when it is recognised that the line between physical and psychiatric injury may not be clear and bright. … CALLINAN J (at 420): [308] … There may be some events, which, if sufficiently graphically described, or reproduced electronically, are so catastrophic and distressing that practically everyone hearing of, or seeing them reproduced with a degree of contemporaneity to their occurrence, will be affected mentally in greater or lesser degree. Such events are highly newsworthy and the media are fully entitled, indeed, in a practical sense, obliged to report them. So too, the unenviable duty of informing relatives and others of personal tragedy lies upon police, ambulance officers, military personnel and other officials from time to time. As with some claims for pure economic loss and negligent misstatement, (421) there is potential, if they were to be admitted, for indeterminate loss to an indeterminate number of people. The matters to which I have referred have all influenced, and have operated as constraints upon the development of a principled, expansive set of rules to compensate sufferers of psychiatric injury, or, as it has been called in the cases and the texts, nervous shock. To call it nervous shock is more than a mere matter of convenient shorthand. The term ‘nervous shock’ well conveys the idea of an extremely sudden, unexpected, highly disturbing, or nerveracking event of the kind for which the courts have generally consistently looked as a precondition to the recovery of damages. (425) [323] Whilst it may be accepted that a plaintiff is entitled to avail herself of whatever remedies are available to her, it is important that a decision and the reasoning leading to it, in an unusual case, which this one is, be in harmony with, so far as it is possible, available related causes of action, and the common law as a whole or, as it was put by this Court in Sullivan v Moody, that they not offend the ‘coherence of the law’. The facts of this case might conceivably have given rise to actions in negligent misstatement

305

306

PART 3 Defamation and the Protection of Reputation

(if that action is not confined to claims for economic loss) and defamation. That these causes of action may also be available on the facts of the case, and would then be governed by special rules affected by policy considerations, is relevant to the question whether the appellant should recover damages for ‘nervous shock’ on the basis of those facts … (426) [325] Many controls and special defences, both statutory and at common law, ordinarily operate to restrict claims in defamation; for example, defences of qualified and absolute privilege, and the need for a plaintiff to prove absence of good faith on the part of the defendant. (429) [332] There are other reasons why this appeal should fail. This is a case in which the injury was caused by the communication of the fact of an event, the making of an erroneous entry by a person who had no intention to cause nervous shock … Appeal dismissed.

QUESTION 1 Why did the High Court of Australia refuse to impose a duty of care in negligence in Sullivan v Moody (2001) 207 CLR 562 and Tame v New South Wales (2002) 211 CLR 317? How convincing do you find their reasoning in these cases?

10.2.3 The position under United Kingdom law The leading United Kingdom authority on the overlap between defamation and negligence is the House of Lords decision in Spring v Guardian Assurance Plc,64 which is relevantly extracted below. As the extracts clearly demonstrate, the majority of the Law Lords took a markedly different view of the issue from that adopted by the High Court of Australia.65

Spring v Guardian Assurance Plc

Copyright © 2015. Oxford University Press. All rights reserved.

[1995] 2 AC 296

[The plaintiff, Graham Spring, was employed as sales director (designate) and office manager by the second and third respondents, Corinium Holdings Ltd and Corinium Mortgage Services (Cirencester) Ltd. He was also an appointed company representative for the investment products of the first respondent, Guardian Assurance Plc. After Guardian Assurance took over the Corinium companies, Spring was dismissed from his position. He sought employment with Scottish Amicable Life Assurance Plc. Both Guardian and Scottish Amicable were members of the regulatory body, Lautro. Under the rules of Lautro, members needed to check references before engaging company representatives and, if references were sought from fellow members, full and frank disclosure was required. Scottish Amicable sought a reference about Spring from Guardian. The reference provided stated, inter alia, that Spring did not perform well as part of a team, was dishonest, owed money to Guardian and provided poor advice. Scottish Amicable did not employ Spring. Spring commenced proceedings against Guardian and the Corinium companies for negligence, malicious falsehood and breach of contract. At first instance, Judge Lever QC found in favour of Spring only in relation to negligence. An appeal by Guardian and the Corinium companies to the English Court of Appeal was successful but a cross-appeal by Spring was not. Spring appealed to the House of Lords and Guardian cross-appealed.] LORD GOFF OF CHIEVELEY (at 322): (2) If so, whether such a duty will nevertheless be negatived because it would, if recognised, pro tanto undermine the policy underlying the defence of qualified privilege in the law of defamation. I think it desirable that I should first of all identify the nature of this policy objection. As I understand it, the objection is as follows. First, reference is made to the description of the policy underlying the defence 64 [1995] 2 AC 296. 65 As to the position under Australian law, see 10.2.2.

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

of qualified privilege given by Lord Diplock in Horrocks v Lowe [1975] AC 135, 149, in the course of which he said:

Copyright © 2015. Oxford University Press. All rights reserved.

The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in (323) permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it might be defamatory and turns out to be untrue.

Second, it is suggested that the policy which underlies the defence of qualified privilege, viz. that in the relevant circumstances men should be permitted to communicate frankly and freely with one another about all relevant matters, prevents the recognition of a duty of care owed by the giver of the reference to the subject of the reference … … (324) … In these circumstances it is, I consider, necessary to approach the question as a matter of principle. Since, for the reasons I have given, it is my opinion that in cases such as the present the duty of care arises by reason of an assumption of responsibility by the employer to the employee in respect of the relevant reference, I can see no good reason why the duty to exercise due skill and care which rests upon the employer should be negatived because, if the plaintiff were instead to bring an action for damage to his reputation, he would be met by the defence of qualified privilege which could only be defeated by proof of malice. It is not to be forgotten that the Hedley Byrne duty arises where there is a relationship which is, broadly speaking, either contractual or equivalent to contract. In these circumstances, I cannot see that principles of the law of defamation are of any relevance. It is true that recognition of a duty of care to an employee in cases such as the present, based on the Hedley Byrne principle, may have some inhibiting effect on the manner in which references are expressed, in the sense that it may discourage employers from expressing views, such as those which are encouraged by rule 3.5(2) of the Lautro rules. For my part, however, I suspect that such an inhibition exists in any event. Employers may well, like many people, be unwilling to indulge in unnecessary criticism of their employees: hence the perceived necessity for rule 3.5(2). In all the circumstances, I do not think that we may fear too many ill effects from the recognition of the duty. The vast majority of employers will continue, as before, to provide careful references. But those who, as in the present case, fail to achieve that standard will have to compensate their employees or former employees who suffer damage in consequence. Justice, in my opinion, requires that this should be done; and I, for my part, cannot see any reason in policy why that justice should be denied. LORD LOWRY (at 325): The defendants have two main arguments. The first is that to confer on the plaintiff a cause of action in negligence would distort and subvert the law of defamation in cases where the defence relied on is one of qualified privilege, that is, where, on an occasion when he has either a duty to communicate information or a legitimate interest of his own to protect, the defendant in good faith and without malice defames the plaintiff. I believe that the answer to this argument is that a person owes a general duty, subject to the principles governing the law of defamation and to the relationship, if any, between the defamer and the defamed, not to defame any other person, whereas a liability based on negligent misstatement can exist only if (1) damage is foreseeable (and damage occurs) and (2) there is such proximity between the maker and the subject of the misstatement as will impose a duty of care on the former for the protection of the latter. The existence of that foreseeability and that proximity between the plaintiff and the defendant is a justification, not for extending the liability for defamation by dispensing with the need for malice, but for bringing into play a different principle of liability according to which, in a restricted class of situations, a plaintiff can rely on negligence as the ingredient of the defendant’s conduct which is essential to the existence of that liability. I  consider that in the instant case damage stemming from the defendants’ careless misstatement when giving a reference was foreseeable and that the proximity between the defendants and the plaintiffs imposed a duty of care on the former for the protection of the latter.

307

308

PART 3 Defamation and the Protection of Reputation

Copyright © 2015. Oxford University Press. All rights reserved.

(326) On the one hand looms the probability, often amounting to a certainty, of damage to the individual, which in some cases will be serious and may indeed be irreparable. The entire future prosperity and happiness of someone who is the subject of a damaging reference which is given carelessly but in perfectly good faith may be irretrievably blighted. Against this prospect is set the possibility that some referees will be deterred from giving frank references or indeed any references. Placing full reliance here on the penetrating observations of my noble and learned friend, Lord Woolf, I am inclined to view this possibility as a spectre conjured up by the defendants to frighten your Lordships into submission. … (327) It is in the tradition of English case law method to decide this appeal on its facts and not to be deterred by reflecting on all the possible situations in which a reference might be called for. Even if it is debatable where the line should be drawn, I am confident from the plaintiff’s point of view this case falls on the right side of it. It is not asking too much to expect the referee to exercise reasonable care; to hold for the plaintiff in this appeal does not mean that the referee must guarantee the accuracy of the reference. LORD SLYNN OF HADLEY (at 330): It is thus clear that if a claim is made that a statement is defamatory it is only express malice which removes the protection of qualified privilege in a situation where the law recognises that the duty to speak frankly is, in the absence of malice, paramount. Does it follow, as the Court of Appeal considered, that no one can ever sue in negligence for a statement, written or oral and whatever the circumstances? … (332) … The rule in defamation has been, as the Court of Appeal said, long established. It is, however, no less clear that the rule was established before modern developments in the law of negligence following the decisions of your Lordships’ House in Donoghue v Stevenson [1932] AC 562. A duty of care has been held to exist in a wide variety of situations which previously would not have been contemplated. There is, thus, no doubt that liability may arise for economic loss arising from a negligently made misstatement where the statement is given to someone who relies on it and suffers loss, though this will usually arise where the giver of the statement knows that the person to whom it is given or some other person will rely on it for a specific purpose: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; Caparo Industries Plc v Dickman [1990] 2 AC 605; Ministry of Housing and Local Government v Sharp [1970] 2 QB 223; Smith v Eric S Bush [1990] 1 AC 831. These decisions do not directly cover the present case but they are a pointer as to what the principle should be. The position in English law being that there is no authority of your Lordships’ House directly in point, it is open to your Lordships to decide the question as one of principle on an analysis of the tort of defamation and of the proper approach to considering whether a duty of care may exist when it has not been recognised before. … (334) … It seems to me that on the basis of these authorities two questions therefore arise. The first is whether the nature of the tort of defamation and the tort of injurious falsehood is such that it would be wrong to recognise the possibility of a duty of care in negligence for a false statement … … As to the first question the starting-point in my view is that the suggested claim in negligence and the torts of defamation and injurious and malicious falsehood do not cover the same ground, as Mr Tony Weir shows in his note in [1993] CLJ 376. They are separate torts, defamation not requiring a proof by the plaintiff that the statement was untrue (though justification may be a defence) or that he suffered economic damage, but being subject to defences quite different from those in negligence, such as the defence of qualified privilege which makes it necessary to prove malice. Malicious falsehood requires proof that the statement is false, that harm has resulted and that there was express malice. Neither of these involves the concept of a duty of care. The essence of a claim in defamation is that a person’s reputation has been damaged; it may or not involve the loss of a job or economic loss. A claim that a reference has been given negligently is essentially based on the fact, not so much that reputation has been damaged, as that a job or an opportunity has been lost. A statement carelessly made may not be defamatory—a statement that a labourer is

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

‘lame’, a secretary ‘very arthritic’, when neither statement is true, though they were true of some other employee mistakenly confused with the person named. I do not consider that the existence of either of these two heads of claims, defamation and injurious falsehood, a priori prevents the recognition of a duty of care where, but for the existence of the other two torts, it would be fair, just and reasonable to recognise it in a situation where the giver of a reference has said or written what is untrue and where he has acted unreasonably and carelessly in what he has said. (335) The policy reasons underlying the requirement that the defence of qualified privilege is only dislodged if express malice is established do not necessarily apply in regard to a claim in negligence. There may be other policy reasons in particular situations which should prevail. Thus, in relation to a reference given by an employer in respect of a former employee or a departing employee (and assuming no contractual obligation to take care in giving a reference) it is relevant to consider the changes which have taken place in the employer-employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or by judicial discretion, to care for the physical, financial and even psychological welfare of the employee. … (336) … I do not accept the in terrorem arguments that to allow a claim in negligence would constitute a restriction on freedom of speech or that in the employment sphere employers will refuse to give references or will only give such bland or adulatory ones as is forecast. They should be and are capable of being sufficiently robust as to express frank and honest views after taking reasonably care both as to the factual content and as to the opinion expressed. They will not shrink from the duty of taking reasonable care when they realise the importance of the reference both to the recipient (to whom it is assumed that a duty of care exists) and to the employee (to whom it is contended on existing authority there is no such duty). They are not being asked to warrant absolutely the accuracy of the facts or the incontrovertible validity of the opinions expressed but to take reasonable care in compiling or giving the reference and in verifying the information on which it is based. The courts can be trusted to set a standard which is not higher than the law of negligence demands. Even if it is right that the number of references given will be reduced, the quality and value will be greater and it is by no means certain that to have more references is more in the public interest than to have more careful references. Those giving such references can make it clear what are the parameters within which the reference is given such as stating their limited acquaintance with the individual either as to time or as to situation. This issue does not arise in the present case but it may be that employers can make it clear to the subject of the reference that they will only give one if he accepts that there will be a disclaimer of liability to him and to the recipient of the reference. Nor does it follow that if a duty of care is recognised in some situations it must exist in all situations. It seems to me that for the purposes of deciding whether the law recognises the duty as being fair, just and reasonable there may be a difference between the situation where it is an employer or ex-employer who gives a reference and the situation where a reference is given by someone who has only a social acquaintance with the person the subject of the reference. They may be difficult situations in between but these will, as is the common practice, have to be worked out in particular situations … (337) … I do not for my part consider that to recognise the existence of a duty of care in some situations when a reference is given necessarily means that the law of defamation has to be changed or that a substantial section of the law relating to defamation and malicious falsehood is ‘emasculated’ (Court of Appeal, at p 437). They remain distinct torts. It may be that there will be less resort to these torts because a more realistic approach on the basis of a duty of care is adopted. If to recognise that such a duty of care exists means that there have to be such changes—either by excluding the defence of qualified privilege from the master–servant situation or by withdrawing the privilege where negligence as opposed to express malice is shown—then I would in the interests of recognising a fair, just and reasonable result in the master–servant situation accept such a change.

309

310

PART 3 Defamation and the Protection of Reputation

(342) LORD WOOLF: …

The claim based on negligence The claim here is in respect of economic loss. Before there can be a duty owned in respect of economic loss, it is now clearly established that it is important to be able to show foreseeability of that loss, coupled with the necessary degree of proximity between the parties. It is also necessary to establish that in all the circumstances it is fair, just and reasonable for a duty to be imposed in respect of the economic loss. Deferring for the moment consideration of the consequences of there being possible alternative causes of action of defamation and injurious falsehood and the related public policy considerations, there can really be no dispute that the plaintiff can establish the necessary foreseeability and proximity. It is clearly foreseeable that if you respond to a request for a reference by giving a reference which is inaccurate, the subject of the reference may be caused financial loss. Where the reference is required by a prospective employer, the loss will frequently result from a failure to obtain that employment … … Subject to what I have to say hereafter, it also appears to be uncontroversial that if an employer, or former employer, by his failure to make proper inquiries, causes loss to an employer, it is fair, just and reasonable that he should be under an obligation to compensate that employee for the consequences. This is the position if an employer injures his employee physically by failing to exercise reasonable care for his safety and I find it impossible to justify taking a different view where an employer, by giving an inaccurate reference about his employee, deprives an employee, possibly for a considerable period, of the means of earning his livelihood. The consequences of the employer’s carelessness can be as great in the long term as causing the employee a serious injury. (345) …

Copyright © 2015. Oxford University Press. All rights reserved.

The defamation issue There would be no purpose in extending the tort of negligence to protect the subject of an inaccurate reference if he was already adequately protected by the law of defamation. However, because of the defence of qualified privilege, before an action for defamation can succeed (or, for that matter, an action for injurious falsehood) it is necessary to establish malice. In my judgment the result of this requirement is that an action for defamation provides a wholly inadequate remedy for an employee who is caused damage by a reference which due to negligence is inaccurate. This is because it places a wholly disproportionate burden on the employee. Malice is extremely difficult to establish. This is demonstrated by the facts of this case. The plaintiff was able to establish that one of his colleagues, who played a part in compiling the information on which the reference was based, had lied about interviewing him, but this was still insufficient to prove malice. Without an action for negligence the employee may, therefore, be left with no practical prospect of redress, even though the reference may have permanently prevented him from obtaining employment in his chosen vocation. If the law provides a remedy for references which are inaccurate due to carelessness this would be beneficial. It would encourage the adoption of appropriate standards when preparing references. This would be an important advantage as frequently an employee will be ignorant that it is because of the terms of an inaccurate reference, of the contents of which he is unaware, that he is not offered fresh employment. The availability of a remedy without having to prove malice will not open the floodgates. In cases where the employee discovers the existence of the inaccurate reference, he will have a remedy if, but only if, he can establish, instead of malice, that the reason for the inaccuracy is the default of the employer, in the sense that he has been careless. To make an employer liable for an inaccurate reference, but only if he is careless, is, I would suggest, wholly fair. It would balance the respective interests of the employer and employee. It would amount to a development of the law of negligence which accords with the principles which should control its development. It would, in addition, avoid a rather unattractive situation continuing a recipient of a reference, but not the subject of a reference, being able to bring an action for negligence. It would also recognise that while both in negligence and defamation it is the untrue statement which (347) causes the damage, there is a fundamental difference between the torts. An action for defamation is founded upon the inaccurate terms of the reference itself. An action for negligence is based on the lack of care of the author of the reference …

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

(350) … This appeal is not concerned with a claim for mere loss of reputation. What concerns the plaintiff is his loss of an opportunity to obtain employment due to the negligence, as the judge found, in the preparation of the reference. I am afraid I do not accept the logic of the argument that to have an action for negligence will undermine the law of defamation. If this appeal is allowed, this will leave the law of defamation in exactly the same state as it was in previously. The plaintiff would not have succeeded in an action for defamation. Negligence has always been an irrelevant consideration (I am not referring to quantum of damages) and it will remain irrelevant in an action for defamation. In the present context the two causes of action are not primarily directed at the same mischief although they, admittedly, overlap. I have already indicated that an action for negligence is concerned with the care exercise in ascertaining the facts and defamation with the truth of the contents of what is published. This is also demonstrated by what would be the respective approaches to damages in actions based on defamation and negligence. In the case of (351) defamation the primary head, but not the only head, of damages is as to the loss of reputation. In an action for negligence, on the other hand, the subject of the reference will be primarily interested in and largely limited to his economic loss. To prevent the law of negligence applying to the present situation, when it is otherwise fair and just that it should apply, by the imposition of a requirement to prove malice in effect amounts to transferring a defence which has been developed for one tort to another tort to which it has never been previously applied when it is inappropriate to do so. The historic development of the two actions has been quite separate. Just as it has never been a requirement of an action for defamation to show that the defamatory statement was made negligently, so, if the circumstances establish that it is fair and just that a duty of care should exist, the person who suffers harm in consequence of a breach of that duty should not have to establish malice merely because that would be a requirement in an action for defamation. I can see no justification for erecting a fence around the whole of the field to which defamation can apply and treating any other tort, which can beneficially from the point of view of justice enter into part of that field, as a trespasser if it does so. The conclusive answer in the present context to applying the approach of Sir Robin Cooke P is that it will, here, result in real injustice. It would mean that a plaintiff who would otherwise be entitled to succeed in an action for negligence would go away empty-handed because he could not succeed in an action for defamation. This cannot be a desirable result. Appeal allowed. [Lord Keith of Kinkel dissented.]

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 Why did the House of Lords impose a duty of care in negligence in Spring v Guardian Assurance Plc? How convincing do you find their Lordships’ reasoning in this case? 2 Where there is a statutory provision in a case, to what extent do its precise terms play a critical role in the outcome of the case? Can differences in outcome be explained wholly upon the basis that some cases involve statutory provisions and other cases involve questions purely of common law? 3 To what extent do the divergent approaches as to whether to impose a duty of care in negligence in respect of a communication or a publication turn upon the different approaches taken to the imposition of a duty of care in negligence generally in a given jurisdiction? 4 In Fleming v Securities Commission [1995] 2 NZLR 514 at 520, Cooke P stated: … in an ideal world the press might perhaps be expected to have a legal obligation to take reasonable care that what is published to its readers is accurate and lawful. But we do not live in Utopia. I accept that in practice such a rule would cripple the media.

T o what extent is the decision of Australian courts not to impose a duty of care in negligence informed by practical, pragmatic or policy considerations? 5 Should media outlets owe a duty of care not to inflict pure economic loss upon the people who may rely upon what they report or who might otherwise be adversely affected by what is reported?

311

312

PART 3 Defamation and the Protection of Reputation

6 Should media outlets owe a duty of care not to inflict psychiatric injury upon the people about whom they report or who might otherwise be adversely affected by what is reported? Should media outlets owe a duty of care not to inflict emotional distress short of psychiatric injury? 7 Would imposing a duty of care in negligence on a media outlet in respect of its reporting lead to incoherence in the law? If so, how? 8 For the purposes of imposing a duty of care in negligence, should a distinction be drawn between content generated by a media outlet and content provided to that media outlet (whether for payment or otherwise)?

10.3 Misleading or deceptive conduct

Copyright © 2015. Oxford University Press. All rights reserved.

10.3.1 Introduction

A media outlet may be exposed to liability for its publication of false matter not only at common law, through causes of action such as defamation and injurious falsehood. It may also  incur liability under statute for misleading or deceptive conduct. When it was introduced, the Trade Practices Act 1974 (Cth) (TPA) s 52 created a statutory cause of action imposing civil liability for misleading or deceptive conduct. There were analogous provisions under state and territory legislation (which applied to natural persons, as well as corporations).66 The TPA has been replaced by the Competition and Consumer Act 2010 (Cth). The second schedule of this Act contains the Australian Consumer Law (Cth) (ACL). Now, under  the  ACL, the relevant provision dealing with misleading or deceptive conduct is s 18. The ACL is an example of successful co-operative reform between the Commonwealth and the states and territories. Each state and territory has enacted the ACL as part of its own law.67 As with the TPA s 52 before it, the purpose of the ACL s 18 is consumer protection.68 It is important to bear this purpose in mind when applying the terms of the statutory provision. The ACL s 18 is expressed in general terms and is particularly versatile. Its applications are obviously not limited to the conduct of the media. However, it does have some particular applications to the media. A media outlet may be liable for misleading or deceptive conduct in relation to its dissemination of inaccurate material or in relation to its engagement in such conduct as part of its production processes. The ACL s 18 can also have a significant impact upon advertising.69 This part of the chapter will set out the elements of liability for misleading or deceptive conduct and the circumstances in which such liability for media outlets might arise. It will focus on the Commonwealth provision. It will consider the overlap between defamation 66 Fair Trading Act 1992 (ACT) s 12; Consumer Affairs and Fair Trading Act 1990 (NT) s 42; Fair Trading Act 1987 (NSW) s 42; Fair Trading Act 1989 (Qld) s 38; Fair Trading Act 1987 (SA) s 56; Fair Trading Act 1990 (Tas) s 12; Fair Trading Act 1999 (Vic) s 9; Fair Trading Act 1987 (WA) s 10. 67 Fair Trading (Australian Consumer Law) Act 1992 (ACT) s 7(1); Consumer Affairs and Fair Trading Act 1990 (NT) s 27(1); Fair Trading Act 1987 (NSW) s 28(1); Fair Trading Act 1989 (Qld) s 16(1); Fair Trading Act 1987 (SA) s 14(1); Australian Consumer Law (Tasmania) Act 2010 (Tas) s 6(1); Australian Consumer Law and Fair Trading Act 2012 (Vic) s 8(1); Fair Trading Act 2010 (WA) s 19(2). 68 See, for example, McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 410 per Northrop J. 69 As with the TPA s 52 before it, the ACL s 18 may also be used as a form of de facto personality right protection. As this overlaps with the tort of passing off and is generally dealt with in the context of intellectual property, it is outside the scope of this book.

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

and misleading or deceptive conduct. Finally, it will consider the important ‘safe harbour’ defence available to media outlets as ‘information providers’.

10.3.2 Elements of liability The ACL s 18 has three elements. A corporation must be engaged in conduct capable of being described as misleading or deceptive, and the conduct must occur in trade or commerce.70 Each of these elements will be examined in turn.

Competition and Consumer Act 2010 (CTH) Schedule 2 (Australian Consumer Law (Cth)) Section 18—Misleading or deceptive conduct A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.…

10.3.2.1 Application to corporations Like the TPA s 52 before it, the ACL s 18 may be invoked by private parties, competitors or the Australian Competition and Consumer Commission.71 The scope of this section is limited to corporations consistent with the Commonwealth’s legislative capacity under the Australian Constitution.72 This focus is somewhat expanded by the Competition and Consumer Act 2010 (Cth) s 6(3), which provides that the legislation will apply to cover conduct by any person or entity that involves the use of postal, telegraphic, telephonic or broadcasting services or in relation to radio or television broadcasts.73 In any event, equivalent sections under state and territory fair trading legislation extend the prohibition against misleading or deceptive conduct to natural persons.74

Copyright © 2015. Oxford University Press. All rights reserved.

10.3.2.2 The meaning of ‘misleading or deceptive’ The language in the TPA s 52 was described as ‘clear and unambiguous’.75 This could apply equally to the ACL s 18. The High Court of Australia has stressed that the words ‘misleading or deceptive’ should be given their plain and natural meaning—to mislead or deceive is to ‘lead into error’.76 From this starting point, Australian courts have further clarified that the

70 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 223 per Stephen J. 71 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197–98 per Gibbs CJ. 72 Commonwealth Constitution s 51(xx). See also Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 at 5 per French J. 73 Commonwealth Constitution s 51(v). See Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 at 5 per French J. 74 Fair Trading (Australian Consumer Law) Act 1992 (ACT) s 11(1); Consumer Affairs and Fair Trading Act 1990 (NT) s 31(1); Fair Trading Act 1987 (NSW) s 32(1); Fair Trading Act 1989 (Qld) s 20(1); Fair Trading Act 1987 (SA) s 18(1); Australian Consumer Law (Tasmania) Act 2010 (Tas) s 10(1); Australian Consumer Law and Fair Trading Act 2012 (Vic) s 12(1); Fair Trading Act 2010 (WA) s 24(1). 75 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 225 per Stephen J; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197 per Gibbs CJ. See also Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd at 205 per Mason J. 76 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198 per Gibbs CJ. Note that conduct which is merely confusing will not necessarily be misleading or deceptive: McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 415.

313

314

PART 3 Defamation and the Protection of Reputation

test of whether conduct is misleading or deceptive is objective.77 It is not necessary to show that there was an intention to mislead or deceive,78 or that anyone has actually been misled.79 The question is whether the class of consumers likely to be affected would be misled or deceived by the conduct in question. On this point, the High Court has said that ‘ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute.’80 When considering whether representations made in the media are misleading or deceptive, the entire publication needs to be considered, not just a discrete part.81 In other words, the overall impression is critical. In Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd,82 Gibbs CJ explained: The conduct of a defendant must be viewed as a whole. It would be wrong to select some words or act, which, alone, would be likely to mislead if those words or acts, when viewed in their context, were not capable of misleading.83

The content, presentation and the circumstances in which material is communicated in the media will be taken into account when deciding whether the ‘reasonable viewer’ would be misled or deceived.84 In considering misleading representations made on a television program, it has been held that television viewers are unlikely to engage in detailed analysis of textual or linguistic nuances and courts should consider the overall impression created by a broadcast.85

Copyright © 2015. Oxford University Press. All rights reserved.

10.3.2.3 The meaning of ‘in trade or commerce’ Determining whether conduct has occurred in trade or commerce can involve some subtlety. The phrase ‘in trade or commerce’ received the High Court’s attention in Concrete Constructions (NSW) Pty Ltd v Nelson.86 The majority considered that the words should be broadly interpreted, but do not catch ‘all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business.’87 Conduct ‘in trade or commerce’ should be confined to ‘those activities or transactions which, of their nature, bear a trading or commercial character’.88 The majority offered the illustration of a truck driver giving a misleading hand-signal as an example of conduct that would be connected to general commercial activity but not of a commercial character and not formally ‘conduct in trade or commerce’.89 It was said 77 McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 399 per -Smithers J; Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198 per Gibbs CJ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87 per curiam. 78 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228 per Stephen J; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197 per Gibbs CJ, at 216 per Brennan J; Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82. 79 McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 403–04 per Smithers J. 80 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 per Gibbs CJ. 81 ACCC v Seven Network Limited (2007) 244 ALR 343 at 345 per Bennett J. 82 (1982) 149 CLR 191. 83 Ibid at 199. 84 Versace v Monte (2002) 119 FCR 349 at 375 per Tamberlin J. 85 Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 at 533 per Bowen CJ. 86 (1990) 169 CLR 594. 87 Ibid at 602, 603–4. 88 Ibid at 603–04. 89 Ibid at 604.

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

that conduct in trade or commerce would include ‘promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers.’90 The communication of information for a commercial purpose has been held to be conduct in trade or commerce.91

10.3.3 The overlap between misleading or deceptive conduct and defamation This chapter has earlier explored the significant division of judicial opinion about the possibility of overlapping causes of action in negligence and defamation, with the Australian authorities favouring the view that such claims are mutually exclusive. By contrast, the possibility of overlapping causes of action in misleading or deceptive conduct and defamation has been readily acknowledged. It was given relatively early and authoritative endorsement in the decision of the Full Court of the Federal Court of Australia in Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd,92 which is relevantly extracted below. As Tamberlin J more recently observed in Versace v Monte,93 the provisions of the TPA and their state and territory equivalents need to be given their natural and ordinary meaning. If, as a consequence of giving them their natural and ordinary meaning, their application overlaps with the application of other common law causes of action, such as defamation, it should be presumed that this was what the legislature intended. There is no statutory basis to read down statutory causes of action for misleading or deceptive conduct so as to exclude defamatory matter from their operation.94 There is no reason to think that such an approach would not also apply in relation to the ACL s 18. Given the restrictions now imposed upon a corporation’s right to sue for defamation,95 alternative actions to defamation, and the precise scope of the causes of action in defamation and misleading or deceptive conduct, are likely to become more important. An action for misleading or deceptive conduct under the ACL s 18 may be available to protect corporate reputation.96

Copyright © 2015. Oxford University Press. All rights reserved.

Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82

[A professional cricketer entered into an agreement with the first applicant, Global Sportsman Pty Ltd, whereby the cricketer agreed to undertake promotional activities. Mirror Newspapers Pty Ltd was unaware of this agreement. Two of its newspapers, The Australian and The Weekend Australian, published matter that implicated the cricketer in the factionalism and ‘mutiny’ said to be afflicting Australian cricket at the time.

90 Ibid at 603. 91 Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 at 13–14 per French J. See also Versace v Monte (2002) 119 FCR 349 at 377–80 per Tamberlin J (publication of book about Gianni Versace conduct in trade or commerce because publishing book for sale activity of author bearing commercial character and also promotion of author’s services as private investigator); Hearn v O’Rourke (2003) 129 FCR 64 at 67–68 per Finn and Jacobson JJ (securing interviews for documentary arguably crucial to trading or commercial activity in which filmmaker engaged). However, see TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at 332–33 per Spigelman CJ. 92 (1984) 2 FCR 82. 93 (2002) 119 FCR 349. 94 Ibid at 364 per Tamberlin J. 95 As to the restrictions on corporations’ right to sue for defamation, see 7.1.14. 96 See TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at 338 per Spigelman CJ.

315

316

PART 3 Defamation and the Protection of Reputation

Global Sportsman brought proceedings against Mirror Newspapers in the Federal Court of Australia for contraventions of the Trade Practices Act 1974 (Cth). The cricketer also brought proceedings on this basis and for defamation. The extract below, from the judgment on a case stated, relates to the overlap between the statutory cause of action for misleading or deceptive conduct and the common law cause of action in defamation.]

Copyright © 2015. Oxford University Press. All rights reserved.

BOWEN CJ, LOCKHART AND FITZGERALD JJ (at 86): There is no definable boundary between conduct which is misleading or deceptive or likely to mislead or deceive and material which is defamatory. Material which is defamatory does not fall outside the operation of s 52(1) of the Act merely for that reason any more than it is brought within the operation of s 52(1) by reason only that it is defamatory. If the operation of s 52(1) was limited to exclude material because it was defamatory, not only newspaper publishers, but all corporations would be exonerated. Such a proposition would severely restrict the broad generality of s 52(1) which has been emphasised by the High Court on more than one occasion: see Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Pty Ltd (1978) 140 CLR 216; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 56 ALJR 715. Further, the meaning of s 52(1) cannot be controlled by the doctrine of freedom of speech, which incorporates the freedom of the press. Although there is no right to speak freely given by the Constitution or by statute, free speech is of fundamental importance. But in this as in other areas, freedom does not mean licence but freedom under the law in a civilised society: cf Samuels v The Readers’ Digest Association Pty Ltd (1969) 120 CLR 1 at 14–15 per Barwick CJ. Speech is free if it is free from unwarranted restrictions. Freedom of speech is but one of a number of competing rights and interests which must be accommodated. Part V of the Act is broadly (87) concerned with ‘Consumer Protection’, which is itself an important matter of public interest. Like sedition, defamation, obscenity, copyright, etc, consumer protection can justify some restriction upon what may be published. The ambit of any restriction is a matter for Parliament to the extent that the subject is within its constitutional power. Not all newspapers are published by corporations but many are, and it is with respect to those that the questions stated are of immediate significance. The validity of the Act for present purposes is not in doubt. … Each of the rival contentions otherwise focused upon the publication by a corporation of information described as ‘news’. A cause of action in defamation founds upon the publication or communication of defamatory material and detailed rules have been evolved to deal with the liability in defamation of those who publish or republish such material or cause its publication.

QUESTIONS 1 Compare the approaches Australian courts have adopted to the overlap between defamation and negligence, on the one hand, and defamation and misleading or deceptive conduct, on the other hand. To what extent is the difference explained by the source of law for each of the competing causes of action? 2 What are the advantages or disadvantages, both principled and practical, for a plaintiff seeking to bring a cause of action for misleading or deceptive conduct, instead of defamation, against a media outlet?

10.3.4 ‘Information providers’ The effect of a series of decisions of the Federal Court of Australia—Universal Telecasters (Qld) Pty Ltd v Guthrie,97 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd 98 and Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd 99—was to suggest that 97 (1978) 18 ALR 531. 98 (1984) 2 FCR 82. 99 (1985) 58 ALR 549.

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

Copyright © 2015. Oxford University Press. All rights reserved.

media outlets might be held liable for misleading or deceptive conduct as a result of material that they publish in certain circumstances without having any effective defence. This was an unintended consequence of the TPA as passed. In response to this series of Federal Court decisions, the Hawke Labor government introduced a ‘prescribed information provider’ defence in 1987. The TPA s 65A provided a ‘safe harbour’ defence for media outlets. Analogous provisions were introduced into the equivalent state and territory fair trading legislation.100 Although broad, the TPA s 65A did not create an absolute immunity. Media outlets were able to rely upon it to avoid liability broadly in cases where they were engaging in news and current affairs reporting.101 They were less likely to be able to rely upon it where they were engaged in self-promotional, third party promotional or advertising activities.102 The TPA s 65A was held to be applicable to freelance journalists, as well as those working in mainstream media outlets.103 In the highest appellate consideration of the TPA s 65A, Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd, French CJ and Kiefel J identified the rationale for this section: The purpose of the exemption in s 65A … was to maintain a vigorous free press as well as to maintain an effective and enforceable TPA. That purpose is served by releasing newspapers and electronic media proprietors, inter alia, from undesirable inhibitions on the provision, by them, of news, information, opinion and comment. Consistently with that purpose information providers are free as part of the function of an independent free press to praise or criticise the providers of goods and services and the quality of what they provide. Where, however, the  information provider publishes matter in connection with goods or services which it itself provides, or publishes an advertisement for its own or someone else’s goods or services, the rationale of maintaining a free and rigorous press does not  require its exemption from the prohibition of misleading or deceptive conduct. The same is true where the information provider promotes the goods or services of a third party pursuant to a contract, arrangement or understanding  with that  party. It would be true also of publications critical of goods or services provided by competitors of the information provider or of a third party with whom the information provider has a contract, arrangement or understanding.104

A real difficulty for media outlets which sought to rely on the ‘prescribed information provider’ defence under the TPA s 65A, as well as for judges interpreting and applying it, was the complexity of its legislative drafting.105 The current statutory provision creating an ‘information provider’ defence, the ACL s 19 is slightly less complex than its predecessor. 100 Fair Trading Act 1992 (ACT) s 31; Consumer Affairs and Fair Trading Act 1990 (NT) s 60; Fair Trading Act 1987 (NSW) s 60; Fair Trading Act 1989 (Qld) s 51; Fair Trading Act 1987 (SA) s 74; Fair Trading Act 1990 (Tas) s 28; Fair Trading Act 1999 (Vic) s 32; Fair Trading Act 1987 (WA) s 63. 101 See, for example, Bond v Barry (2008) 173 FCR 106. 102 See, for example, Versace v Monte (2002) 119 FCR 349 at 382–87 per Tamberlin J; Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305. 103 Bond v Barry (2008) 173 FCR 106 at 113–14 per curiam. 104 Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305 at 320. 105 Ibid at 323, 325–26 per Gummow J.

317

318

PART 3 Defamation and the Protection of Reputation

Australian Consumer Law (Cth) s 19

Copyright © 2015. Oxford University Press. All rights reserved.

19 Application of this Part to information providers (1) This Part does not apply to a publication of matter by an information provider if: (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. (2) Subsection (1) does not apply to a publication of an advertisement. (3) Subsection (1) does not apply to 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 (the publicised goods or services), if: (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 (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. (4) Subsection (1) does not apply to 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 (the publicised interests in land), if: (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. (5) An information provider is a person who carries on a business of providing information. (6) Without limiting subsection (5), each of the following is an information provider: (a) the holder of a licence granted under the Broadcasting Services Act 1992; (b) a person who is the provider of a broadcasting service under a class licence under that Act; (d) the Australian Broadcasting Corporation; (e) the Special Broadcasting Service Corporation.

QUESTIONS 1 What requirements must a media outlet satisfy in order to establish an exemption under the ACL s 19? 2 Are certain types of media outlets or formats more likely than others to fall outside the scope of the ACL s 19? 3 Do you think that the exemption under the ACL s 19, either in its terms or in its application, confers too broad an immunity on media outlets for liability for misleading or deceptive publications? Why or why not? Does it strike the right balance?

CHAPTER 10 Injurious Falsehood, Negligence and Misleading or Deceptive Conduct

Case study: TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 The Trade Practices Act 1974 (Cth) s 52 may be invoked where an interview has been obtained on false pretences. Craftsman Homes v TCN Channel Nine Pty Ltd106 concerned a story prepared for A Current Affair about a construction company. Ben Fordham, a reporter from A Current Affair, contacted the company’s managing director, Fred Cox, to arrange an interview but they were unable to agree to mutually acceptable terms and conditions. Instead, Fordham and an employee from Channel Nine posed as a young couple interested in building a new home and visited Mr Cox. They were met at the door by Mr Cox’s daughter, exchanged pleasantries, and were taken through to Mr Cox’s office. Fordham apologised for leaving his phone on, before expressing interest in building in Lennox Head ‘or around that area’. During the discussion that followed, Fordham took a phone call and excused himself. He went to the front door, let in a Channel Nine camera crew, returned to the office with the camera crew and said ‘Fred, I just want to ask you a couple of quick questions, we’re from A Current Affair’. Mr Cox told them to leave; however, Fordham and the camera crew remained at his front door for some time calling for Mr Cox to come outside and ‘have a chat’.107 The story and a promotional clip went to air in which Mr Cox and his company were accused of shoddy building practices. Mr Cox instituted proceedings for defamation, trespass and misleading and deceptive conduct. The defamation claim failed, as all of the imputations arising from the broadcasts were either justified or successfully defended as comment.108 However, damages were awarded for trespass and for contravention of the Trade Practices Act 1974 (Cth) s 52, with the exemption for ‘prescribed information providers’ being held not to be applicable.109 An appeal to the New South Wales Court of Appeal against the findings in relation to misleading or deceptive conduct was dismissed.110

Copyright © 2015. Oxford University Press. All rights reserved.

Case study: Hearn v O’Rourke (2003) 129 FCR 64 A preliminary decision in Hearn v O’Rourke111 indicates that the Trade Practices Act 1974 (Cth) s 52 could be applied where misleading representations have been made about the subject matter of an interview. O’Rourke was a film-maker who produced a documentary, Cunnamulla, focusing on life in a town in central Queensland. In the course of production, O’Rourke wanted to interview two girls, then aged 13 and 15, and sought permission from their parents. According to the parents, O’Rourke interviewed the girls about their sexual activities contrary to representations he had made prior to the interviews. While the claim survived a strike-out application, proceedings were discontinued before reaching a full trial.112 The preliminary decision nonetheless contemplates that the Trade Practices Act 1974 (Cth) s 52 may be used where media questioning strays.113

10.3.5 Remedies A range of remedies are available under the ACL where misleading or deceptive conduct is established or threatened. The Federal Court may grant an injunction, or make an award

106 [2006] NSWSC 519. 107 Craftsman Homes Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 at [7]–[8]. 108 Ibid at [876]. 109 Ibid at [1075]. 110 TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at 334–35 per Spigelman CJ. 111 Hearn v O’Rourke (2002) 193 ALR 264. 112 Sally McCausland, ‘Ambush Interviews, Off Limits Questions and Fake Personas Under Trade Practices Law’ (2007) 26(2) Communications Law Bulletin 13 at 15. 113 Hearn v O’Rourke (2002) 193 ALR 264. Kiefel J’s decision not to strike out the claim was upheld on appeal: Hearn v O’Rourke (2003) 129 FCR 64.

319

320

PART 3 Defamation and the Protection of Reputation

of damages.114 In addition, on application by the ACCC the Federal Court may make a nonpunitive order including: • a probation order;115 • an order requiring the disclosure of specified information;116 or • an order requiring publication of a specified advertisement.117

FURTHER READING

Copyright © 2015. Oxford University Press. All rights reserved.

Balkin, RP and Davis, JLR, Law of Torts, 5th edn, LexisNexis Butterworths, Chatswood, 2013, Chs 7, 13 and 23. Barker, Kit, Cane, Peter, Lunney, Mark and Trindade, Francis, The Law of Torts in Australia, 5th edn, Oxford University Press, South Melbourne, 2011, Chs 9 and 10. Butler, Des, ‘Media Negligence in the Information Age: A New Frontier for a New Century?’ (2000) 8 Torts Law Journal 159.

114 Australian Consumer Law (Cth) ss 232 (injunctions), 236 (damages). It has been held that harm to reputation constitutes ‘loss or damage’ for the purposes of the Trade Practices Act 1974 (Cth) s 82: Nixon v Slater & Gordon (2000) 175 ALR 15 at 33 per Merkel J. 115 Competition and Consumer Act 2010 (Cth) s 86C(2)(b). 116 Ibid s 86C(2)(c). 117 Ibid s 86C(2)(d).

PART 4

Copyright © 2015. Oxford University Press. All rights reserved.

Open Justice and Contempt 11 The Principle of Open Justice

323

12 Contempt of Court

358

11 The Principle of Open Justice

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION A fundamental tenet of the common law is the principle of open justice.1 Unless strictly necessary, court proceedings must be conducted openly. The principle of open justice serves an important public interest, allowing members of the public to inform themselves about what is occurring in court proceedings, thereby maintaining confidence in the integrity of the administration of justice. However, it is rarely feasible for individuals to avail themselves of the right to sit in a courtroom to observe proceedings. Most people rely upon media outlets to report on court proceedings. In this way, media outlets have a real interest in open justice. The principle of open justice importantly informs the balancing of competing interests underpinning the principles of contempt of court, which are discussed in the next chapter. This chapter focuses on the other ways in which the principle of open justice informs the legal principles and statutory provisions relating to the reporting of court proceedings and, more importantly, examines the circumstances in which a departure from the principle of open justice is justified. Given the constraints of space, it is not possible to canvass all the legal principles and statutory provisions; some of the most important or interesting have been selected for discussion.

11.1 The principle of open justice The leading modern authority on the principle of open justice is the House of Lords decision in Scott v Scott,2 which is relevantly extracted below. Its exposition of the importance of open justice was shortly afterwards endorsed by the High Court of Australia in Dickason v Dickason.3 The enduring importance of the principle of open justice as part of the common law of Australia and the rationales for it have been repeatedly reaffirmed by Australian courts.4 1 For an historical review of the principle of open justice, see Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50–52 per Kirby P. 2 [1913] AC 417. 3 (1913) 17 CLR 50 at 51 per Barton ACJ. 4 See, for example, Russell v Russell (1976) 134 CLR 495 at 532 per Stephen J; Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 233 per Bowen CJ, Fed C of A, Full Court.

323

324

PART 4 Open Justice and Contempt

The judgments of Gibbs J in Russell v Russell 5 and French CJ in Hogan v Hinch,6 which are also extracted below, provide two further examples.

Scott v Scott [1913] AC 417

Copyright © 2015. Oxford University Press. All rights reserved.

[The appellant applied to have her marriage to the respondent annulled on the basis of the respondent’s impotence. In mid-February 1911, the parties were summoned to a medical inspection and the case was ordered to be heard in camera. The appellant attended at the appointed time and was found to be a virgin. The respondent did not submit to the court-appointed medical inspection. In mid-June 1911, the divorce proceeding was heard in camera and the decree nisi was pronounced. The respondent did not defend the proceedings. In August 1911, the appellant instructed her solicitor to obtain a copy of the transcript of the divorce proceedings. She then sent a copy to the respondent’s father and sister and a third party. In late November 1911, the respondent applied to have the appellant and her solicitor punished for contempt of court for breaching the order that the divorce proceedings be heard in camera. In early December 1911, Bargrave Deane J found them guilty of contempt of court. An appeal to the Court of Appeal (Cozens-Hardy MR, Farwell, Buckley and Kennedy LJJ, Vaughan Williams and Fletcher Moulton LJJ dissenting) was dismissed as incompetent. The appellant and her solicitor appealed to the House of Lords.] VISCOUNT HALDANE LC (at 435): … Whatever may have been the power of the Ecclesiastical Courts, the power of an ordinary Court of Justice to hear in private cannot rest merely on the discretion of the judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing should take place in private. If there is any exception to the broad principle which requires the administration of justice to take place in open Court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge. … (at 437): … While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of Justice must be to secure that justice is done … It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic. The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly (438) yield. But the burden lies on those seeking to displace the application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity. … But unless it be strictly necessary for the attainment of justice, there can be no power in the Court to hear in camera either a matrimonial cause of action or any other where there is contest between parties. He who maintains that by no other means than by such a hearing can justice be done may apply for such an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may even be able to establish that subsequent publication must be

5 (1976) 134 CLR 495. 6 (2011) 243 CLR 506.

CHAPTER 11 The Principle of Open Justice

prohibited for a time or altogether … In either case he must satisfy the Court that by nothing short of the exclusion of the public can justice be done. The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors. (at 439): … If the evidence to be given is of such a character that it would be impracticable to force an unwilling witness to give it in public, the case may come within the exception to the principle that in these proceedings, and not the less because they involve an adjudication on status as distinguished from mere private right, a public hearing must be insisted on in accordance with the rules which govern the general procedure in English Courts of Justice. A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shewn that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made. Whether this state of the law is satisfactory is a question not for a Court of justice but for the Legislature …

Copyright © 2015. Oxford University Press. All rights reserved.

EARL OF HALSBURY (at 442): My Lords, while I agree with the Lord Chancellor in the result which he has arrived at in this case, and generally in the principles he has laid down, I wish to guard myself against the proposition that a judge may bring a case within the category of enforced secrecy because he thinks that justice cannot be done unless it is heard in secret. I do not deny it, because it is impossible to prove what cases might or might not be brought within that category, but I should require to have brought before me the concrete case before I could express an opinion upon it. Your Lordship has said that a mere desire to consider feelings of delicacy or to exclude from public hearing details which it would not be desirable to publish is not, in your Lordship’s opinion, enough to prevent a public hearing, which must be insisted on in accordance with the rule which governs the general procedure in English Courts of Justice, and that to justify an order for hearing in camera it must be shewn that the paramount object of securing that justice is done would really be rendered doubtful of attainment. The difficulty I have in accepting this as a sufficient exposition of the law is that the words in which your Lordship has laid down the rule are of such wide application that individual judges may apply them in a way that, in my opinion, the law does not warrant. EARL LOREBURN (at 445): I cannot think that the High Court has an unqualified power in its discretion to hear civil proceedings with closed doors. The inveterate rule is that justice shall be administered in open Court … … Again, the Court may be closed or cleared if such a precaution is necessary for the administration of justice. Tumult or disorder, or the just apprehension of it, would certainly justify the (446) exclusion of all from whom such interruption is expected, and, if discrimination is impracticable, the exclusion of the public in general. Or witnesses may be ordered to withdraw, lest they trim their evidence by hearing the evidence of others … It would be impossible to enumerate or anticipate all possible contingencies, but in all cases where the public has been excluded with admitted propriety, the underlying principles, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court. … … However true it may be that the publicity given to obscene or bestial matter by trial in open Court stimulates and suggests imitation, as many judges have learned from experiences at assizes, and however deplorable it may be that they have no power to prevent it, the remedy must be found by the Legislature or not at all. It is a great evil. And though the traditional law, that English justice must be administered openly in the face of all men, is an almost priceless inheritance, it does seem strange that it may be relaxed in order to save property, but cannot be relaxed in order to safeguard public decency against even the foulest contamination …

325

326

PART 4 Open Justice and Contempt

LORD ATKINSON (at 463): … The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect. I am inclined to think that the practice of which the learned judge approved and in this case inaugurated would restrict this wholesome publicity more than is warranted by authority … LORD SHAW OF DUMFERLINE (at 477): What has happened is a usurpation—a usurpation which could not have been allowed even as a prerogative of the Crown, and most certainly must be denied to the judges of the land. To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand. It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. ‘In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice’. ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’ ‘The security of securities is publicity.’ But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten:

Copyright © 2015. Oxford University Press. All rights reserved.

Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise.

I myself should be very slow indeed (I shall speak of the exceptions hereafter) to throw any doubt upon this topic. The right of the citizen and the working of the Constitution in the sense which I have described have upon the whole since the fall of the Stuart dynasty received from the judiciary—and they appear to me still to demand of it—a constant and most watchful respect. There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, (478) and at the instance of judges themselves. I must say frankly that I think these encroachments have taken place by way of judicial procedure in such a way as, insensibly at first, but now culminating in this decision most sensibly, to impair the rights, safety, and freedom of the citizen and the open administration of the law. … (484) There remains the point. Granted that the principle of openness of justice may yield to compulsory secrecy in cases involving patrimonial interest and property, such as those affecting trade secrets, or confidential documents, may not the fear of giving evidence in public, on questions of status like the present, deter (485) witnesses of delicate feeling from giving testimony, and rather induce the abandonment of their just right by sensitive suitors? And may not that be a sound reason for administering justice in such cases with closed doors? For otherwise justice, it is argued, would thus be in some cases defeated. My Lords, this ground is very dangerous ground. One’s experience shews that the reluctance to intrude one’s private affairs upon public notice induces many citizens to forgo their just claims. It is no doubt true that many of such cases might have been brought before tribunals if only the tribunals were secret. But the concession to these feelings would, in my opinion, tend to bring about those very dangers to liberty in general, and to society at large, against which publicity tends to keeps us secure: and it must further be remembered that, in questions of status, society as such—of which marriage is one of the primary institutions—has also a real and grave interest as well as have the parties to the individual cause. Appeal allowed.

CHAPTER 11 The Principle of Open Justice

Russell v Russell (1976) 134 CLR 495

[These proceedings concerned constitutional challenges to the validity of certain provisions of the Family Law Act 1975 (Cth), including s 97, which then provided, according to subs (1), that all proceedings in state courts exercising federal jurisdiction under the legislation should be heard in closed court and, according to subs (4), that neither the judge nor counsel should be robed for such proceedings.] GIBBS J (at 520): It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’ (Scott v Scott). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential part of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson). To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. If the Act empowered the Supreme Courts when exercising matrimonial jurisdiction to sit in closed court in appropriate cases I should not have thought that the provision went beyond the power of the Parliament. In requiring them to sit in closed court in all cases—even proceedings for contempt—the Parliament has attempted to obliterate one of their most important attributes. This it cannot do. [By majority (Barwick CJ, Gibbs and Stephen JJ, Mason and Jacobs JJ dissenting), the High Court of Australia found that the Family Law Act 1975 (Cth) s 97(1) was not a valid law of the Commonwealth but, by a differently constituted majority (Stephen, Mason and Jacobs JJ, Barwick CJ and Gibbs J dissenting), that the Family Law Act 1975 (Cth) s 97(4) was a valid law of the Commonwealth.]

Hogan v Hinch Copyright © 2015. Oxford University Press. All rights reserved.

(2011) 243 CLR 506 (footnotes omitted)

[Controversial broadcaster, Derryn Hinch, was charged with breaching suppression orders made by the County Court of Victoria under the Serious Sex Offenders Monitoring Act 2005 (Vic) s 42. He was accused of naming convicted sex offenders, whose identities had been suppressed, at a public rally in Melbourne. Hinch unsuccessfully challenged the constitutional validity of the legislative provision in the High Court of Australia. In the course of his judgment, French CJ made some observations about the principle of open courts.] FRENCH CJ (at 530): An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute. (531) It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could “cause an entire destruction of the whole matter in dispute”. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution

327

328

PART 4 Open Justice and Contempt

Copyright © 2015. Oxford University Press. All rights reserved.

of a blackmailer, the name of the blackmailer’s victim, called as a prosecution witness, may be suppressed because of the “keen public interest in getting blackmailers convicted and sentenced” and the difficulties that may be encountered in getting complainants to come forward “unless they are given this kind of protection”. So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where (532) “exceptional and compelling considerations going to national security” require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was “parental and administrative, and the disposal of controverted questions … an incident only in the jurisdiction”. Proceedings not “in the ordinary course of litigation”, such as applications for leave to appeal, can also be determined without a public hearing. It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings. The existence and nature of the common law or implied power in a court to make orders restricting the publication of proceedings in open court has been the subject of considerable judicial exegesis. The question whether the power extends to orders purporting to bind the world at large is contentious. As the Law Reform Commission of New South Wales said in 2000: “the common law regarding suppression orders is relatively unclear and unsettled.” However unsettled it may be, a consideration of the common law position with respect to suppression orders is relevant to the question whether s 42 (533) confers a function on courts of the State of Victoria which is inconsistent with the essential characteristics of a court. On one view courts have no general authority to make orders binding non-parties in their conduct outside the courtroom. It has nevertheless been accepted that conduct outside the courtroom deliberately frustrating the effect of an order made to enable a court to act effectively within its jurisdiction can constitute a contempt of court. In 2004 the Privy Council held that there is no common law power to make orders against the public at large prohibiting the reporting of open court proceedings. Such a power, it was said, must be conferred by legislation. On the other hand, it has been said in Australia that there is at common law a limited power to prohibit publication of proceedings conducted in open court. In Ex parte The Queensland Law Society Inc, McPherson J, after reviewing the authorities, said: “the power of the court under general law to prohibit publication of proceedings conducted in open court has been recognized and does exist as an aspect of the inherent power. That does not mean that it is an unlimited power. The only inherent power that a court possesses is power to regulate its own proceedings for the purpose of administering justice; and, apart from securing that purpose in proceedings before it, there is no power to prohibit publication of an accurate report of those proceedings if they are conducted in open court, as in all but exceptional cases they must be.”

That statement was quoted with apparent approval by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal (NSW). It was also approved in John Fairfax Publications Pty Ltd v District Court (NSW). Doubts about the existence of such a power as an element of the inherent jurisdiction or implied powers of courts have been expressed in Victoria. (534) In my opinion the better view is that there is inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court. The exercise of the power must be justified by reference to the necessity of such orders in the interests of the administration of justice. Such an order may be made to and bind the parties, witnesses, counsel, solicitors and, if relevant, jurors and media representatives, or other persons present in court when the order is made, or to whom the order is specifically directed. It is not necessary for present purposes to reach a concluded view on the full extent of the power in relation to the general public.

CHAPTER 11 The Principle of Open Justice

Beyond the common law, it lies within the power of parliaments, by statute, to authorise courts to exclude the public from some part of a hearing or to make orders preventing or restricting publication of parts of the proceeding or of the evidence adduced. An example of such a law in the federal context is s 50 of the Federal Court of Australia Act 1976 (Cth), recently considered by this Court in Hogan v Australian Crime Commission. Specific powers to make suppression orders or orders for the exclusion of the public, where such orders are in the interest of security or defence of the Commonwealth, can be found in the Crimes Act 1914 (Cth) and the Criminal Code (Cth). There are many other examples of such provisions enacted by State parliaments. Where it is left by statute to a court’s discretion to determine whether or not to make an order closing part of a hearing or restricting the publication of evidence or the names of parties or witnesses, such provisions are unlikely to be characterised as depriving the court of an essential characteristic of a court and thereby rendering it an unfit repository for federal jurisdiction. (535) Nevertheless, a statute which affects the open-court principle, even on a discretionary basis, should generally be construed, where constructional choices are open, so as to minimise its intrusion upon that principle. That approach, which accords with the principle of legality, informs the construction of s 42 in this case. The section must also be construed so as to minimise its intrusion upon common law freedom of speech. The Charter requires that so far as it is possible to do so consistently with their purpose, such provisions “must be interpreted in a way that is compatible with human rights”. Relevant human rights set out in Pt 2 of the Charter include the right to freedom of expression and the right to participate in public life. There are other rights which may be affected by a suppression order. They include the right of children to be protected and the right of privacy.

QUESTIONS 1 What public interests does the principle of open justice serve? What are other competing public interests? 2 Why have courts in Anglophone legal systems historically favoured the principle of open justice over other public interests? 3 In what categories of case can courts depart from the principle of open justice?

Copyright © 2015. Oxford University Press. All rights reserved.

11.1.1 What is an ‘open court’? The principle of open justice requires that proceedings be heard in an open court, being one to which members of the public have a right of access.7 In most cases, court proceedings are readily identifiable as such. However, there are some marginal cases in which it is unclear whether there has been a court proceeding. The Privy Council’s decision in McPherson v McPherson, which is relevantly extracted below, provides an example of such a case. In doing so, it expounds the notion of what constitutes an ‘open court’ for the purposes of open justice and reinforces the importance and rationale for open justice.

McPherson v McPherson [1936] AC 177

[Mr and Mrs McPherson were married in the United States in 1908. They were domiciled in Alberta. Mr  McPherson became the Minister for Public Works in Alberta. In 1931, Mr McPherson commenced proceedings against his wife in the Supreme Court of Alberta, seeking a divorce on the grounds of his wife’s adultery with Leroy Mattern. Mrs McPherson did not defend the proceeding. The hearing was tried in the Judges’ library at the Edmonton Court House in 1931, with Tweedie J presiding. The decree nisi was

7 R v Governor of Lewes Prison [1917] 2 KB 254 at 271 per Viscount Reading CJ.

329

330

PART 4 Open Justice and Contempt

Copyright © 2015. Oxford University Press. All rights reserved.

made and it later became absolute. In 1932, Mr McPherson married Mrs Mattern. Mrs McPherson commenced proceedings against her former husband, submitting that the divorce was null and void because the hearing was not conducted in open court. At first instance, Ewing J found that the divorce proceeding was conducted in open court. The Appellate Division of the Supreme Court of Alberta dismissed Mrs McPherson’s appeal. Mrs McPherson appealed to the Privy Council.] LORD BLANESBURGH (giving the judgment of the Judicial Committee of the Privy Council) (at 196): The Judges’ library at Edmonton in which the trial took place is not one of the regular Courts of the Court House there, and it is a circumstance on which reliance has been (197) placed by the appellant that, at the time of the trial in that room and indeed throughout the afternoon of that day, one or more of these Courts was available. Up to a point, however, this fact is of little or no importance. There is at Edmonton no announcement with reference to a trial in a regular Court that would be withheld in the case of a trial in the Judges’ library. There is there no daily cause list. No printed or written notice of the business in progress is apparently exhibited. Information on that subject is, it seems, obtained from the orderlies in attendance, and they, apparently, would know as much about a case appointed to be heard or being heard in the Judges’ library as about one appointed to be heard or proceeding elsewhere. Had the learned judge on the occasion in question directed this divorce case to be taken in one of the empty Courts no greater degree of publicity would apparently, so far, have attended the proceedings. In the matter of facilities for public access to the Court rooms on the one hand and to the Judges’ library on the other there is, however, a very great difference to be noted: to the Court rooms direct public access is provided from a public corridor which encircles the entire second floor of the Court House. But there is no such direct access to the Judges’ library. It is approached through a double swing door in the wall of the same corridor, immediately opposite the top of the stairway. One wing of the door is always fixed—the other, although swinging close, is usually unfastened. On the fixed wing is a brass plate with the word ‘Private’ in black letters upon it. As to the unfastened swing door—the door to which alone when it is open the word ‘Private’ has any sensible application—it opens on to an inner corridor in which, opposite, is a door of the Judges’ library. It was in evidence that the word ‘Private’ on the outer door did not in fact deter or hinder entry to the inner corridor by practitioners and other familiars of the building, and the door unfastened is not usually officially guarded. It was accepted, too, that the opening wing of the swing door was unfastened during the trial, and it was proved, as (198) will later appear, that the inner door of the library was kept open throughout. But there remains the serious question to which their Lordships must return, whether these swing doors with ‘Private’ marked upon one of them were not as effective a bar to the access to the library by an ordinary member of the public finding himself in the public corridor as would be a door actually locked. On the day of the trial, Tweedie J was not a judge in attendance at the Court House. For the convenience of one of the witnesses, who was coming from a distance, he had arranged to take the case himself on that day. It was only a few minutes before the hour appointed that he definitely selected the Judges’ library as the place for the hearing, and he so informed the Clerk of the Court. The proceedings took place during the luncheon interval, probably as the most convenient hour for all concerned. They were in one respect less formal than those of an ordinary trial in open court. The learned judge was not robed. Neither was counsel. In other respects the proceedings seem to have been quite regular. Tweedie J entered the library from a door accessible only to judges. He was attended by an official shorthand writer and by the Assistant-Clerk of the Court—Mr Mason. Before taking his seat at the head of table in the library he stated that he was sitting in open court, a statement suggested, no doubt, by s 5 of the Judicature Ordinance of the North-West Territories, later to be mentioned. He directed Mr Mason to open and to keep open the door already mentioned leading from the library to the inner corridor. He evidently overlooked the swing door outside, with its appearance of being closed and its warning against public intrusion, for he gave no direction with regard to that door. Probably, the door being rarely closed, it was the legend upon it that he forgot. Had he recalled that word ‘Private’, and appreciated its significance, then, judging by his action with reference to the inner door, he must either, it would seem, have had it plainly opened or he must have sat elsewhere.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 11 The Principle of Open Justice

In point of fact no member of the public entered the (199) library while the trial proceeded. Only the learned judge and counsel, the respondent with his two witnesses, called in one after the other, and the Court officials already mentioned were there … … (at 200) The actual presence of the public is never of course necessary. Where Courts are held in remote parts of the Province, as they frequently must be, there may be no members of the public available to attend. But even so, the Court must be open to any who may present themselves for admission. The remoteness of the possibility of any public attendance must never by judicial action be reduced to the certainty that there will be none. And their Lordships, in reaching the conclusion that the public must be treated as having been excluded from the (201) library on this occasion, have not been uninfluenced by the fact that the cause then being tried was an undefended divorce case. To no class of civil action is Lord Halsbury’s statement more appropriate. In no class of case is the privilege more likely to be denied unless every tendency in a contrary direction, whenever manifested, is definitely checked. So long as divorce, in contrast with marriage, is not permitted to be a matter of agreement between the parties, the public at large—their Lordships are not now referring to the prurient minded among them who revel in the unsavoury details of many such cases—but the public at large are directly interested in them, affecting as they do, not only the status of the two individuals immediately concerned but, not remotely when taken in the mass, the entire social structure and the preservation of a wholesome family life throughout the community. … (at 202) Again, publicity goes far to prevent the trial of these actions, where one is superficially so much like another, from becoming stereotyped and standardized, so that the ability to dispose of them with a minimum expenditure of judicial time is even now, apparently, regarded in some quarters as the convincing test of judicial efficiency. Moreover, the potential presence of the public almost necessarily invests the proceedings with some degree of formality. And formality is, perhaps, the only available substitute for the solemnity by which, ideally at all events, such proceedings, especially where the welfare of children is involved, should be characterized. That potential presence is at least some guarantee that there shall be a certain decorum of procedure. If at other public sittings of the Court it is the rule for both judge and counsel to be robed, it is pessimi exempli that for the trial of an undefended divorce case that the gown of ceremony should be discarded. [The Privy Council found that the divorce was voidable, not void, and the time for setting aside the divorce had elapsed.] Appeal dismissed.

11.1.2 Conducting proceedings in camera There may be circumstances in which a judge deems it appropriate to conduct proceedings ‘in camera’ (ie in private), thereby excluding members of the public, including the media. A superior court has an inherent jurisdiction to conduct proceedings in camera only where such a course is necessary for the administration of justice.8 Because members of the public, including the media, are excluded from a hearing in camera, there is no possibility of such persons lawfully learning what occurred in the hearing. Consequently, the publication of a report of what occurred in a hearing in camera may constitute contempt of court, although whether this is invariably so is open to question.9 In addition to the common law, the 8 R v Governor of Lewes Prison [1917] 2 KB 254 at 271 per Viscount Reading CJ; David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 299 per Street CJ. 9 In Re F [1977] Fam 58 at 87 per Lord Denning MR.

331

332

PART 4 Open Justice and Contempt

legislature may provide express power to conduct proceedings in camera or may mandate that proceedings be conducted in camera.10

11.1.3 Excluding persons from court A superior court has an inherent jurisdiction to exclude persons from the court only where such a course is necessary for the administration of justice. For example, witnesses are routinely excluded from court when other witnesses are giving evidence so that, according to Bowen CJ in Australian Broadcasting Commission v Parish,11 they do not ‘trim their evidence’.12 Similarly, persons disrupting court proceedings may be excluded in the interests of justice.13 As his Honour emphasises, the categories of cases in which persons may be excluded from court are not closed.14

Copyright © 2015. Oxford University Press. All rights reserved.

11.1.4 Non-publication or suppression orders—common law It is a corollary of the general entitlement of the public to attend court proceedings that there is a general entitlement to publish a report of court proceedings, as an incident of the principle of open justice.15 Therefore, the making of a non-publication or suppression order is another departure from the principle of open justice. As a general rule, a superior court has the inherent jurisdiction to make a non-publication order only where such an order is necessary for the administration of justice. Certain categories of cases have emerged where such orders might readily be made. For instance, if a proceeding concerns a secret process or confidential material, and publication would necessarily destroy that secrecy or confidentiality  which is sought to be preserved, a court may make a nonpublication  order to ensure that the subject-matter of the proceeding is not prematurely destroyed.16 The categories of cases in which non-publication orders may be made are not closed.17 A media outlet has standing to challenge a non-publication or suppression order, as it is affected by such an order.18 There are conflicting dicta as to whether the conduct of a hearing in camera necessarily includes an order that a report of the proceeding not be published.19 A breach of a non-publication or suppression order can be prosecuted as a contempt of court.20 A useful and frequently cited summary of the relevant common law principles was given by McHugh JA (as his Honour then was) in John Fairfax & Sons Ltd v Police Tribunal of New South Wales, which is relevantly extracted below. 10 11 12 13 14 15 16 17

See, for example, Criminal Procedure Act 1986 (NSW) ss 291–291B. (1980) 29 ALR 228. Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 233, Fed C of A, Full Court. Ibid at 233 per Bowen CJ, Fed C of A, Full Court. Ibid at 233. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 per Kirby P. Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 233 per Bowen CJ, Fed C of A, Full Court. Ibid at 233 per Bowen CJ, Fed C of A, Full Court. For an example of an extension of the categories in which a suppression or non-publication order might be made, see R v Kwok (2005) 64 NSWLR 335 at 342–43 per Hodgson JA; at 345–46 per Rothman J (sexual servitude). 18 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 470 per Mahoney JA. 19 See, for example, In Re F [1977] Fam 58 at 89 per Lord Denning MR. 20 See, for example, R v General Television Corporation Pty Ltd [2009] VSC 84; R v Herald & Weekly Times Pty Ltd [2009] VSC 85; R v Hinch [2013] VSC 520; R v Hinch (No 2) [2013] VSC 554.

CHAPTER 11 The Principle of Open Justice

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

[The Police Tribunal of New South Wales was conducting a disciplinary hearing into departmental charges lain against controversial police officer, Roger Rogerson. The tribunal was asked to make, and did make, an order prohibiting the identification of X, a person of significance in the proceedings, in any report of the hearing. John Fairfax & Sons Ltd sought to have the tribunal discharge the order but the tribunal refused. John Fairfax & Sons applied to the New South Wales Court of Appeal for relief in respect of the order.] McHUGH JA (at 476):

Copyright © 2015. Oxford University Press. All rights reserved.

The power to make orders binding outside the courtroom The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be (477) done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more than is ‘necessary to enable it to act effectively within’ its jurisdiction. Courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative—not judicial—power. Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself. I think that the above statement of the applicable principles is in accordance with the way in which this branch of the law has developed.

11.1.5 Non-publication or suppression orders—general statutory provisions Until recently, only South Australia had a general statutory provision allowing courts to make suppression orders.21 In 2008, the Standing Committee of Attorneys-General agreed to develop uniform provisions for the making of suppression orders, as well as arrangements for notifying media outlets and the establishment and maintenance of a national electronic register. In May 2010, it released model provisions on suppression or non-publication orders. Ministers also indicated that they would consider implementing the model provisions. Thus far, these provisions have only been enacted at a Federal level and 21 Evidence Act 1929 (SA) s 69A.

333

334

PART 4 Open Justice and Contempt

in New South Wales and Victoria.22 Even in the jurisdictions in which the model provisions have been legislated,  there are differences between them, frustrating the intention to harmonise the making of suppression orders across Australia. The Court Suppression and Non-Publication Orders Act 2010 (NSW) has been extracted as illustrative of the approach under the model provisions. Already there have been significant intermediate appellate decisions on the operation of these provisions, in both a civil and a criminal context.

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 (NSW)

Copyright © 2015. Oxford University Press. All rights reserved.

3 Definitions In this Act: court means: (a) the Supreme Court, Land and Environment Court, Industrial Court, District Court, Local Court or Children’s Court, or (b) any other court or tribunal, or a person or body having power to act judicially, prescribed by the regulations as a court for the purposes of this Act. information includes any document. news media organisation means a commercial enterprise that engages in the business of broadcasting or publishing news or a public broadcasting service that engages in the dissemination of news through a public news medium. non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information). party to proceedings includes the complainant or victim (or alleged victim) in criminal proceedings and any person named in evidence given in proceedings and, in relation to proceedings that have concluded, means a person who was a party to the proceedings before the proceedings concluded. proceedings means civil or criminal proceedings. publish means disseminate or provide access to the public or a section of the public by any means, including by: (a) publication in a book, newspaper, magazine or other written publication, or (b) broadcast by radio or television, or (c) public exhibition, or (d) broadcast or publication by means of the Internet. suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

4 Inherent jurisdiction and powers of courts not affected This Act does not limit or otherwise affect any inherent jurisdiction or any powers that a court has apart from this Act to regulate its proceedings or to deal with a contempt of the court.

5 Other laws not affected This Act does not limit or otherwise affect the operation of a provision made by or under any other Act that prohibits or restricts, or authorises a court to prohibit or restrict, the publication or other disclosure of information in connection with proceedings.

22 See Family Law Act 1975 (Cth) Pt XIA; Federal Circuit Court of Australia Act 1999 (Cth) Pt 6A; Federal Court of Australia Act 1976 (Cth) Pt VAA; Judiciary Act 1903 (Cth) Pt XAA; Court Suppression and Non-Publication Orders Act 2010 (NSW); Open Courts Act 2013 (Vic).

CHAPTER 11 The Principle of Open Justice

Part 2 Suppression and non-publication orders 6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7 Power to make orders A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or (b) information that comprises evidence, or information about evidence, given in proceedings before the court.

8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice, (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) the order is necessary to protect the safety of any person, (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency), (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

Copyright © 2015. Oxford University Press. All rights reserved.

9 Procedure for making an order (1) A court may make a suppression order or non-publication order on its own initiative or on the application of: (a) a party to the proceedings concerned, or (b) any other person considered by the court to have a sufficient interest in the making of the order. (2) Each of the following persons is entitled to appear and be heard by the court on an application for a suppression order or non-publication order: (a) the applicant for the order, (b) a party to the proceedings concerned, (c) the Government (or an agency of the Government) of the Commonwealth or of a State or Territory, (d) a news media organisation, (e) any other person who, in the court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made. (3) A suppression order or non-publication order may be made at any time during proceedings or after proceedings have concluded. (4) A suppression order or non-publication order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order. (5) A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made. …

335

336

PART 4 Open Justice and Contempt

11 Where an order applies (1) A suppression order or non-publication order applies only to the disclosure or publication of information in a place where the order applies, as specified in the order. (2) A suppression order or non-publication order is not limited to applying in New South Wales and can be made to apply anywhere in the Commonwealth. (3) However, an order is not to be made to apply outside New South Wales unless the court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made.

12 Duration of orders (1) A suppression order or non-publication order operates for the period decided by the court and specified in the order. (2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. (3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event. …

16 Contravention of order (1) A person commits an offence if the person engages in conduct that constitutes a contravention of a suppression order or non-publication order and is reckless as to whether the conduct constitutes a contravention of a suppression order or non-publication order. Maximum penalty: 1,000 penalty units or imprisonment for 12 months, or both, for an individual or 5,000 penalty units for a body corporate. (2) Conduct that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence. (3) Conduct that constitutes an offence under this section may be punished as an offence even though it could be punished as a contempt of court. (4) If conduct constitutes both an offence under this section and a contempt of court, the offender is not liable to be punished twice.

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1. What is the difference between a suppression order and a non-publication order? 2. In what ways do these statutory provisions differ from the common law principles relating to suppression orders? Are they narrower or more expansive? 3. In what ways do these statutory provisions clarify and provide certainty about the making of suppression and non-publication orders? 4. The Court Suppression and Non-Publication Orders Act 2010 (NSW) s 11 allows for the extraterritorial operation of a suppression or a non-publication order made by a New South Wales court. What impact will the failure by all Australian jurisdictions to enact the model provisions on suppression orders have on the effective extraterritorial operation of such orders? 5. Given the changes in media technologies, is the definition of ‘news media organisation’ too narrow?

Rinehart v Welker [2011] NSWCA 403

[Australia’s richest woman, Gina Rinehart, was in dispute with three of her children over the family trust. The trust deed provided for compulsory alternative dispute resolution procedures. The children commenced proceedings in the Supreme Court of New South Wales, seeking to have the trust split and a new trustee appointed. Rinehart applied to have the court proceeding stayed as an abuse of process. At the same

CHAPTER 11 The Principle of Open Justice

time, she obtained a suppression order under the Court Suppression and Non-Publication Orders Act 2010 (NSW). At first instance, Brereton J made the order. However, his Honour also found that the underlying dispute was not one under the trust deed, therefore it was not covered by the confidentiality clause relating to commercial arbitration. Rinehart sought leave to appeal against that decision. On the leave application, she sought and obtained a further suppression order from Tobias AJA. The three children and media organisations successfully sought a review of the suppression orders.] BATHURST CJ and McCOLL JA (at [25]): Underlying the enactment of the CSPO Act was, in part, a concern to resolve the question whether a court’s inherent or implied power to make orders restricting the publication of any aspect of proceedings before it extended to orders purporting to bind the world at large…. [26] The principle of legality favours a construction of legislation such as the CSPO Act which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common law freedom of speech and, where constructional choices are open, so as to minimise its intrusion upon that principle …

The meaning of “necessary” [27] The operative condition for making a suppression order under s 8 of the CSPO Act is that it be “necessary” to do so, which “… is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice … ’suggests Parliament was not dealing with trivialities’”: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law … [31] Significantly, an order is not “necessary” if it appears to the court “to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some ‘balancing exercise’, the order appears to have one or more of those characteristics”: Hogan v Australian Crime Commission (at [31]). Further, it is not a sufficient basis for such an order that the information is inherently confidential as distinct from personal or commercial information the value of which as an asset would be seriously compromised by disclosure: Hogan v Crime Commission (at [38]).

Copyright © 2015. Oxford University Press. All rights reserved.

Open justice [32] By way of reinforcement of the proposition in [31], s 6 of the CSPO Act requires the court when considering whether to make an order under the Act to “take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”. The principle of open justice is one of the most fundamental aspects of the system of justice in Australia … Open justice ensures public confidence in the administration of justice … It is unnecessary to add to the large body of judicial opinions discussing the concept. It is sufficient, in our view, to illustrate the proposition embedded in s 6 by referring to Lord Atkinson’s statement in Scott v Scott [1913] AC 417 (at 463), that “in public trial is [to be] found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect.” [33] “The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public”: John Fairfax Publications Pty Ltd v District Court of NSW (at [20]). Media interests had standing at common law to be heard on the making of orders affecting the publication of court proceedings … a position now enshrined in s 9(2)(d), CSPO Act at least insofar as a “news media organisation” is concerned ….

The effect of parties’ agreements [41] The parties to the proceedings entered into a Deed pursuant to cl 20 of which they agreed that “disputes arising under this deed” should be dealt with first by confidential mediation and, if that failed, by confidential arbitration. It also contained cl 20.8.

337

338

PART 4 Open Justice and Contempt

[42] Party autonomy is said to be “fundamental in modern arbitration law” and, to find reflection in legislative recognition of parties’ right “to agree about how their commercial disputes are to be resolved subject to, inter alia such safeguards as are necessary in the public interest”: s 1C, Commercial Arbitration Act 2010; s 1 Arbitration Act 1996 (UK) … [43] The private character of the arbitration hearing is “something that inheres in the subject matter of the agreement to submit disputes to arbitration”. It is said that “[t]he efficacy of a private arbitration will be damaged, even defeated, if proceedings in the arbitration are made public by the disclosure of documents relating to the arbitration”: Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) [1995] HCA 19; (1995) 183 CLR 10 (at 26, 27) per Mason CJ, Brennan and McHugh J agreeing. [44] However, as Mason CJ explained in Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) (at 27ff) in rejecting the view that confidentiality is an essential characteristic of a private arbitration, privacy is not synonymous with confidentiality. To secure confidentiality an express provision may be necessary, although even that may not bind persons such as witnesses not parties to the arbitration agreement. It is no doubt for that reason that cl 20.8 appears in the Trust Deed. [45] According respect to party autonomy does not mean that everything associated with a private arbitration wears a mantle of confidentiality. Even where an arbitration hearing has been conducted in private pursuant to a court order and even recognising that “[p]arty autonomy requires the court so far as possible to respect the parties’ choice of arbitration”, once a court’s supervisory jurisdiction is invoked, the fact the arbitration was held in private is only a factor relevant to the question whether the proceedings should be heard in open court: Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co (at [28], [30], [34]—[36]) …

Copyright © 2015. Oxford University Press. All rights reserved.

Conclusion [48] We are conscious of the heavy burden a party seeking a s 46(4) review has to discharge to have a Judge of Appeal’s order set aside. Such an application is not an appeal: s 19(2), Supreme Court Act; Uniform Civil Procedure Rules 2005 51.2. In order to succeed, the plaintiff beneficiaries must demonstrate that the judge erred in principle or that the judge’s decision was plainly wrong … Although these tests bear similarities to those applied in reviewing a discretionary decision (House v R [1936] HCA 40; 55 CLR 499), a decision to make a suppression order is not a discretionary one: Hogan v Australian Crime Commission (at [33]). [49] In our view, with respect, Tobias AJA relevantly erred. His Honour failed to approach the question whether a suppression order should be granted on a basis which has the least adverse impact upon the open justice principle: see [26] above. [50] Tobias AJA made the order under s 8, at least in part, to give effect to the maxim pacta sunt servanda (agreements are to be kept). He also held that publication would render any appeal nugatory presumably on the basis set out in pars [32] and [33] of his judgment that if a stay was granted the trustee’s response and the ultimate resolution of the proceedings would be confidential and there would be significant pressure on Mrs Rinehart to make public her response and the ultimate resolution of the proceedings. [51] It is well accepted that the Court will, in appropriate circumstances, give effect to agreements to arbitrate by ordering a stay of proceedings brought in breach of the arbitration agreement. That jurisdiction recognises the party autonomy to which we have referred. However, as is apparent from the foregoing discussion, that is not determinative of the question whether, on an application for such a stay, it is necessary for the proper administration of justice for the Court to make a suppression order to give effect to a provision such as cl 20.8 prohibiting disclosure of the nature of the dispute both before, during and after the arbitration proceedings. Tobias AJA, with respect, appears to have treated it as such. In our view, his Honour erred (at [19]) in treating the fact that the parties had agreed to the cl 20.8 clause as effectively determining the question whether a suppression order should be made. [52] His Honour, with respect, was somewhat dismissive (at [30]) of the plaintiff beneficiaries’ submission about the public interest in the determination of a dispute involving the alleged misconduct of a trustee. As we have said, the plaintiff beneficiaries make allegations of breach of trust and seek that the Court invoke its statutory power to remove a trustee. It is not suggested that proceedings were brought for a collateral purpose or that the disclosure of the materials would in have any effect on the value of the assets of

CHAPTER 11 The Principle of Open Justice

the trust or other assets of the parties. The proper conduct of trustees is a matter which warrants close public scrutiny. It was a proper factor to take into account in determining whether a suppression order was necessary. [53] Tobias AJA also erred in our opinion in concluding that the failure to make a suppression order would render the proceedings nugatory. Disclosure of the information the subject of the suppression order will not “cause an entire destruction of the whole matter in dispute”: Hogan v Hinch (at [21]). The trustee, if successful in obtaining a stay, will have the benefits of the substance of the allegations and matters concerning the trust being considered in a private arbitration rather than a public forum. This would seem to us to be the primary purpose of the arbitration/mediation provisions in the Deed. Such advantages remain irrespective of the fact that the allegations made against her have been publicly disclosed. [54] Tobias AJA’s concern that if a suppression order was not made the allegations against the trustee would be in the public domain but her response would be confidential did not, in our view, demonstrate the order was necessary: “In general … parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation": R v Legal Aid Board; Ex parte Kaim Todner (a firm) (at 978). It is true that Lord Woolf MR went on to say that: “[t]he protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations”, but that does not, in our view, detract from the force of his previous observation. It is the price of open justice that allegations about individuals are aired in open court. Such individuals, particularly if they are parties, can make their response to such allegations public in the same forum … [55] In our view, having regard to the nature of the proceedings it was neither “necessary to prevent prejudice to the administration of justice” and, further contrary to the requirement to treat open justice as “a primary objective” referred to in s 6 of the Act for the Court to exercise its power under s 8 to suppress information of the nature of that caught by Tobias AJA’s orders. Suppression of such information would undermine, rather than ensure, public confidence in the administration of justice. [Orders discharged. Young JA dissented.]

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim

Copyright © 2015. Oxford University Press. All rights reserved.

(2012) 83 NSWLR 52

[Fadi and Michael Ibrahim and Rodney Atkinson were facing prosecution in the District Court of New South Wales on a number of charges. Bennett DCJ made orders purporting to operate throughout Australia, prohibiting any disclosure, dissemination or provision of access, by book, newspaper, magazine, radio or television broadcast or on the internet, of any material referring to any other criminal proceedings involving the Ibrahims or Atkinson as parties or witnesses or to any material referring to other alleged unlawful conduct involving the Ibrahims or Atkinson, including conduct of which they were suspected of being complicit or having knowledge. Eight media companies challenged the validity of the orders in the New South Wales Court of Criminal Appeal.] BASTEN JA (at 62):

(a) The relevant provisions … Section 7 has the potential to deal with two quite separate categories of information. One is information the publication of which could give rise to a charge of contempt of court under the sub judice principle, that is publication of material that has a tendency to influence the conduct or outcome of particular legal proceedings. The second category is that which is revealed in the course of proceedings, non-publication of which may be necessary for one of a number of reasons, but the consequence of which will be a degree of interference with the principle that proceedings should be conducted in open court.

339

340

PART 4 Open Justice and Contempt

It is with respect to the second category of information that the statement in s 6 of the Suppression Orders Act is apposite:

“6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.” It is the operation of that objective which has been foremost in the discussion of non-publication orders in respect of on-going litigation, a matter (63) which will be discussed below. Taken by itself, s 6 might suggest that the powers conferred by s 7 were not intended to apply to potentially contemptuous publication in advance of a trial. However, that conclusion would be inconsistent with the expansive statement of grounds for making an order contained in s 8:

Copyright © 2015. Oxford University Press. All rights reserved.

“8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice, (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) the order is necessary to protect the safety of any person, (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency), (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.” The primary purpose of all the grounds set out in s 8(1) except the first is to permit a court to protect witnesses and parties in proceedings before it from disclosure of information about them to the general public. Only paragraph (a) appears to extend to the protection of the jury from inflammatory or irrelevant  material while the proceedings are on foot (the sub judice principle). The fact that an order may be sought on the ground identified in s 8(1)(a), namely that it is necessary to prevent prejudice to the proper administration  of justice, taken with the breadth of the language of s 7(a), permits an order prohibiting or restricting publication of information not merely tending to reveal the identity of a party or witness, but also information “otherwise concerning” any party or witness or person associated with a party or witness. …

(64) (b) nature of “publication” The definitions imply that there is a distinction to be drawn between publication and other forms of disclosure of information. However, the term “publication” as a derivative of the verb “publish” is indirectly defined by reference to the verb: “publish means disseminate or provide access to the public or a section of the public by any means, including by: (a) publication in a book, newspaper, magazine or other written publication, or (b) broadcast by radio or television, or (c) public exhibition, or (d) broadcast or publication by means of the Internet.”

The identification of the scope of this legislative scheme is of some importance for the present case. On one view, the phrase “disclosure of information” was intended to have a wider meaning than “publication of information”. However, the breadth of the definition of “publish” including by providing access to the public or a section thereof, and including within that reference “publication by means of the Internet”, tends to diminish the significance of any attempt to distinguish between the respective concepts.

CHAPTER 11 The Principle of Open Justice

The High Court has discussed the concept of publication in the context of defamation: Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575. Gleeson CJ, McHugh, Gummow and Hayne JJ stated at [26]: “Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act — in which the publisher makes it available and a third party has it available for his or her comprehension.”

In making that observation, their Honours were concerned with a publication which had been posted on the web site WSJ.com, controlled by the appellant. The judgment stated at [16]: “The originator of a document wishing to make it available on the World Wide Web arranges for it to be placed in a storage area managed by a web server. This process is conventionally referred to as ‘uploading’. A person wishing to have access to that document must issue a request to the relevant server nominating the location of the web page identified by its ‘uniform resource locator (URL)’. When the server delivers the document in response to the request the process is conventionally referred to as ‘downloading’.”

A similar understanding of publication should be adopted in respect of the Suppression Orders Act. Information is published by uploading it in a (65) particular form to a particular site or web page identified by a URL. By that means, the publisher provides access to the information to the public. It follows that publication is a continuing act in the case of a web site: access is provided to the public for so long as the material is available on the web. There may be various means of prohibiting or restricting access to such material. A person controlling a server may be able to restrict access to those who have registered with the operator of the server, and possibly paid a fee for access. In other circumstances (such as Facebook) the person who uploads material may be able to control access to his or her material. However, it appears to have been assumed in the present case that the only practical means of preventing access to material on web sites controlled by the applicants was to remove the material. That was readily done and, in fulfilment of an undertaking given to the Court prior to the hearing of the appeal, had been done in respect of material understood to be caught by the terms of the order made by the judge.

(c) meaning of “necessary” Copyright © 2015. Oxford University Press. All rights reserved.



The meaning of “necessary” depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word “necessary” is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In paragraph (a), the purpose of the order will be “to prevent prejudice to the proper administration of justice”. That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered “necessary” in particular circumstances. … (66) This Court recently accepted that the “principle of legality” favours a construction of s 8 which has “the least adverse impact upon the open justice principle and common law freedom of speech”: Rinehart v Welker [2011] NSWCA 403 at [26] (Bathurst CJ and McColl JA). However, that approach may have a more limited application in circumstances where the proposed order does not impact upon the open justice principle because it does not prevent or restrict publication of court proceedings. The “common law

341

342

PART 4 Open Justice and Contempt

freedom of speech” is not to be disregarded, but it provides a lesser obstacle to an order designed to prevent prejudice to the proper administration of justice. … It is therefore desirable to distinguish between two kinds of constraint referred to above, namely constraints on publication of material disclosed in court proceedings and publication of material having no connection with court proceedings except its capacity to affect current or future proceedings. Because the orders in the present case do not fall within the first category they do not involve any constraint upon the principle of open justice; they do not impinge in any way on the rights of the applicants to publish what may happen at the trial. Rather they are limited to the pre-trial (and on-going) publication of material having a tendency to interfere with the fairness of the anticipated trial. An order designed to protect the proper administration of justice, without (67) impinging upon the principle of open justice, may well be considered necessary so long as it is reasonably appropriate and adapted to achieve its perceived purpose: compare Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) and Thomas v Mowbray [2007] HCA 33] at [102] (Gummow and Crennan JJ). On this approach, the reasoning of McHugh JA in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476–477, referred to by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [21] and by this Court in Reinhart at [29], is not determinative in the present case.

Copyright © 2015. Oxford University Press. All rights reserved.

(d) Scope of power to prevent interference Accepting that s 7 extends to allow a court (not limited to the Supreme Court) to make orders preventing threatened interference with a trial, the next inquiry is whether it extends the scope of such powers as exist in superior courts under the general law. It is therefore necessary to consider the scope of the sub judice rule. The general law is concerned with the effects of pre-trial publicity. That focuses not on the legality or otherwise of the conduct of the publisher, but on whether the accused will be able to obtain a fair trial. Its most frequent application is to be found in proceedings for contempt of court, brought after publication. However, there are a small number of cases in which pre-publication restraints have been sought under the general law, often as an adjunct to contempt proceedings in relation to material already published … Most pre-trial non-publication orders have related to the publication of evidence or other material disclosed in the course of a trial … (68) Non-publication orders in relation to interlocutory appeals and appeals in respect of convictions where other trials are anticipated on further charges are by no means uncommon. (Whether they are always necessary is not a question which needs to be addressed: they are made in appeals because judgments and rulings in trials, other than in the Supreme Court, are not routinely published on a web site.) In any event, there is a distinction to be drawn between non-publication of material revealed in the course of one proceeding, but potentially capable of interfering with another, and non-publication of material not derived from a legal proceeding, but capable of interfering with one … (69) One question is whether the general law permits an order which prohibits public access to existing material. In principle there is no reason to think it does not. In the unlikely event that a library holding of a past issue of a newspaper, book or magazine (perhaps containing a prejudicial story about the accused) were thought to be a threat to a fair trial, a superior court would have jurisdiction to order that there be no public access to that material until the conclusion of a trial. An order preventing access to a publication on a web site is no different in kind and would clearly fall within the scope of s 7. The circumstances of engagement of the power, contained in s 8(1)(a), also reflect the language of the general law principle. The obligation of a juror, encapsulated in the oath or affirmation, is to “give a true verdict according to the evidence”: Jury Act 1977 (NSW), s 72A. It is an offence for a juror to “make an inquiry for the purpose of obtaining information about (70) the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror”: s 68C(1). The words “making an inquiry” include conducting any electronic search of a database for information: s 68C(5)(b). That language extends to “causing someone else to make an inquiry”: s 68C(5)(e). The standard direction given to juries at the beginning of a trial covers that negative obligation.

CHAPTER 11 The Principle of Open Justice

These provisions demonstrate the impropriety of a juror obtaining information outside the course of the trial, which might potentially affect his or her view of matters in issue during the trial. However, it does not follow that the trial judge, in exercising powers with respect to the conduct of the trial, can make peremptory orders requiring private individuals or other entities unconnected with the administration of justice to take steps to remove material from potential access by a juror. If s 7 has conferred such a power, it would be a remarkable consequence of the language employed …

Copyright © 2015. Oxford University Press. All rights reserved.

(71) Application of State law … For reasons discussed above in relation to the proper operation of the section, there are problems with the form of the order. First, it is not directed to any person or persons and, indeed, is little more than a general statement of principle in relation to specific material. So much is revealed by the opening (72) words stating, after reference to geographical limits of the Commonwealth of Australia, that “there is to be” no disclosure of certain categories of material. Assuming, as the evidence reveals, that such material may be available on the internet despite its removal from sites controlled by the applicants, there are serious questions raised as to whether a whole range of businesses which provide access to the internet through public use of computers may fall within the terms of the order. Secondly, there is a question as to whether internet service providers, which make available search engines permitting access to material without knowledge of the relevant URLs, may also be caught by the terms of the order, if the access is had anywhere in Australia. Thirdly, the proper administration of justice with respect to a trial to take place in the District Court at Sydney could not conceivably justify an order preventing residents of Perth, Kununurra or Darwin from having access to such material. Indeed, the scope of the order is inherently suspect to the extent that it seeks to prevent the whole population of Australia having access to the offending material, at least for a period, in order to prevent possible access by a juror or member of the jury panel for a particular case. The rationale over such overreach is presumably that, unlike radio broadcasts or even the distribution of newspapers, there is no geographical limit to material available on the internet. However, as the applicants submitted, the fact that it is not possible to control material on servers outside Australia demonstrates the limited value of an order seeking to control availability on servers inside the country. No doubt it is arguable that most of the offending material, being of more topical than national let alone international interest, will be found on servers within the country, and even perhaps within New South Wales. However, that may underestimate the likelihood that such material is also available from other sources. Given the efficiency of modern search engines, limiting the number of sources, without removing them all, is likely to be ineffective. No specific attention was given to the fact that the order purported to prevent access in other States. Whether a judge of the District Court had power to control the access of parties and citizens so broadly might itself raise a serious question for consideration. As it was not addressed, it should not be pursued. An order will also fail the necessity test if it is futile. An order will not necessarily be futile because material is available otherwise in cached form, from which it may be removed once the source page has been removed, or is available on web sites overseas. The mere fact that a search has revealed many thousands of “hits” does not necessarily mean that offending material has been readily located. It is necessary to refer to items which have been given priority in response to the search. Further, the test of necessity will not readily be satisfied without proper consideration as to whether a jury is likely to abide by the directions it will be given to decide a matter only by reference to the material called in evidence and without carrying out any investigations themselves. Circumstances may differ. A juror might be thought to be more likely to look for offending material, despite a direction, if such material is of recent origin and if he or she has some recollection of its existence, than in other circumstances. This is a matter for consideration by each judge asked to make such an order. As a matter of construction, that which is ineffective cannot be described as “necessary”. The orders made in the District Court were ineffective for two (73) reasons. First, to be effective they had to bind numerous parties who were not before the Court. Indeed, it is not possible to know, on the evidence, who those parties are. They will either include those in control of the content of web sites throughout the

343

344

PART 4 Open Justice and Contempt

world which may contain the offending material, or those who operate search engines, or both categories. Secondly, even if it were possible to identify all relevant parties, enforcement against any party not resident in or operating from New South Wales would be impracticable, if not impossible. Accepting the evidence that cached material might not provide a source of access once the original document were removed, it remains unclear as to how many web sites containing the relevant information have it in cached form. Accordingly, the evidence failed to demonstrate that the orders would be effective. As a matter of principle, to make the orders effective, material must either be removed from any web site globally to which access can be had from New South Wales or there must be an ability to prevent access by people living in New South Wales. The evidence did not disclose that either of these was a realistic possibility. Certainly the orders made no attempt to identify any such possibility. For these reasons, the orders were properly described as ineffective and therefore were not necessary. As they did not satisfy the ground identified in s 8(1)(a) of the Suppression Orders Act, they should not have been made. However, the last point of principle raises starkly the question as to their constitutional validity.

QUESTIONS 1 How is the test of necessity defined in Rinehart v Welker? Does this differ from the way the test is defined in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim? 2 Although a New South Wales court has the power to make a suppression or a non-publication order with extraterritorial effect, what are the practical and principled limits on the making of such an order? 3 How effective are suppression or non-publication orders in online environments?

11.1.6 Non-publication or suppression orders—specific statutory provisions

Copyright © 2015. Oxford University Press. All rights reserved.

In addition to the common law, it is open to the legislature to enact statutory powers to grant suppression orders. The statutory powers which exist across Australia, at a Federal, State and Territory level, are too numerous and various to mention. Prominent examples include the suppression of evidence in criminal proceedings relating to sexual offences23 or crimes of violence more generally.24 One example, which has a significant impact on media reporting, is the suppression of the publication of material identifying persons involved in criminal proceedings concerning a child. The New South Wales provision is reproduced below.

Children (Criminal Proceedings) Act 1987 (NSW) Division 3A Publication and broadcasting of names 15A Publishing and broadcasting of names prohibited (1) The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if: (a) the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or (b) the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or 23 See, for example, Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 40; Sexual Offences (Evidence and Procedure) Act 1983 (NT) ss 6, 7; Crimes Act 1900 (NSW) s 578A; Criminal Law (Sexual Offences) Act 1978 (Qld) ss 6–10; Evidence Act 1929 (SA) s 71A; Evidence Act 2001 (Tas) s 194K; Judicial Proceedings Reports Act 1958 (Vic) s 4; Evidence Act 1906 (WA) s 36C. 24 See, for example, Criminal Code (Qld) s 695A.

CHAPTER 11 The Principle of Open Justice

(c) the person is mentioned in the proceedings in relation to something that occurred when the person was a child, or (d) the person is otherwise involved in the proceedings and was a child when so involved, or (e) the person is a brother or sister of a victim of the offence to which the proceedings relate, and that person and the victim were both children when the offence was committed. (2) This section applies only to the publication or broadcast of a person’s name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the Internet, or by any other means of dissemination. (3) The publication of information to an Internet website that provides the opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public (whether or not the particular publication results in the dissemination of information to the public or a section of the public) constitutes the publication of information to the public or a section of the public for the purposes of this section. (4) This section applies to the publication or broadcast of the name of a person: (a) whether the publication or broadcast occurs before or after the proceedings concerned are disposed of, and (b) even if the person is no longer a child, or is deceased, at the time of the publication or broadcast. (5) A reference in this Division to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. (6) A reference in this Division to a person who appears as a witness before a court in any criminal proceedings includes a reference to a child who gives evidence in the form of a recording in proceedings in accordance with Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986. (7) A person who publishes or broadcasts the name of any person the publication or broadcasting of which is prohibited by this section is guilty of an offence. Maximum penalty: 500 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both (in any other case).

Copyright © 2015. Oxford University Press. All rights reserved.

15C Exception for person convicted of serious children’s indictable offence (1) This Division does not prohibit the publication or broadcasting of the name of a person who has been convicted of a serious children’s indictable offence if the publication or broadcasting is authorised by a court under this section. (2) A court that sentences a person on conviction for a serious children’s indictable offence may, by order made at the time of sentencing, authorise the publication or broadcasting of the name of the person (whether or not the person consents or concurs). (3) In determining whether to make such an order, a court is to have regard to the following matters: (a) the level of seriousness of the offence concerned, (b) the effect of the offence on any victim of the offence and (in the case of an offence that resulted in the death of the victim) the effect of the offence on the victim’s family, (c) the weight to be given to general deterrence, (d) the subjective features of the offender, (e) the offender’s prospects of rehabilitation, (f) such other matters as the court considers relevant having regard to the interests of justice. (4) A court that makes an order under this section must indicate to the person, and make a record of, its reasons for doing so.

15D Exception for publication or broadcasting with consent (1) This Division does not prohibit the publication or broadcasting of the name of a person: (a) in the case of a person who is under the age of 16 years at the time of publication or broadcasting— with the consent of the court concerned, or (b) in the case of a person who is of or above the age of 16 years at the time of publication or broadcasting—with the consent of the person.

345

346

PART 4 Open Justice and Contempt

(2) A court is not to give consent under this section except with the concurrence of the child or (if the child is incapable of giving concurrence) unless the court is of the opinion that it is in the public interest that consent be given. (3) A child who is of or above the age of 16 years cannot give consent for the purposes of this section unless the consent is given in the presence of an Australian legal practitioner of the child’s own choosing.

15E Exception where child deceased

Copyright © 2015. Oxford University Press. All rights reserved.

(1) This Division does not prohibit the publication or broadcasting of the name of a deceased child with the consent of a senior available next of kin of the child. (2) A person must not, as a senior available next of kin, give consent to the publication or broadcasting of the name of a deceased child unless it appears to the person, after making such inquiries as are reasonable in the circumstances, that no other senior available next of kin objects to the publication or broadcasting of the name. (3) In addition, in considering whether to give consent to the publication or broadcasting of the name of a deceased child when the publication or broadcasting of the name of a brother or sister of the deceased child is prohibited under section 15A (1) (e), a senior available next of kin must: (a) make such inquiries as are reasonable in the circumstances to obtain the views of that brother or sister regarding the publication or broadcasting of the name of the deceased child, and (b) take into account the impact of such a publication or broadcasting on that brother or sister. (4) A senior available next of kin who is charged with, or is convicted of, an offence to which the criminal proceedings concerned relate cannot give consent, or object, to the publication or broadcasting of the name of a deceased child as referred to in this section. (5) If there is no senior available next of kin who can give consent to the publication or broadcasting of a deceased child’s name (whether or not as a result of subsection (4)), the court concerned can give that consent if satisfied that the public interest so requires. (6) In this section, senior available next of kin of a deceased child means: (a) a parent of the child, or (b) if the parents of the child are dead, cannot be found, or for some other reason cannot exercise their parental responsibilities to the child: (i) a person who, immediately before the death of the child, had parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the child, or (ii) in the case of a child who was in the care of the Director-General of the Department of Human Services immediately before his or her death—the Director-General.

QUESTIONS 1 In what circumstances would the Children (Criminal Proceedings) Act 1987 (NSW) s 15A apply? 2 Does the Children (Criminal Proceedings) Act 1987 (NSW) s 15A have an undue impact on the reporting of crime, investigative journalism or historical writing? If so, how and why? 3 What competing public interests are involved in the reporting of criminal proceedings involving children? Does the Children (Criminal Proceedings) Act 1987 (NSW) s 15A strike an appropriate balance between these interests?

11.1.7 The making of pseudonym orders Another way in which courts may depart from the principle of open justice is to make an order that a party or a witness be referred to by a pseudonym.25 This prevents members of the public present in the courtroom from learning the true identity of the party or the witness concerned and consequently, as a practical matter, prevents the media from reporting 25 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 159 per Mahoney JA.

CHAPTER 11 The Principle of Open Justice

it as well. Again, the relevant test is whether such an order is necessary in the interests of the administration of justice.26 It may amount to contempt of court for a media outlet to disclose the true identity of a party or a witness whose identity has been suppressed.27 This is demonstrated by the decision in R v Socialist Worker Printers and Publishers Ltd, which is relevantly extracted below.

R v Socialist Worker Printers and Publishers Ltd [1975] QB 637

Copyright © 2015. Oxford University Press. All rights reserved.

[Between early December 1973 and mid-April 1974, a woman known as Janie Jones was tried in the Central Criminal Court on charges of blackmail and organising and procuring women for prostitution. The complainants were two former clients of Jones. The trial judge, Judge King-Hamilton, and counsel agreed that the men should be referred to in court only as ‘Mr Y’ and ‘Mr Z’. The editor of the Socialist Worker, Paul Foot, was present in court when the trial judge summed up the case to the jury. Foot published an article under the headline, ‘Y, oh Lord, oh why’, disclosing the identity of the prosecution witnesses. Foot and the publisher of the newspaper, the Socialist Worker Printers and Publishers Ltd, were prosecuted for contempt of court. As to contempt of court for undermining a court order of secrecy, see 12.5.1.] LORD WIDGERY CJ (at 644): I say at once it surprises me not at all that counsel should have been so ready to accept the situation in regard to the complainants in blackmail charges because all of us concerned in the law know that for more years than any of us can remember it has been a commonplace in blackmail charges for the complainant to be allowed to give his evidence without disclosing his name. That is not out of any feelings of tenderness towards the victim of the blackmail, a man or woman very often who deserves no such consideration at all. The reason why the courts in the past have so often used this device in this type of blackmail case where the complainant has something to hide, is because there is a keen public interest in getting blackmailers convicted and sentenced, and experience shows that grave difficulty may be suffered in getting complainants to come forward unless they are given this kind of protection. Hence, no doubt, the ready acceptance on the part of counsel for the defence of the suggestion that the two blackmail victims should not have their names disclosed but should be known as Mr Y and Mr Z. … (at 646) … quite apart from cases like the present where the court may direct that a witness’s name be concealed, it is, again as we all know, a commonplace that in all sorts of litigation the judge, if he thinks it right, will sometimes turn to the press and say ‘Perhaps you might consider not publishing that piece of evidence or not publishing that person’s name’ or whatever. Of course where the matter is a simple matter of request like that, an invitation, it may very well be that it has no legal effect at all. But what was done here by the judge unquestionably was to give a direction and not merely an invitation. … (at 649) On the basis of Butterworth’s case, and on the facts which I have recounted, it seems to me that there was a prima facie case of contempt on the part of the publishers and Mr Foot when the Attorney-General concluded his submissions, and I think that there was at that stage of the argument a prima facie case on both grounds: first, on the ground that by publishing the names of these two witnesses in defiance of the judge’s directions the respondents were committing that sort of blatant affront to the (650) authority of the court to which Lord Denning MR had referred; further it seems to me that the Crown at this stage had presented a prima facie case of contempt on the second ground because it is to my mind quite evidence that if witnesses in blackmail actions are not adequately protected, this could affect the readiness of others to come forward in other cases. … 26 Ibid at 161 per Mahoney JA. 27 For contempt of court for breaching or undermining a court order of secrecy, see 12.5.1.

347

Copyright © 2015. Oxford University Press. All rights reserved.

348

PART 4 Open Justice and Contempt

… The basis of the prima facie case to which I have referred is not that the judge had made an order directly and expressly affecting the conduct of people outside his court. The real vice of this publication can only be judged by imagining a person suffering blackmail, who is trying to screw up his courage to go to the police and do something about it. He sees in the paper that at the Central Criminal Court the judge has allowed Mr Y and Mr Z not to give their names but to pass under those descriptions. Our potential complainant of blackmail feels cheered by this and sees the prospect perhaps of his being able to bring his proceedings without disclosure of his circumstances. But then if the next day or a few days after he sees published in the papers the names of Mr Y and Mr Z, he would at once realise that the protection which he was hoping for is a myth. He would say to himself ‘Even the judge cannot protect me. Look at this case. The judge said the names were not to be given and yet they were. Even the judge cannot protect me’. It is that aspect of the matter which is the sting of the allegation against the publication in this case, and it is not affected in my judgment at all by the fact that the order was not in terms an order addressed to the press but was an order concerned with the conduct of the trial. The publication made the directions as to the conduct of the trial meaningless in this regard. … (at 651) … Therefore, it is, I think, salutary to remember that this type of case is much closer to the Scott v Scott principle than one might think at first blush. But I do not for a moment want to give credence to the idea that blackmail charges should be tried in camera. Nothing which I say today should be regarded as any sort of pointer in that direction at all because I think that would be disastrous, but it is worth noting in the present argument that in some respects the necessity for protection recognised as justifying a hearing in camera for secret processes has a parallel in this type of case. The real reason why I think Mr Waterhouse’s argument cannot stand is because there is such a total and fundamental difference between the evils which flow from a court sitting in private and the evils which flow from pieces of evidence being received in the way which was followed in this case. The great virtue of having the public in our courts is that discipline which the presence of the public imposes upon the court itself. When the court is full of interested members of the public, as indeed one (652) can say it is today, it is bound to have the effect that everybody is more careful about what they do, everyone tries just that little bit harder and there is a disciplinary effect on the court which would be totally lacking if there were no critical members of the public or press present. When one has an order for a trial in camera, all the public and all the press are evicted at one fell swoop and the entire supervision by the public is gone. Where one has a hearing which is open, but where the names of the witnesses are withheld, virtually all the desirable features of having the public present are to be seen. The only thing which is kept from their knowledge is the name of the witness. [The Socialist Worker Printers and Publishers Ltd and Foot were each fined £250.] Application granted with costs.

11.1.8 Access to court files The principle of open justice may also be relied upon in the context of media outlets’ attempts to gain access to court files for the purposes of reporting. Although most evidence used to be given orally in court proceedings, it is increasingly submitted in written form to the court. This makes the task of reporting court proceedings particularly difficult because journalists do not have access to the documents relied upon in open court. Media outlets can attempt to apply for access to court files in order to use them in their reporting of court proceedings. The right of media outlets so to apply has been, in certain jurisdictions, augmented by

CHAPTER 11 The Principle of Open Justice

legislative provisions, rules of court and practice notes.28 In New South Wales, the legislature passed the Court Information Act 2010 (NSW), which provides a comprehensive regime for access to court files in all New South Wales courts. However, unusually, at the time of writing, the legislation still has not commenced. The extract below, from the New South Wales Court of Appeal’s decision in John Fairfax Publications Pty Ltd v Ryde Local Court, involves a consideration of the interaction between the principle of open justice and the media’s claim to access the court file.

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512

[In mid-September 2004, an interim apprehended domestic violence order was obtained against controversial magistrate, Pat O’Shane. O’Shane had an acrimonious dispute with her husband, Allen Coles, and their neighbour in Hunters Hill. A number of print and television media organisations applied for access to the Local Court Registry to inspect the court file relating to the apprehended domestic violence order. Access was denied. The print and television media organisations applied for a review of the decision to deny them access to the court file. The application for review was rejected. The print and television media organisations appealed to the New South Wales Court of Appeal.] SPIGELMAN CJ (at 520):

Copyright © 2015. Oxford University Press. All rights reserved.

A right of access? 27. The principal submission of the claimants was that the public and, therefore, the claimants, had a right to inspect documents used in open court. They submitted that the Local Court had no power to deny access to any such document. The claimants rely on the principle of open justice. 28. The claimants’ submissions proceeded as if the proposition that needed to be answered was whether the Local Court had an implied power to prevent access to material in the court file, rather than whether the Local Court had an implied power to grant access to such material. They submitted that ‘absent statutory authority, any denial of access can only occur when in the administration of justice, it is necessary in a particular case’ (R Dworkin, Taking Rights (521) Seriously (1977) London, Gerald Duckworth & Co Ltd, at 26). The claimants restricted their claim in this regard to material that had been used in court. 29. Neither the claimants, nor the public at large, have a right of access to court documents. The ‘principle of open justice’ is a principle, it is not a freestanding right. It does not create some form of freedom of information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right. 30. A principle, as Professor Ronald Dworkin has stated (R Dworkin, Taking Rights Seriously (1977) London, Gerald Duckworth & Co Ltd, at 26): … states a reason that argues in one direction, but does not necessitate a particular decision … There may be other principles or policies arguing in the other direction … If so, our principle may not prevail, but that does not mean that it is not a principle of our legal system, because in the next case, when these contravening considerations are absent or less weighty, the principle may be decisive.

28 See, for example, High Court Rules 2004 (Cth) r 4.07; Federal Court Rules 2011 (Cth) r 2.32; Supreme Court Rules (NT) r 28.05; Supreme Court of New South Wales, Supreme Court—Access to Court Files, Practice Note SC Gen 2 (1 March 2006); Uniform Civil Procedure Rules 1999 (Qld) r 981; Supreme Court of Victoria (General Civil Procedure) Rules 2005 (Vic) r 28.05.

349

350

PART 4 Open Justice and Contempt

31. There is no common law right to obtain access to a document filed in proceedings and held as part of a court record. (See R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289 at 305–307; Dobson v Hastings [1992] Ch 394 at 401–402; Smith v Harris [1996] 2 VR 335 at 347–350; R v Clerk of Petty Sessions, Court of Petty Sessions Hobart; Ex parte Davies Brothers Ltd (1998) 8 Tas R 283; Titelius v Public Service Appeal Board (1999) 21 WAR 201 at 219 [74]–[88], 223 [99]; Notes, ‘The Common Law Right to Inspect and Copy Judicial Records: In Camera or On Camera’ (1982) 16 Georgia Law Review 659.) 32. I will consider further below the position with respect to access once material is deployed in open court. Subject to the provisions of a particular statutory regime, use in court will often be determinative when making a decision to give the media access to documents so deployed. That is a long way from saying that the court has no power to deny access. Any such positive right must be created by or under statute. There is none here.

QUESTIONS 1 Why should media outlets be given access to court files? In what circumstances, and for what purposes, should such access be granted? 2 What limits, if any, should there be placed upon media outlets’ right to access court files? 3 What are the competing public interests in relation to the media’s access to court records? How should the balance between these competing interests be struck?

Copyright © 2015. Oxford University Press. All rights reserved.

11.1.9 The principle of open justice and the implied undertaking During litigation, a party can be compelled to provide documents in its possession to another party in the proceeding. This compulsory court process is known as discovery. Because this compulsory process can be highly invasive of a party’s rights against whom discovery is ordered, strict legal protections have developed.29 An issue arises as to what uses a party which receives discovered documents may make of them. This particularly affects what media outlets can do if they receive documents which have been discovered in court processes from one of the participants in the court proceedings. Initially, a party was bound only if it gave an express undertaking not to use discovered documents for a collateral purpose (being a purpose other than the purpose of the court proceeding in which the documents were discovered).30 However, a more expansive approach has subsequently developed. In the absence of an express undertaking by a party to whom documents are discovered, an implied undertaking not to use the documents other than for the purpose for which they have been disclosed has been recognised, binding not only that party but also any person who obtains the documents, particularly if that person obtains them unlawfully.31 For example, in Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd,32 an expert retained in product liability proceedings sold documents discovered in the proceedings to the defendant’s newspaper. The expert later gave the plaintiff an express undertaking not to disclose the documents disclosed in the course of the proceedings, but 29 Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 300 per Lord Diplock. 30 See, for example, Richardson v Hastings (1844) 7 Beav 354 at 356; (1844) 49 ER 1102 at 1103 per Lord Langdale MR; Reynolds v Godlee (1858) 4 K & J 88 at 92; (1858) 49 ER 37 at 39 per Sir W. Page Wood VC; Hopkinson v Lord Burghley (1867) 2 LR 49 447 at 448 per Sir GJ Turner LJ; at 449 per Lord Cairns LJ. 31 Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613 at 621 per Talbot J; Riddick v Thames Board Mills [1977] QB 881 at 896 per Lord Denning MR; at 901–02 per Stephenson LJ; at 910–12 per Waller LJ. 32 [1975] QB 613.

CHAPTER 11 The Principle of Open Justice

did not disclose his earlier agreement with the defendant. Talbot J granted an injunction to restrain the defendant’s newspapers from publishing the documents on the basis that the defendant was bound by an implied undertaking not to use the documents for a purpose other than the litigation in which they had been disclosed. In Riddick v Thames Board Mills,33 an employee who brought proceedings against his former employer for wrongful arrest and false imprisonment, during the course of which an internal company memorandum was disclosed pursuant to an order for discovery, could not bring separate proceedings for defamation based on the memorandum, due to the implied undertaking not to use discovered documents for a collateral purpose.34 The implied undertaking is not limited to discovered documents but also extends to answers to interrogatories, documents produced under subpoena and witness statements.35 The leading Australian authority now on the implied undertaking is the High Court of Australia’s decision in Hearne v Street,36 which is relevantly extracted below.

Hearne v Street

Copyright © 2015. Oxford University Press. All rights reserved.

(2008) 235 CLR 125

[The Sydney amusement park, Luna Park, re-opened in April 2004. In early April 2005, local residents commenced proceedings in the Supreme Court of New South Wales on the basis of nuisance in relation to the noise allegedly emanating from Luna Park. The plaintiffs’ documents were served on Luna Park Sydney Pty Ltd. In mid-April 2005, The Daily Telegraph newspaper published an article under the headline, ‘The NUMBY Files’. The acronym, ‘NUMBY’, represented ‘Not Under My Balcony. The city cousin of the NIMBY (Not In My Backyard)’. The article reproduced allegations made in the plaintiffs’ affidavits in the court proceedings. In response to a complaint from the plaintiffs’ solicitors, Luna Park Sydney’s solicitors gave an undertaking not to disclose any portion of an unread affidavit to the media or any other person unconnected with the proceedings. In July 2005, the Managing Director and Chief Executive Officer of Luna Park Sydney, Peter Hearne, sent an email to the office of the New South Wales Minister for Tourism, Sport and Recreation, including the newspaper article, the plaintiffs’ affidavits and an expert report. In mid-August 2005, David Tierney, the development manager and strategic adviser of Multiplex Developments Australia Pty Ltd, a company related to the owner of Luna Park, sent an analysis of the plaintiffs’ proceedings by email to an officer in the Luna Park Reserve Trust. In mid-October 2005, when the New South Wales Government introduced a bill retrospectively extinguishing the plaintiffs’ right to sue in nuisance, Tierney forwarded his email to the relevant Minister. Once the bill was enacted, the plaintiffs reconstituted their proceedings, then sought to have Hearne and Tierney punished for contempt of court. Hearne and Tierney were responsible for instructing Luna Park Sydney’s solicitors. At first instance, Gzell J found that Hearne and Tierney had given no undertaking themselves and were unaware of Luna Park Sydney’s implied undertaking. Therefore, Hearne and Tierney were found not guilty of contempt of court. An appeal to the New South Wales Court of Appeal was allowed by majority (Ipp and Basten JJA, Handley AJA dissenting). Hearne and Tierney appealed to the High Court of Australia.] HAYNE, HEYDON AND CRENNAN JJ (at 145): [61] Where a corporate litigant is bound by an ‘implied undertaking’ not to use affidavits or witness statements served by another party on it otherwise than for the purpose of the proceedings in which they were prepared, in what circumstances can servants and agents of the litigant

33 [1977] QB 881. 34 Riddick v Thames Board Mills [1977] QB 881 at 896–97 per Lord Denning MR; at 901–02 per Stephenson LJ; at 912 per Waller LJ. 35 Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 at 510–11 per McPherson J. 36 (2008) 235 CLR 125.

351

352

PART 4 Open Justice and Contempt

who use the affidavits or witness statements in that way be liable for contempt of court? One issue in (146) this appeal is whether either or both of the appellants was bound by such an implied undertaking. … (at 154) The extent of the ‘implied undertaking’ … [96] Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into (155) evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin. [97] It is common to speak of the relevant obligation as flowing from an ‘implied undertaking’. [98] It may be noted that the general law protection is often buttressed by protection from rules of court. Thus until 15 August 2005, Pt 65 r 7 of the New South Wales Supreme Court Rules 1970 prevented strangers to litigation from having access to documents or things on the court file without the leave of the court: see also Practice Note No 97. From 1 March 2006, Practice Note SC Gen 2 prescribed procedures in relation to access to Supreme Court files. The most important paragraphs are:

Copyright © 2015. Oxford University Press. All rights reserved.



6 Access to material in any proceedings is restricted to parties, except with the leave of the Court. 7 Access will normally be granted to non-parties in respect of: pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; documents that record what was said or done in open court; material that was admitted into evidence; and information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept (156) confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.

The appellants’ arguments: problems in principle [101] There are two propositions which are damaging to the appellants’ arguments. [102] The first is that to call the obligation of the litigation who has received material generated by litigious processes one which arises from an (157) ‘implied undertaking’ is misleading unless it is understood that in truth it is an obligation of law arising from circumstances in which the material was generated and received. [103] The second is that that obligation would be of very limited protection if it were only personal to the litigant, which is why it is often said to be extended also to a litigant’s solicitor, industrial advocate or barrister, and also to third parties like a shorthand writer or court officer. For that reason the authorities recognise a broader principle by which persons who, knowing that material was general in legal proceedings, use it for purposes other than those of the proceedings are in contempt of court. [104] Each of these propositions will be examined in turn.

‘Implied undertaking’ is an obligation of substantive law [105] Originally the restriction on the use of documents generated by litigious processes depended on an express undertaking. Then in Williams v Prince of Wales Life Co, Sir John Romilly MR, while requiring an express undertaking, put the matter in terms of legal rights: ‘[I]t is not the right of a Plaintiff, who has obtained access to the Defendant’s papers, to make them public.’ The following year the protection was said not

CHAPTER 11 The Principle of Open Justice

to rest on an express undertaking, but on a ‘rule’ that ‘where documents have been produced in obedience to an order of this court, the court has a right to say to the person who has obtained their production: “Those documents shall never be used by you except under the authority of the court”’. In Alterskye v Scott, although Jenkins J referred to a concession by counsel that his client obtained discovery on an ‘implied undertaking’, in terms of the operative part of his reasoning he did not analyse the matter in terms of ‘undertaking’, either express or implied, but in terms of an ‘implied obligation not to make an improper use of the documents’. And other judges have preferred to the language of ‘implied undertaking’ the words ‘implied obligation’ or ‘obligation’ or ‘duty’. (158) Another formula is that the party obtaining discovery is ‘taken to undertake to the court that the documents obtained on discovery will not be used for any purpose other than the action in which they are produced’. In Harman, Lords Simon of Glaisdale and Scarman, who accepted the general rule of limited use but disagreed with the majority about applying it to documents read in open court, said: Imposed by law the obligation is formulated as arising from an undertaking exacted by the court from the party and his solicitor to whom the documents are disclosed. It is the condition upon which discovery is ordered. [Emphasis added.]

Lord Denning MR in Riddick said: A party who seeks discovery of documents gets it on condition that he will make use of them only for the purpose of that action, and no other purpose. [Emphasis added.]

[106] The fact that the role of the word ‘undertaking’ is merely to indicate the way in which an ‘obligation’ which is ‘imposed by law’ as a ‘condition’ of discovery binds the disclosee highlights the substantive nature of the obligation. There is nothing voluntary about the ‘undertaking’ … … [107] The expression ‘implied undertaking’ is thus merely a formula through which the law ensures that there is not placed upon litigants, who in giving discovery are suffering ‘a very serious invasion of the privacy and confidentiality of [their] affairs’, any burden which is ‘harsher or more oppressive … than is strictly required for the purpose of securing that justice is done’. To that statement by Lord Keith of Kinkel of the purpose (159) of the ‘implied undertaking’ may be added others. In Riddick Lord Denning MR said: Compulsion [to disclose on discovery] is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. Otherwise the courts themselves would be doing injustice.

Copyright © 2015. Oxford University Press. All rights reserved.

In Harman Lord Diplock said: The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides … through its rules about abuse of process and contempt of court.

In Watkins v AJ Wright (Electrical) Ltd, Blackburne J said: In my judgment, a serious inroad into [the safeguards referred to by Lord Diplock] and, therefore, into the utility of the discovery process in the just disposal of civil litigation would occur if it were open to a litigant (or his solicitor) to enjoy the fruits of discovery provided by the other side, but avoid the risk of committal for contempt for acting in breach of the countervailing implied obligation on the ground that he was unaware of the existence of the undertaking. I take the view that it does not lie in the mouth of a person to plead ignorance of the legal consequences of the discovery process.

To speak in terms of ‘undertaking’ serves: … a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from. It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to

353

354

PART 4 Open Justice and Contempt

direct sanctions which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court.

Staughton LJ said: ‘[A]lthough described as an implied undertaking it is a rule which neither party can unilaterally disclaim’. The importance with which the courts have viewed the obligation under (160) discussion is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear: Circumstances under which that relaxation would be allowed without the consent of the serving party are hard to visualise, particular where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party. [108] Hence Hobhouse J was correct to conclude: The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information.

Third party obligations

Copyright © 2015. Oxford University Press. All rights reserved.

[109] The primary person bound by the relevant obligation is the litigant who receives documents or information from the other side pursuant to litigious processes. The implied undertaking also binds others to whom documents and information are given. For example, expert witnesses who are not parties, commonly receive such documents and information and are bound by the obligation. It is likely that, in the future, documents and information will be provided to persons funding litigation, who will likewise be bound by the obligation. In Harman, the person in contempt was the party’s solicitor. In Hamersley Iron Pty Ltd v Lovell it was the party’s industrial advocate. In Watkins it was a person who was not qualified as a solicitor in the forum, but engaged in day-to-day conduct of the litigation. Laddie J thought ‘it would be just as much a contempt of court for, say, a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so’. In both England and Australia, these instances have been broadened into a wider and coherent principle. Thus Hobhouse J said: ‘[A]ny person who knowingly … does acts which are inconsistent with (161) the undertaking is himself in contempt and liable to sanctions’. In Watkins Blackburne J said: I cannot accept the submission that ignorance of the implied undertaking provides a person with a defence to proceedings for contempt arising out of his breach of the implied undertaking. As is well known, the implied undertaking arises by implication of law on the giving of discovery in the course of a civil action where discovery is required to be given.

He also rejected a submission that third parties could not be bound by the obligations created by the ‘implied undertaking’. He said: ‘I see no basis for confining the scope of the undertaking to those who are parties to the action, to whom discovery has been given, and to the solicitor or solicitors on the record’. As noted above, he held that a person engaged in day-to-day conduct of litigation on behalf of a litigant was bound—an expression not irrelevant to Messrs Hearne and Tierney, who were certainly engaged in day-to-day conduct of a struggle which included but was wider than litigation, and included an attempt to nullify the litigation by legislative means. [110] Turning to Australian authorities, in Esso, Mason CJ (with whom Dawson and McHugh JJ agreed) said: It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.

In Hamersley Iron Anderson J (Pidgeon and Ipp JJ concurring) said: ‘The implied undertaking is binding upon anyone in whose hands the discovered documents come, if he knows that they were obtained by way of discovery’. And Ryan J said in Spalla v St George Motor Finance Ltd: ‘To be effective, the undertaking must bind the litigant by whom it is given and his or her privies’.

CHAPTER 11 The Principle of Open Justice

[111] If this principle did not exist, the ‘implied undertaking’ or obligation on the litigant would be of little value because it could be evaded easily. That is why Lord Denning MR said in Riddick: ‘The courts should … not allow the other party—or anyone else—to use the documents for any ulterior or alien (162) purpose. Otherwise the courts themselves would be doing injustice’. And in the same case Stephenson LJ also said: ‘[I]t is important to the public and in the public interest that the protection should be enforced against anybody who makes improper use of it’. Use with knowledge of the circumstances would be improper use. [112] There is no support in the authorities for the idea that knowledge of anything more than the origins of the material in legal proceedings need be established. In particular, there is no support for the idea that knowledge of the ‘implied undertaking’ and its consequences should be proved, for that would be to require proof of knowledge of the law, and generally ignorance of the law does not prevent liability arising. …

Change from voluntary undertaking to obligation imposed by law [115] The appellants submitted: ‘The majority did not explain how and when the nature of the obligation changed from one voluntarily undertaken by a litigant to one imposed as a matter of law’. When did the change take place? No later than 1948, the year of Jenkins J’s judgment in Alterskye; it has been repeatedly evidenced since then. How did the change take place? Through the tendency of judges increasingly to regard the language of ‘implied undertaking’ as unrealistic, and on balance unmeritorious.

Express undertakings in place of implied

Copyright © 2015. Oxford University Press. All rights reserved.

[116] The appellants submitted that the majority approach did not sit comfortably with the fact that an express undertaking may be given in place of an implied undertaking. They did not say why not. The point of insisting on an express undertaking, commonly employed in relation to documents which it is particularly desired to keep secret, is to bring explicitly home to the minds of those giving it how important it is that the documents only be used for the purpose of proceedings. It does not follow that the obligation in question does not exist in more routine cases without the need for an express undertaking. If the appellants’ stance were sound, it would be necessary for litigants, in order to obtain protection partially, but not completely, as effective as that given (163) by the approach urged by the residents, to seek express undertakings to the court from all servants and agents of a party, from all potential lay and expert witnesses, and from all other persons into whose hands documents generated in the proceedings may come. At present this happens in exceptional cases for particular reasons. If it were necessary for that general practice to develop, it would be extremely cumbersome, and extremely wasteful of time, energy and money. …

Differing degrees of knowledge [118] The appellants submitted that there is no reason in principle why the degree of knowledge necessary to sustain a prosecution of a third party for contempt of an undertaking in connection with the production of documents to the court should depend on whether the undertaking was given expressly or by implication. The relevant reason of principle is that while liability in relation to an express undertaking relates to the giving of that undertaking at a particular time and in particular precise terms, varying from case to case, which third parties have very limited means of finding out about, liability in relation to an ‘implied undertaking’ arises in uniform terms in all cases where documents are produced to the court. A key objective factual integer, knowledge of which is necessary to prove liability, is in one case the terms of the express undertaking, in the other the events giving rise to the ‘implied undertaking’ or legal obligation. [In separate reasons for judgment, Gleeson CJ and Kirby J agreed with Hayne, Heydon and Crennan JJ.] Appeal dismissed.

11.1.10 Recording and televising court proceedings There are contradictory developments in relation to the recording and televising of court proceedings. In some jurisdictions, the recording of court proceedings is an offence, subject

355

356

PART 4 Open Justice and Contempt

to exceptions which do not extend to media publication.37 The legislature has left the issue of whether courts should permit the recording and televising of court proceedings largely to the courts themselves. Some judges, notably Chief Justice Martin of the Supreme Court of Western Australia, have been advocates for televising court proceedings as a means of facilitating the principle of open justice.38 In 2014, the New South Wales legislature amended the Supreme Court Act 1970 (NSW) and the District Court Act 1973 (NSW) now to include a presumption in favour of permitting the recording and broadcast of judgment remarks.39 Televising court proceedings now and into the future is likely to occur online. Since 1 October 2013, the High Court of Australia has made public audio-visual recordings of its hearings through its website.40 No other Australian court as yet records or streams its hearings on a regular basis.

QUESTIONS 1 Why might courts be reluctant to allow widespread recording and televising of their proceedings? 2 Will the recording and television of court proceedings enhance open justice? If so, how? 3 What are the risks involved in allowing the recording and broadcast of court proceedings?

Copyright © 2015. Oxford University Press. All rights reserved.

11.1.11 Social media use in courtrooms There are also contradictory developments in relation to the regulation of the use of social media in courtrooms. Judges have an inherent power to control the conduct of proceedings in the courts. Courts and tribunals can allow the use of social media as part of the exercise of this inherent power. The first case in which this was permitted was in the Federal Court proceedings in Roadshow Films Pty Ltd v iiNet Ltd (No 3), where the trial judge, Cowdroy J, allowed social media use due to the considerable public interest in the case.41 Subsequently, many high-profile court cases and tribunal hearings have been live-tweeted by journalists. Many Australian jurisdictions have begun to regularise the use of social media in courtrooms through rules of court or practice notes. In South Australia, under the Supreme Court Rules 2006 (SA) r 9B(3), ‘a bona fide member of the media’ is permitted to ‘communicate by means of an electronic device to and from a court room during the conduct of proceedings’. In Western Australia, under a practice direction, ‘bona fide members of the media’ are permitted to use electronic devices while the court is in session to record, transmit or receive information.42 In Victoria, under the Supreme Court’s ‘Media Policies and Practices’, ‘accredited journalists’ can ‘use electronic equipment for the publication of material on the internet (blogging, twittering [sic] and similar’.43 However, in New South Wales, the Court Security Act 2005 (NSW) contains the following provision:

37 See, for example, Court Security Act 2005 (NSW) s 9. 38 Chief Justice Wayne Martin, ‘Access to justice—broadcast of court proceedings’ (2007) 34(4) Brief 17. 39 See Supreme Court Act 1970 (NSW) ss 126–128; District Court Act 1973 (NSW) ss 177–179. 40 http://www.hcourt.gov.au/cases/recent-av-recordings. 41 (2010) 263 ALR 215. 42 Supreme Court of Western Australia, Consolidated Practice Directions—Practice Direction 3.1, 30 January 2014, [11]. 43 Supreme Court of Victoria, Media Policies and Practices (2013).

CHAPTER 11 The Principle of Open Justice

9A Prohibition on unauthorised transmission of court proceedings from courtroom (1) A person must not use any device to transmit sounds or images (or both) from a room or other place where a court is sitting, or to transmit information that forms part of the proceedings of a court from a room or other place where that court is sitting, in any of the following ways: (a) by transmitting the sounds, images or information to any person or place outside that room or other place, (b) by posting entries containing the sounds, images or information on social media sites or any other website, (c) by otherwise broadcasting or publishing the sounds, images or information by means of the Internet, (d) by otherwise making the sounds, images or information accessible to any person outside that room or other place, whether that transmission, posting, broadcasting, publishing or other conduct occurs simultaneously with the proceedings or at a later time (or both). Maximum penalty: 200 penalty units or imprisonment for 12 months (or both). (2) Subsection (1) does not apply to any of the following: (a) a device being used for a purpose other than a purpose referred to in subsection (1), (b) the transmission of sounds, images or information by an audio link, audio visual link, closed-circuit link or other technology that enables communication between the room or other place where the court is sitting and another place and that has been expressly permitted by a judicial officer, (c) any other transmission of sounds, images or information that has been expressly approved by a judicial officer, (d) the transmission of sounds, images or information for the purpose of transcribing court proceedings for the court at a place outside the room or other place where the court is sitting, (e) the use by a prosecutor of a tablet computer or other similar device to transmit sounds, images or information only to another prosecutor who either is not a witness in the relevant court proceedings or, if he or she is such a witness, who has already given evidence in those proceedings, (f) the transmission of sounds, images or information in any circumstances that may be prescribed by the regulations.

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1. What are the benefits of permitting social media use in courtrooms? What are the risks associated with it? 2. Given the nature of social media, is it problematic for courts to seek to limit permission to use it to members of ‘the media’?

FURTHER READING Bosland, Jason & Bagnall, Ashleigh, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008–12’ (2013) 35 Sydney Law Review 671. Jaconelli, Joseph, Open Justice: A Critique of the Public Trial, Oxford University Press, Oxford, 2002. Kenyon, Andrew, ‘Not Seeing Justice Done: Suppression Orders in Australian Law and Practice’ (2006) 27 Adelaide Law Review 279. Nettheim, Garth, ‘The Principle of Open Justice’ (1986) 8 University of Tasmania Law Review 25. Spigelman, Chief Justice James, ‘Seen to be Done: The Principle of Open Justice’ (2000) 74 Australian Law Journal 290, 378. Spigelman, Chief Justice James, ‘The Principle of Open Justice: A Comparative Perspective’ (2006) 29 University of New South Wales Law Journal 147.

357

358

12 Contempt of Court

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION The reporting of court proceedings is an essential part of the print and electronic media’s presentation of news and current affairs. The area of law that arguably has the greatest impact on the daily operations of the media in relation to court reporting is contempt of court. This chapter examines the principles of liability for contempt of court, the defences upon which media outlets might rely, the penalties which might be imposed and the factors which might be relevant to their assessment. Contempt of court is a well-established part of the common law, dating back to at least the twelfth century. The preservation of the integrity of, and public confidence in, the administration of justice has been a long-standing concern of the common law. Broadly, contempt of court is concerned with conduct which interferes, or tends to interfere, with the administration of justice. The interference may relate to a particular proceeding or to the administration of justice more generally. Liability for contempt of court is not confined to conduct committed inside a courtroom.1 In addition, contempt of court is directed not towards the subjective attitude of the contemnor towards the court, but rather to the effect of the contemnor’s conduct on the administration of justice.2 Therefore, the purposes of contempt of court are to protect the integrity of the administration of justice and to maintain public confidence in the institutions and individuals involved in the administration of justice. Contempt of court is directed towards the protection of the public interest, not private interests.3 However, the public interest in maintaining the administration of justice needs to be balanced against the public interest in freedom of expression4—an interest crucial to the operation of the media. There are many forms of conduct that may amount to contempt of court.5 Of course, the principles of contempt of court do not apply only to the media. However, some types of contempt of court are more likely than others to be committed by the media, such as 1 In Re Johnson (1887) 20 QBD 68 at 71–72 per Lord Esher MR. 2 R v Daily Mirror; Ex parte Smith [1927] 1 KB 845 at 847 per Lord Hewart CJ. 3 Bell v Stewart (1920) 28 CLR 419 at 428 per Isaacs and Rich JJ; Attorney-General v Times Newspapers Ltd [1974] AC 273 at 294, 301 per Lord Reid. 4 Attorney-General v Times Newspapers Ltd [1974] AC 273 at 294 per Lord Reid; at 302 per Lord Morris of Borth-y-Gest. 5 St James’s Evening Post Case; Roach v Garvan (1742) 2 Atk 469 at 471; (1742) 26 ER 683 at 684–85 per Lord Hardwicke LC; R v Castro; Skipworth’s Case (1873) LR 9 QB 230 at 232–33 per Blackburn J; Attorney-General v Times Newspapers Ltd [1974] AC 273 at 307 per Lord Morris of Borth-y-Gest.

CHAPTER 12 Contempt of Court

contempt by publication or sub judice contempt.6 The media also have greater opportunities for disseminating publications which might be contemptuous. Contempt of court can be committed by an attack on an individual judge, acting in his or her judicial capacity.7 However, it is important to bear in mind that contempt of court does not protect the dignity, the feelings or the reputation of the individual judge. The purpose of contempt of court is to protect the administration of justice, not to assuage the wounded dignity of a particular judge.8 Contempt of court is divided into civil or criminal contempt.9 Contempt of court is a crime, albeit an unusual one. Contempt of court is tried summarily, without a jury,10 yet may result in a sentence of imprisonment or the imposition of a substantial fine.11 Moreover, there is no requirement of intention; for most forms of contempt of court, it is sufficient if the alleged contemnor engaged in conduct that had the requisite tendency to interfere with the administration of justice.12 The court’s power to punish for contempt of court is one that should be exercised sparingly. It is appropriate to punish for contempt of court only when it is necessary to protect the administration of justice.13

12.1 What is a court?

12.1.1 Superior courts of record The power to punish for contempt of court is part of the inherent jurisdiction of a superior court of record.14 It extends to contempts committed inside the courtroom (‘in the face of the court’) and outside the courtroom.15 The rationale for this power is the need for a court to be able to vindicate its authority.16

12.1.2 Inferior courts of record

Copyright © 2015. Oxford University Press. All rights reserved.

An inferior court of record has no inherent jurisdiction to punish contempt of court (except for contempt in the face of the court).17 A state or territory Supreme Court has a supervisory

6 As to sub judice contempt, see 12.2. 7 R v Almon (1765) Wilm 243 at 265; (1765) 97 ER 94 at 103 per Wilmot J; In Re Johnson (1887) 20 QBD 68 at 72 per Lord Esher MR. 8 R v Castro; Skipworth’s Case (1873) LR 9 QB 230 at 232 per Blackburn J; In Re Johnson (1887) 20 QBD 68 at 72–73 per Lord Esher MR; McLeod v St Aubyn [1899] AC 549 at 561, PC; Attorney-General v Bailey (1917) 17 SR(NSW) 170 at 195 per Gordon J; Bell v Stewart (1920) 28 CLR 419 at 428 per Isaacs and Rich JJ. 9 As to the distinction between civil and criminal contempt, see 12.1.6. 10 As to the mode of contempt proceedings, see 12.1.8. 11 As to the penalties for contempt of court, see 12.6. 12 As to the relevance of intention for contempt of court, see 12.3.9. 13 McLeod v St Aubyn [1899] AC 549 at 561, PC; Attorney-General v Bailey (1917) 17 SR(NSW) 170 at 195 per Gordon J; R v Gray [1900] 2 QB 36 at 41 per Lord Russell of Killowen CJ. 14 R v Almon (1765) Wilm 243 at 254; (1765) 97 ER 94 at 99 per Wilmot J. 15 R v Lefroy (1873) LR 8 QB 134 at 138 per Mellor J; R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 254 per Dixon J. 16 R v Almon (1765) Wilm 243 at 254; (1765) 97 ER 94 at 99 per Wilmot J. 17 R v Lefroy (1873) LR 8 QB 134 at 137 per Cockburn CJ; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 332 per Samuels AP.

359

360

PART 4 Open Justice and Contempt

jurisdiction over inferior courts, such that it can punish contempts of inferior courts. This forms part of the inherent jurisdiction of a state or territory Supreme Court.18

12.1.3 Other tribunals and bodies Other tribunals and bodies may possess powers to punish contempt of their proceedings. If the tribunal or body is established under statute, it is appropriate to consider the legislation under which it is constituted. Frequently, such legislation will make specific provision for the tribunal’s or the body’s powers to punish for contempt. This occurs at federal, state and territory levels. There are numerous examples; those below are only a selection.19 For example, in relation to federal tribunals and bodies:

Administrative Appeals Tribunal Act 1975 (Cth) It is contempt of the Administrative Appeals Tribunal (‘AAT’): • to insult a tribunal member in the exercise of his or her powers (s 63(1)); • to interrupt proceedings of the AAT (s 63(2)); • to create a disturbance, or to participate in the creation or continuation of a disturbance, in the vicinity of a tribunal sitting (s 63(3), 63(4)); • to engage in conduct which would constitute contempt of a court of record (s 63(5)).

Copyright © 2015. Oxford University Press. All rights reserved.

Australian Securities and Investments Commission Act 2001 (Cth) It is contempt to engage in conduct which results in the obstruction or hindering of the performance or exercise of the functions or powers or which disrupts a hearing of the following bodies: • the Australian Securities and Investments Commission (s 66(1)); • the Takeovers Panel (s 200(1)); and • the Disciplinary Board (s 220(1)). In addition, the Takeovers Panel can refer a person to a court for punishment for contempt if the person: • fails to attend as a witness at a hearing when summoned; • refuses to take an oath or an affirmation at a hearing; • refuses to answer a question at a hearing; or • refuses to comply with a summons to produce a document or thing (s 219(6), 219(7)).

For example, in relation to state or territory tribunals or bodies:

18 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 360 per Dixon CJ, Fullagar, Kitto and Taylor JJ; Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887 at 905 per Hope JA; X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575; United Telecasters Sydney Pty Ltd v Hardy (1991) 23 NSWLR 323 at 333 per Samuels AP. 19 For further examples, see Industrial Registrar (NSW) v Uniting Church in Australia Property Trust (NSW) (2003) 131 IR 368 (contempt of Industrial Relations Commission of New South Wales).

CHAPTER 12 Contempt of Court

Queensland Civil and Administrative Tribunal Act 2009 (QLD) It is contempt of the Queensland Civil and Administrative Tribunal (‘QCAT’) for a person: • to insult an official sitting on the tribunal, attending a proceeding or entering or leaving the QCAT sitting (s 218(1)(a)); • to obstruct or assault a person attending a proceeding, compulsory conference, mediation or conciliation (s 218(1)(b)); • to obstruct or hinder a person complying with a decision or notice given by the QCAT (s 218(1)(c)); • unreasonably to interrupt a proceeding, compulsory conference, mediation or conciliation or otherwise misbehave (s 218(1)(d)); • to create, continue or participate in a disturbance in or near a place where the QCAT is sitting (s 218(1) (e)); or • to contravene an undertaking given to the QCAT (s 218(1)(f)).

Independent Commission Against Corruption Act 1988 (NSW)

Copyright © 2015. Oxford University Press. All rights reserved.

It is contempt of the Independent Commission Against Corruption (‘ICAC’) for a person: • to fail to attend as a witness when summoned to appear or to reappear (s 98(a), 98(aa)); • to refuse to produce a document or thing when summoned (s 98(b)); • to refuse to be sworn or to take an affirmation or to refuse to answer a question (s 98(c)); • to threaten wilfully or to insult the Commissioner, the Assistant Commissioner, an officer of ICAC, a legal practitioner appointed to assist ICAC or appearing before it or a witness or a person appearing before ICAC during a proceeding before ICAC (s 98(d)); or • to misbehave during the hearing or to interrupt or obstruct any proceeding before ICAC (s 98(e), 98(f)). The Commissioner must refer the alleged contemnor to the Supreme Court of New South Wales for punishment (s 99).

In the absence of any reference in the constituting legislation of a body’s power to deal with contempt, the issue falls to be determined by reference to analogy with a court. Not every body established under legislation will be found to be sufficiently analogous to a court to confer powers to deal with contempt.20 A useful example of how a court considers whether or not a body is one in respect of which contempt proceedings may be brought is  demonstrated by the New South Wales Court of Appeal’s decision in Civil Aviation Authority v Australian Broadcasting Corporation, which is relevantly extracted below.

Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540

[In mid-June 1993, a Piper Navajo aircraft owned and operated by Monarch Airlines Ltd crashed on approach to Young Airport in western New South Wales. Seven passengers were killed. In early November 1993, a coronial inquest into the crash was announced. The hearing was listed for early August 1994. In early 20 See, for example, X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 (proceeding before Investigating Committee established pursuant to the Medical Practitioners Act 1938 (NSW) s 27A, not one in respect of which power to deal with contempt could arise).

361

362

PART 4 Open Justice and Contempt

April 1994, the Australian Broadcasting Corporation’s Radio National network broadcast a report on its current affairs program, Background Briefing. The report took the crash as its starting-point for a wide-ranging analysis of issues relating to air safety, economic deregulation of the aviation industry and the proposed corporatisation of the Civil Aviation Authority. The contemptuous aspects of the broadcast were alleged to be the canvassing of the evidence of eyewitnesses and expert witnesses prior to the coronial inquest and the prejudgment of the outcome of the coronial inquest. As to the effect of a publication on actual or potential witnesses, see below at 12.3.5. As to prejudgment contempt, see below at 12.3.8. A preliminary issue arose as to whether the ABC’s conduct could amount to contempt of the coronial inquest.] KIRBY P (at 548):

Copyright © 2015. Oxford University Press. All rights reserved.

Contempt and the Coroner’s Court The Court heard argument concerning whether the Coroner’s Court is susceptible of a finding of contempt of the kind complained of in the present summons. No attempt was made by the opponent to re-argue Attorney-General v Mirror Newspapers Ltd. It was conceded that there could be contempt of a Coroner’s Court in certain circumstances. However, the opponent argued that, because of the diffuse and open ended findings of a coroner in a case such as the present, statements asserting the guilt of parties prior to the coronial proceedings, in other words going to the findings which the coroner might ultimately make, could not, of their nature, amount to a contempt punishable on a summons before the Court. An analogy was drawn by the opponent between a coronial inquest and a royal commission. A royal commission is typically protected against contempt in certain situations; but by specific legislation. A witness who declines to be sworn or who treats the commissioner with actual contempt is liable to be dealt with for contempt. However, the canvassing of the possible outcome of a royal commission would not ordinarily be contempt. The issue is discussed in R v Browne-Kerr [1990] VR 78 at 85. There, a publication suggesting that the royal commissioner carried out certain of his functions for improper reasons was considered a contempt. However, where the findings of an inquisitorial body are pre-judged, a conclusion that there has been a contempt in the pre-judgment is much more problematical. In the case of a royal commission, if such a ground of contempt were accepted by our law, very serious restrictions on the communication of public information typically in matters of acute public concern, would result. Those aspects of comment on a royal commission have not, until now, been taken to be covered by the law of contempt. However, a royal commission is not part of the judicial structure of the State. It is set up by statute which typically sets out its relevant powers and may also set out its terms of reference. The subject matters dealt with by royal commissions vary widely. Some investigate the activities of particular people or institutions. Others are concerned with general matters of public interest, such as corruption or drugs. Similarly, their aims and conclusions differ significantly. Some might result in charges being laid, or a trade union being dissolved. Others might result in recommendations being made for the reform of certain areas of the law. Coronial inquests and royal commissions are in this respect, distinct. The Coroner’s Court has a much clearer role in the judicial system. For the reasons set out in Attorney-General (NSW) v Mirror Newspapers, a coronial inquest is treated as part of the administration of justice. The coroner may come to a conclusion about the manner and cause of death and may make recommendations about criminal prosecutions. Although (549) these conclusions do not themselves involve the actual determination of blame for an accident, they are usually an important step in that process. As such, they could significantly affect the rights of people involved in the proceedings. Consequently, coronial inquests are protected in the same way as other proceedings in the ordinary courts. It does not follow that to apply the principles of contempt to the Coroner’s Court as they are to civil or criminal proceedings will necessarily result in those principles being applied to all inquisitorial bodies. The form and structure of the proceedings and their affinity to the general judicial system must first be assessed. However, if the statements made by the reporter in the present case fall within any of the established categories, they will, subject to the application of the relevant test, amount to a contempt punishable in these proceedings. I would therefore reject the opponent’s third objection to the proceedings.

CHAPTER 12 Contempt of Court

QUESTION 1 What factors are relevant to determining whether or not contempt can be committed in respect of the proceedings of a forum other than a court?

12.1.4 Standing to prosecute for contempt of court The Attorney-General has the right to bring before the court any matter which he or she thinks may amount to a contempt of court or which he or she considers should be brought before the court in the public interest.21 The court of its own motion (or, as it is expressed in some cases, ‘ex mero motu’) may deal with criminal contempts. The Director of Public Prosecutions may also prosecute some types of contempt. In addition, any person or entity with a personal stake or a sufficient interest in the outcome of a proceeding may also have standing to invoke the court’s jurisdiction to deal with contempt of court.22 Thus, in Civil Aviation Authority v Australian Broadcasting Corporation, the New South Wales Court of Appeal held that the Civil Aviation Authority had standing to prosecute the Australian Broadcasting Corporation for contempt of a coronial inquest, even though the CAA had no express power to do so under its constituting legislation, as it had sufficient interest in the outcome of the coronial inquest.23 There is no obligation on any party to prosecute for contempt of court.24 There remains a prosecutorial discretion as to whether or not to complain about contempt of court.

Copyright © 2015. Oxford University Press. All rights reserved.

12.1.5 Who may be liable for contempt? There are a range of persons and entities who may be held liable for contempt of court. In Harkianakis v Skalkos, Powell JA stated that ‘anyone who can be said to bear the real responsibility for the publication of the matter complained of, is liable to be dealt with for contempt’.25 In relation to a newspaper, this will mean prima facie the publisher and the editor.26 It might also extend to the reporter, the printer, a distributor or the directors of a media company.27 The printer of a newspaper, book or pamphlet may be held liable for contempt of court, even if he or she was unaware of the contemptuous material it contained.28 The stated rationale is that, even though the printer is pursuing a legitimate trade, he or she

21 Attorney-General v Times Newspapers Ltd [1974] AC 273 at 293 per Lord Reid; at 306 per Lord Morris of Borth-y-Gest. In some jurisdictions, there is also a statutory basis for this. See, for example, Criminal Procedure Act 1986 (NSW) Sch 3 cl 1 (Attorney-General and Solicitor-General). 22 X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 581 per Kirby P; United Telecasters Sydney Pty Ltd v Hardy (1991) 23 NSWLR 323 at 328 per Samuels AP; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 547 per Kirby P. 23 Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 545–47 per Kirby P. 24 Attorney-General v Times Newspapers Ltd [1974] AC 273 at 293–94 per Lord Reid. 25 Harkianakis v Skalkos (1997) 42 NSWLR 22 at 60. 26 Ibid at 60 per Powell JA. For examples of cases in which the publisher of a newspaper was held liable for contempt of court, see Ex parte McCay; Re Consolidated Press Ltd (1936) 36 SR(NSW) 592. For examples of cases in which the editor of a newspaper was held liable for contempt of court, see R v Gray [1900] 2 QB 36; R v Parke [1903] 2 KB 432. 27 Harkianakis v Skalkos (1997) 42 NSWLR 22 at 61 per Powell JA. 28 St James’s Evening Post Case; Roach v Garvan (1742) 2 Atk 469 at 472; (1742) 26 ER at 685 per Lord Hardwicke LC; Ex parte Jones (1806) 18 Ves Jun 237 at 239; (1806) 26 ER 283 at 284 per Lord Erskine LC.

363

364

PART 4 Open Justice and Contempt

intends to publish and, as such, he or she needs to exercise prudence and caution in that trade.29

12.1.6 Distinction between civil and criminal contempt There is a well-established distinction at common law between civil and criminal contempt. The rationale for the distinction is explained in the extract from the High Court of Australia’s judgment in Witham v Holloway,30 which is relevantly extracted below.

12.1.7 Standard of proof As there is a distinction drawn between civil and criminal contempt, an issue has arisen as to what standard of proof should apply in contempt proceedings. Should the civil standard of proof (ie the balance of probabilities) apply in relation to civil contempt, notwithstanding the fact that heavy sanctions, such as imprisonment or substantial fines, may be imposed? Should the criminal burden of proof (ie proof beyond a reasonable doubt) apply in all cases of contempt of court? Given the potential penalties, is there a principled basis for applying differential standards of proof, depending upon whether the impugned conduct is properly characterised as civil or criminal contempt? The leading High Court of Australia authority on this issue is Witham v Holloway,31 which is relevantly extracted below.

Witham v Holloway

Copyright © 2015. Oxford University Press. All rights reserved.

(1995) 183 CLR 525

[The respondent, John Holloway, was the New South Wales Commissioner for Consumer Affairs. Holloway brought proceedings against the appellant, John Witham, the operator of Cosmopolitan House Movers, in the Supreme Court of New South Wales, alleging contraventions of the Fair Trading Act 1987 (NSW). Powell J made an order requiring Witham to swear an affidavit disclosing the true state of his financial affairs. His Honour also made an asset preservation order (or ‘Mareva injunction’) against Witham, preventing Witham from reducing his assets within Australia below the value of $200,000. Lee J eventually found against Witham and ordered him to pay approximately $375,000 damages. Witham was unable to satisfy the judgment. Holloway brought contempt proceedings against Witham on the basis of the breaches of the two orders. At first instance, Hodgson J applied the civil standard of proof, being the balance of probabilities, but informed by Briginshaw v Briginshaw (1938) 60 CLR 336, which allows the degree of satisfaction required by the tribunal of fact to vary according to the seriousness of the facts alleged. Hodgson J found that Witham had acted at least recklessly in relation to the affidavit and that he had deliberately dealt with his assets so that their value fell below $200,000. Hodgson J found Witham guilty of contempt of court and sentenced him to one month’s imprisonment. An appeal to the New South Wales Court of Appeal was unanimously dismissed (Handley and Cripps JJA and Samuels AJA). Witham appealed to the High Court of Australia, submitting that the trial judge erred by failing to apply the criminal standard of proof, being proof beyond a reasonable doubt.] BRENNAN, DEANE, TOOHEY AND GAUDRON JJ (at 530): … In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an

29 St James’s Evening Post Case; Roach v Garvan (1742) 2 Atk 469 at 472; (1742) 26 ER at 685 per Lord Hardwicke LC; McLeod v St Aubyn [1899] AC 549 at 562, PC. 30 (1995) 183 CLR 525. 31 (1995) 183 CLR 525.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 12 Contempt of Court

undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious … (at 531) The distinction between civil and criminal contempt is longstanding. It is a distinction that has been recognised in this Court. However, it does seem that the term ‘civil contempt’ has not always been used with enthusiasm … … The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process … (at 532) The distinction between proceedings in the public interest and those that are coercive or remedial in the interest of the private individual is not, in our view, a satisfactory basis for the distinction usually made between civil and criminal contempt. Even allowing for those orders which, if breached, involve criminal contempt and for contumacious breach, the distinction does not support the general proposition that breach of an order in civil proceedings is a civil contempt. That is because there are some circumstances in which the breach simply cannot be remedied. That can be illustrated by reference to the orders in this case. The order that the appellant not deal with his assets in a way that reduced their value below $200,000 could not be remedied once his assets were reduced in such a way that he was in no position to raise that, or any lesser sum of money, to satisfy the judgment debt. And when the contempt proceedings were commenced, ie after judgment had been entered and the appellant’s total inability to satisfy the judgment ascertained, the purpose of the disclosure order could no longer be achieved. At best, the distinction between proceedings in the public interest and proceedings which are coercive or remedial in the interest of the private individual supports a separate category of civil contempt to the extent that it clearly appears that the proceedings are remedial or coercive in nature. If that approach were to be adopted, it would follow that the contempt alleged in this case should have been classified as criminal, not civil, with the consequence the criminal standard of proof should have been applied. However, in our view, there are fundamental problems even with that approach. One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to (533) secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court’s authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests. Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties. Moreover, there is considerable difficulty with the notion that, in some cases, the purpose or object of the proceedings is punitive and, in others, the purpose or object is remedial or coercive. It should at once be noted that the purpose of the proceedings is not the same as the purpose or object of the individual bringing the proceedings and it is well recognised that, notwithstanding that proceedings are brought by an individual to secure the benefit of an order or undertaking, a ‘penal or disciplinary jurisdiction’ may also be called into play. It has been held that the ‘penal or disciplinary’ jurisdiction may be exercised even when the parties have settled their differences and do not wish to proceed further … And as already indicated, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect. Indeed, if the person in breach refuses to remedy the position, as is not unknown, their only effect will be the vindication of judicial authority. Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings (534) alleging breach of an order or undertaking, it is

365

366

PART 4 Open Justice and Contempt

necessary to acknowledge, as it was in Mudginberri, that punitive and remedial objects are, in the words of Salmon LJ ‘inextricably intermixed’. Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as ‘punitive’ and others as ‘remedial or coercive’. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company’s failure to comply with an order or undertaking. The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt ‘must realistically be seen as criminal in nature’. The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise. McHUGH J (at 538):

Copyright © 2015. Oxford University Press. All rights reserved.

Criminal and civil contempt The phrase ‘contempt of court’ dates from at least the twelfth century. While it was not until the seventeenth century that the courts drew a distinction between civil and criminal contempts, the existence of the distinction has been firmly established since the middle of the last century. The distinction has been acknowledged or assumed in a number of decisions in this Court. Criminal contempts are acts or omissions that have a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings. Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts. Civil contempts, on the other hand, are concerned with failures to comply with judgments or orders of the courts. But civil and criminal contempt overlap. Thus, disobedience to the order of a court constitutes criminal contempt when the (539) disobedience is contumacious. Defiance of the court’s order renders criminal what would be otherwise civil contempt; Morgan (1965) 112 CLR 483 at 489. Where non-compliance with a judgment or order goes beyond mere breach and involves misconduct, civil contempt also has ‘a penal or disciplinary jurisdiction [that is] exercised by the court in the public interest’.

Rationales for the distinction The traditional rationale for the distinction between civil and criminal contempt has been that civil contempts affect only the parties to the proceedings while criminal contempts affect the community. Proceedings for civil contempt have been seen as essentially or, at all events primarily, coercive, brought to compel the contemnor to comply with an order or judgment of a court; proceedings for criminal contempt, on the other hand, have been seen as punitive and deterrent, brought to uphold the public interest in the efficient administration and continuing authority of the institutions of justice. Thus, the object of the action for civil contempt has been seen as the protection of the rights of the successful party while the object of the action for criminal contempt has been seen as the protection of the community. However, it is difficult to accept the claim that the disobedience of a court order is a matter that concerns only the parties to the action. An order by way of fine, committal or sequestration of property for disobeying a court order cannot be regarded as a matter that concerns only the parties to the action. The fine, committal or sequestration vindicates the authority of the court and deters other suitors from disobeying the orders of the courts. Whether the object of particular civil proceedings is coercive, remedial or purely punitive, an order fining or imprisoning the contemnor or sequestrating the property of that person serves the public

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 12 Contempt of Court

interest in maintaining the authority of the courts of justice. Indeed, courts and commentators recognise that the objectives of proceedings for civil and criminal contempt overlap. In Jennison v Baker, Salmon LJ pointed out that a defendant who breaches a curial order ‘is sent to prison for contempt with the object of vindicating (a) the rights of plaintiffs (especially the plaintiff in the action) and (b) the authority of the court’. His Lordship said that these two objects are ‘inextricably intermixed’. Whether or not the parties/public interest rationales are justifiable, (540) they have resulted in many differences of procedures between civil and criminal contempt. To take but some examples: civil contempt proceedings could only be initiated by a party to the order but proceedings for criminal contempt could be initiated by the Attorney-General, by the court of its own motion or any person with an interest in the subject matter of the proceedings; civil but not criminal contempt could be waived by the aggrieved party; the sovereign could pardon criminal but constitutionally could not pardon civil contempt; interrogatories are no longer administered to the alleged contemnor in criminal proceedings but they probably still can be administered in civil proceedings; imprisonment for criminal contempt was for a fixed term but imprisonment for civil contempt was usually for an indefinite term from which the contemnor was released ex debito justitiae on complying with the court’s order. Further, where criminal contempt was found, the court had power to imprison or fine the defendant. Where a civil contempt was found, the court had power to imprison but until recently the accepted view was that the court had no power to fine for (541) civil contempt. Finally, until comparatively recently, the accepted view was that criminal contempt had to be proved beyond reasonable doubt while civil contempt was provable on the balance of probabilities. All these differences in procedure were seen as the natural, if not logical, consequence of the distinction between an action which concerned only the parties to civil proceedings and an action that concerned the general community. But in recent times these distinctions in procedure have begun to break down. Indeed, in Home Office v Harman, Lord Scarman said that ‘[t]he distinction between “civil” and “criminal” contempt is no longer of much importance’ … (at 542) … In proceedings for civil contempt, courts had long exercised the power to impose a fixed sentence by way of punishment for breach of an order, judgment or undertaking although the power was exercisable only in cases of wilful disobedience, a standard that falls short of the requirement in criminal contempt of contumacy or defiance on the part of the person in breach. But once it is accepted that the courts do have the power in some circumstances to imprison or fine by way of punishment for civil contempt, it is difficult to maintain that civil proceedings for contempt are essentially coercive or remedial in nature and that they have a different rationale from proceedings for criminal contempt. If compliance with an order, judgment or undertaking is no longer possible or if, after breach, the order, judgment or undertaking has been complied with, the imposition of a term of imprisonment or a fine in proceedings for civil contempt is purely punitive … (at 543) Acceptance of the view that the courts have power in civil proceedings to impose once-for-all fines and fixed terms of imprisonment by way of punishment also makes it extremely difficult to justify any distinction in the standard of proof applicable in civil and criminal contempt proceedings where the object of the civil proceedings is purely punitive. If commitment for criminal contempt for contumaciously disobeying a court’s order requires proof beyond reasonable doubt, as it undoubtedly does, why should a lower standard be required in civil proceedings when the object of the committal is not to remedy the breach of the order but to punish the contemnor for the breach? In both cases, the issues are essentially the same. Indeed, since in civil proceedings a person can be committed to prison by way of punishment for breach upon proof of wilful disobedience rather than upon proof of contumacy, the case for requiring proof beyond reasonable doubt in those proceedings is stronger than in criminal proceedings. (at 545) It is impossible to justify the continued application of the civil standard of proof in proceedings for contempt where the object of the proceedings is punitive and not remedial. It is contrary to one of the most fundamental rules of our legal system to commit a person to prison by way of punishment for breach of a curial order when the breach is only proved according to the civil standard. The consistent application of this basic principle requires that civil contempt proceedings brought to punish the contemnor must be proved according to the criminal standard. The requirement is probably greater than ever now that the power to fine for civil contempt has been authoritatively established. It is likely that courts will frequently punish by

367

368

PART 4 Open Justice and Contempt

way of fine in situations where previously they were reluctant to imprison contemnors. However, I think that in proceedings for civil contempt it is necessary to go further than to merely apply the criminal standard of proof to cases where the object of the proceedings is purely punitive. Australian courts should follow the approach of the English and Canadian courts and require that all contempts be proved according to the criminal standard of proof.

QUESTIONS 1 2 3 4

What are the reasons for drawing a distinction between civil and criminal contempt? What relevance, if any, does the distinction between civil and criminal contempt have in practice today? Should the distinction between civil and criminal contempt be abolished? What are the reasons for applying the criminal standard of proof (ie proof beyond a reasonable doubt) in all cases of contempt of court?

12.1.8 Mode of contempt proceedings Contempt of court is an unusual criminal offence, in that it is tried summarily, not before a jury, yet may result in significant penalties, such as fines and imprisonment. Since the opinion of Wilmot J in R v Almon in the mid-eighteenth century, all proceedings for contempt of court may be dealt with summarily, rather than being tried before a jury.32 Prior to this time, it was argued in R v Almon that a distinction had been drawn between different types of contempt of court. Wilmot J suggested that there was no proper basis in precedent to require different types of contempt to be dealt with by different procedures.

Copyright © 2015. Oxford University Press. All rights reserved.

12.2 Sub judice contempt The type of contempt of court which has the most significant impact on the media is sub judice contempt. The term ‘sub judice’ means ‘before a court’ or ‘before a judge’. In order for liability for contempt of court to arise, the matter needs to be sub judice. Sub judice contempt depends upon the tendency of the publication to interfere with the administration of justice in a particular proceeding. It does not require that the publication actually interfere with the administration of justice in a particular proceeding.33 The seminal authority on sub judice contempt is the judgment of Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd. Jordan CJ’s judgment has been endorsed by the House of Lords34 and the High Court of Australia.35

Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR(NSW) 242

[The applicant, Bread Manufacturers Ltd, was the association of master bakers, responsible, inter alia, for the regulation and control of the manufacture, sale and pricing of bread in New South Wales.

32 See also R v Castro; Skipworth’s Case (1873) LR 9 QB 230 at 233 per Blackburn J. 33 R v Tibbits [1902] 1 KB 77 at 88 per Lord Alverstone CJ. 34 Attorney-General v Times Newspapers Ltd [1974] AC 273 at 296 per Lord Reid (‘I know of no better statement of the law …’). 35 See, for example, Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 18 per Mason CJ (‘[t]he foundation of the modern law of contempt’).

CHAPTER 12 Contempt of Court

Copyright © 2015. Oxford University Press. All rights reserved.

From mid-February 1936 onwards, the Truth newspaper published a series of articles about collusive and anti-competitive conduct in the baking industry. Some, but not all, of the articles directly named Bread Manufacturers. In mid-September 1936, a bread carter named Lockard commenced proceedings for defamation and conspiracy against Bread Manufacturers in the Supreme Court of New South Wales. The matter was listed to be heard in the jury sittings in March and April 1937. During that time, two articles were published in the Truth newspaper about the baking industry but neither mentioned the pending litigation. Indeed, the editor and the journalist responsible for the articles both swore affidavits that they were unaware of the existence of this litigation. Bread Manufacturers applied to have Truth and Sportsman Ltd and the editor of the Truth newspaper, ME Gallard, punished for contempt of court.] JORDAN CJ (at 248): It is convenient in the first instance to consider the general principles which are applicable in such a case as the present. It is a well established general rule that any publication which has a tendency to interfere with the administration of justice by preventing the fair trial of any proceeding in a Court of justice is a contempt of court, and that if it is shown beyond a reasonable doubt that such interference was either intended or likely, this Court will exercise its jurisdiction to punish summarily the criminal offence which is constituted by the contempt: Bell v Stewart. When intention is established to interfere with the proper administration of justice by means of a publication which had a tendency to produce that result, a clear case of contempt is made out, calling for sharp punishment. Where the particular form of contempt complained of is the publication of matter which in fact has a tendency to prevent a fair trial by prejudicing the parties to litigation in a Court of justice in conducting that litigation, if intention to cause such prejudice is established a serious case of contempt is at once made out, whether the publication refers to the subject matter of the litigation, or takes the form of mere general denigration of the party in question: Higgins v Richards; Ex parte Meyerson; Re Packer and Smith’s Weekly Publishing Co. But if no such intention is established, the rule that the publication of matter tending, or even likely, to prejudice a party in conducting litigation constitutes a contempt of Court is not invariable. It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at that time to be a litigant. [In separate reasons for judgment, Bavin J agreed with Jordan CJ. Davidson J also agreed with Jordan CJ.] Motion dismissed.

QUESTION 1 What are the competing public interests involved in a proceeding for contempt of court? How might a balance between those competing public interests be struck?

12.2.1 When is a matter sub judice? Although, as Wills J evocatively observed in R v Parke, ‘[i]t is possible very effectually to poison the fountain of justice before it begins to flow’, liability for contempt of court only arises once a matter is before the court. Antecedent prejudice does not give rise to liability for contempt of court. The principles relating to when a matter is sub judice are discussed in the High Court of Australia’s decision in James v Robinson,36 which is relevantly extracted 36 (1963) 109 CLR 593.

369

370

PART 4 Open Justice and Contempt

below. It emerges from James v Robinson that a matter becomes sub judice following arrest and charge. It remains sub judice when a jury returns a verdict on some charges but continues to deliberate on others.37 It remains sub judice between the jury verdict or a guilty plea and the eventual sentence being passed.38 It is also clear that a matter remains sub judice while on appeal39 and while in the process of negotiations towards a settlement.40

James v Robinson (1963) 109 CLR 593

[On 9 February 1963, the respondent, Brian Robinson, allegedly shot and killed two people in a public place in Perth. Robinson fled the scene. A police manhunt then ensued. The following day, The Sunday Times newspaper published articles about the killings under the headlines ‘TWO MURDERED BY GUNMAN AT BELMONT’ and ‘2 MURDERED’. On 12 February 1963, Robinson was arrested in a pine plantation near Perth and was later charged. Robinson applied to have the publisher of The Sunday Times, Western Press Ltd, as well as the newspaper’s editor, Murray James, and its printer, Lionel Toop, punished for contempt of court in respect of these articles on the ground that they had the tendency to interfere with his right to a fair trial. The Full Court of the Supreme Court of Western Australia (Jackson SPJ, Virtue and Negus JJ) found Western Press, James and Toop guilty of contempt of court. It fined Western Press £1,000 and James £100 but declined to impose a penalty upon Toop. Western Press, James and Toop appealed to the High Court of Australia.]

Copyright © 2015. Oxford University Press. All rights reserved.

KITTO, TAYLOR, MENZIES AND OWEN JJ (at 602): … Interference with the due administration of justice is of the essence of all contempts of court but, where the contempt consists of interference with the administration of justice generally different considerations apply from those which apply in a case where what has been said or done has only a tendency to interfere with the fair trial of a particular case. Scandalizing the court is typical of the former species … It is only with the narrower kind of contempt that we are concerned here … And since the gravamen of the offence of contempt by means of such publications is prejudice to the fair trial of issues between ‘parties in causes’ (to use Lord Hardwicke’s expression in the St James Evening Post Case it has been said in innumerable cases that there is no contempt unless proceedings are pending … (at 606): The proposition that proceedings are pending in criminal cases after a person has been arrested and charged is firmly established, and it has been extended to cases where the publication took place after the accused had been arrested in England on a Scottish warrant (presumably backed in England pursuant to the Indictable Offences Act, 1848 ) and before his return to Scotland (Stirling v Associated Newspapers Ltd) and where the publication took place after the accused had been arrested abroad under the Fugitive Offenders Act, 1881 and extradition proceedings were pending (R v Clarke; Ex parte Crippen ); but we have been unable to find any further extension of the principle. Nevertheless it is contended that a publication calculated to prejudice future proceedings will constitute contempt provided the proceedings are imminent … One cannot fail to be impressed by the observation that ‘it is possible very effectually to poison the fountain of justice before it begins to flow’ and by the considerations which follow it; but it was made by Wills J obiter in R v Parke; and it may be that in R v Davies, that learned Judge himself seemed to see a need to qualify it, for when in specific reference to the decision in R v Parke he spoke (607) of the tendency to poison the stream of justice he added ‘in the Court’, meaning the Court which ultimately tries the case after committal. No doubt in choosing the metaphor his Lordship had in mind the language of Lord Hardwicke’s judgment in the St James Evening Post Case; and Lord Hardwicke there made it clear that he was referring only to the stream of justice between parties ‘concerned in causes here’. As Lord Erskine pointed out in Ex parte Jones, Lord Hardwicke ‘considered persons concerned in the business of the Court as being under the protection of the Court;

37 38 39 40

Attorney-General v Associated Newspapers Ltd [2012] EWHC 2029 (Admin). Attorney-General (NZ) v Tonks [1939] NZLR 533; R v Herald & Weekly Times Pty Ltd [2006] VSC 94. Attorney-General v Bailey (1917) 17 SR(NSW) 170 at 197 per Gordon J. Attorney-General v Times Newspapers Ltd [1974] AC 273 at 301 per Lord Reid.

CHAPTER 12 Contempt of Court

and not to be driven to other remedies against libels upon them in that respect’. Here, we think, is to be seen the ultimate reason why the kind of contempt we are here considering cannot occur save where some proceedings have been commenced. If a publication is to constitute contempt at all it must be a contempt at the time it is made, and the person aggrieved must be aggrieved in his capacity of a party to proceedings; therefore he must be a party at that time. It would be an astonishing state of affairs if a person responsible for a publication were to be held guilty or not guilty of contempt according as proceedings should or should not be commenced thereafter. We do not think that the very general considerations based upon the notion of poisoning the stream of justice before it begins to flow provide any sound or adequate test for determining what is and what is not contempt of court. A publication antecedently to the commencement of proceedings may, as we have already said, constitute a libel or offence punishable under and in accordance with the general law, but it is not contempt of court. We think that in order to constitute contempt of court it must, for the reasons which we have indicated, be concerned with proceedings which are pending in a court in the sense in which that expression has been applied in the cases to which we have referred. Indeed, if the imminence of proceedings were to be regarded as sufficient foundation for applications for attachment for contempt in matters of this character—which would, of course, introduce many difficulties and much uncertainty—then there was no reason why the courts should have taken the trouble, as they have done in the many cases mentioned, to examine the significance of the laying of an information or the making of a charge and subsequent arrest. The present case is unusual, inasmuch as it seems that the alleged crimes were committed in public places with attendant publicity (608) and the respondent was pursued by a large body of police officers with a view to his apprehension. Nevertheless, these circumstances provide no foundation for a departure from the rule that publications of the character in question here are not contempts punishable summarily in the Supreme Court unless at the time when the publications are made a Court is in some way or other seised of the subjectmatter and the Supreme Court is thereby vested with a power to protect its authority, or the authority of the court concerned, to determine the relevant proceedings without obstruction or interference. That being so we are of the opinion that the appeal should be allowed.

QUESTION

Copyright © 2015. Oxford University Press. All rights reserved.

1 How might the requirement that a matter be sub judice, in the way defined in James v Robinson, have an effect on the media’s reporting of crime? Has an appropriate balance been struck between freedom of expression and the protection of the integrity of the administration of justice?

12.3 Types of conduct amounting to sub judice contempt 12.3.1 Statements of guilt and innocence

Ordinarily, a public statement of the guilt of an accused person may amount to a contempt of court. Particularly where a matter is to be tried before a jury, a public statement of the guilt of an accused person could influence a jury and potentially prejudice the accused person’s right to a fair trial. A public statement of the innocence of an accused person can equally amount to a contempt of court as a public statement of guilt.41 An accused person and his or her supporters may legitimately appeal to the public for support in providing an effective defence.42 A leading case on this issue is the New South Wales Court of Appeal’s decision in Director of Public Prosecutions v Wran, which is relevantly extracted below.

41 R v Castro; Onslow’s and Whalley’s Case (1873) LR 9 QB 219 at 225 per Cockburn CJ. 42 Ibid.

371

372

PART 4 Open Justice and Contempt

Director of Public Prosecutions v Wran (1987) 7 NSWLR 616

[The facts emerge sufficiently from the extract below.] STREET CJ, HOPE, GLASS, SAMUELS AND PRIESTLEY JJA (at 618): The Director of Public Prosecutions appointed pursuant to the Director of Public Prosecutions Act 1983 (Cth) (the DPP) instituted the present proceedings by way of summons charging Mr Neville Kenneth Wran and Nationwide News Pty Ltd with contempt of court. In each case the contempt was alleged to have concerned a new trial which had been ordered in respect of a charge against Mr Justice Murphy. The contempt by Mr Wran was alleged to have taken place on 28 November 1985 and to have been constituted by statements made by Mr Wran to some media representatives. The contempt by Nationwide News Pty Ltd was alleged to have taken place on 29 November 1985 and to have been contained in a news item published in the daily newspaper the Daily Telegraph on that day. …

(at 626): 7. Publication of statements as to innocence: In practice most charges of this kind of contempt concern publications which are prejudicial to the accused in that they assert or suggest his guilt, or concern defences which he might raise. However it is long established that statements as to innocence can equally fall within the scope of the concept: R (627) v Castro, Onslow’s & Whalley’s Case (1873) LR 9 QB 219. It may be that in some circumstances statements as to innocence are permissible. Thus a public claim of innocence by a person in respect of whom a new trial has been ordered would not generally constitute contempt, but there are undoubtedly limits to how far an accused person can press his innocence publicly. There are no circumstances in the present case which would take the statements of Mr Wran outside the concept of contempt because it concerned innocence if otherwise they would fall within it. In particular, the matter on which Mr Wran placed some significance, namely, that he spoke not of the innocence of Mr Justice Murphy but of his ‘very deep conviction’ that Mr Justice Murphy was innocent of any wrongdoing is not a relevant distinction.

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTION 1 Why might statements of innocence amount to sub judice contempt?

12.3.2 Disclosure of an accused person’s previous convictions In Maxwell v Director of Public Prosecutions,43 Viscount Sankey LC famously described the common law’s prohibition on a jury in a criminal trial from knowing of an accused person’s previous convictions or criminal conduct as ‘one of the most deeply rooted and jealously guarded principles of our criminal law’.44 As such, it is generally a contempt of court to disclose the prior convictions of an accused person. Examples of this type of contempt of court are provided by the New South Wales Court of Appeal’s decision in Attorney-General (NSW) v Willesee45 and the High Court of Australia’s decision in Hinch v Attorney-General (Vic),46 which are relevantly extracted below.

43 44 45 46

[1935] AC 309. Maxwell v Director of Public Prosecutions [1935] AC 309 at 317 per Viscount Sankey LC. [1980] 2 NSWLR 143. (1987) 164 CLR 15.

CHAPTER 12 Contempt of Court

Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143

Copyright © 2015. Oxford University Press. All rights reserved.

[In mid-August 1979, Peter Schneidas was charged with the murder of prison warder, John Mewburn. The killing of Mewburn led to a strike of prison warders, during which prisoners were confined to their cells. Dissatisfied with their treatment, the prisoners shouted obscenities which were audible in the neighbourhood. The Willesee at Seven current affairs program became interested in this story. Using long-range equipment, the program’s host, Mike Willesee, interviewed a prisoner about the effect of the warders’ strike and the lockdown. In the course of the interview, the prisoner stated that Schneidas had previously assaulted two prison officers. Other potentially prejudicial materials in the interview had been edited out prior to broadcast. However, this statement was retained. The Attorney-General brought contempt proceedings against Willesee, as well as his private production company, Trans Media Productions Pty Ltd, and the licensee of the television station on which the story was broadcast, Amalgamated Television Services Pty Ltd.] MOFFITT P: (at 149): [11] It was argued, first, that the prisoner’s remarks, including the reference to the prior crimes of the man charged were relevant to the discussion of a matter of great public interest. It was argued it was sufficient that they be relevant. Alternatively, it was argued that in the present case it was necessary to refer to such prior crimes in order to present the prisoner’s viewpoint and for it to be properly understood. It was submitted there were in competition two matters of public interest, one being that it was against the public interest that matter calculated to and having a tendency to prejudice the fair trial of Schneidas should be published, and the other that there should be free discussion and publication of matters of public interest. Reliance in particular was placed upon various passages in Attorney-General v Times Newspapers Ltd; John Fairfax & Sons Pty Ltd v McRae and Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd. It was argued that, if the matter tending to prejudice the fair trial of the criminal proceedings was relevant to (or, alternatively, if it was a necessary part of) the discussion, or effective discussion, of the matter of public interest, reference to it was ‘fortuitous’ in the sense used in the last two authorities and, accordingly, did not constitute contempt. [12] It is beyond question that the law of contempt, in its operation, accepts some compromise between that which arguably has a tendency to prejudice the fair trial of particular proceedings, and that which will, at the same time, tend to interfere with the public interest in some other respect. The public interest in the due administration of law has, at times, to be balanced with other matters of public interest, and with private rights. The decisions in Packer v Peacock; Davis v Baillie and James v Robinson make this clear. In striking the balance, somewhat different considerations are involved where it is the due administration of the criminal law which is in competition with some other matter of public interest. In this area it is more profitable to consider the seriousness with which the criminal law regards the particular matter of prejudice, and the authorities which have dealt with contempt in relation to the administration of criminal law, than it is to go to authority in relation to stop writs, or prejudice in relation to pending civil litigation and, eminent though it may be, authority such as Attorney-General v Times Newspapers Ltd. [13] It is one of the most ‘deeply rooted and jealously guarded principles of (the) criminal law’ that evidence of prior convictions or crimes shall not be admissible on the trial of a person’s guilt: Maxwell v Director of Public Prosecutions. If any additional authority is needed to establish the hallowed place in the common law which this rule occupies, reference can be made to Makin v Attorney-General (NSW); Burrows v The King and Attwood v The Queen. Even if a jury should come accidentally to know that a man accused has past convictions, this is usually regarded as so calculated to cause persisting prejudice as to invalidate the trial thereafter: R v Firth; R v Knape. Even where judges or magistrates have to try an issue of guilt, it has, at times, been considered that procedures should be avoided where a record of prior convictions is seen before a decision upon guilt is made. (150) [14] The popular view of the correlation between persons guilty of committing present crimes and those who have committed earlier crimes, leads to the popular and deeply rooted belief that it is more

373

Copyright © 2015. Oxford University Press. All rights reserved.

374

PART 4 Open Justice and Contempt

likely that an accused person committed the crime charged, if he has a criminal record, and less likely if he has no record. Under the general law, however, the existence of a prior record was regarded as irrelevant in Stewart v The King; but in Attwood v The Queen, the court (consisting of Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ) considered the ground of exclusion not to be relevance, but ‘policy deeply rooted in principle’ and quoted with apparent approval the words of Willes J in R v Rowton: ‘The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety-nine.’ In a practical sense the problem is accentuated because juries are told in appropriate cases: Crimes Act, s 412, and see MacDonald v The King, that good character, and hence absence of prior convictions, should be considered on the question of guilt. Thus, it must be accepted that the law of this country, in its wisdom, recognizing the danger of a person being convicted not on the facts of the case but on his past record, not only rigorously excludes this material from the jury, but in its procedures recognizes the insuperable prejudice which arises from its admission. It regulates its procedures in an endeavour to ensure that an accused person will only be convicted by a jury unaware of past convictions. In Maxwell’s case Viscount Sankey LC considered that to allow a person charged to be asked about ‘any previous conviction’ would have the result ‘that an old offender would seldom, if ever, have been acquitted’. [15] It follows from the foregoing that, after a person has been charged and before he has been tried, to publish his past convictions to a group of persons who may reasonably include jurors, is calculated to cause prejudice to his fair trial according to law, the prejudice being of the class regarded by the law as incapable of removal. As compared with revelation of prior convictions at the trial, a revelation by the news media prior to the trial is such that it will never be known whether the seeds of prejudice reach, and are remembered by, a person who becomes a juror. The publication gives rise to the unsatisfactory situation that it will never be known whether the trial has, or has not, been fair, a situation the law ought not to, and in my view does not, tolerate. The greater the public interest in the matter broadcast, and the more relevant thereto the reference to the prior convictions, the more likely will the attention of persons rest and remain upon the prior convictions. For this reason, to blame, expressly or impliedly, some authority or person for not foreseeing and in consequence for not taking, some preventative or precautionary action, on the basis that the man had committed crimes in the past, can only serve to highlight for potential jurors the matter which the law forbids them to know. Far from providing an excuse, such a broadcast, especially where there has been great earlier publicity given to the crime, aggravates the tendency to interfere with the administration of justice in the fundamental way already stated. Where the broadcast is to a wide audience, and in an arresting form, using a medium which attracts verbal and visual attention, as in the case of the telecast programme here under consideration, the chance that the prohibited matter will come to and be (151) remembered by potential jurors is enhanced. As in other fields, the greater the change of damage (in this case prejudice) the greater the responsibility of those in control (in this case of the publication). [16] There is no authority that to broadcast to the public by newspaper, radio or television that a man has prior convictions, or has committed past crimes, after he has been charged ceases to be contempt because it is published in the course of some legitimate discussion upon a matter of public interest. The remarks of Jordan CJ in Ex parte Bread Manufacturers were made in a case where the pending litigation was civil litigation, as was the case in Attorney-General v Times Newspapers Ltd. What Jordan CJ said referred in terms to litigants, which must be taken to mean litigants in civil proceedings. Thus he said, in a passage much relied on before us by the opponents: ‘The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.’ [17] It was argued before us that the reference in the telecast to the prior crimes of the man charged was incidental to the continuation of the discussion of a matter of public interest which had commenced prior to the man being charged. For reasons which earlier appear, I do not think the facts of the present case can be forced into the literal terms of what Jordan CJ said. Whatever its relevance to the reference to the past crimes of the man charged, the subject matter was the strike which arose after and by reason of the killing, the subject of the charge.

CHAPTER 12 Contempt of Court

Copyright © 2015. Oxford University Press. All rights reserved.

[18] However, the submission warrants a more important and general reply. In my view, the quoted words of Jordan CJ were not intended to encompass, and in any event should not be applied in terms to, all matters likely to prejudice a person about to stand trial upon a criminal charge. The priorities in respect of the rights of litigants in a civil trial must be quite different from those where there is involved the right of a person to a fair trial upon a criminal charge. The right to a fair trial upon a criminal charge is so fundamental to our system of law that in any priorities it must be regarded as entitled to a primary place. Even in relation to a criminal trial there has been some compromise recognized by authority in favour of competing public interest to know the facts, but this compromise has been given effect to in a somewhat limited way. This is done, not by preferring the competing interest to the prejudice to the trial, but by ruling out contempt on the ground of the remoteness of what is said to the trial or any prejudice to it. In such cases the boundaries of what is permitted and what is forbidden are somewhat precisely drawn, with the satisfactory result that publishers can readily be aware in relation to a pending criminal trial what publications will constitute contempt. (at 152): … I think the conclusion can, and should be, arrived at that to publish on radio, television or in a newspaper that a man, then charged with a criminal offence, has past convictions, or has committed past crimes, or to detail them, has a tendency to prejudice the fair trial of the man charged. I find it difficult to envisage a case where such a publication would not be contempt of court, but certainly it is contempt in any case remotely resembling the present. To decide otherwise, would be to relegate to a secondary place, where it has never been placed by any authority, a fundamental principle of the general law, long accepted as basic and necessary to secure the fair trial of a person. [22] It is well that, at least on this point, the law of contempt can be clearly stated. It is well that this is so where sometimes quick decisions have to be made. If that which is forbidden is known, then, with modern devices of delay, even in ‘live’ programmes, prejudice from this class of conduct constituting contempt of court can be avoided. It might be otherwise, if value judgments requiring a decision upon conflicting interests had to be made. I can see no great difficulty in the law being absolute, clear and definite on this point. Ordinarily, the news items or subject matter will be able to be sufficiently dealt with, if the offending (153) matter is deleted. This is so in the present case. Another matter considered prejudicial was deleted. The substance of the prisoner’s message could still have been conveyed with the deletion of the reference to the past crimes. That deletion may make the story a little less interesting, or the argument a little less effective, cannot stand against the prejudice of the fair trial of the man charged. If it is desired to refer to a man’s past crimes in order to criticize some authority for not preventing a present crime, and this post-mortem type of analysis cannot be done without prejudice to a pending trial, then it must be done other than in the public media, or it must be deferred until after the trial like any other matter having a tendency to prejudice the fair trial of the man.

Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15

[In mid-November 1985, Father Michael Glennon, the governing director of the Peaceful Hand Youth Foundation, was charged with a number of counts of indecent assault and buggery against minors. The following day, controversial radio journalist, Derryn Hinch, disclosed that Glennon had previously been charged with rape; that he had pleaded guilty to indecent assault of a sixteen-year-old girl and had been jailed for two years; and that he had been acquitted of raping a twelve-year-old boy. Hinch made another broadcast in similar terms two days later. In mid-February 1986, the Attorney-General for the State of Victoria brought proceedings for contempt of court against Hinch. When Glennon was charged with further sexual offences in early March 1986, Hinch made another broadcast raising similar facts. The Attorney-General instituted a second proceeding for contempt of court against Hinch. At first instance, Murphy J fined Hinch $25,000 and sentenced him to 42 days’ imprisonment. By majority (Young CJ and Kaye J, Nicholson J dissenting), the Full Court of the Supreme Court of Victoria reduced the fine to $15,000 and the sentence to 28 days’ imprisonment. Hinch appealed to the High Court of Australia.]

375

Copyright © 2015. Oxford University Press. All rights reserved.

376

PART 4 Open Justice and Contempt

MASON CJ (at 26): The question whether a person, like Fr Glennon, against whom charges of child molestation are pending, should be permitted to retain a responsible position in charge of children is a matter of high public importance. Yet its importance is not so fundamental and paramount as to entail a disregard of the essentials of a fair trial. No doubt Fr Glennon’s prior convictions for similar offences reinforced the case for suspending him from his office with the Foundation and made his continuation in office the more reprehensible. But the public interest in free discussion and in alerting the community to the risk inherent in that continuation does not warrant a desertion (27) of the public interest in securing a fair trial for Fr Glennon. The public interest in free discussion and in alerting the community to the risk does not require disclosure of prior convictions with the prejudice that it is likely to cause to a fair trial. Where the topic of public discussion is removed from, or far more comprehensive in its reach than, the subject-matter of the litigation, the risk of prejudice to the litigation arising from the publication is generally slight. Reference to the litigation which is merely incidental to the discussion is unlikely to occasion a substantial risk of prejudice. But where the topic of public discussion is closely related to the subject-matter of the litigation the risk of prejudice may very well be substantial. Take, for example, public discussion or denunciation of incompetence and manipulation by the police in their investigation of a serious crime. Ventilation of the alleged abuse which was incidental, though central, to the discussion might entail detailed references to the evidence in advance of the trial of an accused person. This might occasion very serious prejudice to the Crown or to the accused. Obviously, a balance between free press and fair trial would require that the public discussion be suspended until completion of the trial. Where the public interest in the administration of justice does not yield to a superior public interest, the balancing approach should protect the administration of justice from any substantial risk of serious interference. The application of a test in this form would best reconcile the conflicting demands for a free press and for a fair trial: see BLF. In this formulation the adjective ‘serious’ is essentially emphatic, so that I would be prepared to accept the test of ‘real risk’ of interference stated by Gibbs CJ. To my way of thinking such a test balances more appropriately the competing considerations than a principle which speaks of a publication having a tendency to prejudice a fair trial (see McRae) or a publication which is calculated to prejudice a fair trial: Davis v Baillie. These tests are open to criticism on the ground that they may be uncertain and may tend to give too much weight to the protection of the administration of justice at the expense of freedom of discussion: see Australian Law Reform Commission, Discussion Paper No 26, Contempt and the Media (1986), pars 52 and 53; Report No 35, Contempt (1987), pars 288 et seq. So much was implicitly recognized in McRae where Dixon CJ, Fullagar, Kitto and Taylor JJ emphasized that the summary jurisdiction to punish (28) contempt should be exercised ‘only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case’. The emphasis on ‘as a matter of practical reality’ may well, and probably does, eliminate the objection. Similar comments might be applied to the test enunciated by Jordan CJ in Ex parte Auld; Re Consolidated Press Ltd, ‘a tendency to interfere substantially with a fair trial’. These formulae are synonymous or virtually synonymous with ‘substantial risk of serious interference’ with a fair trial. In assessing whether a particular publication presents a real risk of serious prejudice to a fair trial, ie, serious injustice, it is necessary to ascertain whether the references to the subject-matter of the litigation are central or merely incidental to the topic of public discussion. If the references to an issue in the litigation are central to the discussion the likelihood of prejudice or serious prejudice is all the stronger. If, however, the references to the litigation are merely incidental, in the majority of cases there is unlikely to be a real risk of prejudice to the litigation. Whether a particular publication amounts to a contempt in the sense just discussed depends upon a number of factors. They include the nature and the extent of the publication, the mode of trial (whether by judge or jury) and the time which will elapse between publication and trial. The significance of these matters has been examined in the decided cases so that they need no elaboration. However, I should mention some aspects which are relevant to the present appeals. The first is that the courts have always taken a serious view of any published disclosure of the prior conviction of a person accused of a criminal offence when proceedings for that offence are pending. This is because a prior conviction is not admissible evidence of a person’s guilt of the offence with which he is charged: Maxwell v Director of Public Prosecutions; Davis v Baillie;

CHAPTER 12 Contempt of Court

Attorney-General (NSW) v Willesee. Yet knowledge of a prior conviction is likely to prejudice a jury against an accused person and induce a jury to conclude that he had a propensity to commit the offence charged. For this reason the acquisition by a jury of knowledge of a prior conviction of the accused is usually regarded as causing such prejudice that the trial is invalidated thereafter: Willesee. In the present case Mr Hinch in each of his three broadcasts (29) made reference in a dramatic way to the fact that Fr Glennon had been convicted in 1978 of indecent assault for which he had received a prison sentence. The impact of this disclosure gained added force from the circumstances that in the broadcasts it was associated with the statement that Fr Glennon had been recently charged with the twelve current offences of child molestation, said to have been committed between 1975 and 1982. And in the first and third broadcasts there was the additional reference to the charges of rape in 1984 on which Fr Glennon was acquitted. The disclosure of the prior conviction was in this context strongly suggestive of Fr Glennon’s guilt of the current offences charged or some of them at least. The broadcasts expressed in colourful language were likely to evoke the response ‘where there is smoke, there is fire.’

12.3.3 Trial by judge sitting alone or trial by jury? Although the principles of contempt of court are the same, whether a matter potentially affected is civil or criminal and whether or not the matter is tried by a judge sitting alone or by a judge assisted by a jury, they may be applied somewhat differently, depending upon the mode of trial. Mason J in State of Victoria v Australian Building Construction Employees’ and Builders Labourers Federation (‘the BLF case’)47 has a useful analysis of this issue.

State of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation

Copyright © 2015. Oxford University Press. All rights reserved.

(1982) 152 CLR 25

[In August 1981, the Commonwealth and the State of Victoria appointed John Winneke QC (as his Honour then was) as the Royal Commissioner to investigate whether the Australian Building Construction Employees’ and Builders Labourers’ Federation (the BLF) should remain registered as an organisation under the Conciliation and Arbitration Act 1904 (Cth). The Winneke royal commission began sitting in mid-September 1981. In late September 1981, the Commonwealth, Victoria and Western Australia commenced proceedings in the Federal Court of Australia for the deregistration of the BLF. The BLF commenced proceedings in the Federal Court of Australia, challenging the constitutional validity of the royal commission and alleging that the royal commission constituted a contempt of the Federal Court. At first instance, Northrop J dismissed the application. On appeal, the Full Federal Court (Bowen CJ, Evatt and Deane JJ) allowed the appeal, ordering the royal commission to continue in private. The State of Victoria, the Commonwealth and Winneke appealed to the High Court of Australia.] MASON J (at 100): It may be, as Deane J says, that the continued public proceedings of the Commissions will prejudice or bias the public mind against the Federation. However, to me it seems that this prejudice, if it arises, will be of a general character and that it will not relate to specific questions arising in the s 143 proceedings. Indeed, having regard to the specific terms of reference of the Victorian Commission I find it difficult to see how the proceedings of that inquiry bear upon the particular issues which arise in the deregistration case. The issues under s 143 relate to the constitution, character and conduct of the Federation as a registered organization under the Act. Although the terms of reference of the Commonwealth Commission cover issues in the deregistration case, it has not been demonstrated how pursuit of the inquiry will create prejudice in relation to the specific issues which the Federal Court will be called upon to decide. It is one 47 (1982) 152 CLR 25.

377

378

PART 4 Open Justice and Contempt

thing to say that there is a risk that the inquiry will excite some prejudice against the Federation; it is quite another thing to say that this prejudice will relate to those specific issues and that there is a likelihood that it will affect the three judges who will constitute the Federal Court in their determination of those issues. It is no answer to this to claim that it is impossible to conclude at this early date how matters will fall out before the Commissioner. This only means that the material invites speculation rather than inference. It is not suggested that in this case prejudice in the public mind has importance except in so far as it produces, or is likely to produce, pressure on witnesses in court proceedings or pressure on the judges who constitute the court. Prejudice in the public mind is of special significance when the litigation is to be tried by a jury for then there is solid ground for the apprehension that the jurors will reflect the attitude of the public. Likewise, public prejudice may have special importance where it is suggested, as in Times Newspapers, that there is consequential pressure on a party to compromise or abandon his case. Are judges resistant to extraneous influence and prejudice? It (101) seems that judges are as divided in opinion about themselves as they sometimes are about the answer to a question of law. Some have vigorously repelled the suggestion that judges could succumb to extraneous prejudice or influence: I am and have always been satisfied that no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge

Copyright © 2015. Oxford University Press. All rights reserved.

said Lord Salmon in British Broadcasting Corporation. To the same effect is the judgment of Knox CJ, Gavan Duffy and Starke JJ in Bell v Stewart; Vine Products Ltd v Green, at p 496; Report of the Salmon Committee on The Law of Contempt as it Affects Tribunals of Inquiry (1969) Cmnd 4078, par 26. Other judges have freely confessed the frailty of their brethren, if not of themselves. Thus, Frankfurter J, speaking of the judge, said in Pennekamp v Florida, at p 1309, ‘He is a human being’, quoting Humphreys J in R v Davies; Ex parte DelbertEvans, at pp 442–443, and went on to say: ‘jurors are not the only people whose minds can be affected by prejudice’. See also the dissenting opinion of Frankfurter J in Craig v Harney. Perhaps the strongest expression of this view is to be found in the dissenting judgment of Isaacs and Rich JJ in Bell v Stewart on which Deane J relied. There is, too, the statement of Viscount Dilhorne in British Broadcasting Corporation, although it should be noted that his Lordship was careful to emphasize that the only relevant prejudice is that which is likely to affect a decision on the issue in court proceedings. And Frankfurter J in the two cases to which I have referred was not saying that the judge was as susceptible as the juror. He was making the point that the judge should not be embarrassed by the need to put out of his mind extraneous matter the effect of which is impossible to assess. This was the point made by the Phillimore Committee in its Report on Contempt of Court (1974) Cmnd 5794, par 49: It would, we think, be going much too far to say that professional judges are never influenced by what they may read or hear, but they are by their training and experience capable of putting extraneous matter out of their minds. A (102) judge, therefore, does not really need the law of contempt to protect him from prejudicial matter, although wholly unrestricted comment immediately before and during a hearing could be embarrassing, and might constrain him to demonstrate in some manner that he had not been influenced by it.

Obviously judges are more capable than jurors of putting aside prejudicial matter, including public prejudice. Objectivity and independence are the qualities which judges are expected to bring to judicial determination. I should have thought, along with Northrop J at first instance, that to say that there is a risk the judges of the Federal Court may succumb, even subconsciously, to pressures arising from public prejudice flowing from the proceedings of the Commission is somewhat fanciful. But it is submitted that three judges of the Federal Court have acknowledged that there is a risk of this occurring. In my view that is not what the Full Court of the Federal Court decided. All that Deane J said was that there would be a tendency ‘to create an adverse environment for the future and proper conduct of the proceedings’ and that they would be liable to bring, ‘subconsciously’, pressures on the judges. This, it seems to me, falls short of finding that there is a ‘likelihood’ or ‘substantial risk’ of serious prejudice to the Federation in a relevant sense. It is only natural that judges should prefer to decide cases in an atmosphere which is clinically free from prejudice. No one enjoys making a decision to which government or public is hostile or antagonistic. But the natural desire to avoid embarrassment of this kind is not enough to justify a restraint which

CHAPTER 12 Contempt of Court

deprives the public of knowledge of important matters which it has a legitimate interest in knowing. Nor is such a restraint to be justified on the footing that justice must not only be done, it must also appear to be done. It has never been suggested, and could not be rationally suggested, that judges are disqualified from hearing a case because there exists a bare possibility that they may share a generally held public prejudice. Industrial relations controversies do very frequently excite strong feelings and antagonisms. Despite this industrial tribunals continue to decide such cases without any exercise of the contempt power. Courts and judges would in general be well advised to pursue a similar course.

QUESTION 1 What are the reasons that contempt of court is more readily established when the proceeding which is likely to be prejudiced is conducted with a jury, rather than by a judge sitting alone? How convincing do you find these reasons?

12.3.4 Context The context of the publication is important. The tone of a publication is important. For instance, a facetious or an ironic tone can aggravate the prejudice.48

12.3.5 Effect of publication on actual or potential witnesses Contempt of court may also be committed where a publication in fact influences, or tends to influence, actual or potential witnesses to a proceeding. This type of contempt of court is demonstrated in the following extracts from Attorney-General (NSW) v Mirror Newspapers Ltd 49 and Civil Aviation Authority v Australian Broadcasting Corporation.50

Attorney-General (NSW) v Mirror Newspapers Ltd Copyright © 2015. Oxford University Press. All rights reserved.

[1980] 1 NSWLR 374

[In early June 1979, there was a fire in the Ghost Train at Luna Park in Sydney in which seven people were killed. A coronial inquest was held. At the hearing, one witness gave evidence suggesting the culpability of the ride attendant. At the time, the ride attendant had not been called as a witness. A reporter from The Daily Telegraph newspaper conducted a doorstop interview with the ride attendant, Steve Moody (aka Albert Bessell), which was published on the front page. The Attorney-General brought contempt proceedings against the newspaper’s publisher, Mirror Newspapers Ltd.] MOFFITT P, HOPE AND SAMUELS JJA (at 387): (36) The publication of the statements attributed to Mr Bessell are claimed to have the necessary tendency by reason of the effect it might have on the coroner, Mr Anderson, or on Mr Bessell in giving evidence, or upon the giving of evidence by other witnesses. While we think that the publication had a tendency to interfere with the course of justice because of its possible effect on the learned coroner, we think that that possibility was so remote or theoretical that the de minimis principle should be applied. However, the possible effect of the publication on Mr Bessell and other witnesses is another matter. (37) In Bell v Stewart, the High Court was concerned with a charge of wilful contempt of the Commonwealth Court of Conciliation and Arbitration. In dealing with the question whether the publication complained

48 Ex parte McCay; Re Consolidated Press Ltd (1936) 36 SR(NSW) 592 at 594 per Jordan CJ. 49 [1980] 1 NSWLR 374. 50 (1995) 39 NSWLR 540.

379

380

PART 4 Open Justice and Contempt

of constituted contempt, Isaacs and Rich JJ, in their joint judgment, said: ‘… we ask ourselves how can it be doubted that the article we are considering was technically a contempt—how can it be doubted that it had a “tendency” to weigh with the Judge and with witnesses who might be called to state their opinion on the subject. Witnesses for the employer might easily find themselves more emphatic than they otherwise would have been. Witnesses for the employees might as easily hesitate to state their views as confidently as they otherwise would. Intending witnesses might be deterred altogether. Whether that would happen we cannot tell; it might reasonably occur, and that determines the “tendency”. Test the matter. Suppose a private letter in those terms had been written to the Judge or to witnesses: could it have been said it had not the necessary “tendency”? And is it any the less of that tendency because it is published by the thousand to the Judge and all who may be witnesses, as well as to the general public? We cannot think so, and we are of opinion that, if it were a case of a superior Court having to deal with it as an alleged contempt, the Court would be bound to say, as the Court of Appeal said in Hunt v Clarke that there was technically a contempt.’ (38) Without limiting in any way the circumstances in which the publication of statements by or about persons in relation to matters the subject of proceedings may constitute contempt, the publication of statements, by persons likely to be called as witnesses, about the matters in respect of which they will be likely to give evidence is, subject to the de minimis rule, undoubtedly contempt. This is so for the reasons discussed by Isaacs and Rich JJ, and also because of the possible effect of creating an atmosphere of prejudice in which the proceedings will take place. Because of the particulars of the charge relied upon by the plaintiff in the present case, we will, although it may not be necessary to do so, (388) confine ourselves to the possible effect of the publication on Mr Bessell and other witnesses. In our opinion, the publication had the tendency, as a matter of practical reality, to interfere with the due administration of justice, because of its possible effect both on Mr Bessell and other witnesses. Mr Bessell was certain to be called as a witness, and would be constrained to keep to his published account or be liable to be cross-examined on divergencies from it in his evidence. Other witnesses, having read the publication, might give evidence which was of greater or lesser cogency than, or completely different from, the evidence which they otherwise would have given.

Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540

[The facts are set out above at 12.1.3.] Copyright © 2015. Oxford University Press. All rights reserved.

KIRBY P (at 551):

Coronial witnesses are interviewed in the broadcast A broadcast or publication will be a contempt if there is a real and substantial risk of adversely influencing actual or potential witnesses. The danger of this occurring is more acute where the witnesses themselves are interviewed in advance of a hearing. A central feature of the subject broadcast was the attempt to present an authentic account of the events leading up to and including the accident to the aircraft at Young. To this end, the reporter interviewed several potential witnesses. Most of these were witnesses to the accident who merely gave a personal account of what they saw and experienced on the night of the crash. It is difficult to imagine what evidence they could give to the coroner which would be affected by the fact of the interview. Similarly it is difficult to see how anything they said in the interview could in this case interfere with the testimony of other witnesses. None of them would be required to give evidence regarding the precise manner and cause of death of the deceased victims of the crash. None of them had any involvement with Monarch, the claimant or airline safety in general. The interviews with Mr Barry Sergeant and Mr Nigel Clarke, however, are of far greater significance. Both men discuss, in their broadcast interviews, the conditions surrounding the subject aircraft accident. Mr  Sergeant gives an account of the events directly leading up to the accident and suggests a possible explanation of what actually happened in the cockpit of the doomed plane. Mr Clarke recounts the technical failings of NDU and the situation at Monarch. Both witnesses relied on notes prepared soon after the accident and well in advance of the broadcast. Those notes have been admitted into evidence. They would be

CHAPTER 12 Contempt of Court

available to the coroner and to the parties before him. Both witnesses hold the requisite knowledge in their fields. Each might be considered an expert in air safety. It seems unlikely that either would be susceptible to pressure or distortion in the presentation to anyone, including the coroner, of their expert findings and opinions. However, the danger in presenting accounts of witnesses before a matter comes to hearing is that the memory of what in fact happened might become distorted. Witnesses for one party might become more emphatic in giving their evidence while other witnesses might become more hesitant or even be deterred from coming forward at all: see Bell v Stewart (1920) 28 CLR 419. The judgment of the Court in Attorney-General (NSW) v Mirror Newspapers Ltd (at 387) was emphatic in this respect:

Copyright © 2015. Oxford University Press. All rights reserved.

… the publication of statements, by persons likely to be called as witnesses, about the matters in respect of which they will be likely to give evidence is, subject to the de minimis rule, undoubtedly contempt.

This dictum must be considered in light of the facts being dealt with by the Court in that case. A coroner’s inquest was there in progress to determine the manner and cause of the death of people in the ghost train fire at Luna Park. The accident had been well publicised. There was a great deal of public interest surrounding the inquest. One witness, Mr Said, gave evidence damning of the conduct of the train operator, Mr Bissell. The Mirror newspaper proceeded to conduct a doorstep interview at Mr Bissell’s house. The reporter secured, and the newspaper published, statements by Mr Bissell which went directly to the matters about which he would be required to give evidence to the coroner. Perhaps unsurprisingly, he spoke in his defence, giving an account which was in conflict with Mr Said’s account. The Court considered that there was a (552) substantial risk that Mr Bissell would be constrained to adhere to the published account in his evidence whether it was true or otherwise. Similarly, the possible adverse effect on other witnesses was considered significant in the circumstances of that case. It resulted in a situation which was likely to interfere with the conduct of the inquest. The facts of the present case are quite different. Here, there was a distance of four months between the broadcast and the assigned date of the inquest. Although not decisive, in the context of the surrounding facts the delay helps to demonstrate the difference between the situation here and in the Mirror case where the very inquest was then in progress. There has been no doorstep interview in this case, with shock allegations and sensationalist responses. No one has been forced into defending their individual roles or their personal innocence or culpability. In fact, the circumstances could not be further from that. In the Mirror case there were grave inconsistencies between Mr Bissell’s evidence and the evidence already given at the inquest. There has been no question of inconsistency of testimony in the present case. Both Mr Sergeant and Mr Clarke have given their accounts in a sober and considered manner. Mr Clarke’s account is given in the form of a chronology of events and a technical explanation and opinion. The accounts appear largely, or wholly, consistent. Previously prepared notes were relied upon by both witnesses in the interview. There is no reason to suggest that they would be driven to tamper with their written evidence at the inquest. Indeed, the fact that prior statements were relied on, suggests not only the consistency of the statements made at the time of the broadcast (indicating that the comments were made free from any undue pressure), but that their evidence when given before the coroner will be consistent and reliable—calling in both cases on the contemporaneous written reports. Any inconsistencies which did emerge would be likely to be revealed by cross-examination. In Schering Chemicals Ltd v Falkman Ltd [1982] 1 QB 15 a number of people were interviewed in a film made discussing the effects of the drug ‘Promodos’. Some of the interviewees were almost certain to be called as witnesses in civil litigation relating to the alleged effects of the drug on unborn children. Lord Denning MR did not consider that the fact that these witnesses might later be examined in court in relation to statements which they had made in the programme presented a risk of contempt of court. Inconsistent testimony may readily be exposed by effective cross-examination. So it would be here. But in the present case, there is, additionally, no evidence to suggest there would be any inconsistencies. The law of contempt is not based on conjecture and remote possibilities. It could therefore be safely assumed that both Mr Sergeant and Mr Clarke would give their evidence to the coroner free from any interference occasioned by the subject broadcast. The contrary suggestion is unconvincing and unproved.

381

382

PART 4 Open Justice and Contempt

Many of the other likely witnesses to the inquest are in a similar position to Mr Clarke and Mr Sergeant. A substantial amount of the evidence before the inquest would be likely to be in the form of expert evidence given by medical practitioners, air safety investigators and engineers. The Bureau of Air Safety Investigation’s findings would also be available to the coroner. A broadcast such as the present would not, in my view, influence witnesses such as these. A medical expert is unlikely to be deterred from giving evidence, or affected in the content of evidence, relating to an autopsy report of a victim of an air (553) accident merely because an opinion has been expressed in a radio broadcast concerning who was responsible for the crash. The same can be said of expert engineers reporting on the technical condition of the plane or investigators discussing a safety report. It is clear that the jurisdiction to defend the administration of justice is to be invoked only where there is a substantial risk that such witnesses will either be deterred from giving evidence or that the truth or content of their evidence will, in some way, be interfered with. This has not been proven in this case to the requisite standard. The same can be said of the other witnesses who, in effect, were observers of the accident. There is nothing which they could add to the matters in contention before the coroner which could be influenced by the allegations made in the subject broadcast. The listening public is not so gullible as to believe everything they hear, see or read in the media. The public in this country is well able to discern substantiated claims from bald statements of a radio reporter’s opinion. In the present broadcast, several conclusions could have been drawn from its content in spite of the comments of the reporter and the statements of several interviewees suggesting that the claimant was responsible for the aircrash. Simply because a reporter of the opponent has drawn and stated his conclusion about the accident does not mean that everyone listening will slavishly accept it as the undeniable truth or even a sound opinion. High jury verdicts against media defendants in defamation cases in this State suggest the generally reserved opinion which the public, represented by juries, often has of the media—including the opponent. Witnesses at an inquest will be much closer to the matters in issue. They will have their own knowledge of what happened and the role which they played. None of the witnesses before the coroner would be likely to be affected by the broadcast in a way that would affect the proceedings before the coroner in this case. To the extent that the summons relied upon that assertion, it fails.

QUESTION

Copyright © 2015. Oxford University Press. All rights reserved.

1 How do you reconcile the competing approaches used and different outcomes reached in Attorney-General (NSW) v Mirror Newspapers Ltd and Civil Aviation Authority v Australian Broadcasting Corporation?

12.3.6 Identification Because the issue of identification is such a fraught area of evidence in a criminal trial, the publication of a photograph or other visual image identifying an accused person poses particular risks for media outlets.51 One of the leading Australian authorities on this point is the decision of the New South Wales Court of Appeal in Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd, which is relevantly extracted below.

Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd Unreported, CA(NSW), Gleeson CJ, Sheller and Cole JJA, 15 September 1994

[The facts emerge sufficiently from the extract below.] GLEESON CJ (at 2): The claimant, the Attorney General for New South Wales, seeks declarations that the opponents are guilty of contempt of court for publishing matter which was likely, or calculated, or had

51 R v Daily Mirror; Ex parte Smith [1927] 1 KB 845 at 849–50 per Lord Hewart CJ: Ex parte Auld; Re Consolidated Press Ltd (1936) 36 SR(NSW) 596 at 597 per Jordan CJ.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 12 Contempt of Court

a tendency, to interfere with the administration of justice in connection with the trial of Ivan Robert Marko Milat on seven charges of murder, one charge of attempted murder, one charge of armed robbery, and a number of charges relating to the unlawful possession of firearms. The charges against Mr Milat arise out of the so-called ‘backpacker murders’, a series of killings which occurred between 1989 and 1992 in an area south of Sydney. In each case the victims were young persons, some of them from overseas, who were hitchhiking through New South Wales. Their disappearances attracted widespread publicity and concern, and when, ultimately, their bodies were found buried in the Belanglo State Forest a large police operation was mounted in an attempt to discover the culprit. Naturally, that operation received a great deal of media coverage. In May of this year Ivan Milat was arrested. He was charged, amongst other things, with attempting to rob, and to kill, an English backpacker. The name of that person has been suppressed, and he has been referred to in evidence as witness ‘A’. The police allege that witness ‘A’ can identify Mr Milat as the person who gave him a lift in a car and then tried to shoot him. There is another witness whose name has also been suppressed, and who is described as witness ‘B’, who is said to be able to give identification evidence relevant to the charges of attempted robbery and murder. To date, at least so far as appears from information which the prosecuting authorities have given in proceedings in the Local Court, no witness professes to be able to identify Mr Milat in relation to any matter directly relevant to the murder charges. Mr Milat, who has been refused bail, came before a magistrate on 23 May 1994, and again on 31 May 1994. Committal proceedings, which will last several weeks, are expected to commence in about two months’ time. If he is committed for trial, the trial will probably take place in about the middle of 1995. The first opponent is the publisher of a weekly magazine named ‘Who’. The second opponent is the editor of the magazine. The magazine is distributed throughout New South Wales and the Australian Capital Territory. Approximately 112,000 copies are distributed each week. On average, about 60% of those copies are sold. They are sold, for example, through newsagency outlets and supermarkets. Retailers have no obligation to return unsold copies. On 6 June 1994 there was published an issue of Who magazine dated 13 June 1994. The feature story in the issue concerned what were described as the backpacker serial killings. On the front page, there was a large photograph of the accused. The photograph was accompanied by words which indicated that the magazine contained an article on the private life of the accused, as told by his brother. The photograph, which clearly depicted the facial features and the upper body of Mr Milat, had been taken at a private gathering in the Milat home, and had been given to the opponents by Mr Milat’s brother. The same photograph also appeared on one of the pages carrying the feature story in the body of the magazine. There were a number of other photographs showing the police at about the time of the arrest of Mr Milat. Interestingly, the photograph showing the police leading Mr Milat from his home immediately after his arrest depicted him with his head covered by an article of clothing. I would infer that, as the opponents knew, that article of clothing had been put there by police so that photographers would not be able to photograph Mr Milat’s face. (3) It is the publication of the photograph obtained by the opponents from Mr Milat’s brother that gives rise to the charges of contempt … (5) There are certain kinds of material which have long been recognised as likely to expose publishers to risk in this area of the law. This is not because there is a different rule to be applied in relation to such material but, rather, because such material has, in its nature, a particular propensity to give rise to difficulties. There is no special presumption, or different onus of proof, applicable in such cases. It is simply that they are especially likely to call for the consideration and application of the general principle stated above. The publication of photographs of accused persons is in this category. (6) The reason why the publication of photographs of accused persons has attracted the attention of the courts, and is regarded as risky, is related to the notorious difficulty, and potential for giving rise to miscarriages of justice, that surrounds the subject of identification. Such is the concern of courts about the risks involved in identification evidence that trial judges are bound by authority to give appropriate warnings and directions drawing the attention of juries to these risks. One of the particular problems about identification evidence is that the most honest of witnesses, completely confident in their own beliefs, can be mistaken. Another problem is that of suggestibility. People can honestly believe they recognise somebody because

383

Copyright © 2015. Oxford University Press. All rights reserved.

384

PART 4 Open Justice and Contempt

of ideas that have been suggested to them, and human nature is such that it is difficult, and sometimes impossible, for people to distinguish between what they know, and what they believe, or between the various sources from which their beliefs have come to be made up. One of the particular problems about identification evidence is the difficulty that exists where a person, before performing an act of identification of an accused, has been shown a photograph of the accused. If, for example, prior to identifying an accused person in a police line-up, a witness had been shown by a police officer a photograph of the accused, then it would be strongly argued that the identification in the line-up was useless, or at least of very limited value. It would be argued that, because of what is sometimes described as the displacement effect, there was a high risk that at the time of the line-up the witness was performing an act of recognition, not of a person who had been seen by the witness on some previous occasion, but of the person in the photograph. It is for much the same reason that in-court identifications are usually regarded as of little value. Some trial judges do not permit them. Other judges take the view that juries would think it extraordinary if a witness were not asked to identify an accused person in court, and they permit such in-court identification, but follow it, immediately, with a warning to the jury of its limited value. One of the reasons for its limited value relates to the matter of suggestibility. A witness who identifies an accused person at a criminal trial is identifying someone who, by that time, is known to be the person alleged by the Crown to be the same as the person the witness had seen on some previous occasion. Mistaken identification is such a common problem, and honest error about identity is so easy to make, that courts administering criminal justice take special care about this issue. Similarly, police and prosecuting authorities need to take precautions. Police need to be careful that their processes of investigation do not contaminate evidence and destroy its usefulness at a trial. For that reason police need to exercise care about showing photographs, or making suggestions, to potential witnesses, who will, in due course, be cross-examined about the circumstances in which they came to identify an accused person. As was noted above, it is not only a question of fairness to the accused. The strength of a Crown case can be diminished by incautious police conduct in this regard. The problems involved in the use of photographs shown to a person who may later become a witness as to the identification of a suspected person are examined in the judgment of Stephen J in Alexander v The Queen ((1980–1981) 145 CLR 395 at 416–418). (7) It has, for some years, been common practice in this State, when accused persons are being led from a police vehicle to a court building, for their heads to be covered by some article of clothing. Reference has earlier been made to the photograph of Mr Milat, which appeared on one of the pages inside Who magazine, showing the police leading him from his home after his arrest. His head was covered so that a viewer of the photograph could not see his face. The reason why care is taken to avoid allowing photographs of an accused person’s face, which might be widely published in the media, is, no doubt, to avoid the kind of problem to which reference has been made above. The practice itself is capable of operating very unfairly to an accused person, because television viewers, for example, who see a person with head covered being led to or from a court may wrongly infer that it was the accused who, out of a consciousness of guilt, did not want his or her face to be seen. It would be better to avoid the display of the accused altogether … (12) It is common ground that both witness ‘A’ and witness ‘B’, whose evidence is directly relevant only to the charges of attempted robbery and attempted murder, made their identifications of Mr Milat before the publication of the article in question. There is no evidence that they have since seen the article, and, although the Solicitor-General does not concede this, I am prepared to infer, in favour of the opponents, that there is no real risk that their evidence will be contaminated by the publication in question. However, the evidence shows that the police investigation into the murders, and the other offences, is still continuing on a large scale. Local and overseas witnesses have been, and are being, interviewed. It is now, and was on 6 June 1994, impossible to tell what, if any, further Crown witnesses might come forward, and what, if any, effect upon their evidence the publication of the photograph of Mr Milat in Who magazine might have. In this connection it is important to note that evidence touching the issue of identity cannot be assumed to be restricted to evidence by some person who might claim that he or she saw the accused

CHAPTER 12 Contempt of Court

in the act of killing a backpacker. There are many other ways in which observations made, or purportedly made, of Mr Milat at various times and places might be relevant to the question whether he was the killer of the backpackers. Nor is attention to be confined to potential witnesses for the Crown. It is not known whether there will be a defence of alibi, for example. It is, however, hardly fanciful to suggest that it might be part of the defence case to seek to establish that, on or about the dates assigned to the alleged murders in the charges against Milat, he was in some other place, away from the locality of the alleged crimes. Accordingly, the Solicitor-General argues, as at the date of publication, identity was not only an issue, but the central issue, in the case, and there was a realistic possibility that witnesses relevant to that issue, either in favour of the Crown, or in favour of the defence, might come forward at some future time. (13) Indeed, the second opponent, in his evidence, in effect conceded that. In seeking to justify the publication of Mr Milat’s photograph, he told this court that he considered it a possibility that the publication of the photograph might bring forward potential witnesses who could give information of relevance to the proceedings. He apparently regarded this as an argument in favour of the publication. What Mr Moore appears to have overlooked is the likely effect upon the quality of evidence of such witnesses of the fact that their identification of the accused would come after seeing a photograph in which he was depicted as the person charged with the backpacker murders. The reasons why this is a problem are explained above. If witnesses who make an act of identification of the accused, relevant to either the Crown or the defence case, do so after they have seen a photograph of the accused, which depicts him as the person accused of the serial killings, then all the problems associated with identification evidence following a viewing of photographs will arise. Warnings will have to be given to the jury as to the dangers inherent in identification evidence in those circumstances; opposing counsel will argue that the quality of such evidence is seriously diminished; and the value of such evidence, either to the Crown or to the accused, may be substantially diminished … (15) Notwithstanding the considerations so forcefully advanced by Mr Callinan I would conclude, for the reasons explained above, that, in the circumstances that existed at the time of the publication of the photograph, the clear tendency of the publication was, as a matter of practical reality, to interfere with the due course of justice. Identity was the central issue in the case. There is a real and definite possibility that the evidence of people who might come forward as witnesses for the Crown, or the defence, will be contaminated by their having seen the photograph of Mr Milat before performing an act of identification.

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 Why does the publication of a photograph or other image of an accused person expose a media outlet to liability for contempt of court? 2 In what circumstances may a media outlet publish a photograph or other image of an accused person without the risk of liability for contempt of court? 3 What limitations, if any, can you identify in the common law’s approach to liability for contempt of court based on the disclosure of the identity of an accused person?

12.3.7 Disparagement of and improper pressure on parties The disparagement of parties in their capacity as parties to a proceeding can amount to contempt of court in respect of that proceeding.52 One of the leading expositions on this form of contempt of court is the judgment of Mason P in Harkianakis v Skalkos,53 which is relevantly extracted below. 52 Ex parte McCay; Re Consolidated Press Ltd (1936) 36 SR (NSW) 592 at 594 per Jordan CJ. 53 (1997) 42 NSWLR 22.

385

386

PART 4 Open Justice and Contempt

Harkianakis v Skalkos (1997) 42 NSWLR 22

[The claimant was the Archbishop of the Greek Orthodox Church in Australia. He sued Skalkos for defamation arising out of four newspaper articles. Harkianakis was granted leave to amend his statement of claim but was ordered to pay Skalkos’s costs of the application. Skalkos wrote a series of articles in two of his newspapers, New Country and the Greek Herald, attacking Harkianakis for using church funds to pay the costs order. Harkianakis sought to have Skalkos punished for contempt of court.] MASON P (at 27):

Contempt by improper pressure on a party: general principles I have found the most difficult aspect of this case to be the ascertainment and application of the principles to be applied with respect to contempt by improper pressure on a litigant party, where material is published that is offensively critical of that party but not published with intent to deter the pending litigation and where the pending litigation involves defamation proceedings between the same parties. In my view the following general principles apply: 1. This being an allegation of criminal contempt, the charge must be established beyond reasonable doubt. 2. The claimant must demonstrate, to the criminal standard, that the publication had ‘as a matter of practical reality, a tendency to interfere with the course of justice in a particular case’: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372. In Hinch v Attorney-General (Vic) (1987) 164 CLR 15, Deane J (at 47) suggested ‘clear tendency’ as a suitable paraphrase. Wilson J (at 34) spoke of a need to demonstrate a ‘real and definite tendency to prejudice or embarrass pending proceedings’. Mason CJ (at 27–28) thought that a test of ‘substantial risk of serious interference’ would best reconcile the conflicting demands for a free press and for a fair trial, whilst conceding that it was synonymous or virtually synonymous with other authoritative formulations. In discussing a contempt which, like the present, was said to be involved in the publication of threatening words, Lord Reid said in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 298–299 (the Sunday Times case) that:

Copyright © 2015. Oxford University Press. All rights reserved.

… the true view is that expressed by Lord Parker CJ in R v Duffy; Ex parte Nash [1960] 2 All ER 891, 896, that there must be ‘a real risk as opposed to remote possibility’ [of interference with the course of justice]. That is an application of the ordinary de minimis principle. There is no contempt if the possibility of influence is remote.

(28) See also (at 303) per Lord Morris and Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 at 562. 3. Intention to interfere with the due administration of justice is not necessary to constitute a contempt: Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 673–676 (where the authorities are discussed by Hope JA); Director of Public Prosecutions v Wran (1986) 7 NSWLR 616 at 625–626; Hinch (at 46–47, 85). 4. Where, however, intent to interfere has been proved, this has usually been sufficient to sustain a  prosecution: see, eg, Smith v Lakeman (1856) 26 LJ (NS) Ch 305; Ex parte Bread Manufacturers; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 248–249; 54 WN (NSW) 98 at 99; Hinch (at 43); cf Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245 at 258. It is not self-evident why this is so. Two possible explanations are that the court is applying the principle that a person who does an act with such intent is admitting a belief that he or she has a reasonable chance of success, with this admission being used as evidence of the fact (Attorney-General v Hislop [1991] 1 QB 514 at 535, per McCowan LJ). As to the general principle, see Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641 at 657); or that such a case involves an inchoate offence in the nature of attempt, where intent plus preparatory acts will be sufficient to sustain the charge. 5. The cases have recognised a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material. There is a useful discussion by the Australian Law Reform Commission in a Research Paper prepared by Ann Riseley entitled

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 12 Contempt of Court

‘Improper Pressure on Parties to Court Proceedings’. It was published in 1986 as part of the Commission’s reference on ‘Contempt of Courts’ (ALRC RP 3, 1986). Such contempt may include public discussion involving injurious misrepresentations concerning a party (see Re William Thomas Shipping Co Ltd [1930] 2 Ch 368; Fry v Bray (1959) 1 FLR 366) or abuse and public obloquy of a party (Re St James’ Evening Post; Roach v Garvan (1742) 2 Atk 461 at 471; 26 ER 683 at 684–655; the Sunday Times case). These and other instances of ‘trial by newspaper’ tend to undermine the rule of law, because they risk impeding access to the courts of law for vindication of legal rights. The gravamen of the contempt is the tendency to deter both the individual litigant and litigants similarly placed who would wish to seek curial vindication of their rights. (All criminal contempts ‘share a common characteristic: they involve an interference with the administration of justice either in a particular case or more generally as a continuing process’: Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 449, per Lord Diplock, cited with approval in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106.) 6. In judging the real tendency issue, the time relationship between publication and the ‘particular case’ allegedly interfered with is usually significant. The reason is ‘that the question whether a publication constitutes a contempt of court is answered by reference to the reasonable probabilities existing at the time of publication, one of which is the length of time before a relevant hearing may take place’: Hinch (at 72), per Toohey J, citing Ex parte Auld; Re Consolidated Press Ltd (1936) 36 SR (NSW) 596 at 598–599; 53 WN (NSW) 206 at 207; see also Hinch (at 34, 44, 45); Attorney-General for New (29) South Wales v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 699, 710–711; Attorney-General v News Group Newspapers Ltd [1987] QB 1 at 16; Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 at 569–571. However, delay between publication and anticipated trial date of pending proceedings is not relevant to contempt by improper pressure on a litigant, because such pressure is capable of diverting the litigant at any stage in the proceedings. The gravamen of this particular type of contempt is the potential interference in the litigant’s freedom to conduct the litigation as he or she chooses. ‘The right to bring an action in relation to a civil matter is really a bundle of rights that includes the freedom to originate, not to originate, to negotiate rather than litigate the settlement of the dispute, and/or to withdraw an action or a defence after setting it in motion. The latter options may be exercised up until the time the court delivers judgment’: ‘Improper Pressure on Parties to Court Proceedings’ (at 31). The modern pre-occupation with ‘alternative dispute resolution’ (ADR) recognises that settlement of litigation is as much an aspect of the curial process as combat to the bitter end. Most civil proceedings are settled out of court, and this is in the public interest for several obvious reasons. It follows that (improper) ‘interference with negotiations towards the settlement of a pending suit is no less a contempt of court than interference, physical or moral, with a procedural situation in the strictly forensic sense’: Sunday Times case (at 317), per Lord Simon. 7. Successful interference with a party’s conduct of proceedings is not necessary for proof of liability for contempt by improper pressure. This is indicated by the ‘tendency’ formulation itself, and is a feature shared with other aspects of contempt, such as contempt by publication of material having the tendency to prejudice potential jurors. Even when the threatening or abusive communication is shown to have had no impact on the litigant concerned, there may still be a contempt. For example, in Smith v Lakeman (at 306), a plaintiff to a pending suit sent the following letter to the defendant: Sir, I learn from good authority that you have a suit pending in Chancery: and should it go up for judgment, you will at once be indicted for swindling, perjury, and forgery, and thus bring disgrace on your family and ruin for ever the prospects of your gallant son.



Stuart V-C held the letter to be a contempt, finding (at 306) that it: … was a threat for the purpose of intimidating [the defendant in the principal proceedings] as a suitor, and therefore, whether it had had that effect or not, it was unquestionably a contempt of court. (Emphasis added.)



See also Ex parte Australian Iron & Steel Ltd (1959) SR (NSW) 119; 76 WN (NSW) 52; Fry v Bray (at 376); Attorney-General v English [1983] 1 AC 116 at 141; Hislop (at 526); Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496 at 505.

387

388

PART 4 Open Justice and Contempt

8. There is a question as to whether the tendency is to be measured against the capacity to withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of ‘ordinary’ fortitude who might be capable of influence by similar pressure applied in similar circumstances: cf Hislop (at 526). The dual focus of the law of contempt referred to in the passage cited at the end of par 5 above suggests (30) that the latter is the correct approach. However, I need not resolve that issue in this case. 9. In punishing certain types of interference with litigants, the law is concerned to distinguish between proper and improper pressure: see Meissner v The Queen (1995) 184 CLR 132 (discussed below). This is because the litigant’s freedom to conduct litigation as he or she chooses is not an absolute one. The distinction between proper and improper pressure is also encountered in restitution and contract law with their categories of economic duress: Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 especially at 46, per McHugh JA; Equiticorp Finance Ltd (In Liq) v Bank of New Zealand (1993) 32 NSWLR 50 especially at 106, per Kirby P. The fixing of an early hearing date by a judicial officer puts pressure on a litigant, but no one would categorise such pressure as improper. Likewise with the disinterested persuasion to settle by a member of the litigant’s family. But not all pressure is as disinterested, or can claim such obvious justification in the public interest. Pressure may be actual or threatened, conditional or unconditional. What is done (or threatened) may be lawful or unlawful conduct. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper. Were it otherwise, a threat to report a legal practitioner to a professional disciplinary body (cf In re Martin, The Times, 23 April 1986) or to commence a prosecution (cf Smith v Lakeman) could not constitute a contempt. Yet it clearly may.

12.3.8 ‘Prejudgment contempt’

Copyright © 2015. Oxford University Press. All rights reserved.

Certain forms of prejudgment, such as prejudging the guilt or innocence of an accused person, are recognised as likely to amount to contempt of court. However, in AttorneyGeneral v Times Newspapers Ltd,54 the House of Lords suggested a more general principle, that any prejudgment of a proceeding or an issue in a proceeding constituted contempt of court. Whether this type of ‘prejudgment contempt’ should be accepted as part of Australian law was considered by the New South Wales Court of Appeal in Civil Aviation Authority v Australian Broadcasting Corporation, which is relevantly extracted below.

Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540

[The facts are set out above at 12.1.3.] KIRBY P (at 553):

Pre-judging the issues before the coroner The claimant nonetheless argued that, given the canvassing of the opinions and versions of various witnesses, together with the views and conclusions stated in the programme by the reporter, and the interviewees amounted to ‘trial by media’. On that ground, it was urged, it constituted an unwarranted usurpation of the functions of the Coroner’s Court and a punishable contempt with which this Court should resolutely deal. It is well-established in Australia that the reporting of ‘the bare facts’ of a case before the courts is  permissible: see, eg, Packer v Peacock (1912) 13 CLR 577 at 588. But it is claimed that the subject broadcasts went far beyond the permissible, amounting to a contempt of court on the basis explained in 54 [1974] AC 273.

CHAPTER 12 Contempt of Court

Attorney-General v Times Newspapers Ltd. There the plaintiff company, Distillers, had manufactured and supplied a relaxant drug ‘thalidomide’ for provision to pregnant women. The drug had been promoted as safe for such use. However, as the world now knows, the drug was later found to contain toxins dangerous to the unborn foetus. Several of the children affected as a result of their mother’s use of the drug commenced an action in negligence against the manufacturers for damages. The articles complained of, published by the Sunday Times, were alleged to constitute part of the newspaper’s campaign to force the manufacturers to settle the action generously with the victims. The background to the case was reported in considerable length whilst (554) the victim’s civil litigation was still pending. In particular, the articles in the Sunday Times claimed that Distillers had failed to consider all scientific literature about the drug and had also failed to undertake sufficient tests before manufacturing and supplying the drugs as safe for use during pregnancy. The House of Lords upheld an injunction granted at first instance restraining publication of the articles in the Sunday Times. Their Lordships did so not on the ground that, if published, there would be a substantial risk of interference in the administration of justice in the case. But on the ground that the articles constituted a ‘trial by media’ which could, if countenanced, have a long-term effect on the administration of justice generally both by deterring future litigants from having their cases heard and by embarrassing the court in the performance of its duties. In the words of Lord Reid (at 300): … anything in the nature of prejudgment of a case or of specific issues in it is objectionable, not only because of its possible effects on that particular case but also because of its side effects which may be far reaching. Responsible ‘mass media’ will do their best to be fair, but there will also be ill informed, slapdash or prejudiced attempts to influence the public. If people are led to think that it is easy to find the truth, disrespect for the processes of the law could follow, and, if mass media are allowed to judge, unpopular people and unpopular causes will fare very badly.

Lord Morris (at 304) spoke of the need to protect the parties to active litigation: … the courts, I think, owe it to the parties to protect them either from the prejudices of prejudgment or from the necessity of having themselves to participate in the flurries of pre-trial publicity.

Such protection should be extended to litigants in future and unrelated proceedings as well. Lord Diplock (at 310) said:

Copyright © 2015. Oxford University Press. All rights reserved.

… If to have recourse to civil litigation were to expose a litigant to the risk of public obloquy or to public and prejudicial discussion of the facts or merits of the case before they have been determined by the court, potential suitors would be inhibited from availing themselves of courts of law for the purposes for which they are established.

Furthermore, this was to be considered a general rule. Lord Reid (at 300) observed: … Most cases of prejudging of issues fall within the existing authorities on contempt. I do not think that the freedom of the press would suffer, and I think that the law would be clearer and easier to apply in practice if it is made a general rule that it is not permissible to prejudge issues in pending cases.

Criticism of pre-judgment contempt The Sunday Times decision (Attorney-General v Times Newspapers Ltd ) has been much criticised. When the publishers took the case to the European Court of Human Rights, complaining that the law as determined was in breach of the United Kingdom’s obligations under the European Convention on Human Rights their complaint was upheld by a majority of the judges. The general rule against pre-judgments was not considered to be a restriction on the freedom of expression, necessary to a democratic society or to maintain the authority of the judiciary, guaranteed under Art 10 of the European Convention on Human Rights: see Sunday Times v United Kingdom [1979] 2 EHRR 245. The joint judgment of the majority stated (at 280): (555) … Whilst … [the courts] are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it in specialised journals, in the general press or amongst the public at large. Furthermore, whilst the mass media must not

389

390

PART 4 Open Justice and Contempt

overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them.

The principle of freedom of expression was held to be subject to a number of exceptions which must be narrowly interpreted. The restriction on pre-judgment in that case was held not to fall within such exceptions. The asserted principle was also criticised as being too vague and too wide by the Phillimore Committee, established to bring the law of contempt into line with the United Kingdom’s international obligations. The Contempt of Court Act 1981 (UK) was enacted, in part, to remedy these inconsistencies and to repair the defect in the law identified by the European court’s decision. Subsequent case law in England has refrained from applying the pre-judgment principle. The English Court of Appeal, in a case presenting somewhat similar facts, discussed but failed to apply the pre-judgment principle: see Schering Chemicals Ltd v Falkman Ltd. Lord Denning MR preferred to distinguish the Sunday Times case believing (at 21): ‘… There is nothing here prejudging the issues or bringing undue pressure on a party to settle.’ Shaw LJ (at 30) was of the opinion that:

Copyright © 2015. Oxford University Press. All rights reserved.

… the larger question as to the undesirability of presenting simulated trials of the subject matter of pending or prospective litigation … [is] … a matter of degree. Where the presentation appears to encroach upon the function and authority of the judicature, the limits of tolerance are clearly exceeded. In other circumstances the opportunity for free public discussion of topics of general concern should … not be unduly curtailed.

Shaw LJ found no challenge or threat to the due administration of justice in the production of ‘the Primodos Affair’. However, it was clear that his Lordship felt the restriction should be imposed only where the tendency was to interfere in a particular case. Similarly, Templeman LJ (at 40), states that the courts of England should not be ready to restrain discussion on material in a pending action unless it is: ‘necessarily … unseemly or harmful to the administration of justice. Each case must be judged on its own merits’ (emphasis added). On the facts, the risk of harm must justify the granting of an injunction. Presumably, to warrant punishment for contempt, the case of interference would have to be very strong indeed. The position of the law on this subject in England has now been further clarified by the House of Lords in In re Lonrho plc [1990] 2 AC 154 at 208. After reviewing the decision in the Sunday Times case (AttorneyGeneral v Times Newspapers Ltd ) and the criticisms which had followed, their Lordships concluded: ‘How far these passages from the speeches of their Lordships may still be relied upon as accurate expressions of the law is extremely doubtful.’ The general trend, in England at least, therefore appears to involve a distinct (556) retreat from the prejudgment principle stated in Attorney-General v Times Newspapers Ltd. In Australia, long before the Sunday Times case was decided, the test to be applied was expressed by the High Court in John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372. When considering pre-judgment, a publication must have ‘as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case’ in order to constitute contempt. In Ex parte Attorney-General; Re Truth & Sportsman Ltd [1961] SR (NSW) 484; (1961) 78 WN (NSW) 212, the Full Court of this State attempted to widen the restriction to include any statements suggesting the proper determination of a matter which was before the courts. However, this suggested principle was criticised by Hope JA as being too wide. His Honour believed that the narrower test in John Fairfax & Sons Pty Ltd v McRae was preferable: see Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887 at 901. In Watts v Hawke & David Syme & Co Ltd [1976] VR 707, Kaye J in the Supreme Court of Victoria, was faced with the question whether to apply the general test in John Fairfax & Sons Pty Ltd v McRae or the more specific rule then recently laid down by the House of Lords in ­­Attorney-General v Times Newspapers Ltd. His Honour cited both tests with apparent approval. While accepting that there was a general rule against pre-judgments, such that a non-curial tribunal investigating matters in issue in a pending civil action would be in

CHAPTER 12 Contempt of Court

contempt if its decision took the from of a pre-judgment, his Honour simultaneously applied the test laid down in John Fairfax & Sons Pty Ltd v McRae and in Attorney-General v Times Newspapers Ltd. He concluded that the same outcome would result whichever rule was applied. This might not always be so depending on the facts in the case. Kaye J’s decision was criticised at the time for departing from the well tested and more stringent Australian formula in John Fairfax & Sons Pty Ltd v McRae and for moving away from the central concern of contempt law: namely to prevent mischief in a particular case. It was suggested that the decision unnecessarily confused the law of contempt: see, eg, case note and comment (1977) 51 ALJ 319. In spite of these criticisms, Hunt J in Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 cited with approval Attorney-General v Times Newspapers Ltd the House of Lords [sic]. His Honour stated that he preferred it to the decision of the European Court of Human Rights. After a detailed discussion of both cases, his Honour stated (at 567):

Copyright © 2015. Oxford University Press. All rights reserved.

… It is the far-reaching nature of its side effects which makes such a publication objectionable, in that to permit such publications will permit also other ill-informed, slapdash and often prejudiced attempts to argue the case in public, to the detriment of justice. In particular, unpopular people and unpopular causes will fare very badly if a trial by newspaper is encouraged.

No one doubts that trial by media is undesirable. It is to be resisted by the law: see, eg, Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (Court of Appeal, 15 September 1994, unreported). However there is a risk in principle in Attorney-General v Times Newspapers Ltd that the focus of the court’s attention will not be on whether there has been any actual detriment to the course of justice but on the question of whether poor or offensive journalism should be allowed. Objectionable as some forms of modern media reporting (557) often are, the law of contempt is not established to operate as a form of media censorship or quality control. Ill-informed and sensationalist reporting is undeniably a feature of much modern media. But, it is only when those elements in modern reporting present a real detriment to, or interference in, the course of justice that the law of contempt legitimately restricts or sanctions such reporting. A general restriction on pre-judgments of everything which is, or might be before every court of the land would, in effect, amount to a complete refocussing of the purpose of the law of contempt. It would constitute an extension of that body of law beyond the role which, in Australia, it has hitherto been held to play. I would not make that extension. There has been no definitive rule laid down by the High Court of Australia in relation to the applicability of Attorney-General v Times Newspapers Ltd to Australian law. Several observations about the issue were offered in Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation. Mason J (at 96) seems to have suggested that, for a contempt to be proved, there must be a serious risk of grave injustice in the particular case. His Honour appeared to doubt that decision in Attorney-General v Times Newspapers Ltd was applicable in Australia. However, Mason J declined to go further than this. He limited the decision to its facts, suggesting that the rule was confined to the situation where a pre-judgment was designed to influence a party to litigation. Brennan J (at 167), on the other hand, appears to have accepted the general rule as propounded in Sunday Times as a way to protect unpopular people and their causes from calumny and pre-trial pre-judgment in the media. This Court is not bound to either approach by a holding of the High Court. The Australian Law Reform Commission has been critical of the pre-judgment principle. At least it has been critical of the opinion that a pre-judgment which shows no tendency to interfere with the administration of justice in a particular case should nonetheless be considered a contempt of court: see Contempt, Australian Law Reform Commission, ALRC 35, AGPS, Canberra (1987) at 233. The Commission was not persuaded that the alleged detriment to the administration of justice which might result by occasional pre-judgments was sufficiently clearly established to warrant the existence of restrictions on publications where there was no acknowledged risk to the testimony of the participants in the actual proceedings. One criticism voiced was that criminal liability was being imposed by the law of contempt on the alleged contemnor on the basis of extremely vague and uncertain criteria. There are no satisfactory grounds to support a claim that future litigants might refrain from bringing actions because of a fear of press pre-judgment. Litigants typically bring their actions for reasons ranging from a desire to assert a cause, to recover in damages, to protect an interest or to search for justice. The influence of the pre-judgment will rarely have the slightest bearing on a litigant in such circumstances. There is also an assumption that the media will invariably be biased in their

391

392

PART 4 Open Justice and Contempt

presentation of a case and that people will condemn the court for making a ‘wrong’ decision. However, commentary will often come from more than one perspective. It will frequently increase public interest in the case and stimulate public debate about the issues involved. The result could, at least in many circumstances, be a better informed public. Courts and judges might attract greater respect and understanding for having made a ‘tough’ decision, even if a controversial one. (558) Another criticism of the general restriction of pre-judgment of current litigation is that there is no similar restriction on post-trial judgment by the media. It is difficult to see how pre-trial judgment would affect future litigants more adversely than the fear of post-trial judgment. According to the suggested formulation, it is justifiable to protect the parties, witnesses, jurors, counsel and the trial itself from the undue influence of ill-informed or biased debate. However, once a decision has been handed down, discussion by law journals and every form of media to the tabloid press is generally unfettered so far as contempt law is concerned. Yet, if pre-judgment of issues in a case is forbidden, in order to protect future litigation, it would follow that restriction on post trial commentary would sometimes also be necessary. Such a rule would be an unacceptable intrusion upon freedom of expression …

(560) Conclusions: no substantial risk of interference is proved The suggested separate rule against pre-trial pre-judgments should in my view be rejected as part of the common law in this jurisdiction. The law of contempt exists to protect the administration of justice. A general rule prohibiting public comment suggesting a conclusion to a case or pre-judging issues before a coroner, magistrate or judge is an unacceptable infringement on the freedom of expression. It constitutes an unjustifiable enlargement of the law of contempt. If the administration of justice is protected in each particular case this is sufficient. To go beyond such protection is to enter the realms of conjecture and uncertainty. This is unjustifiable. It is the very nature of the matters which come before our courts that they will often involve issues of the highest public importance and the most intense public interest. The public interest in discussing matters which are before the courts is also of great importance to our freedoms. Where discussion of such matter, even extending to speculation on the proper outcome of a case or a suggestion as to its proper conclusion, fails to impinge on the particular case, no contempt has been committed. Our citizens can readily distinguish between media opinions and journalists’ ‘angles’ on the one hand, and the solemn decisions of those in the courts who have the responsibility of decision-making based on all the evidence and full argument, on the other.

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 What is meant by ‘prejudgment contempt’? How does it relate to other forms of contempt of court discussed in this chapter? 2 What are the criticisms that can be made of ‘prejudgment contempt’? Should ‘prejudgment contempt’ be accepted as part of Australian law?

12.3.9 Relevance of intention In order for liability for sub judice contempt to be established, it is not necessary for the prosecutor to demonstrate that the contemnor intended to interfere with the administration of justice.55 It is sufficient that the contemnor intended to publish the statements which had the requisite tendency to interfere with the administration of justice.56 However, if the prosecutor is able to establish that the contemnor intended to interfere with the administration of justice, liability for sub judice contempt will be more readily established

55 R v David Syme & Co Ltd [1982] VR 173 at 177 per Marks J; Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 655 per curiam; Harkianakis v Skalkos (1997) 42 NSWLR 22 at 28 per Mason P. 56 Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 656 per curiam.

CHAPTER 12 Contempt of Court

and ordinarily a more serious form of sub judice contempt will have occurred.57 In addition, the presence or absence of intention is a factor relevant to any penalty imposed for contempt of court.58

12.3.10 Contempt by publication on the internet Contempt by publication can be committed not only through mass media outlets, such as newspapers and radio and television broadcasts. It can also be committed through publications on websites or via social media platforms.

Copyright © 2015. Oxford University Press. All rights reserved.

Social Media and Contempt of Court Social media have benefits for law enforcement and criminal investigation but they also pose real risks to the administration of justice. In 2012, 18 year old Kieran Loveridge was accused of killing Thomas Kelly in an unprovoked attack in Kings Cross. Kelly, also aged 18 years, died after being punched, or ‘king hit’, by Loveridge. The case generated significant community and media attention. Following his arrest, photographs of Loveridge were published online by social media users, alongside the words, ‘murderer’ and ‘monster’. An anonymous Twitter user opened an account in the name of ‘Kieran Loveridge’ and used it to post pictures of Loveridge to journalists and mainstream media organisations. The Twitter publications generated concern amongst some mainstream media organisations as to their likely prejudicial effect on Loveridge’s impending trial. In November 2013, Loveridge was sentenced to a minimum of five years and two months’ imprisonment. The sentence resulted in significant community backlash and the New South Wales Director of Public Prosecutions appealed against the leniency of the sentence. The New South Wales Court of Criminal Appeal allowed the appeal and re-sentenced Loveridge to a minimum of ten years and two months’ imprisonment. In September 2012, the murder of 29-year-old Jill Meagher sparked a massive response on social media and generated a widespread discussion on the role and effect of social media on police and legal processes. Following Meagher’s disappearance, social media played a significant role in the initial investigation. Meagher’s colleagues used Twitter to help in the search for her. A Facebook group, ‘Help Us Find Jill Meagher’, was also established, attracting over 100,000 likes. Victoria Police released CCTV footage of Meagher to the public and it was shared and views extensively on social media, proving crucial in the investigation and arrest of Adrian Bayley. Following Bayley’s arrest, however, concern grew over the role of social media and its effect on the administration of justice, particularly Bayley’s right to a fair trial. A variety of Facebook hate groups targeting Bayley had been created and had already gained considerable support online. Concerned that the hate group pages were likely to influence the pending legal case against Bayley, Victoria Police met with senior Facebook executives in an attempt to have some of the pages removed. Their initial request was unsuccessful. However, the pages were eventually shut down several days after charges against Bayley were laid. A suppression order was imposed, banning the publication of damaging or potentially prejudicial material about Bayley, with specific reference to material published on the internet. However, concern remained that social media users would breach the suppression order. They might be unaware that the order was in place, unaware that they were included in it or unlikely to consider their own posts and tweets as a form of publication. Victoria Police used its Twitter and Facebook accounts to warn social media users of their responsibilities in posting online, reminding followers that it was ‘inappropriate to post speculation or comments about

57 Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 248 per Jordan CJ; Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 369 per curiam; Harkianakis v Skalkos (1997) 42 NSWLR 22 at 28 per Mason P. 58 R v David Syme & Co Ltd [1982] VR 173 at 177 per Marks J. As to the factors relevant to penalty for contempt of court, see below at 12.6.1.

393

394

PART 4 Open Justice and Contempt

matters before the court’. Meagher’s husband, Thomas, also pleaded with the public to consider what they posted on Twitter and Facebook, stating that, while he appreciated the support, ‘I would just like to mention that negative comments on social media may hurt legal proceedings so please be mindful of that.’ Bayley later pled guilty to the rape and murder of Meagher, and in June 2013 was sentenced to life imprisonment. In October 2013, controversial media personality, Derryn Hinch, was charged with contempt of court for breaching the suppression order. Hinch had used both social media and his own website to speculate on the case and had attempted to reveal Bayley’s prior record of violent offences. On the trial of the contempt charge, Kaye J rejected Hinch’s contention that he did not know he was breaching the suppression order, pointing out that Hinch’s repeated comments on Twitter showing that he strongly disagreed with the suppression order indicated that he knew of its existence and had deliberately set out to defy it. Hinch was fined $100,000. However, after refusing to pay the fine, he served 50 days in prison instead. See R v Hinch [2013] VSC 520; R v Hinch (No 2) [2013] VSC 554.

12.3.11 Fair and accurate reports of court proceedings It is well-established that, as a general rule, a fair and accurate report of court proceedings does not constitute contempt of court.59 The judgment of Mason CJ in Hinch v AttorneyGeneral (Vic) provides a useful analysis of this defence.

Hinch v Attorney-General (Vic) (1987) 164 CLR 15

Copyright © 2015. Oxford University Press. All rights reserved.

[The facts are set out above at 12.3.2.] MASON CJ (at 25): … there are examples of circumstances in which on a balancing approach the public interest in the administration of justice would necessarily give way to the public interest in freedom of discussion of an important topic. So Wilson J in BLF instanced a fair and accurate report of court proceedings made in good faith. And McHugh JA in Attorney-General (NSW) v John Fairfax & Sons Ltd and Bacon mentioned a fair and accurate report of proceedings in Parliament made in good faith. It has never been suggested that a fair and accurate report of committal proceedings made in good faith would amount to a contempt, notwithstanding daily reports in the news media of elements in a Crown case which might have a strong tendency to induce readers and viewers to conclude that the accused is guilty of the offence charged. A report of committal proceedings has a special capacity to influence the minds of potential jurors because the evidence is directed to the very issues which will arise at the trial and the evidence led may include evidence not admissible at the subsequent trial. On the other hand a fair and accurate report will necessarily be confined to a summary of evidence and submissions based on the evidence. Nevertheless it would be a mistake to draw too much from the fact that reports of committal proceedings do not constitute contempt because these reports give effect to another public policy, namely that such proceedings should be reported. Indeed, it is argued in favour of the public reporting of committal proceedings that publicity dispels inaccurate rumour and speculation and may induce citizens who are able to give relevant evidence to come forward. The Australian Law Reform Commission has recently questioned the absoluteness of this policy and has recently (26) recommended that committing magistrates should have a power to make suppression orders: Australian Law Reform Commission, Report No 35, Contempt (1987).

59 R v The Evening News; Ex parte Hobbs [1925] 2 KB 158 at 167–68 per Lord Hewart CJ; R v Herald & Weekly Times Ltd (2007) 19 VR 248 at 267–68 per Smith J.

CHAPTER 12 Contempt of Court

Be this as it may, the reporting of committal proceedings is an example of the reporting of public affairs, notwithstanding that the publication of the report may cause prejudice to the accused at his trial by prejudicing the minds of potential jurors in relation to the issues to be determined at the trial. Reports of court proceedings are not a true example of the public interest in the administration of justice yielding to the public interest in freedom of discussion. Rather it is a case where on balance the wider interests of the administration of justice are thought, as the law currently stands, to be better served by allowing publicity. In passing I should mention that reports of committal proceedings do not come within the conception of ‘interference with the fair trial’ of which Lord Reid was speaking in Times Newspapers. His Lordship was referring to instances of direct interference with a fair trial, where the interference is almost certainly intended. No doubt there will be other occasions, apart from reports of the proceedings of Parliament and the continuation of discussion of a matter of public interest commenced before the institution of proceedings, when the balancing approach requires that the public interest in the administration of justice should give way to the public interest in freedom of discussion. The discussion of a major constitutional crisis or of an imminent threat of nuclear disaster are illustrations with overriding claims which immediately leap to mind. But this concession is a fragile foundation for the conclusion that once any topic of public concern or interest is identified, the public interest in the administration of justice must give way to discussion of that topic, provided that the likelihood of prejudice to pending litigation is no more than unintended and incidental to the discussion of the topic of public concern or interest.

12.3.12 Fair and accurate report of parliamentary proceedings It may be that a fair and accurate report of parliamentary proceedings does not constitute contempt of court.60

Copyright © 2015. Oxford University Press. All rights reserved.

12.3.13 ‘Bare facts’ reports Media reporting of a matter which is sub judice is not limited to a fair and accurate report of court proceedings. It is possible for the media legitimately to report on a matter that is sub judice, so long as the report is confined to the ‘bare facts’. The leading Australian authority on this defence is the High Court of Australia’s decision in Packer v Peacock,61 which is relevantly extracted below.

Packer v Peacock (1912) 13 CLR 577

[Dr Samuel Peacock was arrested and charged with the murder of Mary Davies. Before he was committed for trial, several articles about the case were published in The Age, The Argus and The Herald newspapers which Peacock claimed were prejudicial to his right to a fair trial. Peacock sought to have the publishers of all three newspapers punished for contempt of court in the Supreme Court of Victoria. At first instance, Madden CJ fined the publishers £200 each. The publishers appealed to the High Court of Australia.] GRIFFITH CJ (at 581): The jurisdiction of the Supreme Court invoked in these cases was the jurisdiction which every superior Court possesses to protect itself from any action tending to impair its capacity to administer impartial justice. Such action is called contempt of Court, and it must be action affecting the Court itself. Punishment for such contempt, however, is not inflicted in order to vindicate the affronted dignity of the

60 Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 714 per McHugh JA. 61 (1912) 13 CLR 577.

395

Copyright © 2015. Oxford University Press. All rights reserved.

396

PART 4 Open Justice and Contempt

members of the Court, (582) whether Judges or jurymen, but in the interests of the public in general, and in particular of suitors, whose right to obtain a hearing of their suit free from prejudice or bias might otherwise be imperilled … (at 587): One question is common to all these appeals, namely, ‘to what extent is a public journal warranted by law in publishing matter relating to a pending criminal charge?’ We were invited to formulate the limits within which such publication is lawful. But this, we think, is neither desirable nor practicable. In this, as in many other cases, it may be difficult to lay down a precise line of demarcation, but not difficult to say on which side of the line a particular case falls. One rule, however, may be stated with confidence. A publication which tends to prejudice or bias the public mind, either on one side or the other, and so to endanger a fair trial, is unlawful and a contempt of Court. The whole matter published must be considered, and its tendency must be regarded as a whole. It was at one time thought that the publication of a report of preliminary proceedings before justices was necessarily unlawful, but this is no longer held to be the law: See Lewis v Levy; Usill v Hales, at p 324. Those were cases of libel, and the defence set up was what is still in England and Victoria called privilege. But the substance of the decisions was that the action complained of was not unlawful and therefore not actionable. It cannot be that an act is at the same time both absolutely forbidden by law and possibly lawful. The effect of these cases is that a fair and colourless report of proceedings in a public Court of Justice without comment is not absolutely forbidden by law. The matter complained of in the present cases does not consist of such reports, but of statements of alleged facts expected to be proved upon the charge, with comment upon them. It was suggested rather than pressed that the permission allowed by law to publish anything relating to a pending charge of crime does not extend beyond a publication of reports of proceedings before justices. We cannot accept this view. (588) Publishers of newspapers have not, of course, any greater rights with respect to publication than those enjoyed by other persons. It has, nevertheless, become part of the ordinary course of life in civilized communities to publish through the medium of the press information as to matters of interest to the public, using that term to mean matters as to which the public entertain a natural and legitimate curiosity. It would be unfortunate for civilization if satisfaction of such a curiosity by this means were prohibited. The motives for the curiosity may be infinitely various. The matter may be one of general public importance, or may be interesting to only a small class of readers. In our opinion the public are entitled to entertain a legitimate curiosity as to such matters as the violent or sudden death or disappearance of a citizen, the breaking into a house, the theft of property, or any other crime, and it is, in our opinion, lawful for any person to publish information as to the bare facts relating to such a matter. By ‘bare facts’ we mean (but not as an exclusive definition) extrinsic ascertained facts to which any eyewitness could bear testimony, such as the finding of a body and its condition, the place in which it is found, the persons by whom it was found, the arrest of a person accused, and so on. But as to alleged facts depending upon the testimony of some particular person which may or may not be true, and may or may not be admissible in a Court of Justice, other considerations arise. The lawfulness of the publication in such cases is conditional, and depends, for present purposes, upon whether the publication is likely to interfere with a fair trial of the charge against the accused person. Comment adverse to him upon the facts is certainly not admissible. [Upon their proper characterisation, Griffith CJ found the articles constituted contempt of court.] Appeal dismissed.

QUESTIONS 1 How does the defence of ‘bare facts’ reporting differ from the defence of fair and accurate report of court proceedings? 2 From your consumption of news reporting in the print and electronic media, what are some examples of ‘bare facts’ reporting?

CHAPTER 12 Contempt of Court

12.4 Scandalising the court One of the major forms of contempt of court is contempt by publication while a proceeding is sub judice. However, contempt of court can be committed even if a particular proceeding is completed or even if the allegedly contemptuous publication is not directed towards a particular proceeding at all. Publications which tend to undermine the integrity of, and public confidence in, the administration of justice may amount to contempt of court because they ‘scandalise’ the court. In McLeod v St Aubyn, Lord Morris suggested that contempt by scandalising the court was, or should be, obsolete in England but was still of relevance in colonial societies.62 The offence of scandalising the court has now been abolished in England and Wales.63 Prosecutions continue to occur sporadically in Australia for this type of contempt of court.64 The principles of contempt of court by ‘scandalising the court’ emerge from the three following extracts from leading Australian cases: R v Dunbabin; Ex parte Williams;65 Attorney-General (NSW) v Mundey;66 and Gallagher v Durack.67

R v Dunbabin; Ex parte Williams (1935) 53 CLR 434

Copyright © 2015. Oxford University Press. All rights reserved.

[The applicant, Dulcie Williams, was a party to an appeal in the High Court of Australia, in which judgment had been reserved. The appeal concerned a challenge to the constitutional validity of radio licences. In mid-April 1935, The Sun newspaper published an editorial, written by Thomas Dunbabin, under the headline, ‘Courts and Cabinets’, which was highly critical of the High Court. Sun Newspapers Ltd was controlled by Associated Newspapers Ltd, which, in turn, had a controlling interest in Radio 2UE Sydney Ltd and therefore was likely to be affected by the High Court decision. Williams applied to have Dunbabin and Sun Newspapers punished for contempt of court.] RICH J (at 442): The Court is called upon to exercise its summary power of punishing contempts of Court. This jurisdiction, which is well established and belongs to this Court as well as to the Supreme Courts of the States, exists for the purpose of preventing interferences with the course of justice. Such interferences may arise from publications which are calculated to embarrass a tribunal in arriving at its decisions. Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The (443) jurisdiction exists 62 [1899] AC 549 at 561, (PC). 63 Crimes and Courts Act 2013 c 22, s 33(1). 64 See, for example, Attorney-General for the State of Queensland v Lovitt [2003] QSC 279; DPP v Francis (2006) 95 SASR 302. 65 (1935) 53 CLR 434. 66 [1972] 2 NSWLR 887. 67 (1983) 152 CLR 238.

397

Copyright © 2015. Oxford University Press. All rights reserved.

398

PART 4 Open Justice and Contempt

in order that the authority of the law as administered in the Courts may be established and maintained … The necessity of maintaining the authority of this Court against such attacks is, perhaps, even greater than in the case of Courts under a unitary system of government. It is the constantly recurring task of this Court to decide upon the validity of the enactments of one or other of the seven Governments of Australia. Thus the Court occupies a position which makes any tendency to weaken its authority a matter of especial concern. In the case before us, we have a publication which, in my opinion, involves a clear contempt. Its whole tendency and, I think, object is to disparage the authority of the Court and to weaken confidence in it. The article begins by alluding to two decisions recently given by the Court in which executive action by two departments of the Commonwealth Government was held to be erroneous. The reference is made under the heading ‘Courts and Cabinets’ and is unmistakably directed to a supposed opposition between the Executive and the Court. In the one case, that relating to the Immigration Restriction Act, it represents the Court as putting into a state of ‘suspended animation’ ‘the law which was relied upon to keep Australia white’. It represents it as doing so by the exercise of ‘keen legal intelligences’ and of so deciding ‘to the horror of everybody except the Little Brothers of the Soviet and kindred intelligentsia’. The writer appears to be confused between two cases, that of Kisch which he mentions by name, and that of Griffin to which he probably intended to refer. He recommends that Kisch should be given another opportunity of seeing whether a new Act which the writer contemplates ‘pleases the High Court any better than the old, or whether the ingenuity of five bewigged heads cannot discover another flaw’. The article then proceeds to refer to the second decision, that holding that secondhand goods were not liable to sales tax. The writer describes this conclusion as something discovered after over four years by the Court ‘with that keen microscopic vision for splits in hairs which is the admiration (444) of all laymen’. The tone in which these matters are discussed is not that of informed or reasoned criticism but of sarcastic suggestion. The article then proceeds: ‘Well may the Caseys and the Kellys cry like the historic British monarch for some gallant champion to rid them of this pestilent Court’. As appears by the article itself, the reference to ‘Caseys’ is to the Assistant Treasurer, who, an earlier part of the article states, ‘complains of the manner in which the High Court knocked holes in the Federal laws’. According to the evidence, the expression ‘and the Kellys’ was introduced because of a paragraph appearing in the same newspaper a fortnight before in which the Assistant Treasurer’s refusal to refund sales tax on secondhand goods was likened to an action of the bushranger of that name. The article then proceeds to make a suggestion that as an alternative to getting rid of the Court it should be given some ‘real work to do’ so that it should not have ‘time to argue for days and days on the exact length of the split in the hair’. The suggestion, stated briefly and stripped of decorative verbiage, was that, prior to its enactment, legislation should be submitted to the Court for judicial approval. The writer, clearly intending to refer to the decision of this Court of In re Judiciary and Navigation Acts, states: ‘There was some attempt years ago to obtain a Court opinion on an Act before it was put to public test, but the Judges coldly suggested that the only way to test it was by action before the Bench’. I have not stated all that the article contains, but these, I think, are the more material matters. An endeavour has been made to explain the article as intending to ridicule, not the Court, but those opposing its decisions. Except for the absence of anything to indicate sincerity of purpose, the article contains nothing to support the suggestion of irony. I think the effect of the article, as well as its purpose, is to represent that the Court exercises its ingenuity in order to defeat legislation to which great public importance attaches and that the Federal Government encounters in the Court an obstacle it might well seek to remove. This is combined with a suggestion that one of its decisions pleased no one but the ‘Little Brothers of the Soviet’. Such imputations, if permitted, could not (445) but shake the confidence of litigants and the public in the decisions of the Court and weaken the spirit of obedience to the law. Judges are not at all likely to be deterred from administering justice according to law by expressions which appear in the public press or elsewhere of displeasure at the consequences. Probably no one doubts or questions that fact. But, if it were not so, the publication of such an article might well be regarded with apprehension by a party to a case pending before the Court if it involved a doubtful and difficult question the decision of which in his favour would result in inconvenience and embarrassment to the Executive Government. It is upon this footing that the present applicant moves the Court. Groundless as may be the fear that the article could affect the Court’s decision of her case, it is not possible to say that, as a party to pending

CHAPTER 12 Contempt of Court

Copyright © 2015. Oxford University Press. All rights reserved.

litigation of that character, she is not entitled to bring the article before the Court. Indeed the Court may act ex mero motu, and it has been held that the Court may be put in motion by a person who has no particular interest in the contempt complained of (R v Henningham; R v Ellis; Ex parte Baird ). I think the Court is bound to regard the publication as a serious contempt which it must repress. In my opinion the respondents should be convicted of contempt. STARKE J (at 445): … It is also said that the article scandalizes the Court. Any act done or writing published calculated to bring the Court into contempt (446) or to lower its authority is a contempt of Court (R v Gray, at p. 40)). According to the Judicial Committee in McLeod v St Aubyn, committals for contempt of Court by scandalizing the Court have become obsolete in England. But modern examples of the exercise of this undoubted jurisdiction may still be found. (See R v Gray.) Courts and Judges ‘are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court’ (R v Gray, at p. 40). Ordinarily, Courts are satisfied to leave to public opinion attacks derogatory or scandalous to them (McLeod v St Aubyn). The summary jurisdiction in this class of case should only be exerted when the case is clear and beyond doubt; otherwise the Courts should leave the matter to the process of the criminal law. The policy of allowing the Courts to determine what does or does not scandalize them may be doubted. But whilst the jurisdiction exists, they must exert it, not because ‘of any exaggerated notion of the dignity’ of Courts, but for the ‘common good’. All this is well settled, and is, indeed, only repetition of what English Judges have said. The article in the present case clearly and beyond doubt is calculated to bring the Court into contempt and to lower its authority. And I regret that the respondents to this motion are so obtuse that they can discover nothing in the article which amounts to contempt of the Court: the article is regarded by them as unseemly and rude and for that regret is expressed, but otherwise it is regarded as innocent and only to be regretted if the Court decides that it amounts to a contempt of Court. But despite the attitude of the respondents, the ‘common good’ and the ‘authority of this Court’ will, in my opinion, be sufficiently vindicated, in this summary and arbitrary process, if the article is declared a contempt of this Court and that the respondents do pay the costs of the motion. Beyond this, the Court should, as the Judicial Committee wisely indicated in McLeod v St Aubyn, leave to public opinion the reprobation of attacks or comments derogatory to or scandalizing it; or in serious cases leave to the proper authorities the vindication (447) of the Court by the ordinary process of law, and not by the summary and arbitrary process of contempt. No prejudice or possible prejudice of any litigant’s rights is involved in the present case, and no repetition of the article need be apprehended. In these circumstances, I regard the fines proposed to be imposed upon the respondents not only as unwise, but as unnecessarily severe, and uncalled for in the public interest. DIXON J: I agree for the reasons given by Rich J that the article published contains a contempt. The jurisdiction which we are called upon to exercise is one which cannot but be attended with some difficulty. It is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority. But it must be done by judicial remedies, and judicial remedies are necessarily administered by the Courts themselves. The Court must, therefore, undertake the task notwithstanding the embarrassment of considering what it should do in relation to an attack upon itself. There is no practicable alternative. It can but do its best to disregard all considerations except those which strictly relate to the question whether the publication amounts in law to a contempt. That question is whether, if permitted and repeated, it will have a tendency to lower the authority of the Court and weaken the spirit of obedience to the law to which Rich J has referred. The article in this case, upon a close analysis, presents one difficulty. It inspires a feeling that its real purpose has not been fully disclosed. It is difficult to discover the reasons which animated its publication. But, whatever be the reason for the article, I am confident that any ordinary reader who read it would

399

400

PART 4 Open Justice and Contempt

deduce from it that it charged the Court with a wanton destruction of legislation effected by the exercise of excessive legal ingenuity. The question what, in these circumstances, the Court should do is naturally one for anxious consideration. It should, in my opinion, fix a penalty adequate to make it abundantly clear that such publications will be repressed. It should, at the same time, make it clear (448) that it has not the least intention of repressing any criticism which may be made on the Court and its doings and the law it administers if that criticism is fair and honest and is not directed at lowering the authority of the Court. It is important that Courts should be the subjects of free criticism. It is equally important that the dignity and authority of the Courts should be maintained. It is the reconciliation of those two principles that involves the difficulty. I think that, if a repetition of the kind of imputations made in the present case were allowed, public confidence in the Court would in the end be undermined. I think the Court should impose a penalty which affords a definite indication of its view that the publication of such matters as this will not be allowed. The penalties the Court has fixed are anything but excessive. [Evatt and McTiernan JJ agreed with Rich J. Sun Newspapers was fined £200 and Dunbabin £50. They were also ordered to pay the costs of the contempt proceedings.]

Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887

Copyright © 2015. Oxford University Press. All rights reserved.

[The president and the secretary of the Builders’ Labourers’ Federation, John Phillips and Robert Pringle, were arrested and charged with malicious damage to property. They had damaged two aluminium goalposts at the Sydney Cricket Ground in July 1971 in protest at the Springboks rugby union tour. At the trial in August 1972 in the Court of Quarter Sessions, they unsuccessfully sought to adduce material relating to South Africa’s policy of apartheid and international condemnation of the same. Phillips and Pringle were fined and placed on good behaviour bonds. Outside the court, the new secretary of the BLF, Jack Mundey, was asked by the media for his comments. In a six-minute interview, he claimed that the sentence was a miscarriage of justice, that the judge was racist and that the threat of industrial action prevented the judge from sentencing Phillips and Pringle to imprisonment. Mundey’s comments were broadcast, albeit in a highly edited form. The Attorney-General brought contempt proceedings against Mundey but not against any media outlet.] HOPE JA (at 908): The slightest reflection shows how essential it is in the public interest, and particularly in the interest of the administration of justice, that members of the public should have the right publicly to criticize the public acts of judges and courts. This is particularly so where a judge has made some improper or unjustified statement, as was pointed out by Griffith CJ in delivering the judgment of the High Court in R v Nicholls. But criticism does not become contempt because it is ‘wrong headed’, or based on the mistaken view of the facts or of the law. Nor, in my opinion, need it be respectfully courteous or coolly unemotional. There is no more reason why the acts of courts should not be trenchantly criticized than the acts of other public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merits; they cannot be propped up if their conduct does not command respect and confidence; if their conduct justifies the respect and confidence of a community, they do not need the protection of special rules to shield them from criticism. Indeed informed criticism, whether from a legal or social or any other relevant point of view, would be of the greatest assistance to them in the performance of their functions. However the law has undoubtedly imposed qualifications on the right of criticism, and they are qualifications that relate to the effective performance by courts and judges of their role in the administration of justice. Unfortunately these qualifications are ones the boundaries of which are difficult to define with precision, and indeed in respect of which courts have from time to time had different attitudes. Thus in

CHAPTER 12 Contempt of Court

McLeod v St Aubyn, Lord Morris had sufficient confidence in the respect for the integrity of English courts to say:

Copyright © 2015. Oxford University Press. All rights reserved.

Committals for contempt of Court by scandalising the Court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.

For better or for worse, this statement was not treated as a correct statement of the law in England, although a strong echo of its approach to the question is to be seen in R v Metropolitan Police Commissioner; Ex parte Blackburn (No 2) where, for example, Salmon LJ said: ‘The authority and reputation of our courts are not so frail that their judgments need to be shielded from criticism…. Their judgments … can … safely be left to take care of themselves.’ In the few English decisions where contempt of a scandalizing type has been established, it has either been because of what has been described as scurrilous personal abuse, as in R v Gray or because of the imputing to a judge of unfairness and lack of impartiality, as in R v Editor of the New Statesman where it had been said in an article that ‘an individual owning to such views as those of Dr Stopes cannot apparently hope for a fair hearing in a Court presided over by Mr Justice Avory’. (909) In Australia, the courts seem to have taken a sensitive view of criticism during the first hundred years of European settlement, but thereafter tended to have a more confident attitude, although there has been a considerable variation of opinion, even within the same court. Thus in Attorney-General v Bailey a newspaper article described a verdict and sentence as ‘one of the most ghastly atrocities the law has ever been guilty of’, and referred to the judge as ‘insolent’ and ‘class biassed and bitter’ and ‘sitting in the seat of justice with loaded scales’ and to the jury as ‘stupid, vindictive, brainless, and brutal’. Cullen CJ held that these remarks did not warrant summary punishment as scandalizing contempt saying, inter alia, that the urgency which justifies summary interposition in the case of conduct calculated to prejudice a fair trial in a pending case could rarely be set up when the charge is that the due administration of justice is obstructed by unwarrantable imputations on a judge’s conduct in cases that are past and over, and that, although the writer of the article had made use of epithets which might reasonably be construed as imputing a want of probity to the judge in question, he was not prepared to say that every reasonable mind must of necessity find that to be the meaning. Sly J, on the other hand held that the statements constituted scandalizing contempt in respect of which summary proceedings were justified, and Gordon J expressed no opinion on the matter. In R v Fletcher; Ex parte Kisch Evatt J said that in the case of attacks upon the courts or its members, the summary remedy of fine or imprisonment is applied only where the court is satisfied that it is in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable, and that all the recent decisions showed that it is the duty of the court to protect the public against every attempt to overawe or intimidate the court by insult or defamation, or to deter actual and prospective litigants from complete reliance upon the court’s administration of justice. The only other decision to which I must refer in this regard is that of R v Dunbabin; Ex parte Williams. In that case the High Court was strongly criticized for holding Commonwealth legislation for Executive actions to be invalid, it being suggested that the members of the court used their ingenuity to discover legal flaws. Among other things the article referred to the court as ‘this pestilent Court’ and said that one of their decisions would have horrified everybody ‘except the Little Brothers of the Soviet and kindred intelligentsia’. It was held that this article constituted scandalizing contempt justifying summary punishment, Rich J with whose judgment Evatt and McTiernan JJ agreed, saying: ‘the publication of such an article might well be regarded with apprehension by a party to a case pending before the Court if it involved a doubtful and difficult question the decision of which in his favour would result in inconvenience and embarrassment to the Executive Government’ and Dixon J saying: ‘if a repetition (910) of the kind of imputations made in the present case were allowed, public confidence in the Court would in the end be undermined.’ I find it difficult to reconcile this decision with the many reported decisions which justify and indeed invite criticism, even though it be wrong headed or trenchant. The mere fact that criticism has some

401

Copyright © 2015. Oxford University Press. All rights reserved.

402

PART 4 Open Justice and Contempt

effect in impairing public confidence in a court or judge cannot be the sole test of whether it amounts to scandalizing contempt. Many learned articles are written claiming that decisions of judges and courts are wrong, and sometimes clearly wrong, and of course this is often the case; this type of criticism may well have some effect on the confidence of persons who read the articles in the errant court or tribunal, but no one could possibly suggest that it constitutes scandalizing contempt. However the general principles expressed in R v Dunbabin; Ex parte Williams do not vary from the principles which I have described above, and apart from its affirmation of those principles, the authority of that decision must be limited to the application of those principles to the facts of the particular case. As I have already said, there are undoubtedly some qualifications to the right of criticism, and it is the boundaries of these qualifications that must give rise to misgivings in the minds of people who wish to criticize the public acts of courts and judges. The cases seem to establish two such qualifications. In the first place, criticism will constitute contempt if it is merely scurrilous abuse. One might comment here that a charge that criticism constitutes scurrilous abuse should be a very strong one before it is dignified by being the subject of proceedings in the Supreme Court. In the second place, the criticism may constitute contempt if it ‘excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office’: R v Dunbabin; Ex parte Williams. It is this qualification which must cause the greatest concern for any would-be critic, for its application in particular circumstances can give rise to great difficulty; it is certainly not every such criticism that amounts to contempt, and the boundary between what is and what is not contempt involves questions of degree, and therefore uncertainty. Some matters are clear. Thus, it is clear that if ‘any Judge … were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the Court in any matter likely to be brought before it, any public comment on such an utterance, if it were a fair comment, would, so far from being a contempt of Court, be for the public benefit’: R v Nicholls. Furthermore, it does not necessarily amount to a contempt of court to claim that a court or judge had been influenced, or too much influenced, whether consciously or unconsciously, by some particular consideration in respect of a matter which has been determined. Such criticism is frequently made in academic journals and books, and the right cannot be limited to academics; and although the use of particular language may reduce what might otherwise be criticism to mere scurrility, the use of strong language will not convert permissible criticism into contempt, unless perhaps it is so wild and violent or outrageous as to be liable in a real sense to affect the administration of justice. On the other hand, it may and generally will constitute contempt to make unjustified allegations (911) that a judge has been affected by some personal bias against a party, or has acted mala fide, or has failed to act with the impartiality required of the judicial office. However, the point at which other forms of criticism pass into the area of contempt is a matter in respect of which the opinions can differ, and differ quite strongly. [Hope JA found that only Mundey’s statement that industrial action had prevented the trial judge from sending the protesters to gaol constituted contempt of court by virtue of scandalising the court.]

Gallagher v Durack (1983) 152 CLR 238

[The facts emerge sufficiently from the extract below.] GIBBS CJ, MASON, WILSON AND BRENNAN JJ (at 241): This is an application for special leave to appeal from a judgment of the Full Court of the Federal Court of Australia dismissing an appeal from a decision of Northrop J who found the applicant, Norman Leslie Gallagher, guilty of contempt of court and imposed a sentence of three months’ imprisonment upon him. The facts of the matter, so far as it is necessary to state them, are as follows. On 11 May 1982 Keely J, a judge of the Federal Court of Australia, held that the Australian Building Construction Employees and Builders Labourers’ Federation (the ‘Federation’), the applicant, Mr Gallagher (who is the Federal Secretary of the Federation), and one, B Boyd, were guilty of contempt of court. On 18 May 1982 Keely J fined the

CHAPTER 12 Contempt of Court

Federation $15,000 for the contempt and directed that the fine be paid by the Federation by an agent properly authorized in writing by the Federation to make (242) that payment on its behalf. On the same day Keely J sentenced the applicant to two months’ imprisonment and fined Mr Boyd. On 21 July 1982 a Full Court of the Federal Court unanimously dismissed an appeal by the Federation but by a majority (Evatt and Deane JJ, Smithers J dissenting) allowed the appeal by the applicant and set aside the finding that he was guilty of contempt of court and the sentence of imprisonment which had been imposed on him. The court also unanimously allowed the appeal by Mr Boyd. On the same day, and after judgment had been given in the Federal Court, a number of journalists, television cameramen and others assembled outside the office of the Federation at Carlton seeking an interview with the applicant in respect of the judgment of the Full Court of the Federal Court. At about 1.00 pm. on that day the applicant, accompanied by others, came out of the office of the Federation and was interviewed. No reliance was placed by the respondent on anything said by the applicant in that first interview. The applicant then distributed to those present copies of a resolution passed by the federal management committee of the Federation. The first sentence of the resolution read as follows: The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.

At the request of a representative of a television channel, the applicant consented to a second interview and to answer further questions. One of the questions was as follows: Mr Gallagher, what is your reaction (or response) to the Court’s decision?

To this question the applicant replied:

Copyright © 2015. Oxford University Press. All rights reserved.

I’m very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs … I believe that that has been the main reason for the court changing its mind.

It has been held by the Federal Court that in making that statement, the applicant was guilty of a contempt of court. Before us counsel for the applicant submitted that the Federal Court, in convicting the applicant, relied entirely on the principles stated by Rich J in R v Dunbabin; Ex parte Williams and that those principles imposed an undue and unwarranted restriction on the freedom of speech and discussion and that this Court should (243) adopt the principle, accepted by the Supreme Court of the United States in cases arising under the Constitution of the United States, that a publication should not be held to be a contempt of court unless it amounts to a ‘clear and present danger’ to the administration of justice. The principles which govern that class of contempt of court which is constituted by imputations on courts or judges which are calculated to bring the court into contempt or lower its authority had been discussed by this Court in Bell v Stewart and R v Fletcher; Ex parte Kisch before R v Dunbabin; Ex parte Williams was decided, and the judgment of Rich J in the last mentioned case is consistent with what had been said in the earlier decisions. The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that ‘it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority’: per Dixon J in R v Dunbabin; Ex parte Williams. The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment ‘is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable’: R v Fletcher; Ex parte Kisch, per Evatt J. There is no reason to reconsider these principles in the light of the American authorities, which are of course decided on

403

Copyright © 2015. Oxford University Press. All rights reserved.

404

PART 4 Open Justice and Contempt

constitutional provisions which have no counterpart in Australia, and which in any case lay down rules not dissimilar to those of the common law. It has not been shown that the Federal Court ignored or misapplied proper principles in the present case. The statement by the applicant that he believed that the actions of the rank and file of the Federation had been the main reason for the court changing its (244) mind can only mean that he believed that the court was largely influenced in reaching its decision by the action of the members of the union in demonstrating as they had done. In other words, the applicant was insinuating that the Federal Court had bowed to outside pressure in reaching its decision. It is fundamental that a court must decide only in accordance with the evidence and argument properly and openly put before it, and not under any outside influence. What was imputed was a grave breach of duty by the court. The imputation was of course unwarranted. In considering whether this statement was calculated to lower the authority of the court, and whether it was necessary in the interests of the ordered and fearless administration of justice to fine or imprison the applicant, the Federal Court was entitled to consider, as it did, the fact that the applicant is a union leader, very well known to the Australian public, holding an important office in a large national trade union, and the fact that some members of the public might have been the more ready to accept the assertions of the applicant as true because of their awareness that on some occasions employers and even governments are influenced by the pressure which trade unions are able to bring to bear. Further, it was open to the court to consider that the publication by the applicant of the resolution of the Federal Management Committee was relevant to the question whether the applicant’s statement was a deliberate one, for the court was entitled to think that even if the resolution, by itself, was ambiguous, the circumstances showed that it was to the same effect as the applicant’s own statement. On the other hand, in favour of the applicant, it was right to consider that the offending statement was made in the course of a second interview which the applicant might not have expected to be held, that it was only one of a number of statements made, and that the newspapers and television channels responsible for giving publicity to the applicant’s statement were not themselves charged with contempt of court. However, there is not the least ground to suppose that the Federal Court overlooked these matters, since all the relevant facts are referred to in the course of the judgments. One final matter upon which reliance was placed by counsel for the applicant was that the statement was made after the proceedings before Keely J and the Full Court in relation to the matter with respect to which the statement was made had concluded. It is, however, obviously incorrect to say that public confidence in the administration of the law cannot be affected by comments made about a court after it had given the judgment which was the subject of the comment; the fact that the matter is no longer pending is simply one of the circumstances to be considered. (245) There can be no doubt that the offending statement amounted to a contempt of court, and if repeated was calculated to undermine public confidence in the Federal Court. The question whether it was necessary, in order to vindicate and protect the court’s authority, to imprison the applicant called for the most anxious consideration, but no ground has been shown to justify our granting special leave in order to interfere with the decision made by the Federal Court. An independent ground on which special leave to appeal was sought was that it was erroneous for the Federal Court to take into account as one of the reasons for imposing a sentence of imprisonment instead of a fine the fact that the court thought that the applicant would not pay a fine out of his own funds. Counsel relied upon cases in which it has been held that it is wrong to impose a sentence of imprisonment not because it is merited but because of a belief that the convicted person cannot pay a fine. Such cases, however, are quite distinguishable from the present, whose circumstances were most exceptional. The applicant, in the course of the interview, made it clear that the Federation would not pay the fine imposed upon it out of its ordinary funds, and it can be inferred from his further remarks that moneys to pay that fine would be provided by employers who could not afford to have industrial trouble with the union. The Full Court did not rely on the latter circumstance, although it was entitled to do so. The object of the imposition of a penalty upon a person convicted of contempt of court is to endeavour to ensure that the unwarranted statements which he has made about the court or a judge are repelled and will not be repeated. In the present case, the applicant, who did not go into the witness box to explain the meaning of his statement or his

CHAPTER 12 Contempt of Court

attitude towards its repetition, was given an ample opportunity to apologize to the court but has chosen not to do so. If the court comes to the conclusion that a person convicted of contempt of court will not personally suffer or be deterred by a fine, that is a matter which it may consider in imposing sentence. It is of course clear that the Federal Court reached its conclusion that a sentence of imprisonment should be imposed chiefly because of the gravity of the contempt, and that the matters to which reference has just been made provided only an additional consideration. For these reasons we are of the opinion that special leave to appeal should be refused.

QUESTIONS 1 Can the principles articulated in the above cases be reconciled? Can the outcomes in these cases be reconciled? 2 How effectively do the principles of ‘scandalising the court’ balance the competing interests in issue, in theory and in practice? 3 What are the advantages or disadvantages of a test for contempt of court based upon a ‘clear and present danger’ being presented to the administration of justice? 4 Are there circumstances in which a publication may amount to both sub judice contempt and contempt due to scandalising the court? 5 Should the offence of scandalising the court be abolished? What are the reasons for its abolition or its retention?

12.4.1 Defence of fair comment

Copyright © 2015. Oxford University Press. All rights reserved.

One of the most important defences to contempt of court is the defence of fair comment. It is an important incident of the common law right to freedom of expression that an individual be able to express his or her opinion freely. How broad and well-protected that right to comment in fact is needs to be examined.68 One of the classic statements of the individual’s right to comment is the dicta of Lord Atkin in Ambard v Attorney-General for Trinidad and Tobago,69 relevantly extracted below. This is followed by an extract from one of the leading High Court of Australia cases on the defence of fair comment to a prosecution for contempt of court.

Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335 per Lord Atkin

But whether the authority and position of an individual judge, or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

68 Cf the common law defence of fair comment and the statutory defence of honest opinion as defences to defamation at 8.6. 69 [1936] AC 322.

405

406

PART 4 Open Justice and Contempt

R v Nicholls (1911) 12 CLR 280

Copyright © 2015. Oxford University Press. All rights reserved.

[The facts appear sufficiently from the extract below.] GRIFFITH CJ delivered the judgment of the Court. (at 283): This motion asks for the committal of the respondent for his contempt of this Court or, in the alternative, for his contempt of the Commonwealth Court of Conciliation and Arbitration, in respect of the publication of an article in the Hobart Mercury of 7th April. The article is of some length. The text of it is an episode alleged to have taken place in the Arbitration Court of which my brother Higgins is the President. Whether it is a correct report or not we do not know. That was the subject matter. The article was prefaced by the heading ‘A Modest Judge,’ and began: ‘Mr Justice Higgins is, we believe, a (284) political Judge, that is, he was appointed because he had well served a political party. He, moreover, seems to know his position, and does not mean to allow any reflections on those to whom he may be said to be indebted for his judgeship.’ The article went on to refer to an episode in which it is suggested that he said that counsel was not entitled to speak disrespectfully of ‘those above us,’ and to discuss the question whether the learned Judge meant by the words ‘those above us’ the Government, or the Broken Hill Unions, or the labour organization, or what is called the ‘caucus.’ So that the subject of the article was a reference which the learned Judge had made to ‘those above us’—if he said it—whatever that may mean, and which the writer took to mean the Government or the ‘caucus.’ If the application which we have to deal with was in reference to that comment, and the question were whether that comment was calculated to bring the Arbitration Court into contempt, it would be necessary to consider the whole of the article carefully. But that part of the motion is not pressed. Possibly the Attorney-General saw the difficulty of contending that this Court and the Arbitration Court are the same. The application is now limited to the two introductory sentences I have read. The proposition upon which Mr Weigall relied is that any publication calculated to bring a Judge into contempt or to lower his authority is a contempt of the Court. He says that Higgins J is a Judge of the High Court, that this publication is calculated to bring him into contempt or lower his authority, and, therefore, that the respondent is guilty of a contempt of the High Court. In my opinion this proposition cannot be supported in the large sense which is contended for. Mr Weigall relies upon the language by Lord Russell of Killowen, CJ, in Reg. v Gray, at p. 40 where he said: ‘Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke (285) LC characterized as ‘scandalizing a Court or a Judge’ (In re Read and Huggonson at p 471). That description of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court. The law ought not to be astute in such cases to criticize adversely what under such circumstances and with such an object is published. With regard to what Lord Hardwicke LC characterized as ‘scandalizing a Court or a Judge’ it was pointed out by my brother O’Connor that in McLeod v St Aubyn, at p 561 Lord Morris stated that prosecutions for that class of contempt are practically obsolete in England … (at 286) It is said by Mr Weigall that they suggest a want of impartiality, but we do not find that in them, and I am not prepared to accede to the proposition that an imputation of want of impartiality to a Judge is necessarily a contempt of Court. On the contrary, I think that, if any Judge of this Court or of any other Court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the Court in any matter likely to be brought before it, any public comment on such an utterance, if it were a fair comment, would, so far from being a contempt of Court, be for the public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel.

CHAPTER 12 Contempt of Court

The only question for us to determine here is whether these words are calculated to obstruct or interfere with the course of justice or the due administration of the law in this Court. It being impossible to answer that question in the affirmative, no order should be made upon the motion. The respondent has very properly expressed his regret for having used language which is said to be capable of being construed as disrespectful comment which he did not intend. He has very properly withdrawn any such imputation. But that, of course, does not render him guilty of an offence which he has not committed. The motion will be dismissed.

QUESTION 1 How balanced are the principles of fair comment as a defence to contempt of court? Are they balanced in practice as well as in theory?

12.4.2 The reciprocal responsibility of commentators Although the common law recognises a broad right to criticise courts and judges and the performance of their functions, it equally requires this right to be exercised responsibly and in good faith.

R v Hanson

Copyright © 2015. Oxford University Press. All rights reserved.

[2003] QCA 488

[The first appellant, Pauline Hanson, was a high-profile, populist politician who was the leader of Pauline Hanson’s One Nation political party. The second appellant, David Ettridge, was a member of the party’s management committee. Hanson and Ettridge were prosecuted for offences under the Criminal Code (Qld) s 408C(1)(b) and 408C(1)(f), being dishonestly obtaining property and dishonestly inducing a person to do an act that the person is lawfully entitled to abstain from doing. The Crown submitted that Pauline Hanson’s One Nation Party was not validly registered as a political party as it did not have the 500 members as required under the Electoral Act 1992 (Qld). It claimed the 500 members of the Pauline Hanson Support Movement were not in fact members of the party. As a consequence of the invalid registration of the party, the Crown claimed that Hanson and Ettridge dishonestly induced the Electoral Commissioner to register the political party and had dishonestly obtained property from the Electoral Commissioner in the form of electoral funding of almost $500,000 following the 1998 Queensland state election. In late August 2003, a Queensland District Court jury found Hanson and Ettridge guilty. Hanson and Ettridge were each sentenced to three years’ imprisonment. They appealed to the Queensland Court of Appeal. In the course of allowing the appeal, McMurdo P made the following observations about the extensive commentary that surrounded this contentious litigation.] McMURDO P [at 51]: The appellants were convicted and sentenced on 20 August this year. It is common knowledge that convictions and sentences are subject to a lawful appeal process. The appellant Hanson appealed against her conviction on 26 August 2003 and applied for leave to appeal against her sentence on 27 August 2003; the appellant Ettridge filed his notice of appeal against conviction and his application for leave to appeal against sentence on 1 September 2003. The appellants’ conviction and sentence attracted a deal of media attention and public interest. Senior members of the legislature, many of whom were trained lawyers, were reported in the media as making inappropriate comments about this case. [52] The Prime Minister is quoted as saying: ‘on the face of it, it does seem a very long, unconditional sentence for what she is alleged to have done’.

407

408

PART 4 Open Justice and Contempt

[53] Former Federal Minister and now senior backbencher, Ms Bronwyn Bishop, was reported as likening the prosecution of this matter to something one would expect in Zimbabwe under the regime of the tyrant, Robert Mugabe: It’s gone beyond just political argy-bargy of political opponents … I’ve been very critical of her and her party, but this is something that is above and beyond that political argument—this is someone who has been sent to jail because she spoke her views and that is not acceptable in this country. Very simply, for the first time in Australia, we now have a political prisoner and I find that totally unacceptable … in a country where freedom of speech and freedom to act as a political individual is sacrosanct.

[54] The New South Wales Premier was reported as saying that the sentence seemed excessive because it was ‘almost a crime without a victim’. [55] Western Australian One Nation MP, Frank Hough, was reported as saying that Hanson had been ‘hounded into prison … All she’s guilty of is naivety and inexperience.’ [56] The Queensland One Nation leader, Bill Flynn, was reported as saying that he believed there had been ‘considerable political pressures’ behind the case. [57] As far as I have been able to ascertain, there has been no retraction of any of these comments. If these observations were accurately reported, they are concerning. They demonstrate, at the least, a lack of understanding of the Rule of Law, the principle that every person and organisation is subject to the same laws and punishment and not to the arbitrary wishes of individuals or the passing whim of the day. Such statement from legislators could reasonably be seen as an attempt to influence the judicial appellate process and to interfere with the independence of the judiciary for cynical political motives. [58] Fortunately, many legislators asked to comment on the case responded with appropriate restraint. For example, the Minister for Foreign Affairs, Mr Downer, pointed out that Hanson’s sentence ‘was a legal decision, not politically driven’ and the Deputy Prime Minister and the Federal Treasurer each noted that ‘the matter was one for the courts’. [59] A failure by legislators to act with similar restraint in the future, whether out of carelessness or for cynical short-term political gain, will only undermine confidence in the judiciary and consequentially the democratic government of this State and nation.

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTION 1 Apart from prosecutions for contempt of court, what other legal or non-legal steps are available to courts to protect the administration of justice from unwarranted attacks?

12.4.3 Defence of justification While the defence of fair comment is well-established, the availability of the defence of justification to a charge of contempt of court is less certain. Although academic opinion appears to doubt the availability of this defence,70 there are dicta suggesting proof of the truth of a contemptuous publication may be raised as a defence.71

QUESTION 1 What are the arguments for and against allowing the defence of justification to a prosecution for contempt of court? Which arguments do you prefer? Why? 70 Borrie and Lowe, Law of Contempt, 4th edn, LexisNexis, London, 2010 at [11.22]–[11.23]; Eady and Smith, Arlidge, Eady & Smith on Contempt, 4th edn, Sweet & Maxwell, London, 2011, [5-254]–[5-257]; CJ Miller, Contempt of Court, 3rd edn, Oxford University Press, Oxford, 2000 at 584–87. 71 R v Castro; Skipworth’s Case (1873) LR (QB) 230 at 234 per Blackburn J; R v Hoser [2001] VSC 443 at [58] per Eames J.

CHAPTER 12 Contempt of Court

12.4.4 The impact of the implied freedom of political communication The implied freedom of political communication, which emerges from the text and structure of the Commonwealth Constitution, has already been discussed in the context of defences to defamation.72 However, the potential application of the implied freedom of political communication as a defence that media outlets might raise is not limited to defamation claims. The principles of contempt of court do not, as a whole, infringe the implied freedom of political communication.73 However, it remains to be tested what impact the implied freedom of political communication might have on the principles of contempt of court and their application in a given case. As part of the common law, the principles of contempt of court are subject to the Constitution and, to the extent that they are inconsistent with the Constitution, will need to yield or be adapted.74

John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81

[John Doe was facing drug-related charges in the Central Local Court. He had been subject to surveillance by the Australian Federal Police. The AFP intercepted 80,000 telephone calls, generating 40,000 hours of recorded conversations over 149 cassette tapes. In the course of their surveillance, the AFP discovered that Doe and his associates had used a race-fixing syndicate to launder the proceeds from their drug dealing. Portions of the tapes were obtained by The Sydney Morning Herald, which began publishing stories about the ‘Jockey Tapes’, as they became known. Doe obtained an injunction from Spender AJ, preventing The Sydney Morning Herald from identifying him. The newspaper’s publisher, John Fairfax Publications Pty Ltd, appealed to the New South Wales Court of Appeal.] KIRBY P (at 109):

Copyright © 2015. Oxford University Press. All rights reserved.

Contempt and the constitution The appellant then submitted that, to the extent that the respondent’s entitlement to relief rested upon an incident of the law of contempt and its longstanding protection of the right of accused persons to fair trial, this too came into conflict with the implied constitutional guarantee of free communication. With every respect, I consider that this submission demonstrates a misunderstanding of the scope and purpose of the constitutional guarantee. In Attorney-General for New South Wales v Time Inc Magazine Co Pty Ltd (Court of Appeal, 15 September 1994, unreported), Gleeson CJ (at 10) (with whom Sheller JA and Cole JA concurred) pointed out once again that free communication is not an unconditional right: The common law principles … are themselves the result of a balancing of competing interests; the public interest in freedom of expression and the public interest in the administration of justice. Freedom of expression is not unconditional. Expression can, for legally relevant principles, be free even though it is subject to other legitimate interests.

In the application for special leave to appeal from that decision, Mason CJ, (110) speaking for the High Court (Mason CJ, Brennan J and Toohey J) refusing special leave said: The question whether the implication of freedom of communication discussed in this Court in Nationwide News Pty Ltd v Wills, Australian Capital Television Pty Ltd v The Commonwealth, Theophanous v Herald and Weekly Times Ltd and Stephens v West Australian Newspapers Ltd extends to the publication of a photograph of an accused person taken outside the court is a question

72 For a discussion of the implied freedom of political communication, see Chapter 2. 73 John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 109–11 per Kirby P; Hoser v R [2003] VSCA 194 at [25] per Batt and Vincent JJA and Harper AJA. 74 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

409

410

PART 4 Open Justice and Contempt

which might, in an appropriate case, warrant the grant of special leave. But in this case, having regard to its particular facts, we are not persuaded that the proposed appeal enjoys sufficient prospects of success …

From this hint, the appellant sought to construct an argument that the law of contempt was now controlled by the implied constitution guarantee of free expression. In so far as the respondent’s entitlement to injunctive relief depended indirectly upon that law, it was now thrown in doubt by the operation of the new principle derived, by implication, from the Australian Constitution. So urged the appellant. In the light of my preference to base my conclusion upon the respondent’s entitlement to secure an injunction to prevent breach of the Act as it would affect him, my opinion on this question is not strictly necessary. However, in deference to the arguments of the parties, and of the Attorney-General for New South Wales, I will say that I see no substance in the submission. In Theophanous (at 752–753; 62), Deane J expressly referred to the law of contempt as it was affected by the constitutional implication:

Copyright © 2015. Oxford University Press. All rights reserved.

… I would make clear that nothing in this judgment should be understood as suggesting that the traditional powers of the parliament and superior courts to entertain proceedings for contempt are not justifiable in the public interest. In that regard, it is important to remember that, while the distinction is not always as clear as it should be (see, eg, R v Richards; Ex parte Brown & Fitzpatrick (1955) 92 CLR 157), the justification of proceedings for contempt of court or parliament lies not in the protection of the reputation of the individual judge or parliamentarian but in the need to ensure that parliaments and courts are able effectively to discharge the functions, duties and powers entrusted to them by the people.

See also Dawson J (at 193) and in Australian Capital Television, Mason CJ (at 142), Brennan J (at 159). It would be unthinkable if the beneficial development of the implied constitutional right to free communication upon certain matters integral to the political system established by the Constitution were seen, by the appellant or anyone else, as a vehicle for destroying the essential power and duty of the courts in this country to protect the fair trial right of persons accused of crimes. That right may itself be implied in the Constitution: cf Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 607; Dietrich v The Queen (1992) 177 CLR 292 at 326, 362. I say nothing more of that for it has not been argued. But it would be a complete misreading of the recent development of constitutional law in Australia to suggest that the implied constitutional right of free communication deprives courts such as this, of the power and, in the proper case, the duty to protect an individual’s right to a fair trial where it is, as a matter of practical reality under threat. Whatever limitations may be imposed by the constitutional development protective of free communication upon (111) certain matters upon the law of contempt (for example, in terms of the scandalising of the courts) I could not accept that the constitutional implied right has abolished the longstanding protection of fair trial from unlawful or unwarranted media or other intrusion. Fair trial is itself a basic right in Australia: see Jago v District Court of New South Wales (1989) 168 CLR 23 at 33, 47. The appellant’s argument on this point must also be rejected.

QUESTION 1 In what circumstances might an argument based on the implied freedom of political communication be raised in a prosecution for contempt of court?

12.5 Other forms of contempt of court 12.5.1 Undermining court orders of secrecy

A media outlet may be directly subject to a court order or it may give an undertaking to the court in a particular proceeding. In either case, the breach of the court order or the failure to abide by the undertaking will expose the media outlet to liability for contempt

CHAPTER 12 Contempt of Court

of court.75 In addition, a media outlet may commit contempt of court, even though it is not directly subject to a court order, if the media outlet is aware of the existence and terms of a court order and the conduct of the media outlet is such as to subvert the effect of the court order, thereby interfering with the administration of justice. A good example of this type of contempt of court is provided by the House of Lords decision in Attorney-General v Times Newspapers Ltd, which is relevantly extracted below.76

Attorney-General v Times Newspapers Ltd [1992] 1 AC 191

Copyright © 2015. Oxford University Press. All rights reserved.

[Peter Wright, a former member of the British Security Service, MI5, wrote his memoirs, Spycatcher. Unable to publish them in the United Kingdom, due to the Official Secrets Act 1911 (UK), Wright attempted to publish them in Australia. The United Kingdom Attorney-General brought proceedings in the Supreme Court of New South Wales, seeking to restrain publication of Spycatcher in Australia. In late June 1986, The Observer and The Guardian newspapers published reports of the proceedings, including Wright’s allegations. On application by the Attorney-General, Millett J granted interlocutory injunctions restraining these newspapers from publishing further reports until the Attorney-General’s claim for breach of confidence against Wright had been determined. In April 1987, The Independent, the Evening Standard and the Daily News carried reports about Spycatcher. The Attorney-General commenced contempt proceedings against these newspapers. In mid-July 1987, The Sunday Times newspaper began serialising Spycatcher. The Attorney-General brought contempt proceedings against Times Newspapers Ltd. Ultimately, at the trial, Morritt J fined The Independent and The Sunday Times—the only newspapers against which the charges were pressed—£50,000 each. An appeal to the Court of Appeal was dismissed. Times Newspapers appealed to the House of Lords.] LORD BRANDON OF OAKBROOK (at 203): It is, in my opinion, of the utmost importance to formulate with precision the question which falls to be decided in this appeal. For the purpose of such formulation it is necessary to assume a situation in which one person, B, is a party to an action brought against him by another person, A, and the court grants A an injunction restraining B from doing certain acts. Despite the rhetoric employed at times by Mr Lester the question for decision is not whether such an injunction is binding on a third person, C, who is not a party to the action and is not referred to in the injunction. Clearly such an injunction cannot be binding on C and it has never been contended for the Attorney-General that it could. The question for decision is quite another one. It is whether, in the situation assumed, it is a contempt of court for C, with the intention of impeding or prejudicing the administration of justice by the court in the action between A and B, himself to do the acts which the injunction restrains B from committing. In approaching that question it is helpful to have in mind the nature of criminal contempts of court as described by Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449F. He there said: although criminal contempts of courts may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.

(at 205) Faced with these authorities Mr Lester argued that it was essential to distinguish clearly between two kinds of case, which I shall for convenience refer to as case 1 and case 2. In both cases there is an action between A and B in which A is granted an injunction against B. There is further another person C, who is not a party to the action and is not referred to in the injunction, but who nevertheless has notice of it. In case 1, C aids and abets B in doing acts which are in breach of the injunction against him. In case 2,

75 As to contempt of court by disobedience of court orders or breach of undertakings to the court, see 12.5.6. 76 See also Attorney-General v Punch Ltd [2003] 1 AC 1046.

411

Copyright © 2015. Oxford University Press. All rights reserved.

412

PART 4 Open Justice and Contempt

B himself does no act which is in breach of the injunction, but C, solely of his own volition and in no way aiding or abetting B, does acts which, if they had been done by B, would have constituted a breach of the injunction by him. So far as case 1 is concerned, Mr Lester very properly conceded, having regard to the authorities cited above, that C commits a contempt of court. So (206) far as case 2 is concerned, however, Mr Lester argued strenuously that C does not commit any contempt of court. My Lords, I agree with Mr Lester that, in most examples of case 2, but not all, C does not commit any contempt of court. Suppose for instance that A brings an action against B for an injunction restraining B from trespassing on A’s land, and that in that action the court grants A an interlocutory injunction against B restraining B from going on A’s land pending the trial of the action. Suppose further that C, solely of his own volition and in no way aiding or abetting B, himself goes on A’s land while the action between A and B is still pending. On those facts C would not be committing any contempt of court, because he would not, by his conduct in going on A’s land, be impeding or prejudicing the administration of justice by the court in the action between A and B. But take another example. Suppose that there is an action between A and B in which B claims, but A disputes, that B is entitled to demolish A’s house and that in that action the court grants A an interlocutory injunction restraining B from demolishing A’s house pending the trial of the action. Suppose further that C, of his own volition and in no way aiding or abetting B, himself demolishes A’s house while the action between A and B is still pending. On those facts C would, in my opinion, be committing a contempt of court, because he would be knowingly impeding or interfering with the administration of justice by the court in the action between A and B. These examples of case 2 show that the test for deciding whether C has committed a contempt of court is whether C has by his conduct knowingly impeded or interfered with the administration of justice by the court in the action between A and B. That was the test applied in each of the three authorities referred to above. It might perhaps appear that, since each authority was concerned with C aiding and abetting the breach of an injunction granted against B in an action between A and B to which C was not a party, that such aiding and abetting by C is the only kind of conduct on his part which can constitute a contempt of court by him. In my opinion, however, that is not the right conclusion to be reached from those authorities. The ground of decision in each of them was that the knowing impedance of and interference by C with the administration of justice by the court in the action between A and B, to which C was not a party, was a contempt of court. It was incidental only that the form of conduct which was held to constitute contempt in the three cases concerned was the aiding and abetting of breaches by B of an injunction obtained against him by A. It seems to me, as a matter of principle that, if C’s conduct, in knowingly doing acts which would, if done by B, be a breach of the injunction against him, results in impedance to or interference with the administration of justice by the court in the action between A and B, then, so far as the question of C’s conduct being a contempt of court is concerned, it cannot make any difference whether such conduct takes the form of aiding and abetting B on the one hand or acting solely of his own volition on the other. It remains to consider in what circumstances conduct by C, in knowingly doing acts which would, if done by B, be a breach of an (207) injunction against him, is such as to impede or interfere with the administration of justice by the court in the action between A and B. I do not think that it would be wise, even if it were possible, to try to give an exhaustive answer to that question. A principal example, however, of circumstances which will have that effect is where the subject matter of the action is such that, if it is destroyed in whole or in part before the trial of the action, the purpose of the trial will be wholly or partly nullified. This would be the situation in the case which I postulated earlier of an action in which B claims, but A disputes, that B is entitled to demolish A’s house, and A obtains an interlocutory injunction against B restraining B from demolishing A’s house pending the trial of the action. If in such a case C, acting of his own volition and not by way of aiding or abetting B, knowingly demolishes A’s house before the trial of the action, the purpose of such trial will be wholly nullified. C will therefore have committed a contempt of court. The present case presents a similar situation. The claims of the Attorney-General in the confidentiality actions were for permanent injunctions restraining the defendants from publishing what may conveniently be called Spycatcher material. The purpose of the Millett injunctions was to prevent the publication of any such material pending the trial of the confidentiality actions. The consequence of the publication of Spycatcher

CHAPTER 12 Contempt of Court

Copyright © 2015. Oxford University Press. All rights reserved.

material by the publishers and editor of ‘The Sunday Times’ before the trial of the confidentiality actions was to nullify, in part at least, the purpose of such trial, because it put into the public domain part of the material which it was claimed by the Attorney-General in the confidentiality actions ought to remain confidential. It follows that the conduct of the publishers and editor of ‘The Sunday Times’ constituted the actus reus of impeding or interfering with the administration of justice by the court in the confidentiality actions. Mens rea in respect of such conduct having been conceded by Mr Lester, both the necessary ingredients of contempt of court were present. I therefore reject as wrong in law the main contention advanced by Mr Lester on behalf of the publishers and editor of ‘The Sunday Times’. LORD ACKNER (at 211): The law On this brief statement of the essential facts it would seem to me to be a remarkable lacuna in the law of contempt of court, its very function being to prevent interference with the course of justice, if it provided no remedy to deal with the situation which I have described. Whatever would be the point of a court making an order designed to preserve the confidentiality of material, the subject matter of a dispute between A and B, pending the trial of the action, if at the whim of C, the protection afforded by the court by its order could be totally dissipated? How then do the appellants seek to justify the existence of what would be a most anomalous situation? Mr Anthony Lester, at the very forefront of his submissions, contends that it is a well established principle of English law that orders are made as between parties to an action and that such orders bind only those parties. Third parties are not, as a matter of principle, bound by decisions or orders in legal actions between other persons. But this has never been in contest between the parties. From the very outset of this litigation, Mr Laws, for the Attorney-General, has accepted that the publication which he contends was ‘contemptuous’ did not constitute a breach of the 1986 orders made against ‘The Guardian’ and the ‘Observer’, since the publication was not made by the only persons restrained by the 1986 order, but independently by other newspapers. Mr Laws has consistently contended that there are two types of contempt. The first is civil contempt, which consists of a breach by a party to proceedings of an order made against him; that is not the present case. The second type is a criminal contempt which consists of conduct which frustrates or impedes the due administration of justice and that, said Mr Laws, is the present case. His argument was thus recorded by the Vice-Chancellor in his judgment on the preliminary issue see: Attorney-General v Newspaper Publishing Plc [1988] Ch 333, 340. Mr Lester’s main contention was that the authorities decide that a third party is not liable for contempt by performing an act prohibited by the court except where he has aided and abetted (or incited or otherwise assisted) the performance of the act by the party enjoined. I do not accept that this is the correct interpretation of the authorities upon which he relies. LORD JAUNCEY OF TULLICHETTLE (at 231): I am quite satisfied that it is in accordance with the principles enunciated in the foregoing authorities that a person who knowingly acts in a way which will frustrate the operation of an injunction may be guilty of contempt even although he is neither named in the order nor has he assisted the person who is named to breach it. Indeed it would be extraordinary if orders of the court could be set at naught with impunity by third parties seeking to achieve that end. It would not be profitable to speculate upon the various ways in which the order might be frustrated, but I use the words ‘may be guilty’ advisedly since not every frustrating act will necessarily constitute the actus reus of contempt. There may be cases where the perfectly legitimate pursuit of a purpose by a stranger has the incidental result of frustrating an order. It does not inevitably follow that such pursuit will constitute contempt quite apart from questions of mens rea. I turn to consider whether there is any reason why established principle should not be applied to the situation in this case. I do not accept the proposition that to apply established principles in the foregoing circumstances would effectively be to convert every injunction from an order in personam to an order contra mundum. That proposition ignores the distinction between the breach of an order by the person named therein and interference with the course of justice resulting from a frustration of the order by the third party. [Lord Keith of Kinkel and Lord Oliver of Aylmerton agreed that the appeal should be dismissed.] Appeal dismissed.

413

414

PART 4 Open Justice and Contempt

QUESTION 1 On what basis can a media outlet by held liable for contempt of court for undermining a court order by which the media outlet is not directly bound?

12.5.2 Revealing jury deliberations—common law The common law principles of contempt of court may also proscribe the publication of jury deliberations. It may be, but not invariably, contempt of court for a media outlet to publish jury deliberations,77 as the following extract from Attorney-General v New Statesman and Nation Publishing Co Ltd suggests.

Attorney-General v New Statesman and Nation Publishing Co Ltd [1981] QB 1

Copyright © 2015. Oxford University Press. All rights reserved.

[The New Statesman magazine published a series of articles about the downfall of the leader of the Liberal Party in the United Kingdom, Jeremy Thorpe. One of the articles contained disclosures about the jury’s deliberations, from a juror who was not paid, about the reasoning used to acquit Thorpe and others from charges of conspiracy to murder. The Attorney-General applied to have the publisher of The New Statesman punished for contempt of court.] LORD WIDGERY CJ (at 6): It is argued that the article involves an interference with the due administration of justice as a continuing process in that the disclosure of what happened in the jury room tends or will tend: (a) to imperil the finality of jury verdicts and thereby diminish public confidence in the general correctness and propriety of such verdicts and (b) to affect adversely the attitude of future jurymen and the quality of their deliberations. It is said that nothing must be permitted to be published which (7) might tend to deter a person likely to be called for jury service from playing his full part as a juror in any trial. We were reminded that, until a few years ago, it was accepted that the secrets of the jury room had to be treated as secret. The solemn obligation by jurors to observe secrecy was well maintained and breaches of the obligation were kept at an acceptable level. It had never been necessary to invoke the law of contempt in respect of such breaches, but that law had always been available for use in any case in which the administration of justice would have been imperilled. Recently, however, the solemn obligation of secrecy has been shown to be breaking down; a considerable number of publications involving jury room revelations, some more objectionable than others, has occurred. Accordingly, in view of the apparently diminishing respect for the convention of observance of jury secrecy and the risk of escalation in the frequency and degree of the disclosures, it has become right for the Attorney-General to invoke the law of contempt in relation to this article in the ‘New Statesman’ since it represents a departure from the norm and is a serious and dangerous encroachment into the convention of jury secrecy. On the other hand, it is also conceded that there are strong arguments in support of the view that certain categories of disclosure fall outside the law of contempt, for example, where serious research is being carried out, but, even then, any disclosures would have to be such as to ensure that the trial could not be identified; or, where the disclosure occurred in social discussion, but even that could in some circumstances be so undesirable as to constitute contempt. Accordingly we have been invited to draw a distinction between these categories of disclosure which probably fall outside the law of contempt and the general principle of that law and to hold, by applying the general principle, that this article constitutes contempt … There can be no doubt that among the actions which can have the effect of interfering with the due administration of justice is interference (8) with a juror. This may take place in a number of different

77 For an example of contempt of court by disclosing jury deliberations, see Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 45.

CHAPTER 12 Contempt of Court

circumstances and with a number of different consequences. For example, a person interested in the result of a trial may meet a juror before the trial occurs and seek to induce him to give a false verdict or otherwise distort the ends of justice; or such a person, seeking to influence a juror’s decision, may occupy a position in court from which he can glower at the juror and generally put him in a frame of mind in which he may be induced to find a particular verdict. But we are concerned with an alleged contempt occurring after the conclusion of the trial. An example of this kind of contempt would be when a juror was attacked or threatened after the trial pursuant to a desire for vengeance from a disappointed litigant or a member of the convicted person’s family: see for example, Reg v Martin (1848) 5 Cox CC 356. To attack or threaten a juror after the trial in order to obtain revenge or for some other purpose connected with the discharge of his duty as a juror would almost certainly be a contempt of court … (10) The virtue of our system of trial by jury lies in the fact that, once the case is over and the jury has returned its verdict, the matter is at an end. In our judgment, therefore, any activity of the kind under consideration in this case which—to use the language of the Attorney-General’s statement—tends or will tend to imperil the finality of jury verdicts or to affect adversely the attitude of future jurors and the quality of their deliberations is capable of being a contempt. But that is not to say that there would be of necessity a contempt because someone had disclosed the secrets of the jury room … (11) The evidence before us shows that for a number of years the publication of jury room secrets has occurred on numerous occasions. To many of those disclosures no exception could be taken because, from a study of them it would not be possible to identify the persons concerned in the trials. In these cases, jury secrets were revealed in the main for the laudable purpose of informing would-be jurors what to expect when summoned for jury service. Thus, it is not possible to contend that every case of post-trial activity of the kind with which we are concerned must necessarily amount to a contempt. Looking at this case as a whole, we have come to the conclusion that the article in the ‘New Statesman’ does not justify the title of contempt of court. That does not mean that we would not wish to see restrictions on the publication of such an article because we would. But our duty is to say what the law is today and to see whether today the activity in question is a contempt of court. We are unable to say that it is and we would therefore refuse the application. Application refused.

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 Why might the disclosure of jury deliberations amount to contempt of court? 2 In what circumstances might the disclosure of jury deliberations be permissible or even desirable?

12.5.3 Revealing jury deliberations—statutory provisions In addition to the common law principles of contempt of court, there are, in most Australian jurisdictions, specific statutory offences relating to the disclosure of jury deliberations and the publication of other information relating to juries.78 The provisions from the Jury Act 1977 (NSW) are extracted below, by way of illustration. A common feature of the legislation regulating jurors is a prohibition on jurors undertaking their own researches into the cases on which they sit.79 There are increasing concerns about, and instances of, jurors using internet search engines and social media platforms to research or discuss matters relating to

78 Juries Act 1967 (ACT) s 42C; Juries Act 1962 (NT) ss 49A, 49B; Jury Act 1995 (Qld) ss 69A, 70; Criminal Law Consolidation Act 1935 (SA) ss 246–247; Juries Act 2003 (Tas) ss 57–58; Juries Act 2000 (Vic) ss 77–78B; Juries Act 1957 (WA) ss 56A–56E. 79 See, for example, R v Wood (2008) 186 A Crim R 454; Attorney-General v Dallas [2012] EWHC 156 (Admin).

415

416

PART 4 Open Justice and Contempt

the cases in which they are sitting, notwithstanding judicial warnings not to do so and these criminal offences being in place.80

Jury Act 1977 (NSW) 68 Disclosure etc of identity or address of juror

Copyright © 2015. Oxford University Press. All rights reserved.

(1) A person shall not, except in accordance with this Act, wilfully publish any material, broadcast any matter or otherwise disclose any information which is likely to lead to the identification of a juror or former juror in a particular trial or inquest. Penalty: In the case of a corporation, $250,000; in any other case, 2 years imprisonment or 50 penalty units (or both). (2) Subsection (1) does not apply to the identification of a former juror with the consent of the former juror. (3) A reference in this section to the identification of a juror or former juror includes a reference to the disclosure of the address of the juror or former juror. (4) Subsection (1) does not apply to the disclosure of information by the sheriff to any of the following bodies or persons for the purposes of an investigation or prosecution of a contempt of court or an offence relating to a juror or a jury: (a) a court, (b) the New South Wales Crime Commission, (c) the Independent Commission Against Corruption, (d) the Police Integrity Commission, (e) the Australian Crime Commission, (f) the Director of Public Prosecutions, (g) the NSW Police Force, (h) the Australian Federal Police. (5) Subsection (1) does not apply to the disclosure of information by the sheriff to a person in accordance with an authority granted by the Attorney General for the conduct of a research project into matters relating to juries or jurors. (6) In this section: court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

68A Soliciting information from or harassing jurors or former jurors (1) A person must not solicit information from, or harass, a juror or former juror for the purpose of obtaining information about: (a) the deliberations of a jury, or (b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest. Maximum penalty on indictment: imprisonment for 7 years. (2) The deliberations of a jury include statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. (3) Subsection (1) does not prohibit a person from soliciting information from a juror or former juror in accordance with an authority granted by the Attorney General for the conduct of a research project into matters relating to juries or jury service. (4) Subsection (1) does not prohibit any of the following bodies or persons from soliciting information from a juror or former juror for the purposes of an investigation or prosecution of a contempt of court or an offence relating to a juror or a jury:

80 See, for example, Attorney-General v Fraill [2011] EWCA Crim 1570.

CHAPTER 12 Contempt of Court

(a) a court, (b) the New South Wales Crime Commission, (c) the Independent Commission Against Corruption, (d) the Police Integrity Commission, (e) the Australian Crime Commission, (f) the Director of Public Prosecutions, (g) the NSW Police Force, (h) the Australian Federal Police. (4A) Subsection (1) does not prohibit a juror from soliciting information from another member of the jury during a trial or coronial inquest. (5) In this section: court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

68B Disclosure of information by jurors etc (1) A juror must not, except with the consent of or at the request of the judge or coroner, wilfully disclose to any person during the trial or coronial inquest information about: (a) the deliberations of the jury, or (b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in the trial or coronial inquest. Maximum penalty: 20 penalty units. (2) A person (including a juror or former juror) must not, for a fee, gain or reward, disclose or offer to disclose to any person information about: (a) the deliberations of a jury, or (b) how a juror, or a jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest. Maximum penalty: 50 penalty units. (3) The deliberations of a jury include statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. (4) Subsection (1) does not prohibit a juror from disclosing information to another member of the jury during a trial or coronial inquest.

Copyright © 2015. Oxford University Press. All rights reserved.

68C Inquiries by juror about trial matters prohibited (1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both. (2) This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings. (3) This section does not prohibit a juror: (a) from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or (b) from making an inquiry authorised by the court. (4) Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror. (5) For the purpose of this section, making an inquiry includes the following: (a) asking a question of any person, (b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet), (c) viewing or inspecting any place or object, (d) conducting an experiment, (e) causing someone else to make an inquiry.

417

418

PART 4 Open Justice and Contempt

QUESTIONS 1 How do the Jury Act 1977 (NSW) ss 68A and 68B differ in operation? Why are they different? 2 How does the common law interact, if at all, with the Jury Act 1977 (NSW) ss 68A and 68B?

12.5.4 Disclosure of journalists’ sources—the common law position One of the most direct ways in which an individual journalist can expose himself or herself to  punishment for contempt of court is by refusing to disclose his or her sources under  oath. The Australian Journalists’ Association’s Code of Ethics, cl 3, provides that, ‘[w]here confidences are accepted [from sources], respect them in all circumstances’. While journalists themselves might think their obligations of confidence to their sources are binding and paramount, courts take a different view.81 As the following extract from the High Court of Australia’s decision in McGuinness v Attorney-General (Vic) demonstrates, the common law position is that the relationship between a journalist and his or her source is not a recognised, special category of case which attracts a privilege against disclosure in court.82 There continue to be attempts, sometimes successful, to compel journalists to reveal their sources.83

McGuinness v Attorney-General (Vic)

Copyright © 2015. Oxford University Press. All rights reserved.

(1940) 63 CLR 73

[Frank McGuinness was the editor of the Truth newspaper. In early September 1939, the Truth newspaper published articles suggesting that funds were being collected for the purpose of bribing members of the Victorian Parliament in order to procure votes against two bills, one relating to money lenders, the other to the establishment of a milk board. In late November 1939, the Governor in Council established a royal commission to examine these allegations. In mid-December 1939, McGuinness was summoned to give evidence before the royal commission but, after being sworn, refused to identify his source. The Royal Commissioner, Gavan Duffy J, certified that McGuinness had been guilty of an offence under the Evidence Act 1928 (Vic) s 19 by virtue of his refusal to answer the question as to the identity of his source. The AttorneyGeneral applied to the Supreme Court for McGuinness to be punished. Macfarlan J fined McGuinness £15. McGuinness appealed to the High Court of Australia.] LATHAM CJ (at 85): (2). The second objection is based upon a provision in sec 17 of the Evidence Act that no person shall be compelled to answer any question before a commission that he would not be compellable to answer at the trial of an action in the Supreme Court. It is argued that there is a special newspaper privilege, attaching to proprietors of newspapers, editors, and writers, which entitles them to refuse to disclose at a trial the sources of information which they have used in producing the contents of the newspaper. Probably the proposition is intended to be limited to cases where information has been provided upon a confidential basis. Reference was made to a number of cases (of which the latest is South Suburban Co-operative Society v Orum) in which it has been held that as a general rule a defendant in a defamation action will not be required to give discovery of the source of his information in a case where the defamatory matter has been published in a newspaper. This rule is stated as a general rule subject to exceptions in special circumstances. See, for example, Lyle-Samuel v Odhams Ltd. All the cases mentioned, however, refer to interlocutory applications

81 As to breach of confidence, see Chapter 13. 82 See also Nicholls v Director of Public Prosecutions (S.A.) (1993) 61 SASR 31 at 38 per Legoe ACJ, at 50 per Perry J, at 59 per Mullighan J. 83 See, for example, West Australian Newspapers Ltd v Bond (2009) 40 WAR 164; Hewitt v Pacific Magazines Pty Ltd [2009] SASC 323; Age Co Ltd v Liu (2013) 82 NSWLR 268.

CHAPTER 12 Contempt of Court

Copyright © 2015. Oxford University Press. All rights reserved.

for discovery. They establish only a general rule of practice in relation to such matters. The industry of counsel was unable to discover any case in which it had been either decided or (86) suggested that a witness at a trial could not be compelled to answer such a question where it was relevant. In my opinion the second objection fails … RICH J (at 86): The importance of the contentions advanced for the appellant rather than any expectation that they might find favour with the court induced me to concur in granting special leave in this case. Divided duty has produced many martyrs. The appellant was called upon to choose between his duty under the law to answer questions relevant to the inquiry, unless he had some lawful excuse for refusal, and what he conceives to be his duty as a pressman to his informant to maintain silence. He chose to observe the latter supposed duty and to refuse to divulge the source of his information. The small fine imposed upon him as a result scarcely entitles him to a high place in the rank of martyrs to a cause. But (87) it is enough to enable him to proceed by way of appeal in an attempt to uphold the cause. The cause, I think, is not worthy of even so much martyrdom. It seems to me to be itself founded on a paradox. For it is said that newspapers will not be able to discover the truth and publish it unless when the courts of justice in their turn want the truth pressmen in whom it has been confided are privileged to withhold it. It is easy to understand that editors and other journalists would find it some help in their search for news if they were able to assure those in possession of information that they could secretly impart it without fear that courts of law would be able to discover its source. But this is probably true of a great many other trades, businesses and pursuits. Privilege from disclosure in courts of justice is exceptional and depends upon only the strongest considerations of public policy. The paramount principle of public policy is that the truth should be always accessible to the established courts of the country. It was found necessary to make exceptions in favour of state secrets, confidences between counsel and client, solicitor and client, doctor and patient, and priest and penitent, cases presenting the strongest possible reasons for silencing testimony. But hitherto no one has entertained a claim that courts should not be allowed to know what a journalist has discovered. It is true that in the process of interrogatories and discovery of documents before the trial of an action of libel, courts of common law have exercised a statutory discretion as to what they shall allow by refusing to compel a newspaper defendant to say who wrote the libel or where the newspaper got the information on which the libel is founded. But that depends on special considerations affecting liability for defamation and the discretionary nature of discovery. It is quite a different thing to claim protection on the hearing of a suit or trial of an action for a witness able to state relevant facts because he obtained knowledge of the facts confidentially as an editor or journalist. By the statute law of Victoria a Royal Commission is put in the same position as a court trying an action. In my opinion the appellant has no lawful excuse for refusing to answer the question put to him by the commissioner … STARKE J (at 91): Next it was submitted that the source of the appellant’s information upon which the newspaper articles were based was privileged and that he could not be compelled to disclose it. No such privilege (92) exists according to law. Apart from statutory provisions, the press, in courts of law, has no greater and no less privilege than every subject of the King. But in actions against newspapers or trade periodicals the rule of practice in the King’s Bench Division is to refuse to compel the defendant to disclose the name of the writer of an article or the source of the newspaper’s information (Plymouth & Society Ltd v Traders Publishing Association Ltd ; Lyle-Samuel v Odhams Ltd). It is a rule founded, I apprehend, upon convenience and to limit fishing and oppressive inquiries. And the rule is not confined to actions against newspapers (Maass v Gas Light and Coke Co)—Cf South Suburban Co-operative Society v Orum, at p 703. But the application of the rule must depend upon the circumstances of the case and the discretion of the judge or other authority. The commissioner in the present case was not bound by the practice of the King’s Bench Division and, in any case, considered that the circumstances in the present case were such, as indeed they were, that the appellant should be required to disclose the source of his information … DIXON J (at 102): 2. The second ground of appeal claims that his refusal to state the source of his information had a good legal foundation; that the question from what source an editor obtained confidential

419

Copyright © 2015. Oxford University Press. All rights reserved.

420

PART 4 Open Justice and Contempt

information for the purpose of his journal is one which he would not be compellable to answer at the trial of an action and that the appellant did not refuse without lawful excuse to give an answer. No one doubts that editors and journalists are at times made the repositories of special confidences which, from motives of interest as well as of honour, they would preserve from public disclosure, if it were possible. But the law was faced at a comparatively early stage of the growth of the rules of evidence with the question how to resolve the inevitable conflict between the necessity of discovering the truth in the interests of justice on the one hand and on the other the obligation of secrecy or confidence which an individual called upon to testify may in good faith have undertaken to a party or other person. Except in a few relations where paramount considerations of general policy appeared to require that there should be a special privilege, such as husband and wife, attorney and client, communications between jurors, the counsels of the Crown and State secrets, and, by statute, physician and patient and priest and penitent, an inflexible rule was established that no obligation of honour, no duties of non-disclosure arising from the nature of a (103) pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box. Claims have been made from time to time for the protection of confidences to trustees, agents, bankers, and clerks, amongst others, and they have all been rejected … (104) But although all authority is against the existence of any rule of evidence under which an editor or journalist is protected when called as a witness on the trial of an action from the necessity of deposing to the source of the information contained in his publication or to statements made in confidence to him in the exercise of his calling, yet a special exception is made in favour of publishers, proprietors and editors of newspapers as defendants in actions of libel from the general rule that discovery by affidavit of documents and answer to interrogatories must be made of all relevant matters. By a long line of cases a practice is recognized of refusing to compel such a defendant to disclose the name of the writer of an article complained of as a libel or of the sources of information he has relied upon. The foundation of the rule is the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matter contained in their journals, and the desirability of protecting those who contribute to their columns from the consequences of unnecessary disclosure of their identity … The appellant stands upon these decisions and says that they disclose a development which, in reason and logic, should not stop at discovery, but should supply a general justification for withholding the names of contributors and the sources of information at all stages of any legal proceeding. The answer is that it is not a rule of evidence but a practice of refusing in an action of libel against the publisher, of a newspaper to compel discovery of the name of his informants. (105) In my opinion the existence of the practice and the reasons on which it is based can form no ground for holding that a lawful excuse existed for the appellant’s refusal to answer as to his sources of information. Lawful excuse means a reason or excuse recognized by law as sufficient justification for a failure or refusal to produce documents or answer questions. [In separate reasons for judgment, McTiernan J agreed the appeal should be dismissed.]

QUESTIONS 1 How important are confidential sources to journalists? Are they reliable? 2 Should journalists have a privilege against disclosure of their sources? Why or why not? 3 Why does the common law not recognise the relationship between a journalist and his or her source as a special one attracting privilege against disclosure? 4 What is the ‘newspaper rule’? How does it apply? More importantly, when and why does it apply? How does it differ from the asserted privilege against disclosure of sources by journalists?

12.5.5 Disclosure of journalists’ sources—the position under statute There have been recent legislative changes to the common law position, aimed at providing greater protection to journalists. The legislation on this issue has been in a state of flux, with a variety of politicians putting forward and sometimes implementing various

CHAPTER 12 Contempt of Court

iterations of protections for journalists against the compelled disclosure of their sources, particularly at the Commonwealth level. Many Australian jurisdictions now have a specific form of protection for journalists against disclosure of sources in broadly similar terms.84 The protection broadly takes the form of a qualified protection for journalists, with the disposition against disclosure. There are variations between those jurisdictions which have enacted the provisions, such that the law has not been fully harmonised.85 These provisions are in the process of being tested in the courts.86 By way of illustration, the New South Wales provisions are reproduced below.

EVIDENCE ACT 1995 (NSW) Pt 3.10 Division 1C Journalist privilege 126J Definitions In this Division: informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium. journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium. news medium means a medium for the dissemination to the public or a section of the public of news and observations on news.

Copyright © 2015. Oxford University Press. All rights reserved.

126K Journalist privilege relating to identity of informant (1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained. (2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in the proceeding, the public interest in the disclosure of the identity of the informant outweighs: (a) any likely adverse effect of the disclosure on the informant or any other person, and (b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts. (3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

QUESTIONS 1 How effective are these legislative provisions in protecting journalists from being compelled to disclose their sources in court? What deficiencies, if any, can you identify in these legislative provisions? 2 Do these legislative provisions apply only to mainstream media outlets? Could they also apply to citizen journalists? Should they be able to apply to such journalists? 84 Evidence Act 1995 (Cth) Pt 3.10 Div 1A; Evidence Act 2011 (ACT) Div 3.10.1C; Evidence Act 1995 (NSW) Pt 3.10 Div 1C; Evidence Act 2008 (Vic) Pt 3.10 Div 1C; Evidence Act 1906 (WA) ss 20A-20M. 85 See the feature on Media Shield Laws in Chapter 3. 86 See, for example, Ashby v Commonwealth (No 2) (2012) 203 FCR 440; Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290.

421

422

PART 4 Open Justice and Contempt

12.5.6 Disobeying court orders or breaching undertakings to the court The final form of contempt of court which might affect a media outlet is the disobedience of a court order or the breach of an undertaking given to the court. Ordinarily, the disobedience of a court order or the breach of an undertaking given to the court is a civil, rather than a criminal, contempt.87 However, if the disobedience or breach is wilful and contumacious, what might ordinarily be a civil contempt can be transformed into a criminal contempt. The leading High Court of Australia authority of disobedience of a court order as a form of contempt of court is Australian Consolidated Press Ltd v Morgan, which is relevantly extracted below.

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483

Copyright © 2015. Oxford University Press. All rights reserved.

[Roy Morgan was employed by Australian Opinion Polls to conduct political polling using the ‘Gallup method’. The results of the polls are tabulated. Australian Opinion Polls had agreements with a number of media outlets allowing for the publication of the data. Australian Consolidated Press was not one of these organisations. Prior to the 1958 federal election, ACP newspapers published polling results from Australian Opinions Polls without permission. Australian Opinion Polls brought copyright infringement proceedings against ACP in the Metropolitan District Court. The proceedings settled, as a part of which settlement ACP gave an undertaking not to publish Australian Opinion Polls’s polling results in the future. Prior to the 1961 federal election, ACP again published Australian Opinion Polls’s polling results in one of its newspapers. Australian Opinion Polls commenced proceedings against ACP in the Supreme Court of New South Wales, alleging copyright infringement and breach of the undertaking given to the court. ACP gave an undertaking to the court ‘not until the hearing of the suit or until further order by itself its servants or agents publish in any form whatsoever any gallup poll results in respect of which the plaintiffs or either of them have the copyright’. Before the proceedings could be heard, ACP published Australian Opinion Polls’s polling results, this time during the 1963 federal election. Morgan and Australian Opinion Polls applied to have ACP punished for contempt of court for its breach of its undertaking to the court. Else-Mitchell J fined ACP £1,500. ACP appealed to the High Court of Australia.] BARWICK CJ (at 489): The notice of motion was grounded upon a wilful breach of the undertaking and not upon a contumacious or defiant contempt of the Court. No evidence tending to establish contumacy in the appellant was led by the respondents. The proceedings were taken in and formed part of the original suit and were civil in their nature; the contempt alleged was a contempt in procedure, and no more. A contempt in procedure by disobedience of an order of the Court or by breach of an undertaking given to it may be accompanied by such contumacy or defiance on the part of the party against whom the contempt proceedings are brought as evidences a criminal as well as a civil contempt. There is no reason in such a case why the same proceedings taken at the instance of the aggrieved suitor may not result in orders which are coercive of compliance with the Court’s order or of an undertaking given to it and at the same time punitive of the criminal contempt: but this is not such a case … (at 490) In the present case there were additional reasons for adjourning the motion until the hearing of the suit. In the first place, the undertaking might in terms have afforded the respondents greater protection pending suit than success in the suit itself would ultimately give them. This, in itself, would not in the ordinary course necessarily be a reason for not enforcing an undertaking according to its terms particularly where the undertaking resulted from an arrangement inter partes from which the party giving the

87 As to the distinction between civil and criminal contempt, see 12.1.6. There are no different principles to be applied where there are orders or undertakings: McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 312 per Southwell J.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 12 Contempt of Court

undertaking thought itself to be advantaged. But in this case, having regard to the actual terms of the undertaking, the apparent difficulty, if not the ambiguity, of its language, the close relationship between the undertaking and the basis of the respondents’ causes of action, and the absence of any elements of urgency, there was, in my opinion, no reason for the Court to hasten to give to the respondent any greater interim protection than was properly to be granted by a final decree in the suit. In the second place, the identification of what was to be understood by the expression ‘the results of the gallup poll in respect of which the respondents have copyright’ was not merely a critical issue in the suit, but required a wider examination or consideration than ought to be possible upon a motion for contempt treated as an interlocutory proceeding in the suit. The language of the undertaking gave rise at the hearing of the motion for contempt to widely divergent submissions by the parties as to its scope, and resulted in his Honour placing a construction upon it for which neither party contended. I am far from thinking that his Honour’s interpretation was wrong. I am, on the other (491) hand, not in the least persuaded that the narrow and somewhat pedantic meaning sought to be given to it by the appellant was right. As the suit has yet to be heard, doubtless on further material than was placed before the Court on the motion, I do not feel called upon to express any concluded opinion upon the connotation or denotation of the expression, ‘results of the gallup poll in respect of which the respondents have copyright’. It is sufficient for my purposes to express the opinion that that question ought not to have been resolved in the motion for contempt but ought to have been reserved for the suit. If the motion had been one for an interlocutory injunction, or if the Court had taken the course on the motion for contempt of enjoining the appellant from some specified conduct until the hearing of the suit, the Court could have taken a provisional view of the construction of the agreement between the parties, and of the extent of the respondents’ copyright, and upon that view framed appropriate interim orders. But, in that event, the Court would have had both the respondents’ undertaking as to damages and its own power of varying interlocutory orders, or even, in an appropriate case, of refusing to enforce them by contempt proceedings. By contrast, in the present proceedings, the Court has adopted a concluded view of the construction of the agreement between the parties and upon that construction has made what is in substance a final order. There is one other aspect of the matter to which I wish to advert. Let it be assumed that the language of the undertaking must in the long run bear the meaning and denote the things which the Court has decided it has or does: yet in proceedings for contempt for breach of the undertaking, it is not enough that the Court is satisfied of that meaning or denotation. I think it ought also to be satisfied that that meaning or denotation is such as the appellant might fairly be expected to have contemplated when giving the undertaking. I do not mean that the Court must be satisfied that the appellant gave the undertaking in that sense. It is sufficient that that sense is one which the appellant ought fairly to have had in view as a sense in which the undertaking could be understood. In this case his Honour did not proceed so far in his consideration of the matter. He was prepared to take the view—and, in my opinion, there was in reality no evidence to support it—that the appellant had acted upon a construction actually placed by it upon the undertaking, though mistakenly. Though his Honour thought that construction erroneous he did not scout it as an impossible view. However, he did not decide that the view which he favoured was one which ought to have been in the contemplation of the appellant (492) when giving his undertaking. It may well be that upon the material before his Honour, there being no evidence from the appellant and nothing more than its assertion made out of Court that it had the right to do as it did, it may be possible to draw the necessary conclusions in this respect. But, having regard to the view I entertain as to the propriety of the order actually made by his Honour, I do not myself propose to express any view on the point. The appellant submitted that unless the language of the undertaking was unambiguous and certain, it should not be enforced by contempt proceedings: and sought support for the submission in Redwing Ltd v Redwing Forest Products Ltd and Iberian Trust Ltd v Founders Trust and Investment Co. In my opinion, these authorities do not support this conclusion. If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing

423

424

PART 4 Open Justice and Contempt

the order or undertaking in the sense which the Court assigns to it. If the Court is satisfied that the party said to be in contempt bona fide believed himself bound only by a construction which the Court thinks to be erroneous, it may for that reason, in its discretion, refuse to make an order or, if it makes an order, refuse to make an order for costs against that party. But, even in such a case, the enforcement of the plaintiff’s rights must not be left out of account. A party who has bona fide acted on an erroneous view of an order or undertaking may, according to the circumstances, none the less be justly adjudged guilty of contempt in procedure. In my opinion, this is equally so where, because of its terms or circumstances, the order or undertaking requires construction in order to determine its meaning and remove ambiguities patent or latent. Appeal allowed [In separate reasons for judgment, Windeyer and Owen JJ also allowed the appeal.]

QUESTIONS 1 Why was the order at issue ambiguous? What effect did this have on the court’s approach to contempt of court? 2 Was there any difficulty with the trial judge punishing ACP for contempt of court before the principal proceeding had been determined? What might have been a more appropriate way of dealing with the matter?

12.6 Penalties for contempt of court There is a range of penalties for contempt of court. The most common penalties include: • imprisonment; • fine; • an order that the contemnor pay the costs of the contempt proceedings;88 • a declaration that the contemnor has been found guilty of contempt of court; • an injunction to restrain an apprehended contempt of court.89

Copyright © 2015. Oxford University Press. All rights reserved.

12.6.1 Factors relevant to the assessment of penalties for contempt of court There is also a range of factors relevant to the assessment of penalties for contempt of court. Not every factor will be relevant in every case. Some of the most commonly cited factors include: • the seriousness of the actual or likely interference with the administration of justice; • whether the interference with the administration of justice was intentional or reckless; • whether the contemnor had an established system in place to minimise the risk of unintentional contempt and the efficacy of that system; • whether the contemnor had access to legal advice and whether such advice was in fact sought; • whether the trial or retrial in fact occurred; • the position of the contemnor within the community; • the resources available to the contemnor; • the need for general and specific deterrence; and • whether the contemnor has prior convictions for contempt of court. 88 See, for example, Attorney-General v Bailey (1917) 17 SR(NSW) 170 at 184 per Cullen CJ; at 201 per Gordon J. 89 See, for example, Re South Australian Telecasters Ltd (1998) 23 Fam LR 692.

CHAPTER 12 Contempt of Court

FURTHER READING

Copyright © 2015. Oxford University Press. All rights reserved.

Borrie and Lowe, The Law of Contempt, 4th edn, LexisNexis, London, 2010. Eady, Sir David and Smith, ATH, Arlidge, Eady & Smith on Contempt, 4th edn, Sweet & Maxwell, London, 2011. Law Reform Commission of Western Australia, Report on Review of the Law of Contempt, Report No 93, 2003. New South Wales Law Reform Commission, Contempt by Publication, Report 100, 2003.

425

Copyright © 2015. Oxford University Press. All rights reserved.

PART 5

Copyright © 2015. Oxford University Press. All rights reserved.

Privacy 13 Privacy

429

14 Breach of Confidence

489

15 Information Privacy

533

Copyright © 2015. Oxford University Press. All rights reserved.

13 Privacy

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION Privacy is valued, in varying degrees, by most people in contemporary Australian society. While privacy might be important, defining what it means can be problematic. Privacy can mean different things to different people at different times or in different cultures. Privacy can apply in a given society in a number of different contexts. Privacy can also be invaded in a variety of ways. Media outlets can and do, on occasion, invade people’s privacy. When this occurs, the individuals affected might expect that they have a cause of action against the media outlet but may be surprised to discover the legal protections are not as extensive as they expected. Despite the value individuals might ascribe to it, privacy is not as wellprotected in Australian law as many people might assume. However, courts, legislatures and law reform bodies in Australia, the United Kingdom and New Zealand have all begun to recognise the shortcomings of the common law’s treatment of personal privacy. There have been significant developments in these jurisdictions towards the recognition of an enforceable right to privacy, in part influenced by the impact of international and national human rights instruments. This chapter and the following two chapters examine the ways in which privacy is protected, or is not protected, by Australian law. This chapter focuses on privacy protection at common law. It begins by examining what is meant by the concept of privacy. In order to develop legal protections for privacy, it is necessary to have a sound understanding of privacy as a legal interest. It then examines the state of direct privacy protection at common law in Australia, such as it is, and compares it to developments in the United States, the United Kingdom, New Zealand and the European Union. Given the nascent state of direct privacy protection in Australian law, this comparative approach is necessary to understand the possible directions Australian law might take in the future. This chapter then explores the range of causes of action at common law, which afford some measure of indirect protection of privacy. The following chapter will examine breach of confidence as a cause of action that may provide a remedy, in certain circumstances, against media outlets for invasions of personal privacy, as well as being the means that direct privacy protection has developed in the United Kingdom. The next chapter will then explore the statutory regulation of information privacy and surveillance, the most well-developed aspect of privacy protection in Australian law.

429

430

PART 5 Privacy

13.1 The concept of privacy In order to develop legal protections for privacy, it is necessary to understand and to define what one means by the term, ‘privacy’. One of the principal reasons given for the common law’s refusal to recognise a direct right to privacy is the difficulty of defining privacy. The academic literature on privacy as a legal interest or right and the definitional difficulties associated with it is vast. A useful overview of the issues relating to privacy that emerge from this literature is provided by the Australian Law Reform Commission in the first volume of its 2008 three-volume report, For Your Information: Australian Privacy Law and Practice.1

Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice Report 108 (2008)

The meaning of privacy 1.31. It has been suggested that privacy can be divided into a number of separate, but related concepts: Information privacy, which involves the establishment of rules governing the collection and handling of personal data such as credit information, and medical and government records. It is also known as ‘data protection’; Bodily privacy, which concerns the protection of people’s physical selves against invasive procedures such as genetic tests, drug testing and cavity searches; Privacy of communications, which covers the security and privacy of mail, telephones, e-mail and other forms of communication; and Territorial privacy, which concerns the setting of limits on intrusion into the domestic and other environments such as the workplace or public space. This includes searches, video surveillance and ID checks.

Copyright © 2015. Oxford University Press. All rights reserved.

… 1.33. The recognition of a general right to privacy warranting legal protection is a relatively modern phenomenon. The genesis of modern legal academic discussion of the topic is generally acknowledged to be Samuel Warren and Louis Brandeis’s article, ‘The Right to Privacy’, published in the Harvard Law Review in 1890. Widespread debate, fuelled by the storage of personal information in computer data banks, commenced in the 1960s. 1.34. Writing in 1980, Professor Ruth Gavison argued that the modern concern for the protection of privacy can be attributed primarily to a change in the nature and magnitude of threats to privacy, due at least in part to technological change … Advances in the technology of surveillance and the recording, storage, and retrieval of information have made it either impossible or extremely costly for individuals to protect the same level of privacy that was once enjoyed.

1.35. Other factors, according to Gavison, include the advent of tabloid journalism, and the ‘tendency to put old claims in new terms’. 1.36. A new surge of academic comment on privacy, caused mainly by the growth of the internet, occurred in the 1990s. Today, unprecedented advances in technology continue to fuel privacy-related fears …

1

This is not the only time in the last decade the Australian Law Reform Commission has considered the issue of privacy. For recent privacy law reform initiatives, see 13.3.3 below.

CHAPTER 13 Privacy

1.37. In ALRC 22, the ALRC indicated that the chief threats to privacy in Australia included: Growing Official Powers. The powers of increasing numbers of public officials to intrude into the lives and property of Australians is growing. New Business Practices. New intrusive practices have developed in recent years, such as electronic surveillance, credit reporting and direct marketing. New Information Technology. The computerisation of personal information has enormous advantages, but it also presents Australian society with new dangers, now well documented and understood.



Scope of privacy 1.39. Why is privacy considered important? What is the nature of the legal ‘right’ requiring protection? Professor Roger Clarke suggests that the importance of privacy has psychological, sociological, economic and political dimensions. Psychologically, people need private space. This applies in public as well as behind closed doors and drawn curtains … Sociologically, people need to be free to behave, and to associate with others, subject to broad social mores, but without the continual threat of being observed … Economically, people need to be free to innovate … [P]olitically, people need to be free to think, and argue, and act. Surveillance chills behaviour and speech, and threatens democracy.

1.40. In the Canadian Supreme Court case of Vickery v Nova Scotia Supreme Court (Prothonotary), Cory J expressed a similar view, describing privacy as a right which

Copyright © 2015. Oxford University Press. All rights reserved.

inheres in the basic dignity of the individual. This right is of intrinsic importance to the fulfilment of each person, both individually and as a member of society. Without privacy it is difficult for an individual to possess and retain a sense of self-worth or to maintain an independence of spirit and thought.

1.41. Ascertaining the scope of the legal ‘right’ is a more difficult task. Despite the best efforts of legal scholars, the term ‘privacy’ confounds attempts at delivering a universal definition. In ALRC 22, it was noted that ‘the very term “privacy” is one fraught with difficulty. The concept is an elusive one.’ Professor J Thomas McCarthy has noted: It is apparent that the word ‘privacy’ has been proven to be a powerful rhetorical battle cry in a plethora of unrelated contexts … Like the emotive word ‘freedom’, ‘privacy’ means so many different things to so many different people it has lost any precise legal connotation that it might once have had.

1.42. In ALRC 22, the ALRC adopted a definition of the term ‘privacy’ that ‘stayed as close as possible … to the ordinary language concept’. This approach was criticised by Senator Brett Mason, who argues in this regard that ALRC 22 ‘is stronger on the practical application of legal rules and remedies to certain privacy issues than it is on theoretical analysis’. He concludes that ‘the ordinary language concept of “privacy” … does not necessarily inform a sensible legal right’. 1.43. Comparing American, French and German approaches to privacy, Professor James Whitman suggests that ‘there is no such thing as privacy as such’, and maintains that: Americans and Europeans certainly do sometimes arrive at the same conclusions. Nevertheless, they have different starting points and different ultimate understandings of what counts as a just society … American privacy law is a body caught in the gravitational orbit of liberty values, while European law is caught in the orbit of dignity. There are certainly times when the two

431

432

PART 5 Privacy

bodies of law approach each other more or less nearly. Yet they are constantly pulled in different directions, and the consequence is that these two legal orders really do meaningfully differ: continental Europeans are consistently more drawn to problems touching on human dignity, while Americans are consistently more drawn to problems touching on the depredations of the state.

1.44. Whitman argues that at the core of the European approach to privacy law is ‘the right to control your public image—rights to guarantee that people see you the way you want to be seen’. By contrast, the conceptual core of the American right to privacy is, according to Whitman, the ‘right to freedom from intrusions by the state, especially in one’s own home’. 1.45. Whitman emphasises that the differences between American and European privacy law are comparative, not absolute. It is possible to argue that ‘protecting privacy’ means both safeguarding the presentation of self and inhibiting the investigative and regulatory excesses of the state’. In practice, however, the differences are real. 1.46. Privacy law expert Martin Abrams similarly observes that: Privacy law is culturally based. Privacy is considered a fundamental human right in Europe, highly regarded with pragmatic interest in the United States, and is only beginning to emerge as a topic in Asia. What works in one country or region doesn’t always work in the other.



Towards a working definition 1.49. Professor Gavison suggests that ‘privacy’ is ‘a term used with many meanings’, giving rise to two important questions. The first relates to the status of the term: is privacy a situation, a right, a claim, a form of control, a value? The second relates to the characteristics of privacy: is it related to information, to autonomy, to personal identity, to physical access? Support for all of these possible answers can be found in the literature.



Status of privacy

Copyright © 2015. Oxford University Press. All rights reserved.

… 1.55. In R v Broadcasting Standards Commission ex parte BBC, Lord Mustill attempted to define the essence of privacy as follows: To my mind the privacy of a human being denotes at the same time the personal ‘space’ in which the individual is free to be itself, and also the carapace, or shell, or umbrella, or whatever other metaphor is preferred, which protects the space from intrusion. An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the personal space is not inviolate.

1.56. Put another way, privacy may be viewed as the bundle of interests that individuals have in their personal sphere free from interference with others. In this formulation, the use of the term ‘interest’ rather than ‘right’ is intentional and important. While ‘privacy’ is a right in a legal sense, for definitional purposes, the word ‘interest’ may be more accurate. A right is always an interest, even if not all interests are accorded the status of legal rights. 1.57. It is important to bear in mind that privacy interests unavoidably will compete, collide and coexist with other interests. For example, privacy often competes with freedom of expression, a child’s right to protection from abuse, national security and so on. No single interest—not even one elevated to the status of a human right—is absolute. …

CHAPTER 13 Privacy

1.59. In a different context, Eady J considered the tension between freedom of expression and the privacy rights of an individual in McKennitt v Ash: It is clear that [in the United Kingdom] there is a significant shift taking place as between, on the one hand, freedom of expression for the media and the corresponding interest of the public to receive information, and, on the other hand, the legitimate expectation of citizens to have their private lives protected … Even where there is a genuine public interest, alongside a commercial interest in the media in publishing articles or photographs, sometimes such interests would have to yield to the individual citizen’s right to the effective protection of private life.

1.60. Ascertaining the appropriate policy to deal with the tension between competing interests is the challenge facing judges, legislators and law reformers. It follows from the above discussion that the status accorded to privacy—and in particular the status accorded to privacy in international and domestic human rights instruments—means that privacy interests will usually take precedence over less fundamental interests, such as economic choice and opportunity. …

Characteristics of privacy 1.62. Identifying the characteristics of privacy is conceptually more difficult than ascertaining its status. Professor Solove suggests that attempts to identify the essential characteristics of privacy—that is, the common denominators that make things private—are misguided. Solove argues that: the top-down approach of beginning with an over-arching conception of privacy designed to apply in all contexts often results in a conception that does not fit well when applied to a multitude of situations and problems involving privacy.

1.63. Instead, Solove advocates a more pragmatic, bottom-up approach. We should conceptualize privacy by focusing on the specific types of disruption and the specific practices disrupted rather than looking for the common denominator that links all of them. If privacy is conceptualized as a web of interconnected types of disruption of specific practices, then the act of conceptualizing privacy should consist of mapping the topography of the web. We can focus on particular points of the web. These ‘focal points’ are not categories, and they do not have fixed boundaries.

Copyright © 2015. Oxford University Press. All rights reserved.

1.64. Some critics, however, reject the pragmatic approach. For example, Professor Richard Bruyer argues that: Unless a common denominator is articulated, combining conceptions simply perpetuates a piecemeal, haphazard approach to privacy that has marked the privacy landscape so far. Nor will it provide a satisfactory answer for the hard privacy cases as they occur.

1.65. The NZLC suggests that ‘the main shortcoming of Solove’s approach is that it provides no basis for establishing why some harms are privacy violations and some are not’. 1.66. The characteristics of privacy also may have a changing demographic dimension. For example, what ‘Builders’ and ‘Baby Boomers’ see as necessarily falling within the ‘topography of the web’ may not resonate with ‘Generations X, Y and Z’. Young people appear much more willing to share personal details, post images and interact with others on internet chat sites. Whether this indicates a fundamental shift in attitudes to privacy—or simply the cavalier attitude and excesses of youth displayed in a new form—is an open question. 1.67. The pragmatic approach advocated by theorists such as Solove provides a useful template for law reform. Rather than focusing on an overarching definition of privacy, it makes more sense, using Solove’s terminology, to focus on particular points in the web and formulate a workable approach to deal with the disruption.

433

434

PART 5 Privacy

QUESTIONS 1 What is meant by ‘privacy’? Why is it so difficult to define? 2 What are the multiple senses in which the term ‘private’ can be used? To what extent do these usages co-exist or conflict? 3 How do perceptions of the value of privacy differ across cultures and nations? Provide some examples. 4 How do perceptions of the value of privacy differ historically? Provide some examples. 5 Do you accept, as the ALRC suggests, that perceptions of the value of privacy differ among generations? 6 Do the media invade privacy? Are they ever justified in doing so? In what ways are the media respectful of privacy? Do some media outlets invade privacy more frequently than others? Do some media formats require or foster invasions of privacy more than others? 7 What are the other interests which frequently compete with privacy? How should these interests be balanced? 8 Is it necessary to define privacy before it can be legally protected? What are the advantages and limitations of such an approach?

Copyright © 2015. Oxford University Press. All rights reserved.

13.2 Privacy as a human right Privacy is expressly protected as a human right under a number of international human rights instruments, such as the International Covenant on Civil and Political Rights,2 the Universal Declaration on Human Rights3 and the European Convention on Human Rights.4 All these instruments group the right to privacy with allied rights, such as the right not to have unlawful or arbitrary interference with family, home or correspondence and the right not to have unlawful attacks on honour and reputation. In a number of Anglophone legal systems, there are, at a national level, constitutional or legislative human rights protections. The introduction of these express guarantees of human rights has served as the impetus, in part, for the development of direct privacy protection in those jurisdictions. For instance, the Human Rights Act 1998 (UK) incorporates the European Convention on Human Rights into domestic law in that jurisdiction. Since its introduction, courts in the United Kingdom have been utilising the established, equitable cause of action for breach of confidence to develop direct protection of personal privacy.5 In Australia, there is no national, constitutional or legislative protection of human rights. At a state and territory level, only the Australian Capital Territory and Victoria have enacted human rights legislation. Both the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) expressly protect the right to privacy.6 In all of these instruments, the right to privacy is not absolute and must be balanced against other competing rights, most notably the right to freedom of expression.7

2 3 4 5 6 7

Art 17.1. Art 12. Art 8.1. See below 13.4.4. See further Ch 14. Human Rights Act 2004 (ACT) s 12; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13. As to the position under international human rights instruments, see International Covenant on Civil and Political Rights Art 19.2, 19.3; Universal Declaration of Human Rights Art 19; European Convention on Human Rights Arts 8.2, 10. As to the position under local human rights instruments, see Human Rights Act 2004 (ACT) s 16; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15.

CHAPTER 13 Privacy

QUESTION 1 Should privacy be viewed as a human right? How does it relate to other human rights in terms of importance?

13.3 No common law right to privacy? Although privacy is recognised as a human right, the status of privacy as a right at common law in Australia is more contestable. Until recently, the prevailing view was that there was no common law right to privacy.8 The principal authority for this proposition was the High Court of Australia’s decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor,9 which is relevantly extracted below. The position in the United Kingdom, prior to the introduction of the Human Rights Act 1998 (UK), was demonstrated by the English Court of Appeal’s decision in Kaye v Robertson,10 which is also extracted below.

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

Copyright © 2015. Oxford University Press. All rights reserved.

[George Taylor owned and occupied the house next to the Victoria Park racecourse in Sydney. On his property, Taylor constructed some scaffolding, approximately five metres high, with a viewing platform at the top. For a fee, Taylor allowed radio announcer, Cyril Angles, to sit on the platform and call the races. Angles would transmit his commentary via telephone for simultaneous broadcast on Sydney radio station 2UW. Victoria Park Racing and Recreation Grounds Co Ltd did not allow any broadcasts of its race meetings. It was possible to look into the racecourse from a number of vantage points in the neighbourhood. Victoria Park Racing and Recreation Grounds Co Ltd sought injunctions to restrain the broadcasts against Taylor and Angles, as well as the licensee of 2UW, the Commonwealth Broadcasting Corporation Ltd. It framed its causes of action in private nuisance and copyright. It alleged that the defendants’ conduct diminished the number of paid entrants to its race meetings. It further claimed that their conduct amounted to an unreasonable user of Taylor’s land. At first instance, Nicholas J refused to grant the injunction. Victoria Park Racing and Recreation Grounds Co Ltd appealed to the High Court of Australia.] LATHAM CJ (at 494): I am unable to see that any right of the plaintiff has been violated or any wrong done to him. Any person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. Further, if the plaintiff desires to prevent its notice boards being seen by people from outside the enclosure, it can place them in such a position that they are not visible to such people. At sports grounds and other places of entertainment it is the lawful, natural and common practice to put up fences and other structures to prevent people who are not prepared to pay for admission from getting the benefit of the entertainment. In my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from

8

Cruise v Southdown Press Pty Ltd (1993) 26 IPR 125 at 125 per Gray J, Fed C of A; Australian Consolidated Press Ltd v Ettingshausen (unreported, CA(NSW), Gleeson CJ, Kirby P and Clarke JA, 13 October 1993) at 15 per Kirby P; GS v News Ltd (1998) Aust Torts Reports ¶81–466 at 64,913–64,915 per Levine J, SC(NSW). However, see also Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 68 per Murphy J (‘unjustified invasion of privacy’ described as a ‘developing tort’). 9 (1937) 58 CLR 479. 10 [1991] FSR 62; (1990) 19 IPR 147.

435

436

PART 5 Privacy

describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, &c, break a contract, or wrongfully reveal confidential information. The defendants did not infringe the law in any of these respects. … (at 495): The claim under the head of nuisance has also been supported by an argument that the law recognizes a right to privacy which has (496) been infringed by the defendant. However desirable some limitation upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists … RICH J (dissenting) (at 500): … The question to be solved is, ‘How far can one person restrain another from invading the privacy of land which he occupies, when such invasion does not involve actual entry on the land?’ (Professor Winfield, Law Quarterly Review, vol 47, p 24). The defendants contended that the law provides no remedy as their action did not fall within any classification of torts and that the plaintiff’s remedy lay either in self-defence, eg, raising the height of the fences round the course, or in an application to the legislature. It does not follow that because no precedent can be found a principle does not exist to support the plaintiff’s right. Nuisance covers so wide a field that no general definition of nuisance has been attempted but only a classification of the various kinds of nuisance …

Copyright © 2015. Oxford University Press. All rights reserved.

DIXON J (at 510): In my opinion, the right to exclude the defendants from broadcasting a description of the occurrences they can see upon the plaintiff’s land is not given by law. It is not an interest falling within any category which is protected at law or in equity. I have had the advantage of reading the judgment of Rich J, but I am unable to regard the considerations which are there set out as justifying what I consider amounts not simply to a new application of settled principle but to the introduction into the law of new doctrine. EVATT J (dissenting) (at 516): In the present case, the plaintiff relies upon all the surrounding circumstances. Its use and occupation of the land is interfered with, its business profits are lessened, and the value of the land is diminished by or jeopardized by the conduct of the defendants. The defendants’ operations are conducted to the plaintiff’s detriment, not casually but systematically, not temporarily but indefinitely; they use a suburban bungalow in an unreasonable and grotesque manner, and do so in the course of a gainful pursuit which strikes at the plaintiff’s profitable use of its land, precisely at the point where the profit must be earned, viz, the entrance gates. Many analogies to the defendants’ operations have been suggested, but few of them are applicable. The newspaper which is published a considerable time after a race has been run competes only with other newspapers, and can have little or no effect upon the profitable employment of the plaintiff’s land. A photographer overlooking the course and subsequently publishing a photograph in a newspaper or elsewhere does not injure the plaintiff. Individuals who observe the racing from their own homes or those of their friends could not interfere with the plaintiff’s beneficial use of its course. On the other hand, the defendants’ operations are fairly comparable with those who, by the employment of moving picture films, television and broadcasting would convey to the public generally (i) from a point of vantage specially constructed; (ii) simultaneously with the actual running of the races, (iii) visual, verbal or audible representations of each and every portion of the races. If such a plan of campaign were (517) pursued, it would result in what has been proved here, viz, actual pecuniary loss to the occupier of the racecourse and  a depreciation in the value of his land, at least so long as the conduct is continued. In principle, such a plan may be regarded as equivalent to the erection by a landowner of a special stand outside a cricket ground for the sole purpose of enabling the public to witness the cricket match at an admission price which is lower than that charged to the public bodies who own the ground, and, at great expense, organize the game. In concluding that, in such cases, no actionable nuisance would be created, the defendants insist that the law of England does not recognize any general right of privacy. That is true, but it carries the defendants no further, because it is not merely an interference with privacy which is here relied upon, and it is not the law that every interference with privacy must be lawful. The defendants also say that the law of England does not forbid one person to overlook the property of another. That also is true in the sense that the

CHAPTER 13 Privacy

fact that one individual possesses the means of watching, and sometimes watches what goes on on his neighbour’s land, does not make the former’s action unlawful. But it is equally erroneous to assume that under no circumstances can systematic watching amount to a civil wrong, for an analysis of the cases of J Lyons & Sons v Wilkins and Ward Locke & Co (Ltd) v Operative Printers’ Assistants’ Society indicates that, under some circumstances, the common law regards ‘watching and besetting’ as a private nuisance, although no trespass to land has been committed.

QUESTION 1 How do the majority and the minority judgments differ in their respective characterisations of the plaintiff’s rights at issue in the proceeding and the damage the plaintiff allegedly suffered?

Kaye v Robertson [1991] FSR 62; (1990) 19 IPR 147

[The plaintiff, Gorden Kaye, achieved fame playing the lead character, Rene, in the long-running comedy series, ‘Allo ‘Allo. In late January 1990, Kaye was driving in a storm when he was injured by some flying debris. Kaye was rushed to Charing Cross Hospital, suffering severe head injuries. Notices were placed outside Kaye’s private room, restricting visitors’ access to him. A journalist and a photographer from the tabloid newspaper, The Sunday Sport, gained access to Kaye’s room, a purported interview was conducted and photographs (using a flash bulb) were taken. When the journalist and photographer were discovered by hospital staff, they were forcibly ejected by security. On behalf of Kaye, his agent, Peter Froggatt, sought an injunction against the editor and the publisher of The Sunday Sport, restraining the publication of the interview and the photographs. The causes of action relied upon were defamation, injurious falsehood, passing off and trespass to the person (being a battery, allegedly constituted by the shining of the flash into Kaye’s eyes). At first instance, Potter J granted the injunction. As to interlocutory injunctions in defamation cases, see 9.2. As to injurious falsehood generally, see 10.1. The Sunday Sport defendants appealed to the English Court of Appeal.]

Copyright © 2015. Oxford University Press. All rights reserved.

GLIDEWELL LJ (at 66): … It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals … BINGHAM LJ (at 70): Any reasonable and fair-minded person hearing the facts which Glidewell LJ has recited would in my judgment conclude that these defendants had wronged the plaintiff. I am therefore pleased to be persuaded that the plaintiff is able to establish, with sufficient strength to justify an interlocutory order, a cause of action against the defendants in malicious falsehood. Had he failed to establish any cause of action, we should of course have been powerless to act, however great our sympathy for the plaintiff and however strong our distaste for the defendants’ conduct. This case nonetheless highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens. This has been the subject of much comment over the years, perhaps most recently by Professor Markesinis (The German Law of Torts, 2nd edn, 1990, page 316) where he writes: English law, on the whole, compares unfavourably with German law. True, many aspects of the human personality and privacy are protected by a multitude of existing torts, but this means fitting the facts of each case in the pigeon-hole of an existing tort and this process may not only involve strained constructions; often it may also leave a deserving plaintiff without a remedy.

The defendants’ conduct towards the plaintiff here was ‘a monstrous invasion of his privacy’ (to adopt the language of Griffiths J in Bernstein v Skyviews Ltd [1978] QB 479 at 489G). If ever a person has a right to be let alone by strangers with no public interest to pursue, it must surely be when he lies in hospital

437

438

PART 5 Privacy

Copyright © 2015. Oxford University Press. All rights reserved.

recovering from brain surgery and in no more than partial command of his faculties. It is this invasion of his privacy which underlies the plaintiff’s complaint. Yet it alone, however gross, does not entitle him to relief in English law. The plaintiff’s suggested cause of action in libel is in my view arguable, for reasons which Glidewell LJ has given. We could not give interlocutory relief on that ground. Battery and assault are causes of action never developed to cover acts such as these: they could apply only if the law were substantially extended and the available facts strained to unacceptable lengths. A claim in passing off is hopeless. Fortunately, a cause of action in malicious falsehood exists, but even that obliges us to limit the relief we can grant in a way which would not bind us if the plaintiff’s cause of action arose from the invasion of privacy of which I would, for my part, wish. The problems of defining and limiting a tort of privacy are formidable, but the present case strengthens my hope that the review now in progress may prove fruitful. (71) LEGGATT LJ: I agree with both judgments that have been delivered. In view of the importance of the topic I add a note about the way in which the common law has developed in the United States to meet the need which in the present case we are unable to fulfil satisfactorily. The recognition of a right to privacy seemed to be in prospect when Lord Byron obtained an injunction to restrain the false attribution to him of a bad poem: Byron v Johnson (1816) 2 Mer 29. But it was not until 1890 that in their article ‘The Right to Privacy’ 4 Harv L Rev 193, Warren and Brandeis reviewed a number of English cases on defamation and breaches of rights of property, confidence and contract, and concluded that all were based on a broader common principle. They argued that recognition of the principle would enable the courts to protect the individual against the infliction by the press of mental pain and distress through invasion of his privacy. Since then the right to privacy, or ‘the right to be let alone,’ has gained acceptance in most jurisdictions in the United States. It is manifested in several forms: see Dean Prosser, Torts, 4th edn, 1971. One example is such intrusion upon physical solitude as would be objectionable to a reasonable man. So when in Barber v Time Inc (1942) 159 SW 2d 291 the plaintiff was confined to a hospital bed, the publication of her photograph taken without consent was held to be an invasion of a private right of which she was entitled to complain. Similarly, a so-called ‘right of publicity’ has developed to protect the commercial interest of celebrities in their identities. The theory of the right is that a celebrity’s identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorised commercial exploitation of that identity. ‘The famous have an exclusive legal right during life to control and profit from the commercial use of their name and personality’: Carson v Here’s Johnny Portable Toilets Inc (1983) 698 F 2d 831 at 835. We do not need a First Amendment to preserve the freedom of the press, but the abuse of that freedom can be ensured only by the enforcement of a right to privacy. This right has so long been disregarded here that it can be recognised now only by the legislature. Especially since there is available in the United States a wealth of experience of the enforcement of this right both at common law and also under statute, it is to be hoped that the making good of this signal shortcoming in our law will not be long delayed. Appeal allowed so as to vary the orders made.

QUESTIONS 1 On what basis was the injunction granted in this case? Given the interests at issue in the proceeding, how satisfactory is this as the basis for the relief sought? 2 Is the development of an enforceable right to privacy best left to the legislature or the courts? Why?

13.3.1 Towards a common law right to privacy? For several decades, it was assumed that the High Court of Australia’s decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor 11 prevented the recognition of a legally

11 (1937) 58 CLR 479.

CHAPTER 13 Privacy

enforceable right to privacy as part of the common law of Australia.12 Whether this was a correct reading of this case and whether the common law of Australia should develop a tort of invasion of privacy were issues that arose for reconsideration in the High Court’s decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.13 This case is now the leading, albeit problematic, authority on the issue of privacy at common law in Australia and is relevantly extracted below. It has raised more questions than it has answered.

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Copyright © 2015. Oxford University Press. All rights reserved.

[Trespassers entered a licensed possum abattoir, operated by the respondent, Lenah Game Meats Pty Ltd, and installed hidden cameras. The trespassers provided the footage they obtained of possums being killed and processed to Animal Liberation Ltd, which, in turn, provided the footage to the appellant, the Australian Broadcasting Corporation. The ABC proposed to broadcast the footage. Lenah Game Meats applied to the Supreme Court of Tasmania for an interlocutory injunction. At first instance, Underwood J refused the injunction. By majority (Wright and Evans JJ, Slicer J dissenting), the Full Court of the Supreme Court of Tasmania allowed the appeal. The ABC appealed to the High Court of Australia.] GLEESON CJ (at 216): [8] When a plaintiff applies to a court for an interlocutory injunction, the first question counsel may be asked is: what is your equity? If a plaintiff, who has commenced an action seeking a permanent injunction, cannot demonstrate that, if the facts alleged are shown to be true, there will be a sufficiently plausible ground for the granting of final relief, then that may mean there is no basis for interlocutory relief … (220) [21] It is not contended that the appellant has contravened, or threatens to contravene, any statute. It appears that the people from whom the appellant received the video broke the law, perhaps in a number of respects. And it is pointed out that the appellant knows that the respondent’s activities were filmed unlawfully, and without the respondent’s consent. But if the respondent has the right to prevent the appellant’s use of the film, that right must emerge from some principle of general application. The appellant says that it has broken no law, and there is no principle which justifies an order preventing it from broadcasting the material that has come into its possession. It does not seek, or require, judicial approval of its conduct. It maintains that it is free to broadcast, simply because there is no law against it. (221) [25] It is not suggested that the operations that were filmed were secret, or that requirements of confidentiality were imposed upon people who might see the operations. The abattoir is, no doubt, regularly visited by inspectors, and seen by other visitors who come to the premises for business or private reasons. The fact that the operations are required to be, and are, licensed by a public authority, suggests that information about the nature of those operations is not confidential. There is no evidence that, at least before the events giving rise to this case, any special precautions were taken by the respondent to avoid its operations being seen by people outside its organisation. But, like many other lawful animal slaughtering activities, the respondent’s activities, if displayed to the public, would cause distress to some viewers. It is claimed that loss of business would result. That claim is not inherently improbable. A film of a vertically integrated process of production of pork sausages, or chicken pies, would be unlikely to be used for sales promotion. In the present state of the evidence, the case has been argued on the basis, and all four judges in the Supreme Court have accepted, that the respondent will suffer some financial harm if the film is broadcast … [26] … The evidence does not show that it is easier, or more difficult, for a member of the public to enter abattoirs generally, or the respondent’s premises in particular, than it is to enter any other private property where a manufacturing operation is being carried on, or, for that matter, commercial premises. There is

12 Cruise v Southdown Press Pty Ltd (1993) 26 IPR 125 at 125 per Gray J, Fed C of A; Australian Consolidated Press Ltd v Ettingshausen (unreported, CA(NSW), Gleeson CJ, Kirby P and Clarke JA, 13 October 1993) at 15 per Kirby P; GS v News Ltd (1998) Aust Torts Reports ¶81–466 at 64,913–64,915 per Levine J, SC(NSW). 13 (2001) 208 CLR 199.

439

440

PART 5 Privacy

a sense in which most activities conducted on private property are ‘hidden from public view’. But it may be necessary to examine more closely the meaning of such an expression if questions of legal confidentiality arise.

Copyright © 2015. Oxford University Press. All rights reserved.

The respondent’s claim of right [27] In order to give focus to the principles invoked by the respondent in support of its claim to be entitled to require the appellant to hand over (222) the film in its possession, and to restrain the appellant from broadcasting the film, it is necessary to identify the essential elements of the claim. [28] As an article of personal property, the film itself does not belong to the respondent. Presumably it belongs to the people who sent it to Animal Liberation Ltd, and they are content for it to remain in the appellant’s possession. There is no claim by the respondent to the copyright, or any other form of intellectual property, in relation to the film, or what is depicted on the film. No trade secrets are at risk. [29] The film is the means by which the trespassers recorded, and intended to communicate to others, what goes on in the slaughtering process. Because it is an effective method of doing so, it is clearly relevant to any harm which the respondent is likely to suffer. But does it have additional relevance? If the trespassers had simply entered the premises themselves, secretly observed what was happening, and later described on television what they had seen, what difference would that have made to the respondent’s case, except on the question of damage? If a mechanic, called to the premises to repair machinery, had later described the slaughtering process to a public audience, would the case be different? One possible answer to those questions is that the film itself is a visual image, and a sound recording, in a potent form, which the respondent did not wish to be available for public display. The images and sounds recorded on a film may themselves constitute information; and the circumstances in which the film was made, the nature of the activities recorded, a person’s concern that they not be seen by the general public, and an inference that trespassers and broadcasters or publishers knew of that concern, could make the image and the sounds confidential. [30] The respondent contends that the conduct of the appellant in publishing a film known to have been taken as the result of a trespass would on that account alone be unconscionable, and should be restrained. An alternative submission was made by analogy with established principles concerning confidential information. It was to the following effect. A person who comes into possession of information, which that person knows to be confidential, may come under a duty not to publish it. The usual elements for an equitable remedy are, first, that the information is confidential, secondly, that it was originally imparted in circumstances importing an obligation of confidence, and thirdly, that there has been, or is threatened, an unauthorised use of the information to the detriment of the party communicating it. It is unnecessary to go into the circumstances in which an ‘innocent’ recipient of confidential (223) information may be restrained from using it. Here, it is conceded that information about the nature of the processing is not confidential, and was not imparted in confidence. But, it is argued, all information obtained as the result of trespass ought to be treated in the same way as confidential information. … (224) [34] It is clear that there was no relationship of trust and confidence between the respondent and the people who made, or received, the film. It is also clear that if, by information, is meant the facts as to the slaughtering methods used by the respondent, such information was not confidential in its nature. But equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence. And the principle of good faith upon which equity acts to protect information imparted in confidence may also be invoked to ‘restrain the publication of confidential information improperly or surreptitiously obtained’. The nature of the information must be such that it is capable of being regarded as confidential. A photographic image, illegally or improperly or surreptitiously obtained, where what is depicted is private, may constitute confidential information. In Hellewell v Chief Constable of Derbyshire, Laws J said: If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause

CHAPTER 13 Privacy

Copyright © 2015. Oxford University Press. All rights reserved.

of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available.

[35] I agree with that proposition, although, to adapt it to the Australian context, it is necessary to add a qualification concerning the constitutional freedom of political communication earlier mentioned. The present is at least as strong a case for a plaintiff as photography from a distance with a telephoto lens. But it is the reference to ‘some private act’ that is central to the present problem. The activities filmed were carried out on private property. They were not shown, or alleged, to be private in any other sense. That is consistent with the concession referred to above. [36] When, in Attorney-General v Guardian Newspapers Ltd [No 2], Lord Goff of Chieveley gave examples of cases where an obligation of confidence would be imposed, even in the absence of some confidential relationship, his Lordship referred to ‘obviously (225) confidential’ documents, or ‘secrets of importance to national security’ coming into the possession of a member of the public. What his Lordship described as ‘a public interest in the maintenance of confidences’ extends to matter which a reasonable person would understand to be intended to be secret, or to be available to a limited group to which that person does not belong. … [38] An argument for the respondent invoked privacy in a somewhat different context. The respondent invited this Court to depart from old authority; declare that Australian law now recognises a tort of invasion of privacy; hold that it is available to be relied upon by corporations as well as individuals; and concluded that this is the missing cause of action for which everyone in the case has so far been searching. [39] If the activities filmed were private, then the law of breach of confidence is adequate to cover the case. I would regard images and sounds of private activities, recorded by the methods employed in the present case, as confidential. There would be an obligation of confidence upon the persons who obtained them, and upon those in whose possession they came, if they knew, or ought to have known, the manner in which they were obtained. [40] By current standards, the manner in which the information in the present case was obtained was hardly sophisticated, and, if there were a relevant kind of privacy invaded, the invasion was not subtle. The law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy … [41] But the lack of precision of the concept of privacy is a reason for (226) caution in declaring a new tort of the kind for which the respondent contends. Another reason is the tension that exists between interests in privacy and interests in free speech. I say ‘interests’, because talk of ‘rights’ may be questionbegging, especially in a legal system which has no counterpart to the First Amendment to the United States Constitution or to the Human Rights Act 1998 (UK). The categories that have been developed in the United States for the purpose of giving greater specificity to the kinds of interest protected by a ‘right to privacy’ illustrate the problem. The first of those categories, which includes intrusion upon private affairs or concerns, requires that the intrusion be highly offensive to a reasonable person. Part of the price we pay for living in an organised society is that we are exposed to observation in a variety of ways by other people. [42] There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. [43] It is unnecessary, for present purposes, to enter upon the question of whether, and in what circumstances, a corporation may invoke privacy. United Kingdom legislation recognises the possibility.

441

Copyright © 2015. Oxford University Press. All rights reserved.

442

PART 5 Privacy

Some forms of corporate activity are private. For example, neither members of the public, nor even shareholders, are ordinarily entitled to attend directors’ meetings. And, as at present advised, I see no reason why some internal corporate communications are any less private than those of a partnership or an individual. However, the foundation of much of what is protected, where rights of privacy, as distinct from rights of property, are acknowledged, is human dignity. This may be incongruous when applied to a corporation. The outcome of the present case would not be materially different if the respondent were (227) an individual or a partnership, rather than a corporation. The problem for the respondent is that the activities secretly observed and filmed were not relevantly private. Of course, the premises on which those activities took place were private in a proprietorial sense. And, by virtue of its proprietary right to exclusive possession of the premises, the respondent had the capacity (subject to the possibility of trespass or other surveillance) to grant or refuse permission to anyone who wanted to observe, and record, its operations. The same can be said of any landowner, but it does not make everything that the owner does on the land a private act. Nor does an act become private simply because the owner of the land would prefer that it were unobserved. The reasons for such preference might be personal, or financial. They might be good or bad. An owner of land does not have to justify refusal of entry to a member of the public, or of the press. The right to choose who may enter, and who will be excluded, is an aspect of ownership. It may mean that a person who enters without permission is a trespasser; but that does not mean that every activity observed by the trespasser is private. … (228) [46] … The appellant is in the business of broadcasting. I accept that, although a public broadcaster, its position is not materially different from a commercial broadcaster with whom it competes. In the ordinary course of its business it publishes information obtained from many sources, thereby contributing to the flow of information available to the public. The sources from which that information may come, directly or indirectly, cover a wide range of behaviour; some of it impeccable, some of it reprehensible, and all intermediate degrees. If the appellant, without itself being complicit in impropriety or illegality, obtains information which it regards as newsworthy, informative, or entertaining, why should it not publish? It is, for course, subject to any relevant statute law, including criminal law, and to the law of defamation, breach of confidence, negligence, and any other potential liability in tort or contract. But we have arrived at this point in the argument because of the respondent’s inability to point to any specific legal inhibition on publication. The  respondent must explain why the appellant is bound in conscience not to publish; and, bearing in mind the consequences of such a conclusion for the free flow of information, it is not good enough to say that any person who fails to see this dictate of conscience is merely displaying moral obtuseness. (229) [50] Next, reliance was placed upon the act of trespass. Again, the difficulty is to bridge the gap between the trespassers’ tort and the appellant’s conscience. [51] There is judicial support for the proposition that the trespassers, if caught in time, could have been restrained from publishing the film. In Lincoln Hunt Australia Pty Ltd v Willesee some representatives of a producer of material for television entered commercial premises, with cameras rolling, and harassed people on the premises. Their conduct amounted to trespass. Young J had to consider whether to restrain publication of the film. Because of the effrontery of the conduct of the defendants, he concluded this was a case for large exemplary damages, and that damages were an adequate remedy. On that ground, he declined an injunction. In accordance with settled practice, and principle, however, the first question he asked himself was as to the plaintiff’s equity. Because of the ground on which he declined relief, he did not need to decide that question which, he said, took him ‘into very deep waters’. However, he expressed the following tentative opinion, which has been taken up in later cases: In the instant case, on a prima facie basis I would have thought that there is a lot to be said in the Australian community where a (230) film is taken by a trespasser, made in circumstances as the present, upon private premises in respect of which there is some evidence that publication of the film would affect goodwill, that the case is one where an injunction should seriously be considered.

[52] If, in the present case, the appellant had been a party to the trespass, it would be necessary to reach a conclusion about the question which Young J thought should seriously be considered. I would give an affirmative answer to the question, based on breach of confidence, provided the activities filmed

CHAPTER 13 Privacy

were private. I say nothing about copyright, because that was not argued. But the case was one against the trespassers. That was why exemplary damages were available, and constituted a sufficient remedy. [53] A rather different case was Donnelly v Amalgamated Television Services Pty Ltd. Police, executing a search warrant, took a video recording of the plaintiff, in his underpants, in a bedroom. The video found its way into the hands of a television broadcaster. An action was brought to restrain publication of the video and for an interlocutory injunction. Hodgson CJ in Eq, in the orthodox manner, first considered whether the plaintiff had shown a serious question to be tried. He said: If police, exercising powers under a search warrant or of arrest, were to enter into private property and thereby obtain documents containing valuable confidential information, albeit not protected by the law concerning intellectual property, I believe they could in a proper case be restrained, at the suit of the owner of the documents, from later using that information to their own advantage, or to the disadvantage of the owner, or passing the information on to other persons for them to use in that way; and if other persons acquired such information from the police, knowing the circumstances of its acquisition by the police, then I believe those other persons could likewise be restrained. I believe the same applies to material obtained in that way which is gratuitously humiliating rather than confidential …

Copyright © 2015. Oxford University Press. All rights reserved.

[54] A film of a man in his underpants in his bedroom would ordinarily have the necessary quality of privacy to warrant the application of the law of breach of confidence. Indeed, the reference to the gratuitously humiliating nature of the film ties in with the first of the four categories of privacy adopted in United States law, and the requirement that the intrusion upon seclusion be highly offensive to a reasonable person. [55] For reasons already given, I regard the law of breach of confidence as providing a remedy, in a case such as the present, if the nature of (231) the information obtained by the trespasser is such as to permit the information to be regarded as confidential. But, if that condition is not fulfilled, then the circumstance that the information was tortiously obtained in the first place is not sufficient to make it unconscientious of a person into whose hands that information later comes to use it or publish it. GUMMOW AND HAYNE JJ (at 237): [79] … Lenah seeks protection of the goodwill of the business against the damage it apprehends is a likely consequence of publicity respecting its methods of slaughtering possums whose meat it processes and sells … The interest of Lenah is in the profitable conduct of its business. Its sensitivity is that of the pocket book. This provides an important point of distinction between the present case and (238) the situation where an individual is subjected to unwanted intrusion into his or her personal life and seeks to protect seclusion from surveillance and to prevent the communication or publication of the fruits of such surveillance. [80] The litigation is striking in another respect. Commercial enterprises may sustain economic harm through methods of competition which are said to be unfair, or by reason of other injurious acts or omissions of third parties. However, the common law does not respond by providing a generalised cause of action ‘whose main characteristic is the scope it allows, under high-sounding generalisations, for judicial indulgence of idiosyncratic notions of what is fair in the market place’. Rather, the common law provides particular causes of action and a range of remedies. These rights and remedies strike varying balances between competing claims and policies. (245) [100] … In particular, Lenah relied upon the statement by Young J in Lincoln Hunt Australia Pty Ltd v Willesee: [T]he Court has power to grant an injunction in the appropriate case to prevent publication of a videotape or photograph taken by a trespasser even though no confidentiality is involved. However, the Court will only intervene if the circumstances are such to make the publication unconscionable.

Young J added that, on a prima facie basis, an injunction should seriously be considered where a film was taken by a trespasser upon private premises and there is some evidence that publication of the film would affect goodwill. Otherwise, the court would be powerless to restrain a defendant who had ‘obtained the fruits of his tort without holding money or property of the plaintiff and without a (246) breach of

443

444

PART 5 Privacy

confidentiality’. Although in Lincoln Hunt, in the event, damages were considered an adequate remedy, Young J’s remarks have been treated in later cases as supporting orders enjoining the publication by the defendant of films it made or caused to be made in the course of trespass upon the premises of the plaintiff. Lincoln Hunt has been said ‘through the medium of unconscionability, [to open] a new possibility of restraining the publication of materials obtained by trespassers’. [101] It may be that the outcome in Lincoln Hunt and subsequent decisions is to be supported upon a basis which, whilst not articulated in those cases, is directly referable to principle. Reference is necessary to various provisions of Pt IV (ss 84–113) of the Copyright Act 1968 (Cth). Copyright subsists in a cinematograph film made in Australia (s 90). The term ‘cinematograph film’ includes the aggregate of the sounds embodied in a sound track associated with the visual images (s 10(1)). The copyright is personal property (s 196(1)). Ownership of that copyright vests, in general, in the maker (s 98). The Copyright Act confers the exclusive right, among other things, to make copies of the film and to broadcast it. [102] A cinematograph film may have been made, as in Lincoln Hunt, in circumstances involving the invasion of the legal or equitable rights of the plaintiff or a breach of the obligations of the maker to the plaintiff. It may then be inequitable and against good conscience for the maker to assert ownership of the copyright against the plaintiff and to broadcast the film. The maker may be regarded as a constructive trustee of an item of personal (albeit intangible) property, namely the copyright conferred by s 98 of the Copyright Act. In such circumstances, the plaintiff may obtain a declaration as to the subsistence of a trust and a mandatory order requiring an assignment by the defendant of the legal (ie statutory) title to the intellectual property rights in question. Section 196(3) of the Copyright Act (247) provides that an assignment of copyright does not have effect unless it is in writing signed by or on behalf of the assignor. [103] In the meantime, the making of any broadcast would be subject to interlocutory restraint, as an invasion of the equitable interest in the copyright of the plaintiff. The armoury of equitable remedies includes that species of discovery with which the House of Lords dealt in Norwich Pharmacal Co v Customs and Excise Commissioners and British Steel Corporation v Granada Television Ltd. This remedy extends to disclosure to the plaintiff of the identity of a wrongdoer in whose tortious acts the defendant has, even innocently, become involved, and the English Court of Appeal has held that it goes beyond the disclosure of the identity of a tortfeasor. Lenah made no claim to copyright in a cinematograph film. The questions about ownership of the intellectual property rights in respect to the sounds and images in the tape have, therefore, not been raised or explored in these proceedings, whether in this Court or below. …

Copyright © 2015. Oxford University Press. All rights reserved.

(248) No equity to injunctive relief [105] The ABC’s submission on this branch of the case should be accepted. The conferral upon the Supreme Court by statute of the power to grant interlocutory injunctions in cases in which it appears to the Court to be just or convenient to do so is not at large. Here, the statute did not confer on the Court power to make an order on the application of Lenah other than in protection of some legal or equitable right of Lenah which the Court might enforce by final judgment. It becomes necessary then to consider the submission by Lenah that, in any event, there is such a right which is the subject of the tort dealing with invasions of privacy.

Victoria Park [106] In Church of Scientology v Woodward, Murphy J identified ‘unjustified invasion of privacy’ as one of the ‘developing torts’. Subsequently, Kirby P said in Australian Consolidated Press Ltd v Ettingshausen: The result of legislative inaction is that no tort of privacy invasion exists. Thus, whilst the value of privacy protection may generally inform common law developments, it would not be proper to award Mr Ettingshausen compensation for the invasion of his privacy, as such.

The Privacy Act 1988 (Cth), particularly since its amendment by the Privacy Amendment (Private Sector) Act 2000 (Cth), confers some enforcement power upon the Federal Court and the Federal Magistrates Court, but the legislation stops short of enacting what might be called a statutory tort of privacy invasion. Lenah suggested in its submissions that to date the Australian courts most probably had not developed ‘an

CHAPTER 13 Privacy

enforceable right to privacy’ because of what generally was taken to follow from the failure of the plaintiff’s appeal in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor. [107] Victoria Park does not stand in the path of the development of such a cause of action … (249) [108] In the course of judgment, Latham CJ rejected the proposition that under the head of nuisance the law recognised a right of privacy. But the decision does not stand for any proposition respecting the existence or otherwise of a tort identified as unjustified invasion of privacy. Writing in 1973, Professor WL Morison correctly observed:

Copyright © 2015. Oxford University Press. All rights reserved.

The plaintiff in the case was a racecourse proprietor [which] was not seeking privacy for [its] race meetings as such, [it] was seeking a protection which would enable [it] to sell the rights to a particular kind of publicity. [Its] sensitivity was ‘pocket book’ sensitivity … The independent questions of the rights of a plaintiff who is genuinely seeking seclusion from surveillance and communication of what surveillance reveals, it may be argued, should be regarded as open to review in future cases even by courts bound by the High Court decision.

… (250) [110] The significance of these judgments for the present appeal lies in the view taken by Dixon J and Deane J as to the preferable legal method … In the present appeal, Lenah encountered similar difficulty in formulating with acceptable specificity the ingredients of any general wrong of unjustified invasion of privacy. Rather than a search to identify the ingredients of a generally expressed wrong, the better course, as Deane J recognised, is to look to the development and adaptation of recognised forms of actions to meet new situations and circumstances … [111] The litigation in Victoria Park is significant in the present case in a further respect. Not only did the ‘privacy’ in that case concern the opposition by the plaintiff to the turning to commercial account by the defendants of the business operations of the plaintiff, but the plaintiff itself was a corporation. As will be mentioned later in these reasons, at that time, and subsequently, existing authority in the United States did not accept that corporations, as distinct from individuals, enjoyed the interests which a tort of unjustified invasion of privacy protected. In those circumstances, it is perhaps not surprising that ‘privacy’ was not at the forefront of the arguments by the plaintiff in Victoria Park. … (256) [126] However, Lenah can invoke no fundamental value of personal autonomy in the sense in which that expression was used by Sedley LJ. Lenah is endowed with legal personality only as a consequence of the statute law providing for its incorporation. It is ‘a statutory person, a persona ficta created by law’ which renders it a legal entity ‘as distinct from the personalities of the natural persons who constitute it’. Lenah’s activities provide it with a goodwill which no doubt has a commercial value. It is that interest for which, as indicated earlier in these reasons, it seeks protection in this litigation. But, of necessity, this artificial legal person lacks the sensibilities, offence and injury to which provide a staple value for any developing law of privacy. …

(257) Corporate privacy in Australia [129] However else it may develop, the common law in Australia upon corporate privacy should not depart from the course which has been worked out over a century in the United States. [130] Moreover, development of a generalised tort of privacy protecting the commercial interests of a corporation such as Lenah would cut across the reasoning employed in this Court when dealing with an analogous attempt to endorse a generalised tort of unfair competition … (258) [132] For these reasons, Lenah’s reliance upon an emergent tort of invasion of privacy is misplaced. Whatever development may take place in that field will be to the benefit of natural, not artificial, persons. It may be that development is best achieved by looking across the range of already established legal and equitable wrongs. On the other hand, in some respects these may be seen as representing species of a genus, being a principle protecting the interests of the individual in leading, to some reasonable extent, a secluded and private life, in the words of the Restatement, ‘free from

445

446

PART 5 Privacy

the prying eyes, ears and publications of others’. Nothing said in these reasons should be understood as foreclosing any such debate or as indicating any particular outcome. Nor, as already has been pointed out, should the decision in Victoria Park. KIRBY J (at 277):

Copyright © 2015. Oxford University Press. All rights reserved.

A tort of privacy? [185] Common law authority : As I have accepted two bases for authorising the grant of an interlocutory injunction in favour of the respondent against the appellant, it is strictly unnecessary for me to consider the proposition that such relief might also have been granted on the basis of an actionable breach of privacy. [186] Since the majority decision of this Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor, it has generally been accepted that a cause of action for breach of privacy does not exist in the common law of Australia, any more than it existed in the common law of England. Some of the values that might be described as aspects of privacy could be defended by invoking other, established, causes of action. But in consequence of Victoria Park, a general tort of privacy did not develop in Australia, as it did in the United States of America and elsewhere. [187] It may be that more was read into the decision in Victoria Park than the actual holding required. However, because of the general understanding of what the decision stood for (encouraged by the wide language in which Latham CJ, at least, expressed his opinion), legislatures and law reform bodies have, for more than fifty years, proceeded on the footing that no enforceable general right to privacy exists in the law of this country. Indeed the Australian Law (278) Reform Commission concluded that a general statutory right to privacy, as had been enacted in some places overseas, should not be recommended in Australia. Instead, the Commission proposed that specific legislation should be enacted which defined the values to be protected, the circumstances of the protection and the defences that would be applicable. Similar conclusions had earlier been reached in the United Kingdom. [188] Emergence of a tort of privacy invasion: In recent years, stimulated in part by invasions of individual privacy, including by the media, deemed unacceptable to society and, in part, by the influence of modern human rights jurisprudence that includes recognition of a right to individual privacy, courts in several jurisdictions have looked again at the availability under the common law of an actionable wrong of invasion of privacy. It is this course that the respondent invited this Court to take to remove any doubt that the interlocutory injunction it sought was fully justified to defend a cause of action available to it. The respondent claimed that it had suffered an unjustifiable invasion of its privacy, effected by criminal acts, for which the common law now affords redress, sustaining the interlocutory injunction on a third basis. [189] Whether, so many years after Victoria Park and all that has followed, it would be appropriate for this Court to declare the existence of an actionable wrong of invasion of privacy is a difficult question. I would prefer to postpone an answer to the question. Upon my analysis, no answer is now required. Even without such a cause of action the respondent has established two bases in law for the grant of an interlocutory injunction. It would therefore be inappropriate to embark on the resolution of whether an additional basis existed to support such relief. (279) [190] Privacy and corporations: The fact that the respondent is a corporation is a further reason for delaying a response to this question. This is because doubt exists as to whether a corporation is apt to enjoy any common law right to privacy. In so far as, in Australia, the elucidation of this aspect of the common law is influenced by the content of universal principles of fundamental rights, Art 17 of the International Covenant on Civil and Political Rights appears to relate only to the privacy of the human individual. It does not appear to apply to a corporation or agency of government. The foregoing view is reinforced by the way in which the right to privacy has developed in the United States, where it has had a long gestation. Because it is unnecessary for me to reach a final conclusion on this question, I will refrain from doing so. Cases from other jurisdictions (and some from Australia) demonstrate that there are many instances of invasions of the privacy of individual human beings that are likely to present the question raised by the respondent in circumstances more promising of success than the present. It appears artificial to describe the affront to the respondent as an invasion of its privacy. The real affront in this case lies in the unimpeded

CHAPTER 13 Privacy

use by the appellant of the videotape procured by illegal, tortious, surreptitious and otherwise improper means in circumstances where such use would be unconscionable. CALLINAN J (at 320):

Copyright © 2015. Oxford University Press. All rights reserved.

(ix) A new tort of intrusion of privacy? [313] It is not necessary, because of my conclusion as to unconscionability, to deal with the respondent’s alternative claim for relief based upon an intrusion upon its privacy but out of deference to the careful arguments of the parties, I will express some tentative views about it. [314] It is correct, as the appellant submits, that in Victoria Park Racing (321) and Recreation Grounds Co Ltd v Taylor (Latham CJ, Dixon and McTiernan JJ; Rich and Evatt JJ dissenting), the Court held that a racecourse owner and operator could not prevent the observation and broadcasting of, from a tower on land adjoining the course, the progress and results of races conducted on the racecourse; and that the case has been regarded as authority for the proposition that there is no tort of intrusion of privacy in this country. [315] But several things should be noted about that case. [316] It was decided by a narrow majority. The decision was a product of a different time, a time when sporting events and sporting people did not, as today, attract large payments from sponsors and advertisers, a time before statutory corporations and public companies conducted remunerative, on- and off-course and off-site betting businesses on sporting events, and a time when television was in its infancy, and the regular payment of vast sums of prize and other money to sports people whose public profile enabled them to earn further income by associating their names and images with advertisers of goods and services, was unknown. Those different conditions of that very different era may go some way to explaining why Latham CJ was so dismissive of a ‘quasi-property’ in a spectacle. His Honour’s view would hardly, however, have been shared by a Roman emperor outlaying denarii for a circus at the Colosseum, or by travelling troupes of the commedia dell’arte, theatre managers and owners, racing clubs, or anyone else down through the ages bearing the responsibility and expense of mounting, and enjoying the financial benefits of, a popular spectacle. It may be that the time is approaching, indeed it may have already arrived, for the recognition of a form of property in a spectacle … (322) [317] Even if there be no, or there is to be no, tort of intrusion of privacy as such, the law may need to devise a remedy to protect the rights of the ‘owners’ of a spectacle, at least against unauthorised reproduction of it by broadcast, telecast or publication of photographs, or other reproductions of it, under the rubric of nuisance or otherwise. [318] The conservative views of the three Justices in the majority in Victoria Park have the appearance of an anachronism, even by the standards of 1937, especially when they are compared with the worldly views of Rich J, which strike a chord with a modern reader … (326) [328] For my own part, I would not rule out the possibility that in some circumstances, despite its existence as a non-natural statutory creature, a corporation might be able to enjoy the same or similar rights to privacy as a natural person, not inconsistent with its accountability, and obligations of disclosure, reporting and otherwise. Nor would I rule out the possibility that a government or a governmental agency (327) may enjoy a similar right to privacy over and above a right to confidentiality in respect of matters relating to foreign relations, national security or the ordinary business of government notwithstanding the single Justice decision in The Commonwealth v John Fairfax & Sons Ltd. The legal system cannot lightly countenance that worthy ends justify any, including any illegal means. That a broadcaster or another might, with impunity, publish or use for its own purposes, material illegally obtained would only serve to encourage others with an ‘axe to grind’ or who seek to make gains, to break the law … [329] If a new tort of invasion of privacy were to be recognised in this case, then, it may be asked, how would it apply to the facts and what defences are available? There was an unlawful intrusion upon the property of the respondent and film was obtained as a consequence, by persons unknown. A copy of that film is in the possession of the appellant. The first tort, adopting the Prosser classification, has prima facie been committed. People in our society, rightly, expect that their homes, offices and factories will not be broken into with impunity. The law so provides.

447

448

PART 5 Privacy

(328) … [332] The recognition of a tort of invasion of privacy as part of the common law of Australia does not involve acceptance of all, or indeed any of the jurisprudence of the United States which is complicated by the First Amendment. There is good reason for not importing into this country all of the North American law particularly because of the substantial differences in our political and constitutional history. Any principles for an Australian tort of privacy would need to be worked out on a case by case basis in a distinctly Australian context. … [334] Ultimately the questions involved are ones of proportion and balance. The value of free speech and publication in the public interest must be properly assessed, but so too must be the value of privacy. The appropriate balance would need to be struck in each case. This is not an unfamiliar exercise for all courts in all constitutional democracies. [335] It seems to me that, having regard to current conditions in this country, and developments of the law in other common law jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made … [Gaudron J agreed with Gummow and Hayne JJ.] Appeal allowed.

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 What causes of action, other than a tort of invasion of privacy, did Lenah Game Meats rely upon? Why did those other causes of action fail? 2 Why was Lenah Game Meats unable to restrain the ABC from broadcasting the footage? 3 With particular attention to the judgment of Gleeson CJ, in what senses can the term ‘private’ be used in relation to Lenah Game Meats’s asserted interests in this case? 4 Were Lenah Game Meats’s activities private? Were they confidential? Are there any relevant differences between the concepts of privacy and confidentiality? 5 How does the approach of Gleeson CJ differ from that of Gummow and Hayne JJ, if at all? Which do you prefer? Why? 6 How do Gummow and Hayne JJ (with whom Gaudron J agreed) deal with the previous High Court decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor? How does Callinan J deal with the same case? How persuasive do you find their Honours’ reasoning in their respective judgments on this issue? 7 Should corporations have a right to privacy?

13.3.2 Subsequent considerations of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd The High Court of Australia’s decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd 14 has been subsequently considered in a number of cases in the years since it was handed down. The clear trend that has emerged is that, while lower courts have been willing to embrace and apply a tort of invasion of privacy, superior courts have denied that this cause of action was in fact endorsed by the High Court in ABC v Lenah Game Meats. The first consideration of whether a tort of invasion of privacy was recognised as part of the common law of Australia, following on from the High Court’s decision in ABC v Lenah Game Meats, was the decision of Skoien DCJ (as his Honour then was) in the District Court of Queensland in Grosse v Purvis.15 In that case, the plaintiff, Alison Grosse, was 14 (2001) 208 CLR 199. 15 (2003) Aust Torts Reports ¶81–706.

CHAPTER 13 Privacy

a therapeutic masseuse and the mayor of Maroochy Shire. She was also the chair of the Sunshine Coastal Regional Group Apprentices Ltd. Grosse had a brief sexual relationship with a fellow board member, Robert Purvis. Following the deterioration of their relationship, Grosse alleged that Purvis engaged in a course of conduct over eight years that amounted to stalking. In relation to over seventy particularised incidents, she claimed a number of causes of action, including trespass to land, private nuisance, battery, assault, intentional infliction of harm and negligence, as well as speculative claims for a tort of invasion of privacy and a tort of harassment. As to the tort of harassment, Skoien DCJ did not need to consider whether such a free-standing cause of action was recognised as part of the common law of Australia, instead treating the harassment in the instant case as an aggravated form of invasion of privacy.16 In relation to the tort of invasion of privacy, Skoien DCJ found that the High Court’s decision in ABC v Lenah Game Meats did in fact recognise a tort of invasion of privacy.17 His Honour described his decision as ‘a bold step’ but also as ‘a logical and desirable step’, demonstrating ‘[t]he robustness and vigour of the common law to develop to meet changing circumstances and provide a remedy for wrong’.18 According to Skoien DCJ, the ‘essential elements’ of a tort of invasion of privacy are:

Copyright © 2015. Oxford University Press. All rights reserved.

(a) a willed act by the defendant, (b) which intrudes upon the privacy or seclusion of the plaintiff, (c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities, (d) and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.19

Skoien DCJ found the elements of the cause of action established on the facts20 and awarded Grosse $108,000 compensatory damages, $50,000 aggravated damages and $20,000 exemplary damages.21 In Doe v Australian Broadcasting Corporation,22 a woman complained to police that she had been raped on a number of occasions by her estranged husband. He was prosecuted, convicted and sentenced to a term of imprisonment for his offences.23 As the victim of a sexual assault, Doe was entitled to the suppression of her identity. Under the Judicial Proceedings Reports Act 1958 (Vic) s 4(1A), it was an offence to publish any material that identified her or allowed her to be identified.24 In the course of three radio news bulletins on ABC radio, Doe was identified by name and by the suburb in which she resided.25 Doe brought proceedings in the County Court of Victoria, alleging, inter alia, breach of

16 Grosse v Purvis (2003) Aust Torts Reports ¶81–706 at 64,188. As to the position in the United Kingdom, see Khorasandjian v Bush [1993] QB 727 at 735–36 per Dillon LJ (Rose LJ concurring); Hunter v Canary Wharf Ltd [1997] AC 655 at 691–92 per Lord Goff of Chieveley; at 698 per Lord Lloyd of Berwick; at 707 per Lord Hoffmann; at 725 per Lord Hope of Craighead; Protection from Harassment Act 1997 (UK) ss 1, 3. 17 Grosse v Purvis (2003) Aust Torts Reports ¶81–706 at 64,184–64,185. 18 Ibid at 64,187 per Skoien DCJ. 19 Ibid. 20 Ibid. 21 Ibid at 64,191. 22 [2007] VCC 281. 23 Doe v Australian Broadcasting Corporation [2007] VCC 281 at [1] per Judge Hampel. 24 Ibid at [3] per Judge Hampel. 25 Ibid at [2] per Judge Hampel.

449

450

PART 5 Privacy

confidence26 and the tort of invasion of privacy.27 Judge Hampel found that there had been a ‘blurring’28 or an ‘intertwining’29 of the equitable cause of action for breach of confidence and the tort of invasion of privacy. Her Honour found that the High Court in ABC v Lenah Game Meats had sanctioned the recognition of a tort of invasion of privacy and held that the present case was an appropriate one in which to impose liability for it.30 In her view, the novelty of such a tort was not a sound basis for objecting to its recognition.31 Judge Hampel refined the elements of the cause of action articulated by Skoien DCJ in Grosse v Purvis to include an unjustifiable act by the defendant, finding that the requirement of a willed act was too narrow, and would therefore not extend to the ABC’s negligent reporting.32 Her Honour found that Doe had established the elements of the cause of action for the tort of invasion of privacy33 and awarded her $85,000 compensatory damages34 and $25,000 aggravated damages.35 By contrast, some superior courts have suggested that the common law of Australia does not recognise a tort of invasion of privacy, instead preferring to adapt existing causes of action, such as breach of confidence, to provide a remedy to plaintiffs.36 Some superior courts have accepted that a tort of invasion of privacy is arguable37 but no superior court has found liability for such a tort. More than a decade after ABC v Lenah Game Meats, the common law treatment of privacy is still unclear. It shows little prospect of clarifying and developing in the near future.

Copyright © 2015. Oxford University Press. All rights reserved.

13.3.3 Privacy law reform The common law development of direct privacy protection since the High Court of Australia’s decision in ABC v Lenah Game Meats may be charitably described as slow. During the same period, there has been considerable interest in the issue amongst law reform bodies. None of this interest has yet translated into legislation, in the sense of creating a general, enforceable right to privacy. The Australian Law Reform Commission (ALRC) has twice investigated the issue of privacy. In 2008, it released a massive three-volume report on privacy, recommending, inter alia, a statutory cause of action for invasion of privacy.38 In 2014, it released a detailed consideration of how a statutory cause of action for invasion of privacy might look, if 26 27 28 29 30 31 32 33 34 35 36

As to breach of confidence, see Ch 14. As to Doe’s claim for negligence, see 10.2.2. Doe v Australian Broadcasting Corporation [2007] VCC 281 at [150]. Ibid at [148]. Ibid at [157] per Judge Hampel. Ibid at [161] per Judge Hampel. Ibid at [163]. Ibid at [164] per Judge Hampel. Ibid at [185] per Judge Hampel. Ibid at [186] per Judge Hampel. Giller v Procopets (2008) 24 VR 1 at 35–36 per Ashley JA; at 102 per Neave JA. See also Kalaba v Commonwealth of Australia [2004] FCAFC 326 at [8] per Tamberlin, North and Dowsett JJ; Seven Network (Operations) Ltd v Australian Broadcasting Corporation [2007] NSWSC 1289 at [8] per Barrett J; Chan v Sellwood [2009] NSWSC 1335 at [34] per Davies J; Sands v State of South Australia [2013] SASC 44 at [614] per Kelly J. 37 Gee v Burger [2009] NSWSC 149 at [53] per McLaughlin AsJ; Dye v Commonwealth Securities Ltd [2010] FCA 720 at [290] per Katzmann J; Maynes v Casey [2011] NSWCA 156 at [35] per Basten JA; Saad v Chubb Security Pty Ltd [2012] NSWSC 1183 at [183] per Hall J; Doe v Yahoo! Pty Ltd [2013] QDC 181 at [310]– [311] per Smith DCJ. 38 ALRC, For Your Information: Australian Privacy Law and Practice, Report 108 (2008), ch 74, Recommendations 74-1–74-7.

CHAPTER 13 Privacy

enacted, as well as making a range of recommendations about how the general law might be reformed to accommodate the competing interests of protection of privacy and freedom of expression, in the event that a statutory cause of action were not enacted.39 In 2009, the New South Wales Law Reform Commission (NSWLRC) also recommended a statutory cause of action for invasion of privacy in a separate report.40 The recommendations of both the ALRC and the NSWLRC were for broad-based, open-textured causes of action. By contrast, in its 2010 report, Surveillance in Public Places, the Victorian Law Reform Commission (VLRC) recommended the introduction of two separate causes of action for invasion of privacy: one for misuse of private information and one for intrusion upon seclusion.41 The Victorian proposal would not be as comprehensive as the Commonwealth or the New South Wales recommendations but would instead target those aspects of personal privacy which the VLRC identified as most vulnerable and most susceptible to intrusion or infringement warranting legal intervention. Most recently, in July 2014, the House of Representatives Standing Committee on Social Policy and Legal Affairs, in its report on drones and privacy, also supported the introduction of a statutory cause of action for invasion of privacy in its recommendations.42 Notwithstanding all this law reform activity, legislators themselves have demonstrated no appetite to introduce a statutory cause of action for invasion of privacy. Before the ALRC’s final report was released, the Commonwealth Attorney-General, Senator George Brandis, was reported as rejecting any recommendation that a tort of invasion of privacy should be created,43 a position he subsequently reiterated.44 The legislative development of direct privacy protection in Australia may prove just as slow as the common law development.

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 Why have inferior and superior courts in Australia disagreed over the proper reading of the High Court’s decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd? Which approach do you prefer? Why? 2 Why has there been legislative inaction on the introduction of a statutory cause of action for invasion of privacy? 3 Does Australia need a cause of action for invasion of privacy in some form? Why or why not?

13.3.4 Public figures and the right to a private life The public conduct of a public figure may be legitimately discussed in the media.45 Those who participate in public life should expect to be the subject of public discussion and should not be ‘too thin-skinned’.46 However, merely because a person is a public figure does not deprive him or her of a right to a private life.47 39 ALRC, Serious Invasions of Privacy in the Digital Era, Report 123 (2014). 40 NSWLRC, Invasion of Privacy, Report No 120. 41 VLRC, Surveillance in Public Places: Final Report, Report No 18, Recommendations 22–33. 42 House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into Drones and the Regulation of Air Safety and Privacy, July 2014, Recommendation 3. 43 Chris Merritt, ‘Brandis rejects privacy tort call’, The Australian, 4 April 2014. 44 Paul Farrell, ‘Law Reform commission seeks right to sue for victims of privacy violations’, The Guardian (online), 3 September 2014. 45 Seymour v Butterworth (1862) 3 F & F 372 at 376; (1862) 176 ER 166 at 168 per Cockburn LCJ. 46 Seymour v Butterworth (1862) 3 F & F 372 at 377; (1862) 176 ER 166 at 169 per Cockburn LCJ. 47 Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165 per Hunt J.

451

452

PART 5 Privacy

QUESTIONS 1 Should a public figure have a diminished expectation of a private life by virtue of his or her public profile? 2 In what circumstances, if any, could a public figure’s private life become a subject of public interest?

13.4 Privacy in comparative perspective 13.4.1 Introduction

Given that the common law protection of privacy in Australia is still developing, it is instructive to consider how other legal systems have addressed, and are addressing, this issue. The most developed jurisprudence on privacy is found in the United States.48 In recent decades, the United Kingdom and New Zealand have begun to develop direct general law protections of privacy, albeit in markedly different ways.49 The jurisprudence of the European Union, which will be increasingly influential in shaping the law of privacy in the United Kingdom, is also developed and distinctive and will also be considered.50

Copyright © 2015. Oxford University Press. All rights reserved.

13.4.2 The position under United States law Of all the Anglophone legal systems, the United States has the most developed jurisprudence on privacy. The origin of this body of law is the highly influential article by Samuel D Warren and Louis Brandeis, ‘The Right to Privacy’.51 In this article, Warren and Brandeis reviewed a range of common law and equitable causes of action and discerned a right to privacy, being ‘the right to be let alone’, as being implicit in them.52 They argued then that the law should explicitly recognise and enforce this existing right to privacy.53 Following Warren and Brandeis, from the decision of the Supreme Court of Georgia in Pavesich v New England Life Ins Co54 onwards, United States courts began to recognise a tort of invasion of privacy.55 A further refinement of the tort of invasion of privacy occurred as a result of William Prosser’s article, ‘Privacy’.56 In this article, Prosser suggested that, rather than there being one tort of invasion of privacy, there were in fact four torts.57 Prosser’s taxonomy of torts is now reflected in the Restatement of Torts (2nd), which is relevantly extracted below. 48 49 50 51 52 53 54

As to the position under United States law, see 13.4.2. As to the position under United Kingdom law, see 13.4.4. As to the position under New Zealand law, see 13.4.5. As to the position under European Union law, see 13.4.6. (1890) 4 Harvard Law Review 193. Samuel L Warren and Louis Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193 at 205. Ibid at 206. 50 SE 68 (1905). For a review of the case law preceding Pavesich v New England Life Ins Co 50 SE 68 (1905), see William Prosser, ‘Privacy’ (1960) 48 California Law Review 383 at 385–86. 55 The case law is vast. See, for example, claims determined in favour of plaintiffs: Melvin v Reid 112 Cal App 285 at 292, 297 P 91 at 93–94 (1931) (Marks J, Barnard PJ and Jennings J concurring); Banks v King Features Syndicate Inc 30 F Supp 352 at 353–54 (1939) (Conger District Judge); Gill v Curtis Publishing Co 38 Cal 2d 273 at 280–81 (1952) (Carter J); Harms v Miami Daily News Inc 127 S 2d 716 at 718 (1961) (Horton CJ); Dietemann v Time Inc 449 F 2d 245 at 247 (1971) (Hufstedler J). However, see also Berg v Minneapolis Star & Tribune Co 79 F Supp 957 at 960–63 (1948) (Nordbye District Judge); Gill v Hearst Pub Co Inc 40 Cal 2d 224 at 228–31, 253 P 2d 441 at 443–45 (1953) (Spence J); Smith v NBC Universal 524 F Supp 2d 315 at 328–29 (2007) (Scheindlin District Judge). 56 (1960) 48 California Law Review 383. 57 Prosser, above n 54, at 389.

CHAPTER 13 Privacy

Although there is a well-developed right to privacy under United States law, there is the equally strong protection of freedom of speech, pursuant to the First Amendment of the United States Constitution.58 The expansive approach taken towards freedom of expression under the First Amendment of the United States Constitution has meant that the torts of invasion of privacy have not been as efficacious as might have been initially expected.59

American Law Institute, Restatement of Torts, 2nd. §652A General principle (1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other. (2) The right of privacy is invaded by (a) unreasonable intrusion upon the seclusion of another, as stated in §652B; or (b) appropriation of the other’s name or likeness, as stated in §652C; or (c) unreasonable publicity given to the other’s private life, as stated in §652D; or (d) publicity that unreasonably places the other in a false light before the public, as stated in §652E. …

§652B Intrusion upon seclusion One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

§652C Appropriation of name or likeness One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

Copyright © 2015. Oxford University Press. All rights reserved.

§652D Publicity given to private life One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. …

§652E Publicity placing person in false light One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) The false light in which the other was placed would be highly offensive to a reasonable person, and (b) The actor had knowledge of or acted with reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed .…

58 Time Inc v Hill 87 S Ct 534 at 542–43 (1967); 385 US 374 at 388–89 (1967) (Brennan J); Shulman v Group W Productions Inc 18 Cal 4th 200 at 226–27, 955 P 2d 469 at 487, 74 Cal Rptr 2d 843 at 861 (1998) (Werdegar J); Uranga v Federated Publications Inc 138 Idaho 550 at 556, 67 P 3d 29 at 35 (Eismann J); Gates v Discovery Communications Inc 34 Cal 4th 679 at 692, 101 P 3d 552 at 559–61 (2004) (Werdegar J). 59 See, for example, Cox Broadcasting Corporation v Cohn 420 US 469 at 488–97, 95 S Ct 1029 at 1042–47 (1975) (White J); The Florida Star v BJF 491 US 524 at 530–41, 109 S Ct 2603 at 2607–13 (1989) (Marshall J); Shulman v Group W Productions Inc 18 Cal 4th 200 at 228–30, 955 P 2d 469 at 487–89, 74 Cal Rptr 2d 843 at 862–63 (1998) (Werdegar J); Uranga v Federated Publications Inc 138 Idaho 550 at 556, 67 P 3d 29 at 35 (Eismann J); Gates v Discovery Communications Inc 34 Cal 4th 679 at 696, 101 P 3d 552 at 562 (2004) (Werdegar J).

453

454

PART 5 Privacy

13.4.3 Right of publicity One of the four privacy torts recognised under United States law is the tort of publicity. Australian law does not recognise a right of publicity. However, celebrities may be able to use other causes of action, such as the tort of passing off,60 to obtain a measure of control over the use of their image. For instance, in Radio Corporation Pty Ltd v Henderson,61 the Full Court of the Supreme Court of New South Wales found that the unauthorised use of a photographic image of two professional ballroom dancers, on the front cover of an album sold primarily to ballroom dancing instructors, falsely represented the couple’s endorsement of the record.62 In their joint judgment, Evatt CJ and Myers J stated that ‘the wrongful appropriation of another’s professional or business reputation is an injury in itself, no less, in our opinion, than the appropriation of his goods or money’.63

Copyright © 2015. Oxford University Press. All rights reserved.

13.4.4 The position under United Kingdom law Courts in the United Kingdom had elected to adapt the equitable cause of action for breach of confidence to provide a remedy for invasions of privacy. The traditional approach to breach of confidence and the development of breach of confidence as the vehicle for protecting personal privacy are discussed in detail in the following chapter. Outside of the equitable cause of action for breach of confidence, courts in the United Kingdom have been reluctant to identify an enforceable right to privacy.64 This reluctance has remained, even after the introduction of the Human Rights Act 1998 (UK), which incorporated the European Convention on Human Rights into domestic law, including the right to privacy, as the extract below from Wainwright v Home Office65 demonstrates.66 Whether this resistance to acknowledging a free-standing, legally enforceable right to privacy can be sustained is questionable. The Wainwrights complained to the European Court of Human Rights and the court upheld their application, finding that their right to privacy under Art 8 of the European Convention on Human Rights had been violated67 and that the United Kingdom courts had failed to give them an effective remedy.68 This was not the first time the European Court of Human Rights had reached such a conclusion about the state of privacy protection in the United Kingdom. In Peck v United Kingdom,69 a man complained that the aftermath of his suicide attempt had not only been captured by the local council’s closed circuit television system but had been released by the council to newspapers 60 For further examples, see Hutchence v South Sea Bubble Co Pty Ltd (1986) 64 ALR 330; Newton-John v Scholl Plough (Australia) Pty Ltd (1986) 11 FCR 233; 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299; Hogan v Koala Dundee Pty Ltd (1988) 20 FCR 314; Wickham v Associated Pool Builders Pty Ltd (1988) 12 IPR 567; Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553; Honey v Australian Airlines Ltd (1990) 18 IPR 185; Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444. 61 [1960] NSWR 279. 62 [1960] NSWR 279 at 281–82 per Evatt CJ and Myers J. 63 Radio Corporation Pty Ltd v Henderson [1960] NSWR 279 at 285. 64 Malone v Metropolitan Police Commissioner [1979] Ch 344 at 357 per Sir Robert Megarry V-C; R v Khan [1997] AC 558 at 577 per Lord Nolan. 65 [2004] 2 AC 406. 66 See also Campbell v MGN Ltd [2004] 2 AC 457 at 464 per Lord Nicholls of Birkenhead; Douglas v Hello! Ltd [2006] QB 125 at 150 per curiam; McKennitt v Ash [2008] QB 73 at 80 per Buxton LJ; OPO v MLA [2014] EWCA Civ 1277 at [12] per Arden LJ. 67 Wainwright v United Kingdom (2007) 44 EHRR 40 at 823. 68 Ibid at 825. 69 (2003) 36 EHRR 41.

CHAPTER 13 Privacy

and television stations and had been used in such a way that he was identifiable.70 The European Court of Human Rights held that this was a breach of Peck’s right to privacy71 and that the United Kingdom courts had not provided him with an effective remedy.72 The human rights jurisprudence of the European Union will continue to influence the development of United Kingdom law in relation to privacy.73

Wainwright v Home Office [2004] 2 AC 406

Copyright © 2015. Oxford University Press. All rights reserved.

[The appellants were a mother and her mentally and physically disabled son. They went to visit a relative who was in prison on remand for a charge of murder. When they arrived at the prison, they were taken to be strip-searched before they could visit their relative. The governor of the prison had ordered that all visitors to this particular prisoner be strip-searched, as the prisoner appeared to be drug-affected. The strip searches did not comply with the relevant prison rules. As a result of their treatment, the appellants were humiliated and distressed. They brought proceedings against the Home Office for trespass to the person and were successful at first instance. An appeal to the Court of Appeal was allowed. The appellants appealed to the House of Lords.] LORD HOFFMANN (at 419): [18] … English law has so far been unwilling, perhaps unable, to formulate any such high-level principle. There are a number of common law and statutory remedies of which it may be said that one at least of the underlying values they protect is a right of privacy. Sir Brian Neill’s well known article ‘Privacy: A Challenge for the Next Century’ in Protecting Privacy (ed B Markesinis, 1999) contains a survey. Common law torts include trespass, nuisance, defamation and malicious falsehood; there is the equitable action for breach of confidence and statutory remedies under the Protection from Harassment Act 1997 and the Data Protection Act 1998. There are also extra-legal remedies under Codes of Practice applicable to broadcasters and newspapers. But there are gaps; cases in which the courts have considered that an invasion of privacy deserves a remedy which the existing law does not offer. Sometimes the perceived gap can be filled by judicious development of an existing principle. The law of breach of confidence has in recent years undergone such a process: see in particular the judgment of Lord Phillips of Worth Matravers MR in Campbell v MGN Ltd [2003] QB 633. On the other hand, an attempt to create a tort of telephone harassment by a radical change in the basis of the action for private nuisance in Khorasandjian v Bush [1993] QB 727 was held by the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655 to be a step too far. The gap was filled by the 1997 Act. [19] What the courts have so far refused to do is to formulate a general principle of ‘invasion of privacy’ (I use the quotation marks to signify doubt (420) about what in such a context the expression would mean) from which the conditions of liability in a particular case can be deduced … (423) [31] There seems to me a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself. The English common law is familiar with the notion of underlying values— principles only in the broadest sense—which direct its development. A famous example is Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, in which freedom of speech was the underlying value which supported the decision to lay down the specific rule that a local authority could not sue for libel. But no one has suggested that freedom of speech is in itself a legal principle which is capable of sufficient

70 Peck v United Kingdom (2003) 36 EHRR 41 at 726–28. 71 Ibid at 738–39. 72 Ibid at 752. For an example of a case in which the European Court of Human Rights found that United Kingdom law provided an adequate protection of personal privacy through the equitable cause of action for breach of confidence, see Earl Spencer v United Kingdom (1998) 25 EHRR CD105 at CD113. 73 As to the position under European Union law, see 13.4.6.

455

456

PART 5 Privacy

definition to enable one to deduce specific rules to be applied in concrete cases. That is not the way the common law works. … [34] Furthermore, the coming into force of the Human Rights Act 1998 weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in the existing remedies. Sections 6 and 7 of the Act are in themselves substantial gap fillers; if it is indeed the case that a person’s rights under article 8 have been infringed by a public authority, he will have a statutory remedy. The creation of a general tort will, as Buxton LJ pointed out in the Court of Appeal [2002] QB 1334, 1360, para 92, pre-empt the controversial question of the extent, if any, to which the Convention requires the state to provide remedies for invasions of privacy by persons who are not public authorities. (424) [35] For these reasons I would reject the invitation to declare that since at the latest 1950 there has been a previously unknown tort of invasion of privacy. [Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Hutton concurred with Lord Hoffmann. In separate reasons for judgment, Lord Scott of Foscote agreed with Lord Hoffmann.] Appeal dismissed.

QUESTIONS 1 Why have United Kingdom courts been reluctant to identify a free-standing, legally enforceable right to privacy? 2 How convincing do you find the distinction made by Lord Hoffmann between privacy as a value and privacy as a legal principle?

Copyright © 2015. Oxford University Press. All rights reserved.

13.4.5 The position under New Zealand law Since the 1980s, New Zealand courts have recognised a form of the tort of invasion of privacy. However, the tort is not the fourfold tort that exists in the United States.74 Rather, the tort of invasion of privacy as it has developed in New Zealand is limited to the public disclosure of private facts. This tort developed through a series of judgments handed down by trial judges,75 but its existence, and the contours of liability, available defences and possible defences, was recently endorsed by the New Zealand Court of Appeal in Hosking v Runting,76 which is relevantly extracted below. Hosking v Runting has been subsequently considered in two cases involving access to documents related to court processes. In Mafart v Television New Zealand Ltd, TVNZ sought access to the videotaped guilty pleas of Alain Mafart and Dominique Prieur to charges of manslaughter relating to the sinking of the Rainbow Warrior in Auckland harbour in 1985.77 Mafart and Prieur objected to access being granted on the ground that it would infringe their right to privacy. At first instance, Simon France J found that the public interest in the event, the essentially public nature of their pleas and the institution of facilities allowing public access to court files since their trial outweighed any right to privacy Mafart and Prieur might have.78 The Court of Appeal ultimately found that the judge at first instance did not err in according minimal weight to Mafart’s and Prieur’s asserted right to privacy.79 74 As to the position under United States law, see 13.4.2. 75 Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 at 733 per McGechan J; Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 at 423 per Gallen J; P v D [2000] 2 NZLR 591 at 601 per Nicholson J. 76 [2005] 1 NZLR 1. 77 Mafart v Television New Zealand Ltd [2006] 3 NZLR 534 at 536 per Hammond J. 78 Ibid at 537 per Hammond J. 79 Ibid at 544–48 per Hammond J.

CHAPTER 13 Privacy

In Television New Zealand Ltd v Rogers,80 Rogers was charged with murder. The police videotaped Rogers’s interview as well as a reconstruction of the crime. The videotape was excluded from evidence at Rogers’s trial. However, the police handed the videotape to Television New Zealand. After his trial, Rogers became aware of Television New Zealand’s intention to broadcast the videotape. He sought an injunction.81 The Supreme Court of New Zealand ultimately refused such relief on the basis that Rogers did not have a reasonable expectation of privacy in relation to the police interview and reconstruction.82 More recently, New Zealand courts have begun to recognise a second tort of invasion of privacy, derived from the fourfold United States tort—a tort of intrusion upon seclusion—as the extract below from C v Holland demonstrates.

Hosking v Runting [2005] 1 NZLR 1

Copyright © 2015. Oxford University Press. All rights reserved.

[The appellant, Michael Hosking, had been a New Zealand television celebrity since the early 1990s. Hosking and his wife, Maria, gave interviews about their IVF treatment. However, after the birth of their twin daughters, Ruby and Bella, the Hoskings were reluctant to allow them to be photographed. The Hoskings separated. The second appellant, Pacific Magazines NZ Ltd, was the publisher of women’s magazine New Idea. New Idea commissioned the first respondent, Simon Runting, to photograph Hosking’s twins to accompany the story about their parents’ separation. Runting obtained photographs of the Hosking twins on the street in Newmarket being pushed in a stroller by their mother. Marie Hosking was unaware that the photographs were being taken. New Idea informed the Hoskings of its intention to publish the photographs. Hosking brought proceedings in the High Court of New Zealand, seeking to restrain publication of the photographs. At first instance, Randerson J rejected the application for relief. Hosking appealed to the New Zealand Court of Appeal.] GAULT P AND BLANCHARD J (at 5): [2] The law of civil liability may be said to be in transition. The impetus for development is coming not from the Judges by whom the common law has been developed over the centuries, but from other major movements influencing the law. The emergence internationally of concern for the protection of human rights and of individual consumers provides examples reflecting the shift in emphasis from the traditional approach to tort liability (liability for reprehensible conduct) to the protection of identified rights. But even the great cases of the past, accepted as representing significant developments in the law, can be seen as recognising the need to provide remedies for interference with rights: Entick v Carrington (1765) 19 State Tr 1030, 95 ER 807 and Ashby v White (1703) 2 Ld Raym 98, 92 ER 126 are examples. Donoghue v Stevenson [1932] AC 562 can be said to represent the foundation of consumers’ rights. [3] The law governing liability for causing harm to others necessarily must move to accommodate developments in technology and changes in attitudes, practices and values in society. These are drawn into the law in the main by legislation, often these days to conform with obligations assumed under international treaties and conventions. Such developments, introduced by legislation, emerge from processes which employ extensive consultation and procedures designed to take into account all affected interests. (6) [4] From time to time, however, there arise in the courts particular fact situations calling for determination in circumstances in which the current law does not point clearly to an answer. Then the courts attempt to do justice between the parties in the particular case. In doing so the law may be developed to a degree. It is because the legislative process is inapt to participate or respond to every different circumstance that some developments in the law result from such case by case decisions. That is the traditional process of the common law.

80 [2008] 2 NZLR 277. 81 Television New Zealand Ltd v Rogers [2008] 2 NZLR 277 at 285–88 per Elias CJ. 82 Ibid at 296 per Blanchard J; at 300 per Tipping J; at 309 per McGrath J.

457

458

PART 5 Privacy

[5] The courts are at pains to ensure that any decision extending the law to address a particular case is consistent with general legal principle and with public policy and represents a step that it is appropriate for the courts to take. In the last respect there are matters that involve significant policy issues that are considered best left for the legislature. [6] Increasingly, the courts, in approaching arguments calling for development of the common law, take leads from legislative developments in the same or related fields. Similarly there is increasing recognition of the need to develop the common law consistently with international treaties to which New Zealand is a party. That is an international trend. The historical approach to the State’s international obligations as having no part in the domestic law unless incorporated by statute is now recognised as too rigid. To ignore international obligations would be to exclude a vital source of relevant guidance. It is unreal to draw upon the teachings of other jurisdictions (as we commonly do) yet not draw upon the teachings of international law. There is the additional factor in the field of human rights declared by the International Covenant on Civil and Political Rights (the International Covenant) that individuals can seek remedies against the State at international law after exhausting domestic remedies. This cannot be disregarded in considering whether, in a particular case in the domestic courts, a remedy should be available. [7] Development of the common law generally in accordance with the approach outlined is just what has been occurring in recent years in the courts in the United Kingdom in the area of the law with which we are now concerned. The arguments we have heard in this case have been directed to the extent to which those developments are appropriate for New Zealand and should be built upon. In fact, we consider that in substance the law in New Zealand developed at the High Court level is very close to the position now  reached  (or approached) by the English courts, though different terminology is used. The position in the United Kingdom is that there is not a general law of invasion of privacy. But the law will protect against the publication of private information where that is harmful and is not outweighed by public interest or freedom of expression values. In England that is done within the scope of the tort of wrongful disclosure of confidential information. In New Zealand we prefer to categorise it as a separate head of liability. [8] However categorised, we agreed with Randerson J that the law does not and cannot extend to provide a remedy for the appellants in this case. …

Copyright © 2015. Oxford University Press. All rights reserved.

(32) Elements of the tort [117] The scope of a cause, or causes, of action protecting privacy should be left to incremental development by future Courts. The elements of the tort as it relates to publicising private information set down by Nicholson J in P v D provide a starting point, and are a logical development of the attributes identified in the United States jurisprudence and adverted to in judgments in the British cases. In this jurisdiction it can be said that there are two fundamental requirements for a successful claim for interference with privacy: 1 The existence of facts in respect of which there is a reasonable expectation of privacy; and 2 Publicity given to those private facts that would be considered highly offensive to an objective reasonable person. [118] No Court can prescribe all the boundaries of a cause of action in a single decision, nor would such an approach be desirable. The cause of action will evolve through future decisions as Courts assess the nature and impact of particular circumstances. However, some general comments may be useful. First, we emphasise that at this point we are concerned only with the third formulation of the privacy tort identified by Prosser and developed in the United States case: wrongful publicity given to private lives. We need not decide at this time whether a tortious remedy should be available in New Zealand law for unreasonable intrusion into a person’s solitude or seclusion. In many instances this aspect of privacy will be protected by the torts of nuisance or trespass or by laws against harassment, but this may not always be the case. Trespass may be of limited value as an action to protect against information obtained surreptitiously. Long-lens photography, audio surveillance and video surveillance now mean that intrusion is possible without a trespass being committed …

CHAPTER 13 Privacy

Private facts [119] In many instances the identification of private facts will be analogous to the test of ‘information with the necessary quality of confidence’ employed in breach of confidence cases. Private facts are those that may be known to some people, but not to the world at large. There is no simple test for what constitutes a private fact. The comments of Gleeson CJ in ABC v Lenah Game Meats at para [42], cited by the English Court of Appeal in Campbell, are helpful … (33) [120] The present case raises an important issue in relation to private facts. Should private figures have lower expectations of privacy in relation to their private lives, and how does this impact on the families of public persons? Prosser identified three reasons why, in the United States context, public figures are held to have lost, at least to some extent, their right of privacy: (1) by seeking publicity they have consented to it; (2) their personalities and affairs are already public facts not private ones; and (3) there is a legitimate public interest in the publication of details about public figures … [121] The Restatement observes at p 389 that voluntary public figures (those who engage in public activities, assume a prominent role in institutions or activities having general economic, cultural, social or similar public interest, or submit themselves or their work for public judgment) have no right of privacy in relation to public appearances or activities. But as Lord Woolf CJ said in A v B at p 554:

Copyright © 2015. Oxford University Press. All rights reserved.

(xii) Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his action will be more closely scrutinised by the media.

The right to privacy is not automatically lost when a person is a public figure, but his or her reasonable expectation of privacy in relation to many areas of life will be correspondingly reduced as public status increases. Involuntary public figures may also experience a lessening of expectations of privacy, but not ordinarily to the extent of those who willingly put themselves in the spotlight. … (34) [123] The special position of children must not be lost sight of, however, and we will address that. In the present case, the appellants’ position was that the right of the twins to privacy cannot be synonymous with the privacy right of the appellants. This, it was said, would result in an unfortunate situation where the celebrity status and behaviour of parents will always determine the privacy rights of their families, regardless of how those family members behave. While sympathetic to the children of public figures who have no choice about their parents’ career paths, Randerson J considered that in this case Ruby and Bella’s reasonable expectations of privacy were likely to be diminished simply by the flow-on effects of their relationship with their celebrity parent. In addition, the fact that the Hoskings had placed the fact of their children’s pending birth in the public light must have objectively diminished expectations of privacy. [124] It is a matter of human nature that interest in the lives of public figures also extends to interest in the lives of their families. In such cases, the reasonable expectations of privacy in relation to at least some facts of the families’ private lives may be diminished. Of course there may be special circumstances pointing away from that conclusion, such as where there is evidence before the Court establishing a risk to the plaintiff directly resulting from the nature of the public figure’s role: see the approach of the Court in Venables. The appellants in the present case submitted that publication of the images of the twins would increase the risk that they may be kidnapped. We will consider that in due course.

Publicity that is highly offensive [125] In theory, a rights-based cause of action would be made out by proof of breach of the right irrespective of the seriousness of the breach. However, it is quite unrealistic to contemplate legal liability for all publications of all private information. It would be absurd, for example, to consider actionable merely informing a neighbour that one’s spouse has a cold. By living in communities individuals necessarily give up seclusion and expectations of complete privacy. The concern of the law, so far as we are presently concerned, is with widespread publicity of very personal and private matters. Publication in the technical sense, for example, as applies in defamation, is not in issue.

459

460

PART 5 Privacy

[126] Similarly publicity, even extensive publicity, of matters which, although private, are not really sensitive should not give rise to legal liability. The (35) concern is with publicity that is truly humiliating and distressful or otherwise harmful to the individual concerned. The right of action, therefore, should be only in respect of publicity determined objectively, by reference to its extent and nature, to be offensive by causing real hurt or harm. In the Restatement the requirement is ‘highly offensive to a reasonable person’; the formulation expressed in Australia by Gleeson CJ (drawn from the United States case) and referred to by the English Court of Appeal in Campbell imbues the reasonable person with ‘ordinary sensibilities’. In a similar vein the Privacy Act, in s 66, defining interference with the privacy of an individual, requires ‘significant’ humiliation, loss of dignity or injury to feelings. [127] We consider that the test of highly offensive to the reasonable person is appropriate. It relates, of course, to the publicity and is not part of the test of whether the information is private. [128] We do not see personal injury or economic loss as necessary elements of the action. The harm to be protected against is in the nature of humiliation and distress. These are concepts now familiar in the law having recognition in statutes such as the Employment Relations Act 2000 and the Privacy Act. We are not concerned with issues of whether there need be recognised psychiatric harm.

Copyright © 2015. Oxford University Press. All rights reserved.

Legitimate public concern [129] There should be available in cases of interference with privacy a defence enabling publication to be justified by a legitimate public concern in the information. In P v D, absence of legitimate public interest was treated as an element of the tort itself. But it is more conceptually sound for this to constitute a defence, particularly given the parallels with breach of confidence claims where public interest is an established defence. Moreover, it would be for the defendant to provide the evidence of the concern, which is the appropriate burden of proof if the plaintiff has shown that there has been an interference with his or her privacy of the kind we have described. [130] Furthermore, the scope of privacy protection should not exceed such limits on the freedom of expression as is justified in a free and democratic society. A defence of legitimate public concern will ensure this. The significant value to be accorded freedom of expression requires that the tort of privacy must necessarily be tightly confined … [131] The appellants submitted that the type of speech that the respondents are seeking to impart in this case should receive lesser protection under the Bill of Rights than political or artistic speech, because of its ‘commercially motivated gossip nature’ … (36) [132] The importance of the value of the freedom of expression therefore will be related to the extent of legitimate public concern in the information publicised. Phillipson refers to proportionality which captures the interrelationship between the competing values. That this may draw the Courts into determinations of what should or should not be published must be accepted. Such judgments are made with reference to indecent publications and suppression orders and are part of the judicial function. It is not a matter of Judges being arbiters of taste, but of requiring the exercise of judgment in balancing the rights of litigants. [133] The word ‘concern’ is deliberately used, so as to distinguish between matters of general interest or curiosity to the public, and matters which are of legitimate public concern. We accept in this respect the observation of Eichelbaum CJ in TV3 Network Services Ltd v Broadcasting Standards Authority at p 733 that there is a difference between material that is ‘merely interesting’ to the public and material ‘properly with the public interest, in the sense of being of legitimate concern to the public’. [134] A matter of general interest or curiosity would not, in our view, be enough to outweigh the substantial breach of privacy harm the tort presupposes. The level of legitimate public concern would have to be such as outweighs the level of harm likely to be caused. For example, if the publication was going to cause a major risk of serious physical injury or death (as in the Venables case), a very considerable level of legitimate public concern would be necessary to establish the defence. [135] We do not think it is helpful in an area like this for the Court to adopt categories such as ‘commercial’ and ‘non-commercial’ speech. Instead, we prefer an approach that takes into account in each individual case community norms, values and standards …

CHAPTER 13 Privacy

(37) [144] It would be unrealistic and unnecessary to consider a legal prohibition against the publication of all photographs depicting children without parental consent. That would inhibit media coverage of, for example, a children’s Christmas parade. (38) [145] In the context of the protection of privacy, we consider that the criteria for protection, requiring private information in respect of which there is a reasonable expectation of privacy the publicising of which would be highly offensive, provide adequate flexibility to accommodate the special vulnerability of children. … [147] Of course, the vulnerability of children must be accorded real weight and their private lives will seldom be of concern to the public. In this respect, Courts in New Zealand might be expected to be more sensitive to the separate interests of children of ‘celebrities’ than the United States cases suggest. And of course, potential danger may justify strong measures, even to the extent of the order in Venables. But danger is not to be lightly assumed. As in all fields of law, the Courts must act on evidence not speculation. [148] Accordingly we are of the view that the way in which the law has been developing through the decisions of the High Court should not be interrupted. We think the case for a right of breach of privacy by giving publicity to private and personal information is made out. We take that view, in summary, because: • It is essentially the position reached in the United Kingdom under the breach of confidence cause of action. • It is consistent with New Zealand’s obligations under the international covenant and the UNCROC. • It is a development recognised as open by the Law Commission. • It is workable as demonstrated by the experience of the BSA and similar British tribunals. • It enables competing values to be reconciled. • It can accommodate interests at different levels so as to take account of the position of children. • It avoids distortion of the elements of the action for breach of confidence. • It enables New Zealand to draw upon extensive United States experience. • It will allow the law to develop with a direct focus on the legitimate protection of privacy, without the need to be related to issues of trust and confidence.

Copyright © 2015. Oxford University Press. All rights reserved.

Remedies [149] The primary remedy upon a successful claim will be an award of damages. As in breach of confidence and defamation cases, injunctive relief may be appropriate in some circumstances. [150] It is important to distinguish between the elements of the action and available remedies when it is established, on the one hand, and questions of interlocutory relief, on the other. …

(40) This appeal [159] Although he expressed a preference for developing the action of breach of confidence as in the United Kingdom, Randerson J did state the view that even if there were in New Zealand law an independent action for wrongfully publicising private information, as in P v D, it would not assist the appellants. He considered that if there were a right of privacy as alleged it would be clearly overwhelmed by the right of freedom of expression. He said that there is nothing in the evidence to suggest there is a serious risk to the children if publication occurs as intended. [160] We are satisfied that no other conclusion is reasonably open. [161] The real concern of the appellants as parents relates not to the publication of photographs of their two children in the street, but to publication of the photographs along with identification and the association of them with a ‘celebrity’ parent. We accept the sincerity of their anxiety for the wellbeing of their children and their concern at the prospect of recurring unwanted media attention. They wish to protect the freedom of the children to live normal lives without constant fear of media intrusion. They feel that if publication of the present photographs is prevented there will be no incentive for those who, in the future, might pursue the children in order to capture marketable images.

461

462

PART 5 Privacy

Copyright © 2015. Oxford University Press. All rights reserved.

[162] We must focus on the issues now presented. If there is no case for relief now, we cannot address the future. We are inclined to the view, however, that the concerns are overstated. (41) [163] We are not persuaded that a case is made out for an injunction to protect the children from a real risk of physical harm. We do not see any substantial likelihood of anyone with ill intent seeking to identify the children from magazine photographs. We cannot see the intended publication increasing any risk that might exist because of the public prominence of their father. [164] The inclusion of the photographs of Ruby and Bella in an article in New Idea would not publicise any fact in respect of which there could be a reasonable expectation of privacy. The photographs taken by the first respondent do not disclose anything more than could have been observed by any member of the public in Newmarket on that particular day. They do not show where the children live, or disclose any information that might be useful to someone with ill intent. The existence of the twins, their age and the fact that their parents are separated are already matters of public record. There is a considerable line of cases in the United States establishing that generally there is no right to privacy when a person is photographed on a public street. Cases such as Peck and perhaps Campbell qualify this to some extent, so that in exceptional cases a person might be entitled to restrain additional publicity being given to the fact that they were present on the street in particular circumstances. That is not, however, this case. [165] We are not convinced a person of ordinary sensibilities would find the publication of these photographs highly offensive or objectionable even bearing in mind that young children are involved. One of the photographs depicts a relatively detailed image of the twins’ faces. However, it is not sufficient that the circumstances of the photography were considered intrusive by the subject (even if that were the case, which it is not here because Mrs Hosking was not even aware the photographs had been taken). The real issue is whether publicising the content of the photographs (or the ‘fact’ that is being given publicity) would be offensive to the ordinary person. We cannot see any real harm in it. … (42) [170] As a result of these conclusions it is unnecessary to consider whether the respondents could rely on a defence that there is a legitimate public concern in publishing the photographs. [171] It will be apparent from the reasons given that we do not consider there is a cause of action in our law directed to unauthorised representation of one’s image; that on the facts of this case no trespass occurred in the taking of the photographs; that there was similarly no assault; and that there has been no foundation laid for a claim of negligent infliction of emotional harm to the children. TIPPING J (at 56): [233] There are said to be three theoretical bases on which the right to freedom of expression is founded. They can be described, in short, as: (1) the marketplace of ideas theory; (2) the maintenance and support of democracy theory; and (3) the liberty theory: see Rishworth at p 308ff. An exercise of the right to freedom of expression which impinges on privacy values is unlikely to fit within the marketplace of ideas theory. The expression involved will seldom be of that kind. Expression which impinges on privacy may be desirable to support the proper workings of democracy; but the defence of legitimate public concern will largely accommodate that dimension. Privacy values will not normally constitute a justified limitation on freedom of expression if the information being imparted is a matter of legitimate public concern. In that way the right to freedom of expression is not subject to limitation if the expression (ie the imparting of the information) is reasonably related to the maintenance of the democratic process, in the sense of advising the public of what they have a right to know in that context. [234] The liberty theory is the broadest and potentially the most problematic of the three. The theory is essentially that it is for the ultimate good of society for citizens to be able to say and publish to others what they want. Liberty is fine in the abstract, but in concrete terms all those living in an organised society (57) must accept some curtailment of their abstract liberty to enjoy freedom of expression when the curtailment is necessary for the greater good of society as a whole and its individual members. Therein lies the conundrum. The liberty theory rests on the ultimate public good; but the full flowering of the theory undoubtedly has the capacity to harm the public good. When the

CHAPTER 13 Privacy

Copyright © 2015. Oxford University Press. All rights reserved.

expression in issue provides little public benefit, except in theory, but significant individual or public harm in concrete terms, the theory must give way. Thus, in the particular instance society’s pragmatic needs or the welfare of its individual members can outweigh the general benefits supported by the theory of liberty. The theory, however, has a head start. Any pragmatic or concrete benefit must pass the threefold test in s 5 of the Bill of Rights, namely reasonableness, justification and prescription by law. [235] Limits on the right of freedom of expression which do not fit within the purposes of the first or second theories may be easier to justify, depending on what public good or benefit the expression in question is seen as fulfilling. What I am suggesting is that the nature of the information imparted may well have a bearing on the reasonableness and justifiability of the limitation in issue. This is a manifestation of proportionality. The more value to society the information imparted or the type of expression in question may possess, the heavier will be the task of showing that the limitation is reasonable and justified. As already noted, the proposed tort of invasion of privacy recognises this through the defence of legitimate public concern. There may well be a greater potential for legitimate public concern about information imparted as part of the marketplace of ideas or in support of the democratic process than there is with information, the imparting of which is supported only by the abstract theory of liberty. [236] In the end someone has to make a judgment on behalf of society as to where the balance falls. The question may often be whether individual harm outweighs public good. The responsibility for striking the right balance is vested in the Courts. In discharging that responsibility it is perfectly appropriate for the judicial branch of government to determine, after hearing argument on all sides, that an appropriately formulated free-standing tort of privacy should exist; but subject to a defence designed to protect freedom of expression values when the privacy values which the tort is designed to protect fail to outweigh them. [237] The weight one gives to privacy values in concrete terms is no doubt a matter of assessment in the individual case. But I do not consider there can be any room to doubt that, on appropriately defined occasions, privacy values can outweigh the right to freedom of expression. There is obviously room for differences of view as to how these occasions should be defined but that is a different matter. When privacy values are found to outweigh the right to freedom of expression, and the law recognises that by placing a limitation on freedom of expression, that limitation will, in terms of s 5 of the Bill of Rights, be a limit prescribed by law. It will also be a limit which is reasonable and demonstrably justified in a free and democratic society.

Privacy values [238] What then are the privacy values to which I have been referring? Privacy is potentially a very wide concept; but, for present purposes, it can be described as the right to have people leave you alone if you do not want some aspect of your private life to become public property. Some people seek the limelight; others value being able to shelter from the often intrusive and debilitating (58) stresses of public scrutiny. As Professor John Fleming put it in his Law of Torts (8th ed) at p 601, people often wish to shelter their private lives from the ‘degrading effect of intrusion or exposure to public view’. For some people the offices they hold, or the activities they engage in, necessarily carry an expectation of some degree of legitimate public interest and scrutiny. The activities and personal attributes of people in this category can reasonably be regarded, at least up to a point, as being in the public arena. The public may well have a right to know certain things about them. [239] But, even for those in this category, most people, I suggest, would agree that there should be limits. It is of the essence of the dignity and personal autonomy and wellbeing of all human beings that some aspects of their lives should be able to remain private if they so wish. Even people whose work or the public nature of whose activities make them a form of public property, must be able to protect some aspects of their lives from public scrutiny. Quite apart from moral and ethical issues, one pragmatic reason is that unfair and unnecessary public disclosure of private facts can well affect the

463

464

PART 5 Privacy

physical and mental health and wellbeing of those concerned. Their effectiveness in the public roles they perform can be detrimentally affected to the disadvantage not only of themselves, but of society as a whole. …

(59) A separate tort of invasion of privacy [244] Against that background I will examine first the question whether there should in New Zealand be a separate tort of invasion of privacy covering at least unjustified publication of information about a person’s private life. Being of the view that such a tort should exist, I will then, to the extent necessary for the purpose of this case, address the ingredients of the tort. …

Copyright © 2015. Oxford University Press. All rights reserved.

(60) Indicia of invasion of privacy [248] What then should the indicia of the tort of invasion of privacy be? As noted above, the compass of the tort, as presently under consideration, is to give a remedy when there is unjustified publication of information about the plaintiff’s life. We have guidance in the American jurisprudence. Gault P has examined that topic and I will not repeat his discussion in that or the other fields which he has surveyed … [249] For me the first and fundamental ingredient of the tort should be that the plaintiff must be able to show a reasonable expectation of privacy in respect of the information or material which the defendant has published or wishes to publish. The necessary expectation can arise from the nature of the information or material or the circumstances in which the defendant came into possession of it, or both. It has been suggested that the concept of a reasonable expectation of privacy is amorphous and ill-defined. I do not consider that anything more precise is either desirable or possible at this stage of the development of the law and at this level of generality. [250] Nor do I think that when the concepts are carefully examined, there is much force in the criticism that the new tort is so uncertain that it should never be born. The plaintiff must show first an expectation of privacy and, more importantly, in most cases, that such expectation is a reasonable one. The latter dimension of reasonableness, familiar in many fields of law, controls the subjective expectation of the individual. It introduces an objective element upon which, as with all questions of reasonableness, in the end the Court has to make a value judgment. It is a very familiar exercise and cannot, in my view, validly be criticised on the basis of uncertainty. The concept is clear. The fact that its application in a marginal case may be difficult is not a valid reason to regard the concept as possessing objectionable uncertainty. Expectations of privacy are really no more uncertain or elusive than expectations of confidence; or the expectation that reasonable care will be taken not to damage the interests of others. The parameters of any general duty are constantly being worked out and refined by the Courts. An underpinning jurisprudence can be allowed to develop for privacy as it has for confidence and negligence. What expectations of privacy are reasonable will be a reflection of contemporary societal values and the content of the law will in this respect be capable of accommodating changes in those values. (61) [251] This is the traditional common law method. It would be a most undesirable fetter on this method if this kind of incremental development were regarded as so uncertain that it could not pass muster as a justified limitation on another right, nor as one which was justified by law for the purposes of s 5 of the Bill of Rights … [253] I immediately accept that a principle or rule which is enunciated in a wholly uncertain manner could well be a principle or rule which is not sufficiently prescribed by law for the purposes of s 5. What I cannot accept is that incremental common law or equitable developments, or reshapings of the law, or principles which are stated at a higher level of generality than may be the European method, should be regarded in New Zealand as not sufficiently prescribed by law. It is inevitable of course that questions of degree will arise. But I do not consider the phrase ‘prescribed by law’ in s 5 was intended or should be construed so as to stultify traditional common law methodology and prevent Courts from

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 13 Privacy

implementing legal developments which they regard as appropriate and necessary, on the premise that the obvious and unavoidable uncertainty that often exists at the margins in some fact situations should prevent an otherwise appropriate development. … [255] It is conventional in the American jurisprudence to measure expectations of privacy and whether any asserted expectation is reasonable by the level of offence, and thus of harm, which publication of the material in question might be expected to cause an ordinary member of society in the plaintiff’s circumstances. The standard criterion has been to require a high level of offence. Such a formulation is a useful reminder that relatively trivial invasions of privacy should not be actionable. This criterion has the effect of requiring something substantial before there can be any intrusion on freedom of expression. [256] While I recognise the value and the importance of these factors, and would not wish to encourage litigation at a low level of impact, I would myself prefer that the question of offensiveness be controlled within the need for there to be a reasonable expectation of privacy. In most cases that expectation is (62) unlikely to arise unless publication would cause a high degree of offence and thus of harm to a reasonable person. But I can envisage circumstances in which it may be unduly restrictive to require offence and harm at that high level. That might be so if, for example, the publication served little or no public good, save an abstract upholding of the liberty theory. I accept that it will always be necessary for the degree of offence and harm to be substantial, so that freedom of expression values are not limited too readily. At the risk of being thought guilty of a verbal quibble, I would prefer the qualifier to be a substantial level of offence rather than a high level of offence. That seems to me to be a little more flexible, while at the same time capturing the essence of the matter. [257] As earlier foreshadowed, it should be a defence to an action for invasion of privacy that the information or material published about the plaintiff’s private life is a matter of legitimate public concern. This is analogous to the iniquity defence in the breach of confidence area. It also has parallels with the developing jurisprudence in the area of qualified privilege when publication has been to a wide audience. The greater the invasion of privacy the greater must be the level of public concern to amount to a defence. This is no more than another application of the need for proportionality. No verbal formulation can hope to do more than lay out the principles to be applied in the individual case. Further than that I do not think it appropriate to go at this very early stage of the development of what should now be recognised as a discrete branch of the law. [258] I see the remedy for invasion of privacy as being primarily an award of damages. Prior restraint by injunction, such as is sought in the present case, will be possible, but should, in my view, be confined to cases which are both severe in likely effect and clear in likely outcome. Freedom of expression values will ordinarily prevail at the interlocutory stage. I am mindful of the chilling effect which potential claims for damages for invasion of privacy might have on the activities of news media organisations and perhaps others. But against that I am mindful too of the considerable distress which unwarranted invasion of privacy can cause. The right to freedom of expression is sometimes cynically invoked in aid of commercial advantage. Of course the right to freedom of expression exists in the commercial field, but it should not be allowed to become a justification for what may be little more than a desire to boost circulation or ratings when that legitimate commercial objective has a substantial adverse impact on the personal dignity and autonomy of individuals and serves no legitimate public function.

The tort of invasion of privacy in summary [259] Holding the balance fairly between plaintiffs and defendants in this field is not likely to be easy. The law should be as simple and easy of application as possible in the interests of those who have to make decisions about what to and what not to publish. I would therefore summarise the broad content of the tort of invasion of privacy in these terms. It is actionable as a tort to publish information or material in respect of which the plaintiff has a reasonable expectation of privacy, unless that information or material constitutes a matter of legitimate public concern justifying publication in the public interest.

465

466

PART 5 Privacy

Whether the plaintiff has a reasonable expectation of privacy depends largely on whether publication of the information or material about the plaintiff’s private life would in the particular circumstances cause substantial offence to a reasonable person. Whether there is sufficient public concern about the (63) information or material to justify the publication will depend on whether in the circumstances those to whom the publication is made can reasonably be said to have a right to be informed about it.

The present case

Copyright © 2015. Oxford University Press. All rights reserved.

[260] Turning to the present case I am of the view that neither Mr and Mrs Hosking, nor the children themselves, had a reasonable expectation of privacy in the photographs in question. They were taken in a public place. There is no evidence which satisfies me that publication would be harmful to the children, either physically or emotionally. There is, in my view, no greater risk to the safety of the children than would apply to a photograph of any member of society taken and published in a similar way. Any other conclusion would be based on speculation rather than reasonable inference from evidence. I doubt whether many members of society would regard the Hoskings as having expectations of privacy in current circumstances in respect of their children. I cannot accept that any such expectation as might be held would be reasonable in all the circumstances. I cannot see how it can reasonably be said that publication of these photographs should be regarded as likely to cause substantial offence or other harm to a person of reasonable sensibility. [261] I would therefore join in dismissing the appeal, with costs as proposed by Gault P. [Keith J (with whom Anderson P concurred) agreed that the appeal should be dismissed but dissented as to the existence of a tort of invasion of privacy for wrongfully publicising private facts.] KEITH J (at 54): [221] I accordingly conclude that a general tort of the unreasonable publicising of private information should not be recognised in our law. I reach that conclusion in agreement with Randerson J in the High Court and broadly for his reasons (including his commentary on the New Zealand cases, especially at paras [171]–[178]). I also recall the lack of legislative responses to calls for such a tort, in New Zealand, as elsewhere in the Commonwealth. [222] To repeat, the proposed tort would place a generally stated limit on the centrally important right to freedom of expression; it would depart, without good reason, from long-established approaches to the protection of personal information; those approaches are based on identifying particular privacy interests which call for protection and determining the components of the protection (such as restricting a technology, or prohibiting release, or requiring a judgment of effect), and involve making particular choices of remedy; and, finally, the proposed limit has not been demonstrably justified, as s 5 of the Bill of Rights requires. Appeal dismissed.

C v HOLLAND [2012] 3 NZLR 672 (footnotes omitted)

[The facts emerge sufficiently from the extract below.] WHATA J (at 674): [1] C was an occupant in a house owned by her boyfriend and Mr Holland. Mr Holland surreptitiously installed a recording device in the roof cavity above the shower and toilet. He videoed C while she was showering. C discovered the videos and was deeply distressed. She has commenced an action against Mr Holland based on invasion of privacy. Mr Holland accepts that he invaded C’s privacy. The critical issue I must determine is whether invasion of privacy of this type, without publicity or the prospect of publicity, is an actionable tort in New Zealand. Facts [2] The facts are agreed. 1. The plaintiff is 25 years of age. 2. The defendant is 27 years of age and employed as a builder.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 13 Privacy

3. In June 2008 the defendant and the plaintiff’s boyfriend, Mr Z, purchased a 5 bedroom house located at […], where they both resided. 4. For a period of some 2 years, the plaintiff would stay at the property approximately 4 nights per week before moving in with Mr Z in July 2010. 5. On a single occasion, in the period between 27 December 2010 and 9 January 2011 the defendant used a handheld digital camera and recorded 2 video clips of the plaintiff in the bathroom. 6. Each of the videos show the plaintiff both partially dressed and completely naked with clear view of her front (pubic area and breasts) and back. The first shows her undressing and tending to her bikini line, entering the shower, showering and exiting to retrieve items. The second shows her exiting the shower and dressing before she exits the bathroom. 7. The defendant took the video clips from the roof cavity above the bathroom within the ceiling area. The roof cavity is a storage area directly accessible as part of the second story of the property. 8. Video 1 runs for a time of approximately 1 minute 15 seconds, Video 2 runs for a length of 2 minutes 31 seconds. 9. (675) The defendant downloaded the 2 video clips onto his external hard drive. 10. On Sunday 16 January 2011 the plaintiff and Mr Z were at the property with friends and wanted to watch some movies off the defendant’s laptop. He gave them permission to use his laptop for the movies that he had stored on it. 11. While the plaintiff and Mr Z were searching for the movies, Mr Z located a link to one of the defendant’s recently viewed files titled “[…]” being the plaintiff’s nickname. 12. The following day Mr Z asked the defendant if he could use the defendant’s external hard drive to search for some movies and ultimate fighting clips that he had downloaded. The defendant gave Mr Z permission to use his external hard drive for that purpose. 13. When searching the hard drive Mr Z was unable to find the link to the document file titled “[…]”. 14. The defendant subsequently left the property and went to stay the night at a girlfriend’s house. While the defendant was gone, Mr Z went into the defendant’s room and found a further external hard drive. Upon searching this hard drive, Mr Z located the two videos of the plaintiff. 15. After taking a copy of the video clips, the plaintiff and Mr Z delivered the defendant’s hard drive to the New Zealand police who thereafter retained possession of the hard drive before destroying it at the conclusion of the ensuing criminal proceedings. The plaintiff and Mr Z retained the copy. 16. There is no evidence that the defendant published or showed the video clips to any person or entity. 17. The plaintiff did not consent to the defendant watching her in the shower or taking the video clips. 18. After the incident, the plaintiff resided at the property on an intermittent basis until 22 February 2011 and from mid March until Easter 2011. 19. The defendant was charged under Section 216H of the Crimes Act (making an intimate visual recording) and after entering a guilty plea he was convicted, ordered to pay $1,000 in emotional harm reparation and then discharged without penalty. 20. The defendant’s actions were the cause of harm to the plaintiff that was more than de minimis. However, in the event that he is held liable, the defendant reserves his right to contend that the reparation of $1,000 is adequate compensation. … (677) Issues [5] The central issue is whether a tort of intrusion upon seclusion should form part of the law of New Zealand. [6] I am in no doubt that: (a) Mr Holland intruded into C’s solitude and seclusion when he recorded video clips of C in the bathroom partially undressed or naked; and (b) Mr Holland infringed a reasonable expectation of privacy when videoing C in the bathroom partially undressed or naked. [7] I am also in no doubt that Mr Holland’s conduct was highly offensive to a reasonable person.

467

468

PART 5 Privacy

[8] There is no existing authority in New Zealand for the proposition that an intrusion upon an individual’s seclusion in breach of a reasonable expectation of privacy gives rise to an actionable tort in New Zealand. … (692) Resolution and reasons [65] The forgoing canvas of the authorities and the submissions of Counsel reveal a broad consensus that the concept of privacy, linked to personal autonomy, is a value worth protecting. The central dispute is how. Three key objections emerge to the transformation of privacy values, or aspects of them, into actionable rights at common law: (a) (693) Privacy per se is not justiciable. (b) It is for Parliament, not the Judiciary, to resolve the weight to be accorded to privacy as a value within a complex matrix of competing values, interests and rights. (c) A privacy tort is not necessary. [66] For reasons which I will now explain, I do not think these objections bar the way to a tort of intrusion upon seclusion in New Zealand law.

Worth protecting [67] Privacy’s normative value cannot be seriously doubted, with various expressions of a right to personal autonomy affirmed in international conventions on human rights, and in various domestic constitutional arrangements and human rights charters. … [69] It is trite that international conventions do not form part of domestic law until incorporated by statute. But the ratification of international conventions affirming privacy based rights raises a presumption that domestic law should be applied and if necessary developed consistently with the values of privacy and autonomy protected by those rights. … (694) Justiciable [71] Baroness Hale doubted the justiciability or cognisability of privacy values in this way: “our law cannot, even if it wanted to, develop a general tort of invasion of privacy.” And Lord Hoffman asseverated: “That is not … the way the common law works”. His sentiment may have been captured some 70 years earlier by Lord Atkin:

Copyright © 2015. Oxford University Press. All rights reserved.

But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy.

[72] Further: That privacy is a large, unwieldy and elusive concept is axiomatic.

… [74] I accept therefore that a general claim to privacy may not be amenable to rules of law, or in fact be transformed into a rule of law giving rise to an actionable claim. But in New Zealand the transformation of aspects of privacy into rights and unwanted intrusion into a wrong is already well underway and in my view it is now too late to cogently argue that judges in New Zealand are unable to adjudicate on the content and boundaries of a privacy right to be free from intrusion upon seclusion. … (695) A matter for the common law [76] The second and equally formidable objection is the call for strict adherence to the constitutional (and functional) roles of Parliament and the judiciary. … (696) [86] I have reached the view that it is functionally appropriate for the common law to establish a tort equivalent to the North American tort of intrusion upon seclusion. The reasons expressed by the Commission provide a cogent starting point. Privacy concerns are undoubtedly increasing with (697) technological advances, including prying technology through, for example, the home computer. The affirmation of a

CHAPTER 13 Privacy

tort is commensurate with the value already placed on privacy and in particular the protection of personal autonomy. As I have said, the similarity to the Hosking tort is sufficiently proximate to enable an intrusion tort to be seen as a logical extension or adjunct to it … [87] I cannot say however that a tort of intrusion upon seclusion (as opposed to informational privacy) is necessary to maintain consistency with international trends. Acceptance in some parts of North America is not an international trend. But New Zealand law has at least since the inception of the Bill of Rights Act placed significant value on protection from unwanted intrusion into personal space. I have mentioned the analogue to s 8 of the Canadian Charter. I am not satisfied that our constitutional arrangements are so different that Ontarians should be afforded greater protection than New Zealanders from unwanted intrusions into their privacy. Furthermore it has been said by Professor Dianne Zimmerman: [T]houghtful elaboration of privacy law involving intrusions on solitude is likely to promote greater protection of the individual’s interest in being free of public scrutiny than is the vague and hard-to-apply law governing the publicity of private facts.

[88] Functionally also, the role assumed by Parliament in protecting privacy interests has focused on controlling the collection and dissemination of private information, or at the other end of the spectrum, criminal culpability and the control of state power, including most recently surveillance powers. The reticence of Parliament to wade into the realm of civil claims in the years since Hosking is a matter of conjecture, though the Law Commission report provides several reasons why that might be so including the potential breadth of such a statutory tort. But it is the function of the Courts to hear and determine claims by litigants seeking to vindicate alleged rights or correct alleged wrongs. As Sharpe JA said in Tsige, this is a case crying out for an answer, and given the value attached to privacy, providing an answer is in my view concordant with the historic function of this Court.

Copyright © 2015. Oxford University Press. All rights reserved.

Need [89] Existing protections from intentional intrusion into personal space and affairs are coherent but they are not comprehensive. In the absence of threatened publication, the Hosking privacy tort has no direct application to the present facts. Breach of confidence might provide a remedy in this case, especially on the enhanced Campbell version, but that is far from clear. Other tortious actions presuppose interference to property or the person not present here. An action based on intentional infliction of emotional distress is unlikely to succeed, especially with its consignment to the history books by (698) Wainwright. There is no evidence of an intent or design to cause harm. A criminal sanction was triggered, but that relied somewhat fortuitously on the specific facts fitting the statutory criteria. Criminal culpability reflects society’s concern about such conduct, but it is only partially concerned with vindicating C’s rights and interests or remedying the harm to her. [90] While Keith J in Hosking paints a compelling picture for dealing with wrongful publication via existing remedies (including breach of confidence), I do not consider that the argument has the same force here. Indeed, there is a demonstrable need for a civil remedy, with the threshold of balance of probabilities, that better accords with the significance of privacy values, the scale and offensiveness of the intrusion in this case, and the harm caused. … [93] Accordingly, a tort of intrusion upon seclusion is part of New Zealand law.

Elements of the tort [94] The caution expressed through the authorities must guide the elements of the tort. I consider that the most appropriate course is to maintain as much consistency as possible with the North American tort given the guidance (699) afforded from existing authority. I also consider that the content of the tort must be consistent with domestic privacy law and principles. On that basis, in order to establish a claim based on the tort of intrusion upon seclusion a plaintiff must show: (a) an intentional and unauthorised intrusion; (b) into seclusion (namely intimate personal activity, space or affairs); (c) involving infringement of a reasonable expectation of privacy; (d) that is highly offensive to a reasonable person.

469

470

PART 5 Privacy

[95] Intentional connotes an affirmative act, not an unwitting or simply careless intrusion. “Unauthorised” excludes consensual and/or lawfully authorised intrusions. Further, not every intrusion into a private matter is actionable. The reference to intimate personal activity acknowledges the need to establish intrusion into matters that most directly impinge on personal autonomy. … [99] Mr Holland intruded into C’s intimate personal space and activity when he videoed her in the shower without her consent and otherwise without legislative authority. The intrusion infringed a reasonable expectation of privacy and was highly offensive to the reasonable person. He is therefore liable for that intrusion. The question of damages will now need to be considered.

QUESTIONS 1 Are there limitations under Australian law which would make the introduction of a tort of intrusion upon seclusion necessary or desirable? 2 Is it better to develop discrete torts dealing with particular circumstances in which the current law is deficient or to develop a more general and direct form of privacy protection?

13.4.6 The position under European Union law

Copyright © 2015. Oxford University Press. All rights reserved.

Privacy is a right protected under the European Convention on Human Rights Art 8. The European Court of Human Rights has been developing a significant and distinctive jurisprudence on privacy, interpreting this right. Its decided cases are useful not only as evidence of another approach to privacy protection but also because of its increasing influence over the development of privacy protection in the United Kingdom.83 One of the most important cases about the right to privacy in the European Union is the decision in Von Hannover v Germany, which is relevantly extracted below. This was not the only time that the applicant sued for invasion of her privacy. The follow-up case of Von Hannover v Germany (No 2) is also extracted below.

Von Hannover v Germany (2005) 40 EHRR 1

[The applicant was Princess Caroline of Monaco. Princess Caroline was the president of a number of charitable organisations but performed no public functions on behalf of the State of Monaco. She brought proceedings in Germany in respect of a series of photographs published in German magazines Bunte, Freizeit Revue and Neue Post. The photographs showed Princess Caroline, inter alia, having dinner with her partner in a restaurant courtyard, horse-riding, shopping, skiing and going to the beach. Princess Caroline was dissatisfied with the decisions of the German courts, so she applied to the European Court of Human Rights.]

83 As to the position under United Kingdom law, see 13.4.4 See also Chapter 14 on breach of confidence as a means of direct privacy protection under United Kingdom law. See also Douglas v Hello! Ltd [2006] QB 125 at 149 per curiam; HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 at 114 per curiam; McKennitt v Ash [2008] QB 73 at 83 per Buxton LJ; Murray v Express Newspapers plc [2008] 3 WLR 1360 at 1371 per curiam.

CHAPTER 13 Privacy

JUDGES RESS, CAFLISCH, TÜRMEN, HEDIGAN AND TRAJA (at 20):

1 Alleged violation of Article 8 of the Convention [43] The applicant submitted that the German court decisions had infringed her right to respect for her private and family life guaranteed by Art 8 of the Convention, which is worded as follows:



1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

(23) 2. As regards the applicability of Article 8 [50] The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person’s name, or a person’s picture. Furthermore, private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Art 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’. (24) [51] The Court has also indicated that, in certain circumstances, a person has a ‘legitimate expectation’ of protection and respect for his or her private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant ‘would have had a reasonable expectation of privacy for such calls’. [52] As regards photos, with a view to defining the scope of the protection afforded by Art 8 against arbitrary interference by public authorities, the Commission had regard to whether the photographs related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public. [53] In the present case there is no doubt that the publication by various German magazines of photos of the applicant in her daily life either on her own or with other people falls within the scope of her private life. Copyright © 2015. Oxford University Press. All rights reserved.

3 Compliance with Article 8 …

B The general principles governing the protection of private life and the freedom of expression …

(25) [58] The protection of private life has to be balanced against the freedom of expression guaranteed by Art 10 of the Convention. In that context the Court reiterates that the freedom of expression constitutes one of the essential foundations of a democratic society. Subject to para 2 of Art 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. In that connection the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart—in a manner consistent with its obligations and responsibilities—information and ideas on all matters of public interest. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. [59] Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of ‘ideas’, but of images containing very personal or even intimate

471

472

PART 5 Privacy

‘information’ about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment that induces in the persons concerned a very strong sense of intrusion into their private life or even of persecution. [60] In the cases in which the Court has had to balance the protection of private life against the freedom of expression it has always stressed the contribution made by photos or articles in the press to a debate of general interest …

Copyright © 2015. Oxford University Press. All rights reserved.

(26) C. Application of these general principles by the Court [61] The Court points out at the outset that in the present case the photos of the applicant in the various German magazines show her in scenes from her daily life, thus engaged in activities of a purely private nature such as practising sport, out walking, leaving a restaurant or on holiday. The photos, in which the applicant appears sometimes alone and sometimes in company, illustrate a series of articles with such anodyne titles as ‘Pure happiness’, ‘Caroline … a woman returning to life’, ‘Out and about with Princess Caroline in Paris’ and ‘The kiss. Or: they are not hiding anymore …’ [62] The Court also notes that the applicant, as a member of the Prince of Monaco’s family, represents the ruling family at certain cultural or charitable events. However, she does not exercise any function within or on behalf of the State of Monaco or one of its institutions. [63] The Court considers that a fundamental distinction needs to be made between reporting facts—even controversial ones—capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of ‘watchdog’ in a democracy by contributing to ‘impart[ing] information and ideas on matters of public interest’ it does not do so in the latter case. [64] Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this is not the case here. The situation here does not come within the (27) sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant’s private life. [65] As in other similar cases it has examined, the Court considers that the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public. [66] In these conditions freedom of expression calls for a narrower interpretation. … [68] The Court finds another point to be of importance: even though, strictly speaking, the present application concerns only the publication of the photos and articles by various German magazines, the context in which these photos were taken—without the applicant’s knowledge or consent—and the harassment endured by many public figures in their daily lives cannot be fully disregarded. In the present case this point is illustrated in particularly striking fashion by the photos taken of the applicant at the Monte Carlo Beach Club tripping over an obstacle and falling down. It appears that these photos were taken secretly at a distance of several hundred metres, probably from a neighbouring house, whereas journalists and photographers’ access to the club was strictly regulated. [69] The Court reiterates the fundamental importance of protecting private life from the point of view of the development of every human being’s personality. That protection—as stated above—extends beyond the private family circle and also includes a social dimension. The Court considers that anyone, even if they are known to the general public, must be able to enjoy a ‘legitimate expectation’ of protection of and respect for their private life. [70] Furthermore, increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data. This also applies to the systematic taking of specific photos and their dissemination to a broad section of the public.

CHAPTER 13 Privacy

[71] Lastly, the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. (28) [72] The Court has difficulty in agreeing with the domestic courts’ interpretation of s 23(1) of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of contemporary society ‘par excellence’. Since that definition affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a ‘private’ individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family whereas she herself does not exercise any official functions. In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one’s image. [73] Lastly, the distinction drawn between figures of contemporary society ‘par excellence’ and ‘relatively’ public figures has to be clear and obvious so that, in a state governed by the rule of law, the individual has precise indications as to the behaviour he or she should adopt. Above all, they need to know exactly when and where they are in a protected sphere or, on the contrary, in a sphere in which they must expect interference from others, especially the tabloid press. [74] The Court therefore considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant’s private life effectively. As a figure of contemporary society ‘par excellence’ she cannot—in the name of freedom of the press and the public interest—rely on  protection  of  her private life unless she is in a secluded place out of the public eye and, moreover, succeeds in proving it (which can be difficult). Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accompanying articles relate exclusively to details of her private life. [75] In the Court’s view, the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance. In the present case merely classifying the applicant as a figure of contemporary society ‘par excellence’ does not suffice to justify such an intrusion into her private life.

Copyright © 2015. Oxford University Press. All rights reserved.

D Conclusion [76] As the Court has stated above, it considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution since the applicant exercises no official function and the photos and articles related exclusively to details of her private life. [77] Furthermore, the Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public. Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those (29) interests must, in the Court’s view, yield to the applicant’s right to the effective protection of her private life. [78] Lastly, in the Court’s opinion the criteria established by the domestic courts were not sufficient to ensure the effective protection of the applicant’s private life and she should, in the circumstances of the case, have had a ‘legitimate expectation’ of protection of her private life. [79] Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the State in this area, the Court considers that the German courts did not strike a fair balance between the competing interests. [80] There has therefore been a breach of Art 8 of the Convention. [Judges Cabral Barreto and Zupancic delivered concurring judgments.]

473

474

PART 5 Privacy

Von Hannover v Germany (No 2)

Copyright © 2015. Oxford University Press. All rights reserved.

(2012) 55 EHRR 15 (citations omitted)

[The applicants were Princess Caroline of Monaco and her husband. They brought a number of proceedings in the German courts, seeking injunctions against further publication of photographs of them in Frau Aktuell and Frau in Spiegel magazines. They had mixed success before the German courts. They again appealed to the European Court of Human Rights, which had to determine whether the German courts had properly adapted the law in light of the earlier decision in Von Hannover v Germany (2004) 40 EHRR 1. In the course of finding that there was no violation of the right to a private life under Article 8 of the European Convention on Human Rights, the European Court of Human Rights made the following observations about the competing interests in such a claim and the proper approach to be adopted in balancing them.] (416) (b) General principles (i) Concerning private life [95] The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person’s name, photo, or physical and moral integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life. Publication of a photo may thus intrude upon a person’s private life even where that person is a public figure. [96] Regarding photos, the Court has stated that a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof. [97] The Court also reiterates that, in certain circumstances, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection of and respect for his or her private life. (417) [98] In cases of the type being examined here what is in issue is not an act by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicants’ private life. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. That also applies to the protection of a person’s picture against abuse by others … (ii) Concerning freedom of expression [100] The present applications require an examination of the fair balance that has to be struck between the applicants’ right to respect for their private life and the right of the publishing company to freedom of expression guaranteed under Article 10 of the Convention. The Court therefore considers it useful to reiterate the general principles relating to the application of that provision as well. [101] Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. [102] The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 13 Privacy

have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog”. Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case. (418) [103] The Court reiterates, lastly, that freedom of expression includes the publication of photos. This is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photos may contain very personal or even intimate information about an individual or his or her family. Moreover, photos appearing in the “sensationalist” press or in “romance” magazines, which generally aim to satisfy the public’s curiosity regarding the details of a person’s strictly private life, are often taken in a climate of continual harassment which may induce in the person concerned a very strong sense of intrusion into their private life or even of persecution … (419) (iv) The criteria relevant for the balancing exercise [108] Where the right to freedom of expression is being balanced against the right to respect for private life, the criteria laid down in the case-law that are relevant to the present case are set out below. (α) Contribution to a debate of general interest [109] An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest. The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes, but also where it concerned sporting issues or performing artists. However, the rumoured marital difficulties of a president of the Republic or the financial difficulties of a famous singer were not deemed to be matters of general interest. (β) How well known is the person concerned and what is the subject of the report? [110] The role or function of the person concerned and the nature of the activities that are the subject of the report and/or photo constitute another important criterion, related to the preceding one. In that connection a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures. A fundamental distinction needs to be made between reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions. While in the former case the press exercises its role of “public watchdog” in a democracy by imparting information and ideas on matters of public interest, that role appears less important in the latter case. Similarly, although in certain special circumstances the public’s right to be informed can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this will not be the case – despite the person concerned being well known to the public – where the published photos and accompanying commentaries relate exclusively to details of the person’s private life and have the sole aim of satisfying public curiosity in that respect. In the latter case, freedom of expression calls for a narrower interpretation. (420) (γ) Prior conduct of the person concerned [111] The conduct of the person concerned prior to publication of the report or the fact that the photo and the related information have already appeared in an earlier publication are also factors to be taken into consideration. However, the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving the party concerned of all protection against publication of the photo at issue. (δ) Content, form and consequences of the publication [112] The way in which the photo or report are published and the manner in which the person concerned is represented in the photo or report may also be factors to be taken into consideration. The extent to which the report and photo have been disseminated may also be an important factor, depending on whether the newspaper is a national or local one, and has a large or a limited circulation.

475

476

PART 5 Privacy

(ε) Circumstances in which the photos were taken [113] Lastly, the Court has already held that the context and circumstances in which the published photos were taken cannot be disregarded. In that connection regard must be had to whether the person photographed gave their consent to the taking of the photos and their publication or whether this was done without their knowledge or by subterfuge or other illicit means. Regard must also be had to the nature or seriousness of the intrusion and the consequences of publication of the photo for the person concerned. For a private individual, unknown to the public, the publication of a photo may amount to a more substantial interference than a written article.

QUESTION 1 How does the European Court of Human Rights’ jurisprudence differ from the ways in which Australian courts and policy-makers think about privacy and the interests in competition with it?

13.5 Indirect protection of privacy

Copyright © 2015. Oxford University Press. All rights reserved.

13.5.1 Introduction

While it is unclear whether there is a direct, enforceable right to privacy under Australian law, whether one will emerge and, if so, how it will emerge, there are a number of causes of action that provide indirect means of protecting privacy. The most significant examples involve torts that are intended to protect interests in land—trespass to land84 and private nuisance85—demonstrating the common law’s alignment of privacy with private property, rather than individual rights. The action on the case for the infliction of wilful injury, derived from the decision of Wright J in Wilkinson v Downton,86 may also provide a plaintiff with a remedy against the distressing effects of intrusion by the media into his or her private life, albeit in limited circumstances.87 Defamation may also provide some incidental protection of a plaintiff’s privacy.88 These causes of action will be examined in turn. What emerges is a recognition that these causes of action often fail to provide adequate protection to a plaintiff’s privacy, which is understandable and expected, given that these causes of action were intended to protect principally interests other than privacy.

13.6 Trespass to land 13.6.1 Introduction

Media outlets, like other defendants, can be found liable for trespass to land if they directly encroach upon a plaintiff’s property. Certain types of journalism, what might colloquially be described as ‘foot-in-door journalism’, can give rise to particular problems, as the casestudies below indicate. This section examines the basic principles of trespass to land and how they might apply to the conduct of the media. 84 85 86 87 88

As to trespass to land, see 13.6. As to private nuisance, see 13.7. [1897] 2 QB 57. As to the action on the case for the infliction of wilful injury, see 13.7.4. As to defamation, see 13.8.

CHAPTER 13 Privacy

13.6.2 Title to sue for trespass to land In order to sue for trespass to land, a plaintiff must have a possessory interest in the land upon which the defendant directly enters. It is not necessary for the plaintiff to be the owner of the land, as the common law is more concerned with protecting possession, rather than ownership.89 This means that trespass to land, as a means of protecting privacy, is only effective where the media outlet intrudes upon the plaintiff’s business or residential premises. If a media outlet harasses a plaintiff in a place where the plaintiff has no possessory interest, trespass to land affords no protection to the plaintiff. Thus, trespass to land is a limited protection against media intrusions into privacy.

13.6.3 Liability for trespass to land For centuries, the common law has provided a high level of protection to a plaintiff’s possessory interest in land. As Mason CJ, Brennan, Gaudron and McHugh JJ stated in Coco v R,90 ‘[e]very unauthorized entry upon private property is a trespass, the right to a person in possession or entitled to possession to exclude others from those premises being a fundamental common law right’.91 Although the principal interest protected by trespass to land is the plaintiff’s exclusive possession of the land, courts have recognised that privacy, as an incident of the possession of land, may also be indirectly protected by this tort.92 A trespass may be either intentional or negligent.93 In a claim for trespass to land, the plaintiff bears the onus of proof in relation to the defendant’s direct interference with the plaintiff’s possessory interest in land. The onus of proof then shifts to the defendant to disprove intention or negligence on his or her part. The position is otherwise in the United Kingdom, where the plaintiff must not only prove that the trespass occurred but that the defendant was at fault, either by acting intentionally or negligently.94 A possessor of land may use reasonable force to eject a trespasser from his or her property.95 The use of excessive force, however, can expose the possessor of land to liability for battery or assault.96

Copyright © 2015. Oxford University Press. All rights reserved.

13.6.4 Aerial trespass The interest of an occupier of land is not limited to the surface of the land itself. It extends to the airspace above the surface and the subterranean space below the surface. In terms of 89 Newington v Windeyer (1985) 3 NSWLR 555 at 563–64 per McHugh JA; MacIntosh v Lobel (1993) 30 NSWLR 441 at 453–54 per Kirby P. 90 (1994) 179 CLR 427. 91 Coco v R (1994) 179 CLR 427 at 435. See also TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 339 per Spigelman CJ. 92 Morris v Beardmore [1981] AC 446 at 463–64 per Lord Scarman; Plenty v Dillon (1991) 171 CLR 635 at 647 per Gaudron and McHugh JJ; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 344–45 per Spigelman CJ. 93 Holmes v Mather (1875) LR 10 Exch 261 at 268–69 per Bramwell B; Stanley v Powell [1891] 1 QB 86 at 93 per Denman J; Williams v Milotin (1957) 97 CLR 465 at 474 per curiam; contra Letang v Cooper [1965] 1 QB 232 at 239–40 per Lord Denning MR; Carrier v Bonham [2002] 1 Qd R 474 at 483–84 per McPherson JA. 94 Fowler v Lanning [1959] 1 QB 426 at 439 per Diplock J; cf McHale v Watson (1964) 111 CLR 384 at 388–89 per Windeyer J. 95 Green v Bartram (1830) 4 C & P 308 at 308; (1830) 172 ER 717 at 717 per Lord Tenterden CJ; Cowell v Rosehill Racecourse Co (1937) 56 CLR 605 at 619 per Latham CJ; at 632 per Dixon J. 96 Moriarty v Brooks (1834) 6 C & P 684 at 688; (1834) 172 ER 1419 at 1420 per Lord Lyndhurst CB; Cowell v Rosehill Racecourse Co (1937) 56 CLR 605 at 619 per Latham CJ; at 632 per Dixon J.

477

Copyright © 2015. Oxford University Press. All rights reserved.

478

PART 5 Privacy

liability, a media outlet is more likely to be liable for intrusions into airspace—for instance, through the use of aircraft to take long-range photographs or footage. At common law, the starting point for the extent of an occupier’s interest in airspace is the Latin maxim, cuius est solum eius solum est usque ad coelum et ad inferos (‘whoever owns the soil owns up to the heavens above and down to the depths below’).97 This maxim has been attributed to Accursius, a legal scholar in Bologna in the thirteenth century.98 Therefore, it was clearly not developed to take account of modern conditions; it was developed prior to the routine construction of multi-storey buildings and the advent of aircraft. Its strict application is not functional in contemporary circumstances. The maxim has been refined at common law. For instance, in Bernstein v Skyviews & General Ltd,99 Baron Bernstein of Leigh brought proceedings for aerial trespass and invasion of privacy against a firm of aerial photographers.100 In 1967 and again in 1974, Skyviews & General took aerial photographs of the peer’s country estate from an aircraft several hundred feet above the ground. On both occasions, Lord Bernstein made his views about this conduct known to Skyviews & General; on the second occasion, he sued.101 Griffiths J (as his Lordship then was) found that Skyviews & General flew over Lord Bernstein’s property without his permission for the purpose of taking a photograph.102 His Lordship noted that the maxim suggested that occupiers of land had a seemingly unlimited interest in airspace.103 However, Griffiths J rejected the submission that the passage of an aircraft, at whatever height, constituted an aerial trespass.104 His Lordship concluded that an occupier’s interest in airspace was not unlimited105 but rather was limited ‘to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it’.106 Griffiths J found that no trespass had been committed because the gist of Lord Bernstein’s complaint was not an interference with the use of land but rather ‘the mere taking of a photograph’.107 There has been a further refinement of the applicable test in the decision of Hodgson J (as his Honour then was) in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd,108 a commercial case involving overhanging scaffolding. Hodgson J stated that ‘the relevant test is not whether the incursion actually interferes with the occupier’s actual use of land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake’.109 The interests of occupiers in airspace are now more limited than the maxim suggests. There are also statutory restrictions limiting occupiers from complaining about intrusions into airspace. In most Australian jurisdictions, there is a statutory provision that prevents a person bringing a claim for trespass or private nuisance merely because of the flight of aircraft  97 Bernstein v Skyviews & General Ltd [1978] QB 479 at 485 per Griffiths J.  98 Ibid.  99 [1978] QB 479. 100 Bernstein v Skyviews & General Ltd [1978] QB 479 at 483–84 per Griffiths J. 101 Ibid at 484 per Griffiths J. 102 Ibid at 485 per Griffiths J. 103 Ibid. 104 Ibid at 486–87 per Griffiths J. 105 Ibid at 487 per Griffiths J. 106 Ibid at 488 per Griffiths J. 107 Ibid. 108 (1989) 24 NSWLR 490. 109 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 at 495 per Hodgson J.

CHAPTER 13 Privacy

over land, so long as the aircraft flies in accordance with air navigation regulations and at a reasonable height given the prevailing weather conditions and other circumstances.110

13.6.5 Trespass to land—defences As a general rule, a defendant who enters onto a plaintiff’s property without the consent of the plaintiff or without some other lawful excuse commits a trespass to land.111 There are a number of common law and statutory exceptions to this general proposition. Generally, if a plaintiff expressly or impliedly grants permission for entry, the defendant will not be liable for trespass to land.112 The courts have recognised that a member of the public may have an implied licence, as a matter of law, to enter the plaintiff’s property for the purpose of communicating with the plaintiff. The implied licence may be revoked by the plaintiff by giving notice to the member of the public.113 If the member of the public remains on the property after the revocation of the licence, he or she then becomes a trespasser.114 In terms of statutory defences, the legislature may abrogate a plaintiff’s right to complain about trespass to land. The presumption is that the legislature does not intend to interfere with such a right.115 However, the presumption is rebuttable.116 In order for a legislative provision to abrogate a plaintiff’s right to complain about trespass to land, the legislature needs to communicate this intention by express words or by necessary implication.117 For example, in Coco v R,118 the High Court of Australia found that an authorisation to use a listening device, issued pursuant to the Invasion of Privacy Act 1971 (Qld) s 43, did not, by express words or necessary implication, permit the Australian Federal Police to enter onto private property in execution of the warrant.119 There are no special privileges for the media.

Copyright © 2015. Oxford University Press. All rights reserved.

13.6.6 Trespass to land—remedies Like all forms of trespass, trespass to land is actionable per se, ie without proof of damage. Damages are awarded as of right to a plaintiff who has suffered a trespass to land.120 They may be nominal but they are ordinarily likely to be substantial.121 A plaintiff suing for trespass to land is entitled to compensatory damages to vindicate his or her right to exclusive possession.122 If any damage is caused to the land in the course of the trespass, the plaintiff is 110 Civil Liability Act 2002 (NSW) s 72(1); Civil Liability Act 1936 (SA) s 62(2); Damage by Aircraft Act 1963 (Tas) s 3; Wrongs Act 1958 (Vic) s 30; Damage by Aircraft Act 1964 (WA) s 4. 111 Plenty v Dillon (1991) 171 CLR 635 at 647 per Gaudron and McHugh JJ. 112 Halliday v Nevill (1984) 155 CLR 1 at 6–7 per Gibbs CJ, Mason, Wilson and Deane JJ. 113 Ibid at 7 per Gibbs CJ, Mason, Wilson and Deane JJ; Plenty v Dillon (1991) 171 CLR 635 at 647 per Gaudron and McHugh JJ. 114 Plenty v Dillon (1991) 171 CLR 635 at 647 per Gaudron and McHugh JJ. 115 Ibid. 116 Coco v R (1994) 179 CLR 427 at 436 per Mason CJ, Brennan, Gaudron and McHugh JJ. 117 Plenty v Dillon (1991) 171 CLR 635 at 653–54 per Gaudron and McHugh JJ; Coco v R (1994) 179 CLR 427 at 436 per Mason CJ, Brennan, Gaudron and McHugh JJ; at 445–46 per Deane and Dawson JJ. 118 (1994) 179 CLR 427. 119 Ibid at 439 per Mason CJ, Brennan, Gaudron and McHugh JJ; at 446–47 per Deane and Dawson JJ. Cf Re Application for an Authorization (1984) 14 DLR (4th) 546; [1984] 2 SCR 697; Dalia v United States 441 US 238 (1979). 120 Plenty v Dillon (1991) 171 CLR 635 at 645 per Mason CJ, Brennan and Toohey JJ; at 654 per Gaudron and McHugh JJ. 121 Ibid at 654 per Gaudron and McHugh JJ. 122 Ibid at 645 per Mason CJ, Brennan and Toohey JJ; at 654–55 per Gaudron and McHugh JJ.

479

480

PART 5 Privacy

entitled to compensatory damages in respect of that damage.123 Aggravated and exemplary damages may also be awarded for trespass to land.124 The availability of exemplary damages for trespass to land gives it an advantage over other types of claims, such as defamation, for which exemplary damages have been abolished.125 A plaintiff may also seek an injunction not only to restrain a continuing trespass but also to restrain the broadcast of any footage taken in the course of a trespass to land by a media outlet. The footage so taken is styled as ‘the fruits of the trespass’. Unlike an award of damages for trespass to land, which result as of right, the grant of an injunction is discretionary. The general equitable principles relating to injunctions govern whether such relief should be ordered.126

Case study: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333

Copyright © 2015. Oxford University Press. All rights reserved.

Mr Anning lived on acreage at Wyee in New South Wales. On his property, Anning built a motorcycle track using second-hand tyres. He had approximately 70,000 tyres stored on the property. This came to the attention of the Environment Protection Authority. Following a truck delivering yet more used tyres, the EPA, the Lake Macquarie City Council, the police and a camera crew from the Channel Nine television program, A Current Affair, entered the property to confront Anning. A Current Affair then broadcast the footage they obtained. Anning brought proceedings for trespass to land in the District Court of New South Wales. At first instance, English DCJ awarded Anning a global sum of $100,000, including compensatory, aggravated and exemplary damages. On appeal, Spigelman CJ (with whom Mason P agreed) found that Channel Nine had no express or implied licence to enter Anning’s property. His Honour observed that courts should be especially protective of the rights of private individuals against media intrusion as they are against intrusion by organs of the state. However, the court found that the damages awarded were manifestly excessive, determining that the present case was not an appropriate one in which to award exemplary damages. Anning’s damages were reduced to $25,000 compensatory damages and $25,000 aggravated damages.

Case study: Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519; TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 Craftsman Homes Australia Pty Ltd and Ilvariy Pty Ltd were building companies operated by Frederick Cox. The Channel Nine program, A Current Affair, received a number of complaints about these companies and decided to investigate. A staff member, Sarah Stinson, pretended to be a prospective customer and arranged a meeting with Cox. Reporter, Ben Fordham, turned up to the meeting, initially claiming to be Stinson’s husband. During the interview with Cox, Fordham allowed a camera crew into Cox’s office and revealed his true identity and purpose. Cox immediately asked Fordham, Stinson and the camera crew to leave the premises, which they eventually did. A Current Affair used the footage thus obtained in a broadcast about Craftsman Homes. Craftsman Homes, Ilvariy and Cox brought proceedings against Channel Nine and

123 Ibid at 654–55 per Gaudron and McHugh JJ. 124 As to the award of aggravated damages for trespass to land, see TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333. As to the award of exemplary damages for trespass to land, see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323. 125 As to the abolition of exemplary damages for defamation, see 9.1.7. 126 As to cases in which an injunction was granted to restrain the broadcast of footage taken in the course of a trespass to land by the media, see Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169. Cf Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Reports ¶80–101.

CHAPTER 13 Privacy

Fordham in the Supreme Court of New South Wales, alleging, inter alia, defamation and trespass to land. At first instance, Smart AJ found that Channel Nine had not defamed the plaintiffs because the imputations were substantially true. However, his Honour found that Channel Nine and Fordham had committed a trespass to land, to which there was no defence. Smart AJ awarded Cox $60,000 compensatory damages, $50,000 aggravated damages and $120,000 exemplary damages. On appeal, Spigelman CJ (with whom Beazley JA agreed) upheld the award of compensatory and aggravated damages but found that the award of exemplary damages was manifestly excessive and reduced it to $60,000.

13.7 Private nuisance 13.7.1

Private nuisance—introduction

Like trespass to land, private nuisance depends upon the plaintiff establishing a possessory interest in land.127 Broadly, private nuisance is any conduct by the defendant that substantially and unreasonably interferes with the plaintiff’s use and enjoyment of his or her land.128 Private nuisance needs to be distinguished from public nuisance. A public nuisance is unreasonable conduct that materially affects the comfort and convenience of a community or neighbourhood at large, rather than particular individuals,129 or that is so widespread and indiscriminate in its impact that it would be unreasonable to expect a private individual, rather than the community as a whole, to bear the responsibility of taking action to stop it.130

Copyright © 2015. Oxford University Press. All rights reserved.

13.7.2

Liability for private nuisance

In order for liability for private nuisance to arise, the defendant’s conduct needs to interfere with a recognised right or incident attached to the possession of land. The rights and incidents attached to the possession of land change over time. For example, in Alma v Nakir,131 McLelland CJ in Eq accepted that repeated telephone calls to a house could constitute private nuisance.132 Isolated acts tend not to give rise to liability for private nuisance. In Denning LJ’s view, ‘a private nuisance always involves some degree of repetition or continuance’.133 The leading High Court authority on the issue of privacy as an interest potentially protected by the tort of private nuisance is Victoria Park Racing and Recreation Grounds Co Ltd v Taylor, which has already been extracted in relation to whether an enforceable right to privacy is recognised as part of the common law of Australia. The judgment is relevantly extracted below specifically on the issue of private nuisance.

127 128 129 130 131 132 133

Hunter v Canary Wharf Ltd [1997] AC 655 at 692 per Lord Goff of Chieveley. Munro v Southern Dairies Ltd [1955] VR 332 at 334 per Sholl J. Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at 184 per Romer LJ; at 190 per Denning LJ. Ibid at 191 per Denning LJ. [1966] 2 NSWR 396. [1966] 2 NSWR 396 at 397. Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at 192.

481

482

PART 5 Privacy

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

[The facts are recounted above at 13.3.]

Copyright © 2015. Oxford University Press. All rights reserved.

LATHAM CJ (at 492): The plaintiff’s case is put as an action upon the case for nuisance affecting the use and enjoyment of the plaintiff’s land. It is also contended that there is an unnatural user of Taylor’s land by Angles to which the Broadcasting Co is a party and of which it takes advantage. The unnatural user is, I understand, alleged to consist in the erection of the wooden structure on Taylor’s land which Angles uses and the use of the land for broadcasting purposes. It is contended that, there being this unnatural user of the land, the defendant is liable for all the damage which may happen to any person, including the plaintiff, as a result of such user. The first contention is that the plaintiff’s land has been made suitable for a racecourse, that by reason of the action of the defendants it has been deprived of at least some measure of that suitability, (493) and that therefore this is a case of nuisance—an unlawful interference with the use and enjoyment of land. No analogous case has been cited to the court. I agree that the category of nuisance is not closed and that if some new method of interfering with the comfort of persons in the use of land emerges the law may provide a remedy. For example, the increasing use of electricity, with the possibility of the escape of electricity into an adjoining property, has provided a new possible source of interference with the use of land and the law provides a remedy in such a case. In this case, however, in my opinion, the defendants have not interfered in any way with the use and enjoyment of the plaintiff’s land. The effect of their actions is to make the business carried on by the plaintiff less profitable, and they do so by providing a competitive entertainment. It is unnecessary to cite authorities for the proposition that mere competition (certainly if without any motive of injuring the plaintiff) is not a cause of action. The facts are that the racecourse is as suitable as ever it was for use as a racecourse. What the defendants do does not interfere with the races, nor does it interfere with the comfort or enjoyment of any person who is on the racecourse. The alleged nuisance cannot be detected by any person upon the land as operating or producing any effect upon the plaintiff’s land. It is consistent with the evidence that none of the persons on that land may, at any given moment, be aware of the fact that a broadcast is being made. The only alleged effect of the broadcast is an effect in relation to people who are not upon the land, that is, the people who listen in or have the opportunity of listening in and who therefore stay away from the land. In my opinion the defendants have not in any way interfered with the plaintiff’s land or the enjoyment thereof. RICH J (dissenting) (at 501): … An action on the case in the nature of nuisance was one of the flexible remedies capable of adaptation to new circumstances falling within recognized principles. This case presents the peculiar features that by means of broadcasting—a thing novel both in fact and law—the knowledge obtained by overlooking the plaintiff’s racecourse from the defendants’ tower is turned to account in a manner which impairs the value of the plaintiff’s occupation of the land and diverts a legitimate source of profit from its business in the pockets of the defendants. It appears to me that the true issue is whether a non-natural use of a neighbour’s land made by him for the purpose of obtaining the means of appropriating in this way part of the profitable enjoyment of the plaintiff’s land to his own commercial ends—a thing made possible only by radio— falls within the reason of the principles which give rise to the action on the case in the nature of nuisance. There is no absolute standard as to what constitutes a nuisance in law. But all the surrounding circumstances must be taken into consideration in each case. As regards neighbouring properties their interdependence is important in arriving at a decision in a given case. An improper or non-natural use or a use in excess of a man’s right which curtails or impairs his neighbour’s legitimate enjoyment of his property is ‘tortious and hurtful’ and constitutes a nuisance. A man has no absolute right (502) ‘within the ambit of his own land’ to act as he pleases. His right is qualified and such of his acts as invade his neighbour’s property are lawful only in so far as they are reasonable having regard to his own circumstances and those of his neighbour (Law Quarterly Review, vol 52, p. 460; vol 53, p 3). The plaintiff’s case must, I am prepared to concede, rest on what is called nuisance. But it must not be overlooked that this means no more than that he must complain of some impairment of the rights flowing from occupation and ownership of land. One of the prime purposes of occupation of land is the pursuit of profitable enterprises for which the exclusion of others is necessary either totally or except upon conditions which may include payment. In the present case in virtue of its occupation and ownership

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 13 Privacy

the plaintiff carries on the business of admitting to the land for payment patrons of racing. There it entertains them by a spectacle, by a competition in the means to give to those whom it admits the exclusive right of witnessing the spectacle, the competition and of using the collated information in betting while that is possible on its various events. This use of its rights as occupier is usual, reasonable and profitable. So much no one can dispute. If it be true that an adjacent owner has an unqualified and absolute right to overlook an occupier whatever may be the enterprise he is carrying on and to make any profitable use to which what he sees can be put, whether in his capacity of adjacent owner or otherwise, then to that extent the right of the occupier carrying on the enterprise must be modified and treated in law as less extensive and ample than perhaps is usually understood. But can the adjacent owner by virtue of his occupation and ownership use his land in such an unusual way as the erection of a platform involves, bring mechanical appliances into connection with that use, ie, the microphone and land line to the studio, and then by combining regularity of observation with dissemination for gain of the information so obtained give the potential patrons a mental picture of the spectacle, an account of the competition between the horses and of the collated information needed for betting, for all of which they would otherwise have recourse to the racecourse and pay? To admit that the adjacent owner may overlook does not answer this (503) question affirmatively … The besetting cases indicate that at common law the concert of others is a material factor … (at 504): … What appears to me to be the real point in this case is that the right of view or observation from adjacent land has never been held to be an absolute and complete right of property incident to the occupation of that land and exercisable at all hazards notwithstanding its destructive effect upon the enjoyment of the land overlooked. In the absence of any authority to the contrary I hold that there is a limit to this right of overlooking and that the limit must be found in an attempt to reconcile the right of free prospect from one piece of land with the right of profitable enjoyment of another. The unreported case of the Balham dentist mentioned by Professor Kenny in his Cases on the Law of Torts, 4th ed (1926), p 367, would, if correctly decided, be discreditable to English law. This is what Professor Winfield, in an article on Privacy, Law Quarterly Review, vol 47, at p 27, says: ‘A curious invasion of privacy, recorded by the late Professor Kenny, was a case of 1904 in which a family in Balham, by placing in their garden an arrangement of large mirrors, were enabled to observe all that passed in the study and operating room of a neighbouring dentist, who sought in vain for legal protection against ‘the annoyance and indignity’ to which he was thus subjected. This is all that is given of the case, and, as there is no further reference, it is worthless as an authority. Why should it not have been actionable as a nuisance? It was something very like watching and besetting the dentist’s house so as to compel him to do or not to do something which he was lawfully entitled not to do or to do; and this was held to be a common law nuisance in Lyons & Sons v Wilkins. Subsequent trade union legislation may have affected the decision in that case, but not the principle underlying it, which is that such conduct seriously interferes with the ordinary comfort of human existence and the ordinary enjoyment of the house beset. Indeed, the Balham family behaved worse than the defendants in Lyons’ Case, for there was some economic excuse for the acts of the trade union officials there, while none whatever existed in the Balham case. In 1904 the unneighbourly neighbours of Balham were forced to adopt an elaborate system of mirrors to vent their ill feeling. But it is easy to believe that half a century later they would be able to do all they desired (505) by means of television. Indeed the prospects of television make our present decision a very important one, and I venture to think that the advance of that art may force the courts to recognize that protection against the complete exposure of the doings of the individual may be a right indispensable to the enjoyment of life. For these reasons I am of opinion that the plaintiff’s grievance, although of an unprecedented character, falls within the settled principle upon which the action for nuisance depends … DIXON J (at 506): This treatment of the case will not, I think, hold water. It may be conceded that interference of a physical nature, as by fumes, smell and noise, are not the only means of committing a private (507) nuisance. But the essence of the wrong is the detraction from the occupier’s enjoyment of the natural rights belonging to, or in the case of easements, of the acquired rights annexed to, the occupation of land. The law fixes those rights. Diversion of custom from a business carried on upon the land may be brought about by noise, fumes, obstruction of the frontage or any other interference with the enjoyment of recognized rights arising from the occupation of property and, if so, it forms a legitimate head of damage recoverable for the wrong; but it is not the wrong itself. The existence or the use of a microphone upon neighbouring land is, of course,

483

484

PART 5 Privacy

Copyright © 2015. Oxford University Press. All rights reserved.

no nuisance. If one, who could not see the spectacle, took upon himself to broadcast a fictitious account of the races he might conceivably render himself liable in a form of action in which his falsehood played a part, but he would commit no nuisance. It is the obtaining a view of the premises which is the foundation of the allegation. But English law is, rightly or wrongly, clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who enable themselves to overlook the premises. An occupier of land is at liberty to exclude his neighbour’s view by any physical means he can adopt. But while it is no wrongful act on his part to block the prospect from adjacent land, it is no wrongful act on the part of any person on such land to avail himself of what prospect exists or can be obtained. Not only is it lawful on the part of those occupying premises in the vicinity to overlook the land from any natural vantage point, but artificial erections may be made which destroy the privacy existing under natural conditions. (at 508): When this principle is applied to the plaintiff’s case it means, I think, that the essential element upon which it depends is lacking. So far as freedom from view or inspection is a natural or acquired physical characteristic of the site, giving it value for the purpose of the business or pursuit which the plaintiff conducts, it is a characteristic which is not a legally protected interest. It is not a natural right for breach of which a legal remedy is given, either by an action in the nature of nuisance or otherwise. The fact is that the substance of the plaintiff’s complaint goes to interference, not with its enjoyment of the land, but with the profitable conduct of its business … EVATT J (dissenting) (at 520): It should be appreciated that the plaintiff does not question the general principle that it is a legitimate use of property to erect and extend homes for the purpose of obtaining or improving favourable prospects or ‘views’. A number of cases bearing upon such question have been collected and discussed by Professor Winfield in a learned article on ‘Privacy’, published in the Law Quarterly Review, vol 47, p 23 … It appeared that, by an arrangement of large mirrors, ‘neighbours’ succeeded in observing all that went on in the surgery of a nearby dentist. Professor Winfield rightly asks: ‘Why should it not have been actionable as a nuisance?’ In my opinion, such conduct certainly amounted to a private nuisance and should have been restrained by injunction, although the sole object of the ‘peeping (521) Toms’ of Balham was to satisfy their own degraded curiosity and not to interfere with the dentist’s liberty of action. In truth, no normally sensitive human being could have pursued his profession or business under so intolerable an espionage, and the result would have been to render the business premises practically uninhabitable. The motive of the wrongdoers at Balham was to satisfy their curiously perverted instincts. But let us suppose that, by such devices as broadcasting and television, the operating theatre of a private hospital was made inspectable, so that a room outside the hospital could be hired in order that the public might view the operations on payment of a fee. It would not be any the less a nuisance because in such a case the interference with the normal rights of using and enjoying property was accentuated and aggravated by the wrongdoers making a profit out of their exhibition. Let it be also supposed that medical students, who would otherwise pay a fee to the hospital in order to witness the operations, stayed away because they were able to see them performed elsewhere but simultaneously for a smaller fee, the result being that damage is sustained by the hospital. My opinion is that an action would lie, not only in the Balham case but in the instances I have suggested and that a court of equity would grant the additional remedy of an injunction. If this conclusion is right, the following propositions may be suggested: (a) Although there is no general right of privacy recognized by the common law, neither is there an absolute and unrestricted right to spy on or to overlook the property of another person. (b) A person who creates or uses devices for the purpose of enabling the public generally to overlook or spy upon the premises of another person will generally become liable to an action of nuisance, providing appreciable damage, discomfort or annoyance is caused. (c) As in all cases of private nuisance, all the surrounding circumstances will require examination. (d) The fact that in such cases the defendant’s conduct is openly pursued, or that his motive is merely that of profit making, or that he makes no direct charge for the privilege of overlooking or spying will provide no answer to an action. The above-suggested statement of principle may require either extension or qualification, but in essence I think that it is in accordance with the principles of the common law of England, the (522) ‘inherent adaptability’ of which is as essential today as ever it was, having regard to our ‘altering social conditions and standards’. These phrases of Lord Atkin and Lord Macmillan [in Donoghue v Stevenson [1932] AC 562], though applied

CHAPTER 13 Privacy

Copyright © 2015. Oxford University Press. All rights reserved.

in another branch of the common law, are equally applicable to the problem which has arisen in this case. I can see nothing in the statement of principle to which reasonable objection would be taken in practice. Indeed, no one who recognizes the existence of any duties towards his neighbour could ever think of acting in contravention of the principles. Only an insufficiently disciplined desire for business profit and an almost reckless disregard, not so much of the legal rights as of the ordinary decencies and conventions which must be observed as between neighbours, could have induced the broadcasting company to cause the loss to the plaintiff which has been proved in this case. The argument that the plaintiff might have protected itself from intrusion and loss by increasing the height of its boundary fence comes with ill grace from the defendants, whose reply would probably have been to disfigure further the Taylor bungalow by increasing the height of the broadcasting tower. In such a way, reprisals might go on indefinitely. However, in the circumstances proved, I am of the opinion that the plaintiff should not be remitted either to self-help or to legislative aid, but that he is entitled to redress from the law by the application of the principles which I have suggested are embodied in the common law. Thus the plaintiff is entitled to maintain an action for damages for private nuisance, and, if so, it is indisputable that he is also entitled to an injunction against all three defendants. McTIERNAN J (at 523): The principle (524) upon which liability for acts in the nature of nuisance is founded is not to be restrained by the instances in which that liability has been found to exist. The list of acts which may give rise to an action on the case in the nature of nuisance is not closed against broadcasting. But to broadcast a lawful description of what is happening on premises cannot be an actionable nuisance at least unless it causes substantial interference with the use and enjoyment of the premises. It is conceivable that broadcasting may be made an adjunct to conduct constituting the actionable nuisance of watching and besetting premises, the nature of which is discussed in J Lyons & Sons v Wilkins. But no facts are proved to bring the broadcasting of which the plaintiff complains within the scope of the principle which was applied in that case. ‘It is essential to an action in tort that the act complained of should under the circumstances, be legally wrongful as regards the party complaining: that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do him harm in his interests is not enough’ (Rogers v Rajendro Dutt ). To allege simply that the defendants broadcast a description of a spectacle undertaken by the plaintiff on land in the sole possession of the plaintiff and that the plaintiff thereby lost profits which it would otherwise have made from the undertaking and that the value of the land was diminished, does not state a cause of action in tort … It is essential to an action on the case in the nature of nuisance to prove that the acts complained of infringe a legal right of the plaintiff. The loss of profits and the diminution in the value of the land are set up here by the plaintiff both as the injuria and the damnum … (at 525): It was not a legal right of the plaintiff always to be able to carry on its undertaking without loss of profits or not suffer any diminution in the value of its land. The plaintiff took steps to secure that entertainment to be got from following the fate of the horses running on its racecourse should be restricted to persons whom it admitted. In the circumstances existing before the parasitical substitute of which it complains was transmitted from the platform on Taylor’s land, the racecourse had apparently enjoyed a measure of exclusiveness such as was conducive to the profitable conduct of the business. But the plaintiff took the risk of a change in those circumstances … The plaintiff laid great stress on the maxim sic utero tuo ut alienum non laedas [‘one should use one’s own property so as not to injure another person’s property’]. The principle underlying the action on the case in the nature of nuisance is the same as that embodied in this maxim (Hammerton v Dysart). It is essential for the application of this maxim that a wrongful act is committed and damage is sustained. (at 526): The use which Taylor and his licensee are making of Taylor’s land may be quite impudent. But it was in the course of the natural user of his land for Taylor to have the platform erected on his land from which Angles speaks. And I cannot think that Taylor is going beyond the natural user of the land in allowing his licensee Angles to talk into the telephone or microphone on the platform and give a description of the races and the information exhibited on the racecourse to the members of the public who wish to listen. (Cf Chasemore v Richards). Upon the facts proved none of the defendants is liable to be sued in an action on the case for nuisance. The plaintiff has failed to establish its claim to an injunction on the ground of an alleged nuisance or a breach of the legal relation of neighbourliness expressed by the maxim sic utere tuo ut alienum non laedas. Appeal dismissed.

485

486

PART 5 Privacy

13.7.3 Remedies for private nuisance If there is a continuing private nuisance, a plaintiff is generally entitled to an injunction.134 A plaintiff may also be entitled to an award of damages, including aggravated damages, which are a form of compensatory damages, if there are circumstances that aggravate the harm experienced by the plaintiff.135 Consequential damages for injury to health appear not to be available in a cause of action for private nuisance,136 although such damages might be available directly in relation to another cause of action arising out of the same facts, such as negligence or the action on the case for the intentional infliction of harm.137

13.7.4 Action on the case for the intentional infliction of harm By their very nature, invasions of privacy are frequently distressing to the person whose privacy is invaded. However, the prevailing view under Australian law is that common law damages for mere distress are not available. This contrasts with the position under United States law, where a cause of action has developed for the infliction of emotional distress. Under Australian law, if a person whose privacy is deliberately invaded suffers recognised psychiatric injury, as opposed to mere distress, he or she may recover damages for an action on the case for the intentional infliction of harm. This is widely known as Wilkinson v Downton liability, being derived from the decision of Wright J in the case of that name.138

Wilkinson v Downton [1897] 2 QB 57

Copyright © 2015. Oxford University Press. All rights reserved.

[The facts emerge sufficiently from the extract below.] WRIGHT J (at 58): In this case the defendant, in the execution of what he seems to have regarded as a practical joke, represented to the plaintiff that he was charged by her husband with a message to her to the effect that her husband was smashed up in an accident, and was lying at The Elms at Leytonstone with both legs broken, and that she was to go at once in a cab with two pillows to fetch him home. All this was false. The effect of the statement on the plaintiff was a violent shock to her nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing weeks of suffering and incapacity to her as well as expense to her husband for medical attendance. These consequences were not in any way the result of previous ill-health or weakness of constitution; nor was there any evidence of predisposition to nervous shock or any other idiosyncrasy. … The real question is as to the 100l., the greatest part of which is given as compensation for the female plaintiff’s illness and suffering … I think, however, that the verdict may be supported upon another ground. The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical (59) harm to the plaintiff—that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.

134 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 at 316–17 per Lindley LJ; Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at 188 per Romer LJ. 135 Plenty v Dillon (1991) 171 CLR 635 at 655 per Gaudron and McHugh JJ. 136 Evans v Finn (1904) 4 SR(NSW) 297 at 308–09 per Darley CJ. 137 As to negligence, see 10.2. 138 [1897] 2 QB 57.

CHAPTER 13 Privacy

It remains to consider whether the assumptions involved in the proposition are made out. One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs. The other question is whether the effect was, to use the ordinary phrase, too remote to be in law regarded as a consequence for which the defendant is answerable. Apart from authority, I should give the same answer and on the same ground as the last question, and say that it was not too remote … [Wright J reviewed the relevant authorities and found that they did not preclude the grant of relief in this case.] Judgment for the plaintiff.

Copyright © 2015. Oxford University Press. All rights reserved.

The term ‘calculated’ in Wilkinson v Downton has been interpreted to mean ‘objectively likely to have the effect’, rather than ‘subjectively intended to have the effect’.139 The possibility of using Wilkinson v Downton liability indirectly to protect privacy interests has recently been demonstrated by the decision of the English Court of Appeal in OPO v MLA. In this case, MLA was a performing artist who had been sexually abused as a child. He had written a semi-autobiographical work dealing with these issues, including graphic descriptions of the sexual abuses and his attempts at self-harm.140 He sought to dedicate his memoir to his son, OPO, who lived overseas with his mother. OPO had been diagnosed with a combination of attention deficit hyperactivity disorder, Asperger’s, dysgraphia and dyspraxia. OPO’s mother claimed that OPO would be damaged if he came across the memoir or material derived from it on the internet.141 The English Court of Appeal granted an interlocutory injunction restraining MLA from publishing the memoir on the basis of ‘the obscure tort’142 identified in Wilkinson v Downton.143

13.8 Defamation Defamation may provide some limited, indirect protection of privacy. For instance, in order to have a defence of fair comment at common law or honest opinion under statute, the defendant’s statement must relate to a matter of public interest, rather than a purely private matter.144 However, defamation law now provides less indirect protection of privacy than it did. Prior to the introduction of the national, uniform defamation laws, four out of eight Australian jurisdictions required proof not only of substantial truth but also that the matter was one of public interest or was for the public benefit.145 It was claimed that this afforded de facto privacy protection to prospective plaintiffs. Now, proof of substantial truth is 139 140 141 142 143 144 145

Carrier v Bonham [2002] 1 Qd R 474 at 481 per McMurdo P. OPO v MLA [2014] EWCA Civ 1277 at [120] per Jackson LJ. Ibid at [1]–[3] per Arden LJ. Ibid at [58] per Arden LJ. Ibid at [115] per Arden LJ, at [120] per Jackson LJ. As to the defences of fair comment and honest opinion, see 8.6. See 8.1.1.

487

488

PART 5 Privacy

sufficient to justify the publication of defamatory matter. The fact that defamation law no longer provides indirect protection of privacy is arguably justifiable, given that defamation is concerned with reputation, being essentially the public self of the plaintiff, and therefore an interest distinct from privacy.146

Copyright © 2015. Oxford University Press. All rights reserved.

FURTHER READING Australian Law Reform Commission, Privacy, Report 22 (1983). Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008). Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report 123 (2014). Butler, Des, ‘A Tort of Invasion of Privacy in Australia?’ (2005) 29 Melbourne University Law Review 339. Fried, Charles, ‘Privacy’ (1967) 77 Yale Law Journal 475. Gavison, Ruth, ‘Privacy and the Limits of the Law’ (1980) 89 Yale Law Journal 421. Kenyon, Andrew T. and Richardson, Megan (eds), New Dimensions in Privacy Law: International and Comparative Perspectives, Cambridge University Press, Cambridge, 2006. Lindsay, David, ‘An Exploration of the Conceptual Basis of Privacy and the Implications for the Future of Australian Privacy Law’ (2005) 29 Melbourne University Law Review 131. Magnusson, Roger, ‘Recovery for Mental Distress in Tort, with Special Reference to Harmful Words’ (1994) 2 Torts Law Journal 126. Moreham, Nicole, ‘Beyond Information: Physical Privacy in English Law’ (2014) 73 Cambridge Law Journal 350. New South Wales Law Reform Commission, Invasion of Privacy, Report No 120, 2009. New Zealand Law Commission, Privacy: Concepts and Issues—Review of the Law of Privacy, Stage 1, Study Paper 19, 2008. Prosser, William L, ‘Privacy’ (1960) 48 California Law Review 383. Richardson, Megan, ‘Whither Breach of Confidence: A Right of Privacy in Australian Law?’ (2002) 26 Melbourne University Law Review 20. Rolph, David, ‘Preparing for a Full-Scale Invasion? Truth, Privacy and Defamation’ (2007) 25(3/4) Communications Law Bulletin 5. Solove, Daniel, ‘Conceptualizing Privacy’ (2002) 90 California Law Review 1087. Solove, Daniel, ‘A Taxonomy of Privacy’ (2006) 154 University of Pennsylvania Law Review 477. Solove, Daniel J, Understanding Privacy, Harvard University Press, Cambridge (Ma), 2008. Taylor, Greg, ‘Why is There No Common Law Right to Privacy?’ (2000) 26 Monash University Law Review 235. Victorian Law Reform Commission, Surveillance in Public Places, Report No 18, 2010. Warren, Samuel D and Brandeis, Louis D, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193. Whitman, James Q, ‘The Two Western Cultures of Privacy: Dignity v Liberty’ (2004) 113 Yale Law Journal 1151.

146 As to the concept of reputation, see 7.1.1

14 Breach of Confidence

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION Breach of confidence is an equitable cause of action, the elements of which have been settled only comparatively recently. It is important to analyse breach of confidence for two reasons. First, media outlets not infrequently come into possession of material that is clearly confidential or that they reasonably suspect is confidential, in circumstances where they know or reasonably suspect that there has been a breach of a duty or an obligation of confidence. Media outlets may therefore be held liable themselves for breach of confidence. In its traditional formulation, breach of confidence may be used to protect a plaintiff’s privacy against disclosure of personal information by a media outlet. Second, breach of confidence has formed the basis of the development of direct protection of personal privacy at general law in the United Kingdom and there are dicta suggesting that this development should be, or will be, followed in Australia. On both bases, breach of confidence is a cause of action of which media outlets ought be aware. It is necessary therefore to analyse the basis of the media’s liability, the circumstances in which such liability might arise, the defences the media might raise and the potential remedies that might be granted against the media.

14.1 The elements of the cause of action 14.1.1 The modern law of breach of confidence

Although equity has long protected confidences,1 the elements of the cause of action that is now recognised as breach of confidence have only become settled relatively recently.2 There has been a number of landmark cases in the emergence of breach of confidence. The first case, frequently cited as the basis of the modern law of breach of confidence, is Prince Albert v Strange.3 In that case, Prince Albert, the Consort of Queen Victoria, and the AttorneyGeneral sought an injunction against Messrs Strange and Judge from publishing a catalogue of private etchings made by Queen Victoria and Prince Albert for their domestic amusement. 1 As to the history of breach of confidence, see RG Toulson and CM Phipps, Confidentiality, 2nd edn, Sweet & Maxwell, London, 2006, [1–001]–[1–018]. 2 Argyll v Argyll [1967] 1 Ch 302 at 330 per Ungoed-Thomas J. 3 (1849) 47 ER 1302.

489

490

PART 5 Privacy

The etchings could only have been improperly obtained, as they were kept under lock. Lord Cottenham LC held that the injunction could be granted, either on the basis of Prince Albert’s property in the drawing or on the basis of a ‘breach of trust, confidence or contract’.4 His Lordship further held that, where privacy was the right invaded, as in the present case, to delay the grant of an injunction would be to deny effective relief.5 Almost 160 years after this case, another prominent royal figure had his private papers publicly disclosed in a national newspaper and was also able to obtain relief for breach of confidence (albeit in a slightly altered legal context).6 This demonstrates both the enduring utility of breach of confidence as well as the enduring fascination of royalty to the media. The most influential case in the development of breach of confidence is the decision of Megarry J in Coco v AN Clark (Engineers) Ltd,7 which is relevantly extracted below. It is considered to be the locus classicus on the requirements for a cause of action in breach of confidence.

Coco v AN Clark (Engineers) Ltd [1969] RPC 41

[The plaintiff, Marco Paolo Coco, designed a new moped. He disclosed his designs to the defendant, AN Clark (Engineers) Ltd. The parties explored the possibility of manufacturing Coco’s moped. However, AN Clark (Engineers) elected not to proceed with the venture. Shortly after the termination of its relationship with Coco, AN Clark (Engineers) began manufacturing and selling a moped, which, Coco alleged, exploited his design. Coco sought an injunction against AN Clark (Engineers), restraining its misuse of confidential information.] MEGARRY J (at 46): The equitable jurisdiction in cases of breach of confidence is ancient; confidence is the cousin of trust. The Statute of Uses, 1535, is framed in terms of ‘use, confidence or trust’; and a couplet, attributed to Sir Thomas More, Lord Chancellor avers that Three things are to be helpt in Conscience; Fraud, Accident and things of Confidence.

Copyright © 2015. Oxford University Press. All rights reserved.

(See 1 Rolle’s Abridgement 374). In the middle of last century, the great case of Prince Albert v Strange (1849) 1 Mac & G 25 reasserted the doctrine. In the case before me, it is common ground that there is no question of any breach of contract, for no contract ever came into existence. Accordingly, what I have to consider is the pure equitable doctrine of confidence, unaffected by contract. Furthermore, I am here in the realms of commerce, and there is no question of any marital relationship such as arose in Duchess of Argyll v Duke of Argyll [1967] Ch 302. Thus limited, what are the essentials of the doctrine? (47) Of the various authorities cited to me, I have found Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203; Terrapin Ltd v Builders’ Supply Co (Hayes) Ltd [1960] RPC 128 and Seager v Copydex Ltd [1967] 1 WLR 123; [1967] RPC 349 of the most assistance. All are decisions of the Court of Appeal. I think it is quite plain from the Saltman case that the obligation of confidence may exist where, as in this case, there is no contractual relationship between the parties. In cases of contract, the primary question is no doubt that of construing the contract and any terms implied in it. Where there is no contract, however, the question must be one of what it is that suffices to bring the obligation into being; and there is the further question of what amounts to a breach of that obligation.

4 5 6 7

Prince Albert v Strange (1849) 1 H & Tw 1 at 25–26; (1849) 47 ER 1302 at 1311–12. Ibid at 26; at 1312. See the case-study below on HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57. [1969] RPC 41.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 14 Breach of Confidence

In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene MR, in the Saltman case on page 215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it. I must briefly examine each of these requirements in turn. First, the information must be of a confidential nature. As Lord Greene said in the Saltman case at page 215, ‘something which is public property and public knowledge’ cannot per se provide any foundation for proceedings for breach of confidence. However confidential the circumstances of communication, there can be no breach of confidence in revealing to others something which is already common knowledge … … The second requirement is that the information must have been communicated in circumstances importing an obligation of confidence. However secret and confidential the information, there can be no binding obligation of confidence if (48) that information is blurted out in public or is communicated in other circumstances which may negative any duty of holding it confidential. From the authorities cited to me, I have not been able to derive any very precise idea of what test is to be applied in determining whether the circumstances import an obligation of confidence. In the Argyll case at page 330, Ungoed-Thomas J concluded his discussion of the circumstances in which the publication of marital communications should be restrained as being confidential by saying, ‘If this was a well-developed jurisdiction doubtless there would be guides and tests to aid in exercising it’. In the absence of such guides or tests he then in effect concluded that part of the communications there in question would on any reasonable test emerge as confidential. It may be that that hard-worked creature, the reasonable man, may be pressed into service once more; for I do not see why he should not labour in equity as well as at law. It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence … I merely add that I doubt whether equity would intervene unless the circumstances are of sufficient gravity; equity ought not to be invoked merely to protect trivial tittle-tattle, however confidential. Thirdly, there must be an unauthorised use of the information to the detriment of the person communicating it. Some of the statements of principle in the cases omit any mention of detriment; other [sic] include it. At first sight, it seems that detriment ought to be present if equity is to be induced to intervene; but I can conceive of cases where a plaintiff might have substantial motives for seeking the aid of equity and yet suffer nothing which could fairly be called detriment to him as when the confidential information shows him in a favourable light but gravely injures some relation or friend of his whom he wishes to protect. The point does not arise for decision in this case, for detriment to the plaintiff plainly exists. I need therefore say no more than that although for the purposes of this case I have stated the propositions in the stricter form, I wish to keep open the possibility of the true possibility being that in the wider form. [AN Clark (Engineers) gave an undertaking to the court to pay Coco a royalty and to account for the number of mopeds sold.] Motion dismissed.

QUESTIONS 1 2 3 4

What are the requirements for a cause of action in breach of confidence? What sorts of information will be treated as confidential? What sorts of relationship give rise to an obligation of confidence? Is detriment an essential element of a cause of action for breach of confidence? In what circumstances, if any, might there be unconscionable and unauthorised disclosure of confidential information without there being a detriment to the plaintiff?

491

492

PART 5 Privacy

14.1.2 Basis of the obligation of confidence An obligation of confidence may arise from a proprietary interest or a contractual right. However, even in the absence of property or contract, an obligation of confidence may arise.8 The obligation arises in equity and it is an obligation based on ‘the duty to be of good faith’ and not to make unconscientious use of the confidential information received.9 An obligation of confidence may be express or implied.10 Where there is an express contractual obligation of confidence, a court should give effect to the obligations the parties have voluntarily created and assumed.11 Where an obligation of confidence is to be implied, it will only be implied to the extent that the facts of the particular case justify the implication.12

14.1.3 Information having quality of confidence In order for equity to intervene, the information must possess the necessary quality of confidence.13 Information that is in the public domain lacks the necessary quality of confidence and therefore cannot be protected by a cause of action for breach of confidence.14 Equity will not concern itself with the protection of trivia or ‘tittle tattle’.15 However, it will become clear that this does not mean that media outlets cannot be liable for breach of confidence for publishing gossip.

14.1.4 Personal secrets

Copyright © 2015. Oxford University Press. All rights reserved.

Although the cause of action for breach of confidence can be used to protect trade secrets and other commercially sensitive information, it has also been used, in its traditional formulation, to protect the disclosure of personal secrets and private information in the media.16 For example, in Argyll v Argyll,17 the Duke of Argyll filed for a divorce from his wife on the ground of her adultery.18 The Duchess of Argyll disclosed information about 8 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 211 per Lord Greene MR; Argyll v Argyll [1967] Ch 302 at 318 per Ungoed-Thomas J; Fraser v Evans [1969] 1 QB 349 at 361 per Lord Denning MR; Malone v Metropolitan Police Commissioner [1979] Ch 344 at 375–76 per Sir Robert Megarry VC; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 255 per Lord Keith of Kinkel; at 268 per Lord Griffiths; Venables v News Group Newspapers Ltd [2001] Fam 430 at 462 per Dame Elizabeth Butler-Sloss P. 9 Seager v Copydex Ltd [1967] 1 WLR 923 at 931 per Lord Denning MR; Fraser v Evans [1969] 1 QB 349 at 361 per Lord Denning MR; Hubbard v Vosper [1972] 2 QB 84 at 95 per Lord Denning MR; Stephens v Avery [1988] Ch 449 at 456 per Sir Nicolas Browne-Wilkinson VC; Johns v Australian Securities Commission (1993) 178 CLR 408 at 459 per Gaudron J; Campbell v MGN Ltd [2004] 2 AC 457 at 464 per Lord Nicholls of Birkenhead. 10 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 211 per Lord Greene MR; Argyll v Argyll [1967] Ch 302 at 322 per Ungoed-Thomas J; Hitchcock v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports ¶81–500 at 62,632–63,622 per Austin J. 11 Hitchcock v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports ¶81–500 at 63,640 per Austin J; HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 at 115 per curiam. 12 Hitchcock v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports ¶81–500 at 63,633 per Austin J. 13 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215 per Lord Greene MR; Sullivan v Sclanders (2000) 77 SASR 419 at 427 per Gray J. 14 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215 per Lord Greene MR; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 268 per Lord Griffiths. 15 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 48 per Megarry J; Hitchcock v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports ¶81–500 at 63,640 per Austin J. 16 Hitchcock v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports ¶81–500 at 63,639–63,640 per Austin J; Sullivan v Sclanders (2000) 77 SASR 419 at 427 per Gray J. 17 [1967] Ch 302. 18 Argyll v Argyll [1967] Ch 302 at 316–17 per Ungoed-Thomas J.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 14 Breach of Confidence

the Duke of Argyll’s medical and financial affairs to The Sunday Mirror newspaper.19 The Duke of Argyll then disclosed information about his ex-wife’s private life and conduct to the tabloid newspaper, The Sunday People, which were to be published in a series of articles. The Duchess of Argyll sought injunctions against her former husband and the editor, publisher and printer of The Sunday People on the basis of, inter alia, breach of confidence.20 Ungoed-Thomas J found that the articles for which the parties were respectively responsible raised different issues about the relationship.21 His Lordship further found that the Duke of Argyll’s allegations of his wife’s sexual immorality were worse than the Duchess of Argyll’s disclosures about him.22 Therefore, Ungoed-Thomas J granted the injunctions sought.23 In Stephens v Avery,24 Rosemary Stephens brought proceedings for breach of confidence against her former friend, Anne Avery, as well as Stewart Steven, the editor of The Mail on Sunday newspaper, and the newspaper’s publisher, Mail Newspapers Plc.25 Stephens confided in Avery that she had been having a secret lesbian relationship with a woman. The woman in question had been killed by her husband when he discovered her in bed with another woman. At the husband’s trial, at which he was convicted of manslaughter, the identity of the lesbian lover of the deceased was not disclosed. Stephens claimed she placed Avery under an express obligation of confidence, which she alleged Avery breached by disclosing the information to The Mail on Sunday.26 Sir Nicolas Browne-Wilkinson VC rejected the submission that no obligation of confidence should be enforced because it related to ‘grossly immoral conduct’ between Stephens and the deceased.27 His Lordship further rejected the submission that information about sexual conduct was trivia or ‘tittle tattle’, therefore not sufficiently serious to warrant protection by a cause of action for breach of confidence.28 The Vice-Chancellor concluded that there was ‘no reason why information relating to that most private sector of everybody’s life, namely sexual conduct, cannot be the subject matter of a legally enforceable duty of confidentiality’.29 His Lordship refused to strike out Stephens’s claim.30 Shortly before the introduction of the Human Rights Act 1998 (UK)—which introduced the European Convention on Human Rights into the domestic law of the United Kingdom— in Barrymore v News Group Newspapers Ltd,31 prominent television personality Michael Barrymore and his private company Barryclaire Ltd brought proceedings for breach of confidence against The Sun newspaper and Paul Wincott. Although married, Barrymore was homosexual and had had a relationship with Wincott. Wincott was also employed by Barryclaire Ltd.32 Under his employment agreement with Barryclaire Ltd, Wincott owed

19 20 21 22 23 24 25 26 27 28 29 30 31 32

Ibid at 330–31 per Ungoed-Thomas J. Ibid at 315 per Ungoed-Thomas J. Ibid at 331. Ibid at 332. Ibid at 337. [1988] Ch 449. Stephens v Avery [1988] Ch 449 at 450 per Sir Nicolas Browne-Wilkinson VC. Ibid at 451 per Sir Nicolas Browne-Wilkinson VC. Ibid at 453. Ibid at 454. Ibid at 455. Ibid at 456–57. [1997] FSR 600. Barrymore v News Group Newspapers Ltd [1997] FSR 600 at 601 per Jacob J.

493

494

PART 5 Privacy

an express duty of confidentiality, covering ‘personal information’.33 Wincott’s disclosure of Barrymore’s letters to him to The Sun newspaper arguably breached the term in the agreement. Therefore, Jacob J found that the threatened publication of the letters in The Sun should be restrained.34 In Australia, in Hitchcock v TCN Channel Nine Pty Ltd,35 Sydney socialite Shari-Lea Hitchcock brought proceedings for breach of confidence, inter alia, against TCN Channel Nine Pty Ltd.36 The Channel Nine program, A Current Affair, intended to broadcast disclosures by a nanny who had worked for Hitchcock, Julie Page.37 Page worked on a parttime basis for Hitchcock and occupied a granny flat at the rear of Hitchcock’s Centennial Park mansion. There was an express confidentiality clause in Page’s employment agreement. However, it was poorly drafted and therefore did not extend to most of Page’s threatened disclosures.38 Austin J rejected the submission that, merely because Page was Hitchcock’s nanny, she could not disclose what she had observed in the course of her employment, outside the scope of the express confidentiality clause. Instead, his Honour suggested that there might be a continuum of domestic workers, with varying obligations of confidentiality: [69] One might compare the position of a nanny with the position of, say, a gardener who works only outside the house. In the absence of any express contractual stipulation, it seems to me very implausible to contend that the gardener has any legal obligation to keep secret the events which he may observe with respect to his employer’s relationships and parenting. The position of a live-in butler may well be different, assuming that the butler’s job is to assist the employer as a manager of personal affairs. No doubt the nanny’s position is somewhere in between these two. Frequently, one would hope, the duty of confidentiality would be articulated by the employer.39

Copyright © 2015. Oxford University Press. All rights reserved.

Austin J further observed that: [12] This case might have raised some very important principles about privacy and media publicity. People are entitled to choose not to live their lives in the spotlight, however rich they may be and however they may conduct their sexual relationships and discharge their parental responsibilities. The fact that their lifestyle may be interesting or titillating to the public, or the subject of envy or gossip or scandal, does not oblige them to justify themselves to the media. Nor does it entitle their employees to disregard their duties by disclosing the employers’ personal, private information to the media. Where the subject of disclosure is private conduct, newsworthy only because of the wealth and lifestyle of those involved, there is no overriding public interest which demands disclosure.40

Austin J granted very limited injunctive relief, confined to the disclosure of information that would breach the contractual term of confidentiality.41 33 34 35 36 37 38 39 40 41

Ibid at 601–02 per Jacob J. Ibid at 603. (2000) Aust Torts Reports ¶81–550. Hitchcock v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports ¶81–550 at 63,632 per Austin J. Ibid at 63,631–32 per Austin J. Ibid at 63,633 per Austin J. Ibid at 63,641. Ibid at 63,632. Ibid at 63,643.

CHAPTER 14 Breach of Confidence

Therefore, it is clear that the traditional formulation of breach of confidence has been used to protect the disclosure in the media of personal or private matters.

QUESTIONS 1 Are certain types of journalism or journalistic formats more dependent upon the disclosure of personal or private matters and therefore more likely to be found liable for breach of confidence? 2 What are the limitations, if any, of using breach of confidence, in its traditional formulation, as a means of protecting personal privacy? 3 To what extent, if at all, should judges act as arbiters of public taste or journalistic ethics? Is it possible for judges to avoid making assessments on such matters in cases involving the disclosure of personal secrets?

14.1.5 Identity

Copyright © 2015. Oxford University Press. All rights reserved.

In certain contexts, the identity of a person may be confidential information, the disclosure of which could cause that person detriment. Therefore, breach of confidence may be used to protect the identity of a person from disclosure in the media.42 For example, in G v Day,43 a person who had reported to the police that he had seen a businessman alive, several months after the assumed suicide of the businessman,44 was able to restrain a newspaper, which had received his name from a leak from the corporate regulator, from publishing his name.45 Also, in Falconer v Australian Broadcasting Corporation,46 the Victorian Assistant Police Commissioner, Robert Falconer, sought an interlocutory injunction restraining the ABC from broadcasting any image or description of the person formerly known as Vlado Rajicic that could lead to his current identity or location being determined.47 Rajicic was a police informer in the witness protection program.48 In this case, Ashley J granted the injunction,49 emphasising that here ‘[i]dentity is the confidential information’.50 Similarly though controversially, in Venables v News Group Newspapers Ltd,51 Dame Elizabeth ButlerSloss P granted injunctions against the media preventing the disclosure of the present and future appearances, identities and locations of the two killers of the child James Bulger.52

14.1.6 Photographs and video footage Although, for several centuries, courts have held, in the absence of an enforceable right to privacy, that ‘as a general rule what one can see one can photograph’,53 there has been a recent revision of this view. Courts have indicated a willingness to restrain the publication of 42 43 44 45 46 47 48 49 50 51 52 53

Venables v News Group Newspapers Ltd [2001] Fam 430 at 461–62 per Dame Elizabeth Butler-Sloss P. [1982] 1 NSWLR 24. G v Day [1982] 1 NSWLR 24 at 25–26 per Yeldham J. Ibid at 40–41 per Yeldham J. [1992] 1 VR 662. Falconer v Australian Broadcasting Corporation [1992] 1 VR 662 at 663–64 per Ashley J. Ibid at 664 per Ashley J. Ibid at 671. Ibid at 668. [2001] Fam 430. Venables v News Group Newspapers Ltd [2001] Fam 430 at 470 per Dame Elizabeth Butler-Sloss P. Entick v Carrington (1765) 19 State Tr 1030 at 1066 per Lord Camden LCJ (‘the eye cannot by the laws of England be guilty of a trespass’); Bernstein v Skyviews & General Ltd [1978] QB 479 at 488 per Griffiths J; Bathurst City Council v Saban (1985) 2 NSWLR 704 at 706–08 per Young J; Lincoln Hunt (Australia) Pty Ltd v Willesee (1986) 4 NSWLR 457 at 461–62 per Young J; Raciti v Hughes (1995) 7 BPR 14,840 per Young J.

495

496

PART 5 Privacy

surreptitiously obtained photographs.54 In his influential dicta in Hellewell v Chief Constable of Derbyshire,55 Laws J stated that: If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence.56

United Kingdom courts have been particularly willing to treat photographs as a form of confidential information.57 Thus, in Theakston v MGN Ltd,58 Ouseley J treated a verbal description of Theakston’s attendance at a Soho brothel separately from the publication of photographs of the same event, allowing publication of the former59 but restraining the publication of the latter.60 Not only did his Lordship treat these as different types of information, he also found that a reasonable expectation of privacy arose in relation to the photographs—Theakston did not expect to be photographed at the brothel—and it would be more intrusive of his personal privacy if the photographs were published. More recently, the Court of Appeal in Douglas v Hello! Ltd (No 3)61 expressed the view that:

Copyright © 2015. Oxford University Press. All rights reserved.

Special considerations attach to photographs in the field of privacy. They are not merely a method of conveying information that is an alternative to verbal description. They enable the person viewing the photograph to act as a spectator, in some circumstances voyeur would be the more appropriate noun, of whatever it is that the photograph depicts. As a means of invading privacy, a photograph is particularly intrusive. This is quite apart from the fact that the camera, and the telephoto lens, can give access to the viewer of the photograph to scenes where those photographs could reasonably expect that their appearances or actions would not be brought to the notice of the public.62

It is not only still photographs which are protected as confidential or private information. Video footage has also been treated as confidential or private information, requiring particular protection.63

54 Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134 at 148–49 per Deputy Judge Mann QC; Creation Records Ltd v News Group Newspapers Ltd (1997) 39 IPR 1 at 8 per Lloyd J. 55 [1995] 1 WLR 804. 56 Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807 per Laws J. 57 See, for example, Terry v Persons Unknown [2010] EMLR 16 at 406 per Tugendhat J; Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) at [28] per Briggs J; Weller v Associated Newspapers Ltd [2014] EMLR 24 at 540 per Dingemans J. 58 [2002] EMLR 22. For a further discussion of this case, see below at 14.1.9. 59 Theakston v MGN Ltd [2002] EMLR 22 at 419–23. 60 Ibid at 423–24. 61 [2006] QB 125. For a further extract from this case, see below at 14.2.1. 62 Douglas v Hello! Ltd (No 3) [2006] QB 125 at 157. 63 See, for example, Giller v Procopets (2008) 24 VR 1 at 93 per Neave JA (sex tape); Contostavlos v Mendahun [2012] EWHC 850 (QB) (sex tape).

CHAPTER 14 Breach of Confidence

Max Mosley In 2008, The News of the World published an article, ‘F1 boss has sick Nazi orgy with 5 hookers’. The article related to Max Mosley, the then President of the Federation Internationale de l’Automobile (‘FIA’), and claimed that Mosley had participated in a ‘depraved NAZI-STYLE orgy in a torture dungeon’, which had been filmed by one of the women present. The incident led to long-running and varied litigation in multiple jurisdictions. Mosley first brought proceedings against News Group Newspapers for the misuse of private information. Eady J found that the newspaper publisher had breached Mosley’s right to privacy and awarded him £60,000 damages. However, his Lordship refused to award exemplary damages. The video of the sex session had been removed from the newspaper’s website in March 2008, pending an application by Mosley for a permanent injunction. However, it returned to the website after Eady J ruled that it had already been widely viewed, such that a permanent injunction would be futile. See Mosley v News Group Newspapers Ltd [2008] EMLR 20; [2008] EWHC 1777 (QB). In 2009, Mosley commenced defamation proceedings against News Group Newspapers based on the newspaper’s claim that there had been a Nazi theme to the sadomasochistic sex session. These proceedings settled. Mosley later filed an application in the European Court of Human Rights, claiming that the United Kingdom had breached Articles 8 and 13 of the European Convention on Human Rights by failing to impose a legal duty on The News of the World to give him prior notification of publication. This would have allowed him to seek an interim injunction and to prevent publication. The Court rejected the claim. See Mosley v United Kingdom (2011) 53 EHRR 30; [2012] EMLR 1. In addition, Mosley launched civil and criminal proceedings against media organisations in countries across Europe, where those organisations had repeated the allegations, including a £1.2 million lawsuit against the publisher of Germany’s largest newspaper. In 2014, Mosley launched action against Google in the United Kingdom, seeking to compel Google to remove the original footage. Mosley had won similar claims against Google in the French and German courts, decisions against which Google is appealing at the time of writing.

Copyright © 2015. Oxford University Press. All rights reserved.

14.1.7

Government information

The law relating to breach of confidence developed to protect individual rights. Therefore, it requires some adaptation when applied to government information.64 In relation to confidential information, the Crown occupies a special position and is therefore different to private persons or entities.65 In order for a government entity to enforce a confidence, it needs to demonstrate that the disclosure of the information has damaged or is likely to damage the public interest.66

64 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51 per Mason J; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 267–68 per Lord Griffiths; Minister for Mineral Resources v Newcastle Newspapers Pty Ltd (1997) 40 IPR 403 at 406 per Young J. 65 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 52 per Mason J; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 256 per Lord Keith of Kinkel. 66 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 37 at 52 per Mason J; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 256 per Lord Keith of Kinkel; at 270 per Lord Griffiths; at 283 per Lord Goff of Chieveley; Minister for Mineral Resources v Newcastle Newspapers Pty Ltd (1997) 40 IPR 403 at 406–07 per Young J; State of Victoria v Nine Network (2007) 19 VR 476 at 481 per Osborn J. See also Attorney-General v Jonathan Cape Ltd [1976] QB 752 at 770–72 per Lord Widgery CJ.

497

498

PART 5 Privacy

QUESTIONS 1 As a matter of principle and policy, should government information be treated differently from information relating to, or held by, private persons or entities? 2 What relevance, if any, might the implied freedom of political communication have to the application of breach of confidence to government information?

14.1.8 Who is bound by an obligation of confidence? A person to whom information is imparted in confidence is clearly bound by an obligation of confidence, owed to the confider. In Attorney-General v Guardian Newspapers Ltd (No 2),67 Lord Griffiths stated that a third party who receives information which he or she knows is the subject of an obligation of confidence is also himself or herself subject to an obligation of confidence.68 His Lordship suggested that, if the position were otherwise, there would be little practical value to a cause of action for breach of confidence, as those directly subject to an obligation of confidence, whether commercial or personal, could simply avoid it by passing the information onto a third party who could disclose or publish with impunity.69 In the absence of such knowledge, whether the third party can be restrained from using the confidential information he or she has received will need to be determined on the facts of the particular case.70

14.1.9 Personal relationships giving rise to an obligation of confidence

Copyright © 2015. Oxford University Press. All rights reserved.

Marriage is clearly a relationship that gives rise to an obligation of confidence.71 In Argyll v Argyll,72 Ungoed-Thomas J stated that: Marriage is, of course, far more than mere legal contract and legal relationship, and even legal status; but it includes legal contract and relationship. If, for the court’s protection of confidence and, contrary to my view, the confidence must arise out of a contractual or property relationship, marriage does not lack its contract. It is basically a contract to be and, according to our Christian conception of marriage, to live as man and wife. It has been said that the legal consideration of marriage— that is the promise to become and to remain man and wife—is the highest legal consideration which there is. And there could hardly be anything more intimate or confidential than is involved in that relationship, or than in the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed. To express it is superfluous; it is clear to the least intelligent. So it seems to me that confidences between husband and

67 [1990] 1 AC 109. 68 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 268. See also Prince Albert v Strange (1849) 1 H & TW 1 at 23–24; (1849) 47 ER 1302 at 1311 per Lord Cottenham LC; Ashburton v Pape [1913] 2 Ch 469 at 475 per Swinfen Eady LJ; Argyll v Argyll [1967] Ch 302 at 333 per Ungoed-Thomas J; Minister for Mineral Resources v Newcastle Newspapers Pty Ltd (1997) 40 IPR 403 at 405 per Young J; Jockey Club v Buffham [2004] QB 462 at 473 per Gray J. 69 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 268. 70 Ibid at 272. 71 Argyll v Argyll [1967] Ch 302 at 322 per Ungoed-Thomas J. 72 [1967] Ch 302.

CHAPTER 14 Breach of Confidence

wife during marriage are not excluded from the court’s protection by the criteria appearing in the cases to which I have referred.73

Protected confidences are not confined to marital relationships.74 Confidences that arise or are conveyed in the context of de facto, same-sex or even adulterous relationships may be protected by a cause of action in breach of confidence.75 In Theakston v MGN Ltd,76 Ouseley J considered at length the continuum of relationships, with the varying degrees of confidentiality attached to them:77 (418) [57] There is a whole range of relationships in human life in which sexual activity may occur, from marital relationships to unmarried but longterm partnerships, to extra-marital relationships long and short term, from one night stands to yet more fleeting encounters with prostitutes. Indeed it may well be that the very concept of a relationship for the purposes of confidentiality is simply inapplicable to such transitory or commercial sexual relationships. Sexual activities which can be intimate, private and personal and which might attract confidentiality can fall far short of full sexual intercourse; a passionate embrace could have all those qualities. Intimate physical relations can occur in a range of places from a private house to a hotel bedroom, to a car in a secluded spot, to a nightclub or indeed to a brothel.

Copyright © 2015. Oxford University Press. All rights reserved.

[58] The nature of the relationship, the nature of the activity and all the other circumstances in which that activity takes place, affect the attribution by the law of the quality of confidentiality to the acts in question. Indeed apparently similar circumstances could justifiably lead to different conclusions as to confidentiality depending on the individual personalities engaged. [59] I consider it impossible however to invest with the protection of confidentiality all acts of physical intimacy regardless of circumstances. I consider it artificial to draw a line at full sexual intercourse in the context of confidentiality, such that anything short of that is not confidential. Whilst the degree of intimacy is a very relevant factor, it cannot be taken in isolation from the relationship within which the physical intimacy occurs and from the other circumstances, particularly the location. I do consider Jack J is right to point out that the protection of confidentiality in relation to any particular set of circumstances is also affected by the nature of the person to whom disclosure is proposed to be made, whether to partner, friend or lawyer or to the press for wider publication. The impact of disclosure on others, for example the children of a relationship, may also be relevant to the very existence of confidentiality. [60] Sexual relations within marriage at home would be at one end of the range or matrix of circumstances to be protected from most forms of disclosure; a one night stand with a recent acquaintance in a hotel bedroom might very well be protected from press publicity. A transitory engagement in a brothel is yet further away. 73 Argyll v Argyll [1967] Ch 302 at 322. 74 Stephens v Avery [1988] Ch 449 at 454 per Sir Nicolas Browne-Wilkinson VC. 75 See, for example, Stephens v Avery [1988] Ch 449 at 454–55 per Sir Nicolas Browne-Wilkinson VC; Barrymore v News Group Newspapers Ltd [1997] FSR 600 at 602–03 per Jacob J. 76 [2002] EMLR 22. 77 Theakston v MGN Ltd [2002] EMLR 22 at 418.

499

500

PART 5 Privacy

In that case, television presenter Jamie Theakston sought to restrain the tabloid newspaper, Sunday People, from publishing photographs of him and several prostitutes taken without his consent, and while he was intoxicated, inside a Soho brothel.78 For a number of reasons—including the fact that the brothel was not a private place; that the relationship was transitory and therefore did not give rise to an obligation of confidence; that there was no express obligation of confidence imposed; that the prostitutes were entitled to exercise their right to freedom of expression; that there was a public interest in publishing material about the conduct of a television presenter of programs aimed at young people—Ouseley J refused to restrain the publication of the article.79 Importantly, however, his Lordship, while allowing the publication of the story setting out the information, did not permit the publication of the accompanying photographs, instead treating these as a separate category of information.80 In A v B plc,81 Lord Woolf CJ, giving the judgment of the Court of Appeal, observed that: While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship, the greater will be the significance which is attached to it.82

In that case, a premier league footballer, Garry Flitcroft, the then captain of the Blackburn Rovers, sought to restrain the tabloid newspaper Sunday People from publishing interviews with two women, one a lap dancer, the other a pre-school teacher he met in a bar, about their sexual encounters. Lord Woolf CJ stated that ‘[r]elationships of the sort which [Flitcroft] had with [the women] are not the categories of relationships which the court should be astute to protect …’83 Commenting on the judgment at trial in A v B plc, Ouseley J in Theakston v MGN Ltd84 observed that Flitcroft’s liaisons with the two women represented ‘the outer limit’ of confidentiality.85

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 Should one partner to a sexual relationship or encounter be able to exercise his or her freedom of expression so as to disclose what occurred in the context of the relationship or the encounter over the objection of the other party or parties who wish the information to remain confidential? Should the cumulative effect of the disclosing party’s freedom of expression and the publisher’s claim to freedom of the press outweigh the right of the other party or parties to keep the information confidential? 2 Should the courts attempt to discourage ‘kiss and tell’ journalism? 3 Given the Australian approach to the ‘public interest’ defence to breach of confidence (see below at 14.2.5), would cases like Theakston v MGN Ltd [2002] EMLR 22 and A v B plc [2003] QB 195 be decided in the same way in Australia? 4 Given further developments in breach of confidence as a form of direct protection of personal privacy (see below at 14.2), would Theakston v MGN Ltd and A v B plc be decided in the same way today? 78 Ibid at 402–03 per Ouseley J. 79 Ibid at 419–23. 80 Ibid at 423–24. As to the position in relation to photographs as a category of confidential information, see above at 14.1.6. 81 [2003] QB 195. 82 A v B plc [2003] QB 195 at 207. 83 Ibid at 217. 84 [2002] EMLR 22. 85 Theakston v MGN Ltd [2002] EMLR 22 at 419.

CHAPTER 14 Breach of Confidence

5 In both Theakston v MGN Ltd and A v B plc, it is suggested that the claimants are entitled to a diminished level of privacy protection because they are ‘role models’. Should public figures have a lower level of privacy protection because they are ‘role models’? Should public figures have a right to a private life? 6 On occasion, public figures will themselves disclose private secrets in the media. What relevance, if any, is a claimant’s previous disclosure of personal information in the media on their expectation of privacy? 7 Should the law protect all forms of sexual conduct as confidential, irrespective of the context of the relationships in which they occur?

14.1.10 Relaxation of the requirement of an obligation of confidence? In many cases of breach of confidence, including those involving the media, there is a preexisting relationship of confidence between the confider and the confidant. A media outlet may come into possession of confidential information by virtue of the confidant’s disclosure of that information in breach of his or her obligation of confidence. If there is such a preexisting relationship, whether it be an intimate, sexual, domestic, contractual, business or professional relationship, courts must give weight to that relationship.86 However, there may be cases in which a media outlet comes into possession of information that is clearly, or is likely to be, confidential without a relationship of confidence existing between the media outlet and the person to whom the confidential information relates. In the traditional formulation of the cause of action for breach of confidence, such a relationship of confidence is required. However, in his speech in Attorney-General v Guardian Newspapers Ltd (No 2),87 which is relevantly extracted below, Lord Goff of Chieveley suggests that there might need to be a relaxation of this requirement. (His Lordship also questions the need for proof of detriment.88) More recently, in Campbell v MGN Ltd,89 Lord Nicholls of Birkenhead expressed the view that: This cause of action has now firmly shaken off the limiting need for an initial confidential relationship … Now the law imposes a ‘duty of confidence’ whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential.90 Copyright © 2015. Oxford University Press. All rights reserved.

Eady J went further in Mosley v News Group Newspapers Ltd, stating that: The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no preexisting relationship giving rise of itself to an enforceable duty of confidence.91

The relaxation of the requirement that there be a pre-existing relationship of confidence has obvious implications for the potential liability of media outlets. However, the position under Australian law on this issue is unclear.92

86 HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 at 115 per curiam (employment relationship); McKennitt v Ash [2008] QB 73 at [15] per Buxton LJ (intimate and contractual relationship); Browne v Associated Newspapers Ltd [2008] QB 103 at 114 per curiam (sexual, domestic and business relationship). 87 [1990] 1 AC 109. 88 See also X v Y [1988] 2 All ER 648; (1987) 13 IPR 202 at 213 per Rose J. 89 [2004] 2 AC 457. 90 Campbell v MGN Ltd [2004] 2 AC 457 at 464–65. 91 [2008] EMLR 20 at 686. 92 State of Victoria v Nine Network (2007) 19 VR 476 at 480 per Osborn J.

501

502

PART 5 Privacy

Attorney-General v Guardian Newspapers Ltd (No 2)

Copyright © 2015. Oxford University Press. All rights reserved.

[1990] 1 AC 109

[Peter Wright was a former member of the British Security Service, MI5. While in retirement in Tasmania, Wright wrote a book about his experiences with MI5, called Spycatcher. Wright sought to have Spycatcher published in Australia. The Attorney-General for the United Kingdom commenced proceedings in New South Wales, seeking to restrain publication of Spycatcher there. The Guardian and The Observer newspapers published reports of the New South Wales proceedings, including an outline of Wright’s allegations about MI5. The Attorney-General obtained interlocutory injunctions against Guardian Newspapers Ltd, preventing them from publishing any material that directly or indirectly came from Wright. The Sunday Times newspaper then bought the serialisation rights to Spycatcher. After the publication of the first instalment of Spycatcher, the Attorney-General obtained an interlocutory injunction against Times Newspapers Ltd, preventing the publication of further extracts. Spycatcher was then published in the United States. At trial, Scott J discharged the injunctions. His Lordship found that The Guardian and The Observer newspapers were not liable for breach of confidence. In relation to The Sunday Times newspaper, Scott J found that, even though it had committed a breach of confidence, it should not be further restrained from publication as the quality of confidence had been destroyed by the book’s publication overseas. An appeal to the Court of Appeal was dismissed. The Attorney-General appealed to the House of Lords.] LORD GOFF OF CHIEVELEY (at 281): I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word ‘notice’ advisedly, in order to avoid the (here unnecessary) question of the extent to which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection. I realise that, in the vast majority of cases, in particular those concerned with trade secrets, the duty of confidence will arise from a transaction or relationship between the parties—often a contract, in which event the duty may arise by reason of either an express or an implied term of that contract. It is in such cases as these that the expressions ‘confider’ and ‘confidant’ are perhaps most aptly employed. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers—where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by. I also have in mind the situations where secrets of importance to national security come into the possession of members of the public—a point to which I shall refer in a moment. I have however deliberately avoided the fundamental question whether, contract apart, the duty lies simply ‘in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained’ (see Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414, 438, per Deane J, and see also Seager v Copydex Ltd [1967] 1 WLR 923, 931, per Lord Denning MR), or whether confidential information may also be regarded as property (as to which see Dr Francis Gurry’s valuable monograph on Breach of Confidence (1984), pp 46–56 and Professor Birks’ An Introduction to the Law of Restitution (1985), pp 343–344). I would also, like Megarry J in Coco v A. N. Clark (Engineers) Ltd [1969] RPC 41, 48, wish to keep open the question whether detriment to the plaintiff is an essential ingredient of an action for breach of confidence. Obviously, detriment (282) or potential detriment to the plaintiff will nearly always form part of his case; but this may not always be necessary. Some possible cases where there need be no detriment are mentioned in the judgment of Megarry J to which I have just referred (at p 48), and in Gurry, Breach of Confidence, at pp 407–408. In the present case the point is

CHAPTER 14 Breach of Confidence

immaterial, since it is established that in cases of Government secrets the Crown has to establish not only that the information is confidential, but also that publication would be to its ‘detriment’ in the sense that the public interest requires that it should not be published. That the word ‘detriment’ should be extended so far as to include such a case perhaps indicates that everything depends upon how wide a meaning can be given to the word ‘detriment’ in this context. To this broad general principle, there are three limiting principles to which I wish to refer. The first limiting principle (which is rather an expression of the scope of the duty) is highly relevant to this appeal. It is that the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it. I shall revert to this limiting principle at a later stage. The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia. There is no need for me to develop this point. The third limiting principle is of far greater importance. It is that, although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure. Appeal dismissed.

QUESTIONS

Copyright © 2015. Oxford University Press. All rights reserved.

1 What are the implications of a relaxation of the requirement of an obligation of confidence for media outlets? 2 In what circumstances might a relaxation of the requirement of an obligation of confidence be appropriate? Why? 3 Has the development of internet technologies facilitated the process of depriving confidential information of its necessary quality of confidence? See, for example, the approach of Kellam J in the case study on Australian Football League v The Age Company Ltd below.

14.2 The development of breach of confidence as a means of privacy protection in the United Kingdom 14.2.1 Breach of confidence as a ‘tort of misuse of private information’

Unlike other jurisdictions, courts in the United Kingdom have not identified a tort of invasion of privacy.93 Rather, they have sought to adapt the equitable cause of action for breach of confidence to provide direct protection of personal privacy.94 The impetus for this development has been the introduction of the European Convention on Human Rights into the domestic law of the United Kingdom by virtue of the Human Rights Act 1998 (UK).95 Courts have had to remedy the insufficient protection of the right to privacy 93 As to the direct protection of privacy in the United Kingdom, see 13.4.4. 94 A v B plc [2003] QB 195 at 202 per Lord Woolf CJ; Campbell v MGN Ltd [2004] 2 AC 457 at 465 per Lord Nicholls of Birkenhead; HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 at 114 per curiam. 95 McKennitt v Ash [2008] QB 73 at 80 per Buxton LJ.

503

504

PART 5 Privacy

under United Kingdom law in order to give effect to Art 8 of the European Convention on Human Rights. What has resulted in the United Kingdom is a unique development of the equitable cause of action for breach of confidence into effectively a ‘tort of misuse of private information’.96 Whether breach of confidence is an appropriate vehicle for achieving direct protection of personal privacy is debatable. There has been a suggestion that there has been a ‘shoehorning’ of breach of confidence into a cause of action to protect privacy.97 There is some judicial support in Australia for adapting breach of confidence to provide better protection for personal privacy.98 There is now in the United Kingdom a reasonably well-developed case law on breach of confidence as a means of protecting personal privacy.99 Below are extracts from perhaps the two most high-profile privacy cases from the United Kingdom. The first is Naomi Campbell’s proceedings against The Daily Mirror. The second is the case brought by Michael Douglas and Catherine Zeta-Jones against Hello! magazine.

Campbell v MGN Ltd [2004] 2 AC 457

Copyright © 2015. Oxford University Press. All rights reserved.

[The facts emerge sufficiently from the extract below.] LORD NICHOLLS OF BIRKENHEAD (dissenting) (at 462): [1] My Lords, Naomi Campbell is a celebrated fashion model. Hers is a household name, nationally and internationally. Her face is instantly recognisable. Whatever she does and wherever she goes is news. [2] On 1 February 2001 the ‘Mirror’ newspaper carried as its first story on its front page a prominent article headed ‘Naomi: I am a drug addict’. The article was supported on one side by a picture of Miss Campbell as a glamorous model, on the other side by a slightly indistinct picture of a smiling, relaxed Miss Campbell, dressed in baseball cap and jeans, over the caption ‘Therapy: Naomi outside meeting’. The article read: Supermodel Naomi Campbell is attending Narcotics Anonymous meetings in a courageous bid to  beat her addiction to drink and drugs. The 30-year-old has been a regular at counselling sessions for three months, often attending twice a day. Dressed in jeans and baseball cap, she arrived at one of NA’s lunchtime meetings this week. Hours later at a different venue she made a low-key entrance to a women-only gathering of recovered addicts. Despite her £14m fortune Naomi is treated as just another addict trying to put her life back together. A source close to her said last night: ‘She wants to clean up her life for good. She went into modelling when she was very young and it is easy to be led astray. Drink and drugs are unfortunately widely available in the fashion world. But Naomi has realised she has a problem and has bravely vowed to do something about it. Everyone wishes her well.’ Her spokeswoman at Elite Models declined to comment.

96 This term was coined by Lord Nicholls of Birkenhead in Campbell v MGN Ltd [2004] 2 AC 457 at 465. See also McKennitt v Ash [2008] QB 73 at 80 per Buxton LJ; Vidal-Hall v Google Inc [2014] EMLR 14 at 357–62 per Tugendhat J. 97 Douglas v Hello! Ltd (No 3) [2006] QB 125 at [53]; McKennitt v Ash [2008] QB 73 at 80 per Buxton LJ. 98 See, for example, Seven Network (Operations) Ltd v Australian Broadcasting Corporation [2007] NSWSC 1289 at [8] per Barrett J; Giller v Procopets (2008) 24 VR 1 at 106–07 per Neave JA. 99 See, for example, Douglas v Hello! Ltd [2001] QB 967; Theakston v MGN Ltd [2002] EMLR 22; A v B plc [2003] QB 195; Campbell v MGN Ltd [2004] 2 AC 457; Douglas v Hello! Ltd [2006] QB 125; John v Associated Newspapers Ltd [2006] EMLR 27; HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57; McKennitt v Ash [2008] QB 73; Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103; OBG Ltd v Allan [2008] 1 AC 1; Murray v Express Newspapers Plc [2008] 1 WLR 2846; Mosley v News Group Newspapers Ltd [2008] EMLR 20.

CHAPTER 14 Breach of Confidence

[3] The story continued inside, with a longer article spread across two pages. The inside article was headed ‘Naomi’s finally trying to beat the demons that have been haunting her’. The opening paragraphs read:

Copyright © 2015. Oxford University Press. All rights reserved.

She’s just another face in the crowd, but the gleaming smile is unmistakeably Naomi Campbell’s. In our picture, the catwalk queen emerges from a gruelling two-hour session at Narcotics Anonymous and gives a friend a loving hug. This is one of the world’s most beautiful women facing up to her drink and drugs addiction—and clearly winning. The London-born supermodel has been going to NA meetings for the past three months as she tries to change her wild lifestyle. Such is her commitment to conquering her problem that she regularly goes twice a day to group counselling … To the rest of the group she is simply Naomi, the addict. Not the supermodel. Not the style icon.

[4] The article made mention of Miss Campbell’s efforts to rehabilitate herself, and that one of her friends said she was still fragile but ‘getting healthy’. The article gave a general description of Narcotics Anonymous therapy, and referred to some of Miss Campbell’s recent publicised (463) activities. These included an occasion when Miss Campbell was rushed to hospital and had her stomach pumped. She claimed it was an allergic reaction to antibiotics and that she had never had a drug problem: but ‘those closest to her knew the truth’. [5] In the middle of the double page spread, between several innocuous pictures of Miss Campbell, was a dominating picture over the caption ‘Hugs: Naomi, dressed in jeans and baseball hat, arrives for a lunchtime group meeting this week’. The picture showed her in the street on the doorstep of a building as the central figure in a small group. She was being embraced by two people whose faces had been pixelated. Standing on the pavement was a board advertising a named café. The article did not name the venue of the meeting, but anyone who knew the district well would be able to identify the place shown in the photograph. [6] The general tone of the articles was sympathetic and supportive with, perhaps, the barest undertone of smugness that Miss Campbell had been caught out by the ‘Mirror’. The source of the newspaper’s information was either an associate of Miss Campbell or a fellow addict attending meetings of Narcotics Anonymous. The photographs of her attending a meeting were taken by a freelance photographer specifically employed by the newspaper to do the job. He took the photographs covertly, while concealed some distance away inside a parked car. [7] In certain respects the articles were inaccurate. Miss Campbell had been attending Narcotics Anonymous meetings, in this country and abroad, for two years, not three months. The frequency of her attendance at meetings was greatly exaggerated. She did not regularly attend meetings twice a day. The street photographs showed her leaving a meeting, not arriving, contrary to the caption in the newspaper article.

The proceedings and the further articles [8] On the same day as the articles were published Miss Campbell commenced proceedings against MGN Ltd, the publisher of the ‘Mirror’. The newspaper’s response was to publish further articles, this time highly critical of Miss Campbell. On 5 February 2001 the newspaper published an article headed, in large letters, ‘Pathetic’. Below was a photograph of Miss Campbell over the caption ‘Help: Naomi leaves Narcotics Anonymous meeting last week after receiving therapy in her battle against illegal drugs’. This photograph was similar to the street scene picture published on 1 February. The text of the article was headed ‘After years of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy’. The article mentioned that ‘the Mirror revealed last week how she is attending daily meetings of Narcotics Anonymous’. Elsewhere in the same edition an editorial article, with the heading ‘No hiding Naomi’, concluded with the words: ‘If Naomi Campbell wants to live like a nun, let her join a nunnery. If she wants the excitement of a show business life, she must accept what comes with it’. [9] Two days later, on 7 February, the ‘Mirror’ returned to the attack with an offensive and disparaging article. Under the heading ‘Fame on you, Ms Campbell’, an article referred to her plans ‘to launch a

505

506

PART 5 Privacy

campaign for better rights for celebrities or “artists” as she calls them’. The article included (464) the sentence: ‘As a campaigner, Naomi’s about as effective as a chocolate soldier’. [10] In the proceedings Miss Campbell claimed damages for breach of confidence and compensation under the Data Protection Act 1998. The article of 7 February formed the main basis of a claim for aggravated damages. Morland J [2002] EWHC 499 (QB) upheld Miss Campbell’s claim. He made her a modest award of £2,500 plus £1,000 aggravated damages in respect of both claims. The newspaper appealed. The Court of Appeal, comprising Lord Phillips of Worth Matravers MR, Chadwick and Keene LJJ, allowed the appeal and discharged the judge’s order: [2003] QB 633. Miss Campbell has now appealed to your Lordships’ House.

Copyright © 2015. Oxford University Press. All rights reserved.

Breach of confidence: misuse of private information [11] In this country, unlike the United States of America, there is no over-arching, all-embracing cause of action for ‘invasion of privacy’: see Wainwright v Home Office [2004] AC 406. But protection of various aspects of privacy is a fast developing area of the law, here and in some other common law jurisdictions. The recent decision of the Court of Appeal of New Zealand in Hosking v Runting [2004] NZCA 34 is an example of this. In this country development of the law has been spurred by enactment of the Human Rights Act 1998. … [13] The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action which became known as breach of confidence. A breach of confidence was restrained as a form of unconscionable conduct, akin to a breach of trust. Today this nomenclature is misleading. The breach of confidence label harks back to the time when the cause of action was based on improper use of information disclosed by one person to another in confidence. To attract protection the information had to be of a confidential nature. But the gist of the cause of action was that information of this character had been disclosed by one person to another in circumstances ‘importing an obligation of confidence’ even though no contract of non-disclosure existed: see the classic exposition by Megarry J in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47–48. The confidence referred to in the phrase ‘breach of confidence’ was the confidence arising out of a confidential relationship. [14] This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. In this country this development was recognised clearly in the judgment of Lord Goff of Chieveley in Attorney General v Guardian (465) Newspapers Ltd (No 2) [1990] 1 AC 109, 281. Now the law imposes a ‘duty of confidence’ whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase ‘duty of confidence’ and the description of the information as ‘confidential’ is not altogether comfortable. Information about an individual’s private life would not, in ordinary usage, be called ‘confidential’. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information. [15] In the case of individuals this tort, however labelled, affords respect for one aspect of an individual’s privacy. That is the value underlying this cause of action. An individual’s privacy can be invaded in ways not involving publication of information. Strip searches are an example. The extent to which the common law as developed thus far in this country protects other forms of invasion of privacy is not a matter arising in the present case. It does not arise because, although pleaded more widely, Miss Campbell’s common law claim was throughout presented in court exclusively on the basis of breach of confidence, that is, the wrongful publication by the ‘Mirror’ of private information. [16] The European Convention on Human Rights, and the Strasbourg jurisprudence, have undoubtedly had a significant influence in this area of the common law for some years. The provisions of article 8, concerning respect for private and family life, and article 10, concerning freedom of expression, and the interaction of these two articles, have prompted the courts of this country to identify more clearly the different factors involved in cases where one or other of these two interests is present. Where both are present the courts are increasingly explicit in evaluating the competing considerations involved. When identifying and evaluating these factors the courts, including your Lordships’ House, have tested the common law against the values encapsulated in these two articles. The development of the common law has been in harmony with these articles of the Convention: see, for instance, Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 203–204.

CHAPTER 14 Breach of Confidence

[17] The time has come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence. As Lord Woolf CJ has said, the courts have been able to achieve this result by absorbing the rights protected by articles 8 and 10 into this cause of action: A v B plc [2003] QB 195, 202, para 4. Further, it should now be recognised that for this purpose these values are of general application. The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority. … (466) [21] Accordingly, in deciding what was the ambit of an individual’s ‘private life’ in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. [22] Different forms of words, usually to much the same effect, have been suggested from time to time. The American Law Institute, Restatement of the Law, Torts, 2d (1977), section 652D, uses the formulation of disclosure of matter which ‘would be highly offensive to a reasonable person’. In Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226, para 42, Gleeson CJ used words, widely quoted, having a similar meaning. This particular formulation should be used with care, for two reasons. First, the ‘highly offensive’ phrase is suggestive of a stricter test of private information than a reasonable expectation of privacy. Second, the ‘highly offensive’ formulation can all too easily bring into account, when deciding whether the disclosed information was private, considerations which go more properly to issues of proportionality; for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion.

Copyright © 2015. Oxford University Press. All rights reserved.

The present case [23] I turn to the present case and consider first whether the information whose disclosure is in dispute was private. Mr Caldecott placed the information published by the newspaper into five categories: (1) the fact of (467) Miss Campbell’s drug addiction; (2) the fact that she was receiving treatment; (3) the fact that she was receiving treatment at Narcotics Anonymous; (4) the details of the treatment—how long she had been attending meetings, how often she went, how she was treated within the sessions themselves, the extent of her commitment, and the nature of her entrance on the specific occasion; and (5) the visual portrayal of her leaving a specific meeting with other addicts. [24] It was common ground between the parties that in the ordinary course the information in all five categories would attract the protection of article 8. But Mr Caldecott recognised that, as he put it, Miss Campbell’s ‘public lies’ precluded her from claiming protection for categories (1) and (2). When talking to the media Miss Campbell went out of her way to say that, unlike many fashion models, she did not take drugs. By repeatedly making these assertions in public Miss Campbell could no longer have a reasonable expectation that this aspect of her life should be private. Public disclosure that, contrary to her assertions, she did in fact take drugs and had a serious drug problem for which she was being treated was not disclosure of private information. As the Court of Appeal noted, where a public figure chooses to present a false image and make untrue pronouncements about his or her life, the press will normally be entitled to put the record straight: [2003] QB 633, 658. Thus the area of dispute at the trial concerned the other three categories of information. [25] Of these three categories I shall consider first the information in categories (3) and (4), concerning Miss Campbell’s attendance at Narcotics Anonymous meetings. In this regard it is important to note this is a highly unusual case. On any view of the matter, this information related closely to the fact, which admittedly could be published, that Miss Campbell was receiving treatment for drug addiction. Thus when considering whether Miss Campbell had a reasonable expectation of privacy in respect of information relating to her attendance at Narcotics Anonymous meetings the relevant question can be framed along the following lines: Miss Campbell having put her addiction and treatment into the public domain, did the further information

507

Copyright © 2015. Oxford University Press. All rights reserved.

508

PART 5 Privacy

relating to her attendance at Narcotics Anonymous meetings retain its character of private information sufficiently to engage the protection afforded by article 8? [26] I doubt whether it did. Treatment by attendance at Narcotics Anonymous meetings is a form of therapy for drug addiction which is well known, widely used and much respected. Disclosure that Miss Campbell had opted for this form of treatment was not a disclosure of any more significance than saying that a person who has fractured a limb has his limb in plaster or that a person suffering from cancer is undergoing a course of chemotherapy. Given the extent of the information, otherwise of a highly private character, which admittedly could properly be disclosed, the additional information was of such an unremarkable and consequential nature that to divide the one from the other would be to apply altogether too fine a toothcomb. Human rights are concerned with substance, not with such fine distinctions. [27] For the same reason I doubt whether the brief details of how long Miss Campbell had been undergoing treatment, and how often she attended meetings, stand differently. The brief reference to the way she was treated at (468) the meetings did no more than spell out and apply to Miss Campbell common knowledge of how Narcotics Anonymous meetings are conducted. [28] But I would not wish to found my conclusion solely on this point. I prefer to proceed to the next stage and consider how the tension between privacy and freedom of expression should be resolved in this case, on the assumption that the information regarding Miss Campbell’s attendance at Narcotics Anonymous meetings retained its private character. At this stage I consider Miss Campbell’s claim must fail. I can state my reason very shortly. On the one hand, publication of this information in the unusual circumstances of this case represents, at most, an intrusion into Miss Campbell’s private life to a comparatively minor degree. On the other hand, non-publication of this information would have robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction. This information was published in order to demonstrate Miss Campbell’s commitment to tackling her drug problem. The balance ought not to be held at a point which would preclude, in this case, a degree of journalistic latitude in respect of information published for this purpose. … [30] There remains category (5): the photographs taken covertly of Miss Campbell in the road outside the building she was attending for a meeting of Narcotics Anonymous. I say at once that I wholly understand why Miss Campbell felt she was being hounded by the ‘Mirror’. I understand also that this could be deeply distressing, even damaging, to a person whose health was still fragile. But this is not the subject of complaint. Miss Campbell, expressly, makes no complaint about the taking of the photographs. She does not assert that the taking of the photographs was itself an invasion of privacy which attracts a legal remedy. The complaint regarding the photographs is of precisely the same character as the nature of the complaints regarding the text of the articles: the information conveyed by the photographs was private information. Thus the fact that the photographs were taken surreptitiously adds nothing to the only complaint being made. [31] In general photographs of people contain more information than textual description. That is why they are more vivid. That is why they are worth a thousand words. But the pictorial information in the photographs illustrating the offending article of 1 February 2001 added nothing of an essentially private nature. They showed nothing untoward. They conveyed no private information beyond that discussed in the article. The group photograph showed Miss Campbell in the street exchanging warm greetings with others on the doorstep of a building. There was nothing undignified or distrait about her appearance. The same is true of the smaller picture on the front page … (469) [32] For these reasons and those given by my noble and learned friend, Lord Hoffmann, I agree with the Court of Appeal that Miss Campbell’s claim fails … LORD HOFFMANN (dissenting) (at 469): [36] My Lords, the House is divided as to the outcome of this appeal, but the difference of opinion relates to a very narrow point which arises on the unusual facts of this case. The facts are unusual because the plaintiff is a public figure who had made very public false statements about a matter in respect of which even a public figure would ordinarily be entitled to privacy, namely her use of drugs. It was these falsehoods which, as was conceded, made it justifiable, for a newspaper to report the fact that she was addicted. The division of opinion is whether in doing so the newspaper went too far in publishing associated facts about her private life. But the importance of this case lies in the statements of general

CHAPTER 14 Breach of Confidence

principle on the way in which the law should strike a balance between the right to privacy and the right to freedom of expression, on which the House is unanimous. The principles are (470) expressed in varying language but speaking for myself I can see no significant differences. [37] Naomi Campbell is a famous fashion model who lives by publicity. What she has to sell is herself: her personal appearance and her personality. She employs public relations agents to present her personal life to the media in the best possible light just as she employs professionals to advise her on dress and make-up. That is no criticism of her. It is a trade like any other. But it does mean that her relationship with the media is different from that of people who expose less of their private life to the public. [38] The image which she has sought to project of herself to the international media is that of a black woman who started with few advantages in life and has by her own efforts attained international success in a glamorous profession. There is much truth in this claim. Unfortunately she has also given wide publicity, in interviews with journalists and on television, to a claim which was false, namely that (unlike many of her colleagues in the fashion business) she had not succumbed to the temptation to take drugs. … (471) [43] In order to set both the concession and the residual claim in their context and to identify the point of law at issue, I must say something about the cause of action on which Ms Campbell relies. This House decided in Wainwright v Home Office [2004] 2 AC 406 that there is no general tort of invasion of privacy. But the right to privacy is in a general sense one of the values, and sometimes the most important value, which underlies a number of more specific causes of action, both at common law and under various statutes. One of these is the equitable action for breach of confidence, which has long been recognised as capable of being used to protect privacy. Thus in the seminal case of Prince Albert v Strange (1849) 2 De G & Sm 652; 1 Mac & G 25 the defendant was a publisher who had obtained copies of private etchings made by the Prince Consort of members of the royal family at home. The publisher had got them from an employee of a printer to whom the Prince had entrusted the plates. Knight Bruce V-C, in granting an injunction restraining the publication of a catalogue containing descriptions of etchings, said, 2 De G & Sm 652, 698, that it was:

Copyright © 2015. Oxford University Press. All rights reserved.

an intrusion—an unbecoming and unseemly intrusion … offensive to that inbred sense of propriety natural to every man—if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life—into the home (a word hitherto sacred among us) …

[44] But although the action for breach of confidence could be used to protect privacy in the sense of preserving the confidentiality of personal information, it was not founded on the notion that such information was in itself entitled to protection. Breach of confidence was an equitable remedy and equity traditionally fastens on the conscience of one party to enforce equitable duties which arise out of his relationship with the other. So the action did not depend upon the personal nature of the information or extent of publication but upon whether a confidential relationship existed between the person who imparted the information and the person who received it. Equity imposed an obligation of confidentiality upon the latter and (by a familiar process of extension) upon anyone who received the information with actual or constructive knowledge of the duty of confidence. … (472) [46] In recent years, however, there have been two developments of the law of confidence, typical of the capacity of the common law to adapt itself to the needs of contemporary life. One has been an acknowledgement of the artificiality of distinguishing between confidential information obtained through the violation of a confidential relationship and similar information obtained in some other way. The second has been the acceptance, under the influence of human rights instruments such as article 8 of the European Convention, of the privacy of personal information as something worthy of protection in its own right. … [50] What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity. And this recognition has raised inescapably the question of why it should be worth protecting against the state but not against a private person. There may of course be justifications for the publication of private information by (473) private persons which would not be available to the state—I have particularly in mind the position of the media, to which I shall return in a

509

Copyright © 2015. Oxford University Press. All rights reserved.

510

PART 5 Privacy

moment—but I can see no logical ground for saying that a person should have less protection against a private individual than he would have against the state for the publication of personal information for which there is no justification. Nor, it appears, have any of the other judges who have considered the matter. [51] The result of these developments has been a shift in the centre of gravity of the action for breach of confidence when it is used as a remedy for the unjustified publication of personal information. It recognises that the incremental changes to which I have referred do not merely extend the duties arising traditionally from a relationship of trust and confidence to a wider range of people. As Sedley LJ observed in a perceptive passage in his judgment in Douglas v Hello! Ltd [2001] QB 967, 1001, the new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity—the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people. [52] These changes have implications for the future development of the law. They must influence the approach of the courts to the kind of information which is regarded as entitled to protection, the extent and form of publication which attracts a remedy and the circumstances in which publication can be justified. [53] In this case, however, it is unnecessary to consider these implications because the cause of action fits squarely within both the old and the new law. The judge found that the information about Ms Campbell’s attendance at NA had been communicated to the ‘Mirror’ in breach of confidence and that the ‘Mirror’ must have known that the information was confidential. As for human autonomy and dignity, I should have thought that the extent to which information about one’s state of health, including drug dependency, should be communicated to other people was plainly something which an individual was entitled to decide for herself: compare Z v Finland (1997) 25 EHRR 371, 405, at para 95. The whole point of NA is that participants in its meetings are anonymous. It offers them support and the possibility of recovery without requiring them to allow information about their drug dependency to become more widely known. If Ms Campbell had been an ordinary citizen, I think that the publication of information about her attendance at NA would have been actionable and I do not understand the ‘Mirror’ to argue otherwise. [54] What is said to make this case different is, first, that Ms Campbell is a public figure who has sought publicity about various aspects of her private life and secondly, that the aspects of her private life which she has publicised include her use of drugs, in respect of which she has made a false claim. The ‘Mirror’ claims that on these grounds it was entitled in the public interest to publish the information and photographs and that its right to do so is protected by article 10 of the European Convention. [55] I shall first consider the relationship between the freedom of the press and the common law right of the individual to protect personal information. Both reflect important civilised values, but, as often happens, (474) neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need: see Sedley LJ in Douglas v Hello! Ltd [2001] QB 967, 1005, para 137. [56] If one takes this approach, there is often no real conflict. Take the example I have just given of the ordinary citizen whose attendance at NA is publicised in his local newspaper. The violation of the citizen’s autonomy, dignity and self-esteem is plain and obvious. Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect such personal information? Not at all. While there is no contrary public interest recognised and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. In the example I have given, there is no public interest whatever in publishing to the world the fact that the citizen has a drug dependency. The freedom to make such a statement weighs little in the balance against the privacy of personal information.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 14 Breach of Confidence

[57] One must therefore proceed to consider the grounds why the ‘Mirror’ say there was a public interest in its publication of information about Ms Campbell which it would not have been justified in publishing about someone else. First, there is the fact that she is a public figure who has had a long and symbiotic relationship with the media. In my opinion, that would not in itself justify publication. A person may attract or even seek publicity about some aspects of his or her life without creating any public interest in the publication of personal information about other matters. I think that the history of Ms Campbell’s relationship with the media does have some relevance to this case, to which I shall return in due course, but that would not without more justify publication of confidential personal information. [58] The reason why Mr Caldecott concedes that the ‘Mirror’ was entitled to publish the fact of her drug dependency and the fact that she was seeking treatment is that she had specifically given publicity to the very question of whether she took drugs and had falsely said that she did not. I accept that this creates a sufficient public interest in the correction of the impression she had previously given. [59] The question is then whether the ‘Mirror’ should have confined itself to these bare facts or whether it was entitled to reveal more of the circumstantial detail and print the photographs. If one applies the test of necessity or proportionality which I have suggested, this is a matter on which different people may have different views. That appears clearly enough from the judgments which have been delivered in this case. But judges are not newspaper editors. It may have been possible for the ‘Mirror’ to satisfy the public interest in publication with a story which contained less detail and omitted the photographs. But the ‘Mirror’ said that they wanted to show (475) themselves sympathetic to Ms Campbell’s efforts to overcome her dependency. For this purpose, some details about her frequency of attendance at NA meetings were needed. I agree with the observation of the Court of Appeal [2003] QB 633, 660, para 52, that it is harsh to criticise the editor for ‘painting a somewhat fuller picture in order to show her in a sympathetic light’. [60] To someone who started with the (legitimately communicated) knowledge that she was seeking treatment, there was nothing special about the additional details. The fact that she was going to NA would come as no surprise; there are, according to its website, 31,000 NA meetings a week in 100 different countries. The anonymity of participants and the general nature of the therapy is common knowledge. The details of her frequency of attendance (which were in fact inaccurate) could not be said to be discreditable or embarrassing. The relatively anodyne nature of the additional details is in my opinion important and distinguishes this case from cases in which (for example) there is a public interest in the disclosure of the existence of a sexual relationship (say, between a politician and someone whom she has appointed to public office) but the addition of salacious details or intimate photographs is disproportionate and unacceptable. The latter, even if accompanying a legitimate disclosure of the sexual relationship, would be too intrusive and demeaning. … (476) [66] It is only in connection with the degree of latitude which must be allowed to the press in the way it chooses to present its story that I think it is relevant to consider Ms Campbell’s relationship with the media. She and they have for many years both fed upon each other. She has given them stories to sell their papers and they have given her publicity to promote her career. This does not deprive Ms Campbell of the right to privacy in respect of areas of her life which she has not chosen to make public. But I think it means that when a newspaper publishes what is in substance a legitimate story, she cannot insist upon too great a nicety of judgment in the circumstantial detail with which the story is presented. … (477) [72] That leaves the question of the photographs. In my opinion a photograph is in principle information no different from any other information. It may be a more vivid form of information than the written word (‘a picture is worth a thousand words’). That has to be taken into account in deciding whether its publication infringes the right to privacy of personal information. The publication of a photograph cannot necessarily be justified by saying that one would be entitled to publish a verbal description of the scene: see Douglas v Hello! Ltd [2001] QB 967. But the principles by which one decides whether or not the publication of a photograph is an unjustified invasion of the privacy of personal information are in my opinion the same as those which I have already discussed.

511

Copyright © 2015. Oxford University Press. All rights reserved.

512

PART 5 Privacy

[73] In the present case, the pictures were taken without Ms Campbell’s consent. That in my opinion is not enough to amount to a wrongful invasion of privacy. The famous and even the not so famous who go out in public must accept that they may be photographed without their consent, just as they may be observed by others without their consent. As Gleeson CJ said in Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226, para 41: ‘Part of the price we pay for living in an organised society is that we are exposed to observation in a variety of ways by other people’. [74] But the fact that we cannot avoid being photographed does not mean that anyone who takes or obtains such photographs can publish them to the world at large. In the recent case of Peck v United Kingdom (2003) 36 EHRR 719 Mr Peck was filmed on a public street in an embarrassing moment by a CCTV camera. Subsequently, the film was broadcast several (478) times on the television. The Strasbourg court said, at p 739, that this was an invasion of his privacy contrary to article 8: ‘the relevant moment was viewed to an extent which far exceeded any exposure to a passer-by or to security observation and to a degree surpassing that which the applicant could possibly have foreseen when he walked in Brentwood on 20 August 1995’. [75] In my opinion, therefore, the widespread publication of a photograph of someone which reveals him to be in a situation of humiliation or severe embarrassment, even if taken in a public place, may be an infringement of the privacy of his personal information. Likewise, the publication of a photograph taken by intrusion into a private place (for example, by a long distance lens) may in itself be such an infringement, even if there is nothing embarrassing about the picture itself: Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, 807. As Lord Mustill said in R v Broadcasting Standards Commission, Ex p British Broadcasting Corpn [2001] QB 885, 900, ‘An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the personal space is not inviolate’. [76] In the present case, however, there was nothing embarrassing about the picture, which showed Ms Campbell neatly dressed and smiling among a number of other people. Nor did the taking of the picture involve an intrusion into private space. Hundreds of such ‘candid’ pictures of Ms Campbell, taken perhaps on more glamorous occasions, must have been published in the past without objection. The only ground for claiming that the picture was a wrongful disclosure of personal information was by virtue of the caption, which said that she was going to or coming from a meeting of NA. But this in my opinion added nothing to what was said in the text. [77] No doubt it would have been possible for the ‘Mirror’ to have published the article without pictures. But that would in my opinion again be to ignore the realities of this kind of journalism as much as to expect precision of judgment about the amount of circumstantial detail to be included in the text. We value the freedom of the press but the press is a commercial enterprise and can flourish only by selling newspapers. From a journalistic point of view, photographs are an essential part of the story. The picture carried the message, more strongly than anything in the text alone, that the Mirror’s story was true. So the decision to publish the pictures was in my opinion within the margin of editorial judgment and something for which appropriate latitude should be allowed. [78] I would therefore dismiss the appeal.

LORD HOPE OF CRAIGHEAD (at 478): The background [80] The business of fashion modelling, in which the appellant, Naomi Campbell, has built up such a powerful reputation internationally, is (479) conducted under the constant gaze of the media. It is also highly competitive. It is a context where public reputation as a forceful and colourful personality adds value to the physical appearance of the individual. Much good can come of this, if the process is carefully and correctly handled. But there are aspects of Miss Campbell’s exploitation of her status as a celebrity that have attracted criticism. She has been manipulative and selective in what she has revealed about herself. She has engaged in a deliberately false presentation of herself as someone who, in contrast to many models, has managed to keep clear of illegal drugs. The true position, it is now agreed, is that she has made a practice of abusing drugs. This has caused her medical problems, and it has affected her behaviour to such an extent that she has required and has received therapy for her addiction.

CHAPTER 14 Breach of Confidence

[81] Paradoxically, for someone in Miss Campbell’s position, there are few areas of the life of an individual that are more in need of protection on the grounds of privacy than the combating of addiction to drugs or to alcohol. It is hard to break the habit which has led to the addiction. It is all too easy to give up the struggle if efforts to do so are exposed to public scrutiny. The struggle, after all, is an intensely personal one. It involves a high degree of commitment and of self-criticism. The sense of shame that comes with it is one of the most powerful of all the tools that are used to break the habit. But shame increases the individual’s vulnerability as the barriers that the habit has engendered are broken down. The smallest hint that the process is being watched by the public may be enough to persuade the individual to delay or curtail the treatment. At the least it is likely to cause distress, even to those who in other circumstances like to court publicity and regard publicity as a benefit. [82] The question in this case is whether the publicity which the respondents gave to Miss Campbell’s drug addiction and to the therapy which she was receiving for it in an article which was published in the ‘Mirror’ newspaper on 1 February 2001 is actionable on the ground of breach of confidence. Miss Campbell cannot complain about the fact that publicity was given in this article to the fact that she was a drug addict. This was a matter of legitimate public comment, as she had not only lied about her addiction but had sought to benefit from this by comparing herself with others in the fashion business who were addicted. As the Court of Appeal observed [2003] QB 633, 658, para 43, where a public figure chooses to make untrue pronouncements about his or her private life, the press will normally be entitled to put the record straight. [83] Miss Campbell’s case is that information about the details of the treatment which she was receiving for the addiction falls to be treated differently. This is because it was not the subject of any falsehood that was in need of correction and because it was information which any reasonable person who came into possession of it would realise was obtained in confidence. The argument was put succinctly in the particulars of her claim, where it was stated:

Copyright © 2015. Oxford University Press. All rights reserved.

Information about whether a person is receiving medical or similar treatment for addiction, and in particular details relating to such treatment or the person’s reaction to it, is obviously confidential. The confidentiality is the stronger where, as here, disclosure would tend to (480) disrupt the treatment and/or its benefits for the person concerned and others sharing in, or giving, or wishing to take or participate in, the treatment. The very name ‘Narcotics Anonymous’ underlines the importance of privacy in the context of treatment as do the defendants’ own words—‘To the rest of the group she is simply Naomi, the addict’.

[84] The respondents’ answer is based on the proposition that the information that was published about her treatment was peripheral and not sufficiently significant to amount to a breach of the duty of confidence that was owed to her. They also maintain that the right balance was struck between Miss Campbell’s right to respect for her private life under article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) and the right to freedom of expression that is enshrined in article 10(1) of the Convention. … [86] The language has changed following the coming into operation of the Human Rights Act 1998 and the incorporation into domestic law of article 8 and article 10 of the Convention. We now talk about the right to respect for private life and the countervailing right to freedom of expression. The jurisprudence of the European Court offers important guidance as to how these competing rights ought to be approached and analysed. I doubt whether the result is that the centre of gravity, as my noble and learned friend, Lord Hoffmann, says, has shifted. It seems to me that the balancing exercise to which that guidance is directed is essentially the same exercise, although it is plainly now more carefully focussed and more penetrating. As Lord Woolf CJ said in A v B plc [2003] QB 195, 202, para 4, new breadth and strength is given to the action for breach of confidence by these articles. … [94] The test which Gleeson CJ has identified is useful in cases where there is room for doubt, especially where the information relates to an activity or course of conduct such as the slaughtering methods that were in issue in that case. But it is important not to lose sight of the remarks which preceded it. The test is

513

Copyright © 2015. Oxford University Press. All rights reserved.

514

PART 5 Privacy

not needed where the information can easily be identified as private. It is also important to bear in mind its source, and the guidance which the source offers as to whether the information is public or private. It is taken from the definition of the privacy tort in the United (483) States, where the right of privacy is invaded if the matter which is publicised is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public: American Law Institute, Restatement of the Law, Torts, 2d (1977), section 625D. The reference to a person of ordinary sensibilities is, as Gleeson CJ acknowledged in his footnote on p 226, a quotation from William L Prosser, ‘Privacy’ (1960) 48 California Law Review 383. As Dean Prosser put it, at pp 396–397, the matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities, who must expect some reporting of his daily activities. The law of privacy is not intended for the protection of the unduly sensitive. [95] I think that the judge was right to regard the details of Miss Campbell’s attendance at Narcotics Anonymous as private information which imported a duty of confidence. He said that information relating to Miss Campbell’s therapy for drug addiction giving details that it was by regular attendance at Narcotics Anonymous meetings was easily identifiable as private. With reference to the guidance that the Court of Appeal gave in A v B plc [2003] QB 195, 206, para 11(vii), he said that it was obvious that there existed a private interest in this fact that was worthy of protection. The Court of Appeal, on the other hand, seem to have regarded the receipt of therapy from Narcotics Anonymous as less worthy of protection in comparison with treatment for the condition administered by medical practitioners. I would not make that distinction. Views may differ as to what is the best treatment for an addiction. But it is well known that persons who are addicted to the taking of illegal drugs or to alcohol can benefit from meetings at which they discuss and face up to their addiction. The private nature of these meetings encourages addicts to attend them in the belief that they can do so anonymously. The assurance of privacy is an essential part of the exercise. The therapy is at risk of being damaged if the duty of confidence which the participants owe to each other is breached by making details of the therapy, such as where, when and how often it is being undertaken, public. I would hold that these details are obviously private. [96] If the information is obviously private, the situation will be one where the person to whom it relates can reasonably expect his privacy to be respected. So there is normally no need to go on and ask whether it would be highly offensive for it to be published. The trial judge nevertheless asked himself, as a check, whether the information that was disclosed about Miss Campbell’s attendance at these meetings satisfied Gleeson CJ’s test of confidentiality. His conclusion, echoing the words of Gleeson CJ, was that disclosure that her therapy for drug addiction was by regular attendance at meetings of Narcotics Anonymous would be highly offensive to a reasonable person of ordinary sensibilities. The Court of Appeal disagreed with this assessment. In para 53 they said that, given that it was legitimate for the respondents to publish the fact that Miss Campbell was a drug addict and that she was receiving treatment, it was not particularly significant to add the fact that the treatment consisted of attendance at meetings of Narcotics Anonymous. In para 54 they said that they did not consider that a reasonable person of ordinary sensibilities, on reading that Miss Campbell was a drug addict, would have found it highly offensive, or even offensive. They acknowledged that the reader might have found it offensive that what were obviously covert photographs had been taken of her, but that this of (484) itself was not relied upon as a ground for legal complaint. Having drawn these conclusions they held, in para 58, that the publication of the information of which Miss Campbell complains was not, in its context, sufficiently significant to amount to a breach of duty of confidence owed to her. [97] This part of the Court of Appeal’s examination of the issue appears to have been influenced by the fact that they did not regard disclosure of the fact that Miss Campbell was receiving therapy from Narcotics Anonymous capable of being equated with treatment of a clinical nature. If one starts from the position that a course of therapy which takes this form is of a lower order, it is relatively easy to conclude that a reasonable person of ordinary sensibilities would not regard the publication of the further details of her therapy as particularly significant. But I think that it is unrealistic to look through the eyes of a reasonable person of ordinary sensibilities at the degree of confidentiality that is to be attached to a therapy for drug addiction without relating this objective test to the particular circumstances. [98] Where the person is suffering from a condition that is in need of treatment one has to try, in order to assess whether the disclosure would be objectionable, to put oneself into the shoes of a reasonable

CHAPTER 14 Breach of Confidence

person who is in need of that treatment. Otherwise the exercise is divorced from its context. The fact that no objection could be taken to disclosure of the first two elements in the article does not mean that they must be left out of account in a consideration as to whether disclosure of the other elements was objectionable. The article must be read as a whole along with the photographs to give a proper perspective to each element. The context was that of a drug addict who was receiving treatment. It is her sensibilities that needed to be taken into account. Critical to this exercise was an assessment of whether disclosure of the details would be liable to disrupt her treatment. It does not require much imagination to appreciate the sense of unease that disclosure of these details would be liable to engender, especially when they were accompanied by a covertly taken photograph. The message that it conveyed was that somebody, somewhere, was following her, was well aware of what was going on and was prepared to disclose the facts to the media. I would expect a drug addict who was trying to benefit from meetings to discuss her problem anonymously with other addicts to find this distressing and highly offensive. [99] The approach which the Court of Appeal took to this issue seems to me, with great respect, to be quite unreal. I do not think that they had a sound basis for differing from the conclusion reached by the trial judge as to whether the information was private. They were also in error, in my opinion, when they were asking themselves whether the disclosure would have offended the reasonable man of ordinary susceptibilities. The mind that they examined was the mind of the reader: para 54. This is wrong. It greatly reduces the level of protection that is afforded to the right of privacy. The mind that has to be examined is that, not of the reader in general, but of the person who is affected by the publicity. The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity. …

Copyright © 2015. Oxford University Press. All rights reserved.

(489) Striking the balance [112] There is no doubt that the presentation of the material that it was legitimate to convey to the public in this case without breaching the duty of confidence was a matter for the journalists. The choice of language used to convey information and ideas, and decisions as to whether or not to accompany the printed word by the use of photographs, are pre-eminently editorial matters with which the court will not interfere. The respondents are also entitled to claim that they should be accorded a reasonable margin of appreciation in taking decisions as to what details needed to be included in the article to give it credibility. This is an essential part of the journalistic exercise. [113] But decisions about the publication of material that is private to the individual raise issues that are not simply about presentation and editing. Any interference with the public interest in disclosure has to be balanced against the interference with the right of the individual to respect for their private life. The decisions that are then taken are open to review by the court. The tests which the court must apply are the familiar ones. They are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy. The jurisprudence of the European Court of Human Rights explains how these principles are to be understood and applied in the context of the facts of each case. Any restriction of the right to freedom of expression must be subjected to very close scrutiny. But so too must any restriction of the right to respect for private life. Neither article 8 nor article 10 has any pre-eminence over the other in the conduct of this exercise. As Resolution 1165 of the Parliamentary Assembly of the Council of Europe (1998), para 11, pointed out, they are neither absolute not in any hierarchical order, since they are of equal value in a democratic society. …

(490) The article 8 right [119] Looking at the matter from Miss Campbell’s point of view and the protection of her article 8 Convention right, publication of details of the treatment which she was undertaking to cure her addiction—that she was (491) attending Narcotics Anonymous, for how long, how frequently and at what times of day she had been attending this therapy, the nature of it and extent of her commitment to the process and the publication of the covertly taken photographs (the third, fourth and fifth of the five elements contained in the

515

Copyright © 2015. Oxford University Press. All rights reserved.

516

PART 5 Privacy

article)—had the potential to cause harm to her, for the reasons which I have already given. So I would attach a good deal of weight to this factor. [120] As for the other side of the balance, a person’s right to privacy may be limited by the public’s interest in knowing about certain traits of her personality and certain aspects of her private life, as L’HeureuxDubé and Bastarache JJ in the Supreme Court of Canada recognised in Aubry v Éditions Vice-Versa Inc [1998] 1 SCR 591, paras 57–58. But it is not enough to deprive Miss Campbell of her right to privacy that she is a celebrity and that her private life is newsworthy. A margin of appreciation must, of course, be given to the journalist. Weight must be given to this. But to treat these details merely as background was to undervalue the importance that was to be attached to the need, if Miss Campbell was to be protected, to keep these details private. And it is hard to see that there was any compelling need for the public to know the name of the organisation that she was attending for the therapy, or for the other details of it to be set out. The presentation of the article indicates that this was not fully appreciated when the decision was taken to publish these details. The decision to publish the photographs suggests that greater weight was being given to the wish to publish a story that would attract interest rather than to the wish to maintain its credibility. [121] Had it not been for the publication of the photographs, and looking to the text only, I would have been inclined to regard the balance between these rights as about even. Such is the effect of the margin of appreciation that must, in a doubtful case, be given to the journalist. In that situation the proper conclusion to draw would have been that it had not been shown that the restriction on the article 10 right for which Miss Campbell argues was justified on grounds of proportionality. But the text cannot be separated from the photographs. The words ‘Therapy: Naomi outside meeting’ underneath the photograph on the front page and the words ‘Hugs: Naomi, dressed in jeans and baseball hat, arrives for a lunchtime group meeting this week’ underneath the photograph on p 13 were designed to link what might otherwise have been anonymous and uninformative pictures with the main text. The reader would undoubtedly make that link, and so too would the reasonable person of ordinary sensibilities. The reasonable person of ordinary sensibilities would also regard publication of the covertly taken photographs, and the fact that they were linked with the text in this way, as adding greatly overall to the intrusion which the article as a whole made into her private life. [122] The photographs were taken of Miss Campbell while she was in a public place, as she was in the street outside the premises where she had been receiving therapy. The taking of photographs in a public street must, as Randerson J said in Hosking v Runting [2003] 3 NZLR 385, 415, para 138, be taken to be one of the ordinary incidents of living in a free community. The real issue is whether publicising the content of the photographs would be offensive: Gault and Blanchard JJ in the Court of Appeal [2004] NZCA 34, para 165. A person who just happens to be in the (492) street when the photograph was taken and appears in it only incidentally cannot as a general rule object to the publication of the photograph, for the reasons given by L’Heureux-Dubé and Bastarache JJ in Aubry v Éditions Vice-Versa Inc [1998] 1 SCR 591, para 59. But the situation is different if the public nature of the place where a photograph is taken was simply used as background for one or more persons who constitute the true subject of the photograph. The question then arises, balancing the rights at issue, where the public’s right to information can justify dissemination of a photograph taken without authorisation: Aubry, para 61. The European court has recognised that a person who walks down a public street will inevitably be visible to any member of the public who is also present and, in the same way, to a security guard viewing the scene through closed circuit television: PG and JH v United Kingdom Reports of Judgments and Decisions 2001-ix, p 195, para 57. But, as the court pointed out in the same paragraph, private life considerations may arise once any systematic or permanent record comes into existence of such material from the public domain. In Peck v United Kingdom (2003) 36 EHRR 719, para 62 the court held that the release and publication of CCTV footage which showed the applicant in the process of attempting to commit suicide resulted in the moment being viewed to an extent that far exceeded any exposure to a passer-by or to security observation that he could have foreseen when he was in that street. [123] The same process of reasoning that led to the findings in Peck that the article 8 right had been violated and by the majority in Aubry that there had been an infringement of the claimant’s right to respect for her private life can be applied here. Miss Campbell could not have complained if the photographs had been taken to show the scene in the street by a passer-by and later published simply as street scenes. But these were not just pictures of a street scene where she happened to be when the photographs were

CHAPTER 14 Breach of Confidence

taken. They were taken deliberately, in secret and with a view to their publication in conjunction with the article. The zoom lens was directed at the doorway of the place where the meeting had been taking place. The faces of others in the doorway were pixelated so as not to reveal their identity. Hers was not, the photographs were published and her privacy was invaded. The argument that the publication of the photograph added credibility to the story has little weight. The photograph was not self-explanatory. Neither the place nor the person were instantly recognisable. The reader only had the editor’s word as to the truth of these details. [124] Any person in Miss Campbell’s position, assuming her to be of ordinary sensibilities but assuming also that she had been photographed surreptitiously outside the place where she been receiving therapy for drug addiction, would have known what they were and would have been distressed on seeing the photographs. She would have seen their publication, in conjunction with the article which revealed what she had been doing when she was photographed and other details about her engagement in the therapy, as a gross interference with her right to respect for her private life. In my opinion this additional element in the publication is more than enough to outweigh the right to freedom of expression which the defendants are asserting in this case.

(493) Conclusion [125] Despite the weight that must be given to the right to freedom of expression that the press needs if it is to play its role effectively, I would hold that there was here an infringement of Miss Campbell’s right to privacy that cannot be justified. In my opinion publication of the third, fourth and fifth elements in the article (see para 88) was an invasion of that right for which she is entitled to damages. I would allow the appeal and restore the orders that were made by the trial judge.

Copyright © 2015. Oxford University Press. All rights reserved.

BARONESS HALE OF RICHMOND (at 494): The basic principles [132] Neither party to this appeal has challenged the basic principles which have emerged from the Court of Appeal in the wake of the Human Rights Act 1998. The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights. In a case such as this, the relevant vehicle will usually be the action for breach of confidence … (495) [135] An objective reasonable expectation test is much simpler and clearer than the test sometimes quoted from the judgment of Gleeson CJ in the High Court of Australia in Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226, para 42, that ‘disclosure or (496) observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities’. [136] It is apparent, therefore, that Gleeson CJ did not intend those last words to be the only test, particularly in respect of information which is obviously private, including information about health, personal relationships or finance. It is also apparent that he was referring to the sensibilities of a reasonable person placed in the situation of the subject of the disclosure rather than to its recipient. [137] It should be emphasised that the ‘reasonable expectation of privacy’ is a threshold test which brings the balancing exercise into play. It is not the end of the story. Once the information is identified as ‘private’ in this way, the court must balance the claimant’s interest in keeping the information private against the countervailing interest of the recipient in publishing it. Very often, it can be expected that the countervailing rights of the recipient will prevail … (498) [143] No one can pretend that the interests at stake on either side of this case are anywhere near as serious as the interests involved in In re S. Some might even regard them as trivial. Put crudely, it is a prima donna celebrity against a celebrity-exploiting tabloid newspaper. Each in their time has profited from the other. Both are assumed to be grown-ups who know the score. On the one hand is the interest of a woman who wants to give up her dependence on illegal and harmful drugs and wants the peace and space in which to pursue the help which she finds useful. On the other hand is a newspaper which wants to keep its readers informed of the activities of celebrity figures, and to expose their weaknesses, lies, evasions and hypocrisies. This sort of story, especially if it has photographs attached, is just the sort of thing that fills, sells and enhances the reputation of the newspaper which gets it first. One reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all. It may be said

517

Copyright © 2015. Oxford University Press. All rights reserved.

518

PART 5 Privacy

that newspapers should be allowed considerable latitude in their intrusions into private grief so that they can maintain circulation and the rest of us can then continue to enjoy the variety of newspapers and other mass media which are available in this country. It may also be said that newspaper editors often have to make their decisions at great speed and in difficult circumstances, so that to expect too minute an analysis of the position is in itself a restriction on their freedom of expression. [144] Examined more closely, however, this case is far from trivial. What is the nature of the private life, respect for which is in issue here? The information revealed by the article was information relating to Miss Campbell’s health, both physical and mental. Drug abuse can be seriously damaging to physical health; indeed it is sometimes life-threatening. It can also lead to a wide variety of recognised mental disorders (see The ICD-10 Classification of Mental and Behavioural Disorders, WHO 1992, F10-F19). Drug addiction needs treatment if it is to be overcome. Treatment is at several levels. There is the quick ‘detox’ to rid the body of the harmful substances. This will remove the immediate physical danger but does nothing to tackle the underlying dependence. Then there is therapy aimed at tackling that underlying dependence, which may be combined with a transfer of the dependence from illegal drugs to legally prescribed substitutes. Then there is therapy aimed at maintaining and reinforcing the resolve to keep up the abstinence achieved and prevent relapse. This is vital. Anyone who has had anything to do with drug addiction knows how easy it is to relapse once returned to the temptations of (499) the life in which it began and how necessary it is to try, try and try again to achieve success. [145] It has always been accepted that information about a person’s health and treatment for ill-health is both private and confidential. This stems not only from the confidentiality of the doctor-patient relationship but from the nature of the information itself … [146] The Court of Appeal in this case held that the information revealed here was not in the same category as clinical medical records. That may be so, in the sense that it was not the notes made by a doctor when consulted by a patient. But the information was of exactly the same kind as that which would be recorded by a doctor on those notes: the presenting problem was addiction to illegal drugs, the diagnosis was no doubt the same, and the prescription was therapy, including the self-help group therapy offered by regular attendance at Narcotics Anonymous. [147] I start, therefore, from the fact—indeed, it is common ground—that all of the information about Miss Campbell’s addiction and attendance at NA which was revealed in the ‘Daily Mirror’ article was both private and confidential, because it related to an important aspect of Miss Campbell’s physical and mental health and the treatment she was receiving for it. It had also been received from an insider in breach of confidence. That simple fact has been obscured by the concession properly made on her behalf that the newspaper’s countervailing freedom of expression did serve to justify the publication of some of this information. But the starting point must be that it was all private and its publication required specific justification. [148] What was the nature of the freedom of expression which was being asserted on the other side? There are undoubtedly different types of speech, just as there are different types of private information, some of which are more deserving of protection in a democratic society than others. Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life. Intellectual and educational speech and expression are also important in a democracy, not least because they enable the development of individuals’ potential to play a full part in society and in our democratic life. Artistic speech and expression is important for similar reasons, in fostering both individual originality and creativity and the free-thinking and dynamic society we so much value. No (500) doubt there are other kinds of speech and expression for which similar claims can be made. [149] But it is difficult to make such claims on behalf of the publication with which we are concerned here. The political and social life of the community, and the intellectual, artistic or personal development of individuals, are not obviously assisted by pouring over the intimate details of a fashion model’s private life. However, there is one way in which the article could be said to be educational. The editor had considered running a highly critical piece, adding the new information to the not inconsiderable list of Miss

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 14 Breach of Confidence

Campbell’s faults and follies detailed in the article, emphasising the lies and hypocrisy it revealed. Instead he chose to run a sympathetic piece, still listing her faults and follies, but setting them in the context of her now-revealed addiction and her even more important efforts to overcome it. Newspaper and magazines often carry such pieces and they may well have a beneficial educational effect. [150] The crucial difference here is that such pieces are normally run with the co-operation of those involved. Private people are not identified without their consent. It is taken for granted that this is otherwise confidential information. The editor did offer Miss Campbell the opportunity of being involved with the story but this was refused. Her evidence suggests that she was concerned for the other people in the group. What entitled him to reveal this private information about her without her consent? [151] The answer which she herself accepts is that she had presented herself to the public as someone who was not involved in drugs. It would have been a very good thing if she were not. If other young women do see her as someone to be admired and emulated, then it is all to the good if she is not addicted to narcotic substances. It might be questioned why, if a role model has adopted a stance which all would agree is beneficial rather than detrimental to society, it is so important to reveal that she has feet of clay. But the possession and use of illegal drugs is a criminal offence and a matter of serious public concern. The press must be free to expose the truth and put the record straight. [152] That consideration justified the publication of the fact that, contrary to her previous statements, Miss Campbell had been involved with illegal drugs. It also justified publication of the fact that she was trying to do something about it by seeking treatment. It was not necessary for those purposes to publish any further information, especially if this might jeopardise the continued success of that treatment. [153] The further information includes the fact that she was attending Narcotics Anonymous meetings, the fact that she had been doing so for some time, and with some regularity, and the photographs of her either arriving at or leaving the premises where meetings took place. All of these things are inter-related with one another and with the effect which revealing them might have upon her. Revealing that she was attending Narcotics Anonymous enabled the paper to print the headline ‘Naomi: I am a drug addict’, not because she had said so to the paper but because it could assume that she had said this or something like it in a meeting. It also enabled the paper to talk about the meetings and how she was treated there, in a way which made it look as if the information came from someone who had been there with her, even if it simply came from general knowledge of how these meetings work. This all contributed to the sense of betrayal by someone (501) close to her of which she spoke and which destroyed the value of Narcotics Anonymous as a safe haven for her. [154] Publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, they are not objectionable. Unlike France and Quebec, in this country we do not recognise a right to one’s own image: cf Aubry v Éditions Vice-Versa Inc [1998] 1 SCR 591. We have not so far held that the mere fact of covert photography is sufficient to make the information contained in the photograph confidential. The activity photographed must be private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint. She makes a substantial part of her living out of being photographed looking stunning in designer clothing. Readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk. There is nothing essentially private about that information nor can it be expected to damage her private life. It may not be a high order of freedom of speech but there is nothing to justify interfering with it … [155] But here the accompanying text made it plain that these photographs were different. They showed her coming either to or from the NA meeting. They showed her in the company of others, some of whom were undoubtedly part of the group. They showed the place where the meeting was taking place, which will have been entirely recognisable to anyone who knew the locality. A picture is ‘worth a thousand words’ because it adds to the impact of what the words convey; but it also adds to the information given in those words. If nothing else, it tells the reader what everyone looked like; in this case it also told the reader what the place looked like. In context, it also added to the potential harm, by making her think that she was being followed or betrayed, and deterring her from going back to the same place again. [156] There was no need to do this. The editor accepted that even without the photographs, it would have been a front page story. He had his basic information and he had his quotes. There is no shortage of

519

520

PART 5 Privacy

Copyright © 2015. Oxford University Press. All rights reserved.

photographs with which to illustrate and brighten up a story about Naomi Campbell. No doubt some of those available are less flattering than others, so that if he had wanted to run a hostile piece he could have done so. The fact that it was a sympathetic story is neither here nor there. The way in which he chose to present the information he was entitled to reveal was entirely a matter for him. The photographs would have been useful in proving the truth of the story had this been challenged, but there was no need to publish them for this purpose. The credibility of the story with the public would stand or fall with the credibility of ‘Mirror’ stories generally. [157] The weight to be attached to these various considerations is a matter of fact and degree. Not every statement about a person’s health will carry the badge of confidentiality or risk doing harm to that person’s physical or moral integrity. The privacy interest in the fact that a public figure has a cold or a broken leg is unlikely to be strong enough to justify restricting the press’s freedom to report it. What harm could it possibly do? (502) Sometimes there will be other justifications for publishing, especially where the information is relevant to the capacity of a public figure to do the job. But that is not this case and in this case there was, as the judge found, a risk that publication would do harm. The risk of harm is what matters at this stage, rather than the proof that actual harm has occurred. People trying to recover from drug addiction need considerable dedication and commitment, along with constant reinforcement from those around them. That is why organisations like Narcotics Anonymous were set up and why they can do so much good. Blundering in when matters are acknowledged to be at a ‘fragile’ stage may do great harm … LORD CARSWELL (at 503): [163] The material in the article the subject of this appeal was divided by counsel into five categories, set out in para 88 of Lord Hope’s opinion, to which I would refer. It was not in dispute that the information was imparted in confidence to the respondents, but that they were in the circumstances of the case justified in publishing that contained in the first two categories, the facts that the appellant was a drug addict and that she was receiving treatment for her addiction. These facts would ordinarily be regarded as matters of confidential information. The justification for their publication in this case, however, consists in the fact that the appellant is a well known figure who courts rather than shuns publicity, described as a role model for other young women, who had consistently lied about her drug addiction and compared herself favourably with others in the fashion business who were regular users of drugs. By these actions she had forfeited the protection to which she would otherwise have been entitled and made the information about her addiction and treatment a matter of legitimate public comment on which the press were entitled to put the record straight. The contest in this litigation centred round the question whether the respondents were on the same basis entitled to publish the material comprised in the third, fourth and fifth categories, as the Court of Appeal held, or whether it fell outside the class of information the subject of legitimate comment and should be treated as information received in confidence which should not have been published. [164] The Court of Appeal drew a distinction between the information that the appellant was receiving therapy from Narcotics Anonymous and details of the treatment of a medical condition, regarding the latter but not the former as private information. They did not regard it as more than a ‘peripheral disclosure’ and considered that the publication of the details given in the ‘Mirror’ about the appellant’s attendance at NA meetings was not in its context sufficiently significant to amount to a breach of duty of confidence owed to her. They held that a reasonable person of ordinary sensibilities, on reading that the appellant was a drug addict, would not find it offensive that the ‘Mirror’ newspaper also disclosed that she was attending meetings of Narcotics Anonymous (para 54 of their judgment). It was therefore not of sufficient significance to shock the conscience and justify the intervention of the court (para 56). [165] I am unable to agree with the distinction drawn by the Court of Appeal and for the reasons given by Lord Hope and Lady Hale I consider that the information was private. It seems to me that the publication of the details of the appellant’s course of treatment at NA and of the photographs taken surreptitiously in the street of her emerging from a meeting went significantly beyond the publication of the fact that she was receiving therapy or that she was engaged in a course of therapy with NA. It revealed where the treatment was taking place and the text went into the frequency of her treatment. In this way it intruded into what had some of the characteristics of medical treatment and it tended to deter her from continuing the treatment which was in her interest and also to inhibit other (504) persons attending the course from staying with it, when they might be concerned that their participation might become public knowledge. This in my view

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 14 Breach of Confidence

went beyond disclosure which was, in the words of the Court of Appeal, ‘peripheral to’ the publication of the information that the appellant was a drug addict who was receiving treatment and was capable of constituting breach of confidence. One cannot disregard the fact that photographs are a powerful prop to a written article and a much valued part of newspaper reporting, especially in the tabloid or popular press (hence the enthusiasm of paparazzi to obtain pictures of celebrities for publication in the newspapers). I think that the Court of Appeal dismissed them too readily as adding little to the reports already published and that they were not justified in rejecting the judge’s conclusions on this. [166] It follows that it is not necessary in this case to ask, in the terms formulated in the judgment of Gleeson CJ in Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226, para 41, whether disclosure of the information would be highly offensive to a reasonable person of ordinary sensibilities. It is sufficiently established by the nature of the material that it was private information which attracted the duty of observing the confidence in which it was imparted to the respondents. It also follows in my opinion that the motives of the respondents in publishing the information, which they claim to have done in order to give a sympathetic treatment to the subject, do not constitute a defence, if the publication of the material in the third, fourth and fifth categories revealed confidential material. [167] One must then move to the balancing exercise, which involves consideration of articles 8 and 10 of the European Convention on Human Rights, the process which was described in some detail by Lord Woolf CJ in para 11 of his judgment in A v B plc [2003] QB 195, 204–210. The carrying out of the balancing is at the centre of this case and forms the point at which the two currents of opinion divide. I agree with the analysis contained in paras 105 to 113 of Lord Hope’s opinion in the present appeal and am gratefully content to adopt it. I also agree with him that in order to justify limiting the article 10 right to freedom of expression the restrictions imposed must be rational, fair and not arbitrary, and they must impair the right no more than necessary. [168] Resolution of this question depends on the weight which one attributes to several factors, the extent of the distress to the appellant and the potential adverse effects on her drug therapy, the extent to which one judges the material in categories 3, 4 and 5 to have gone beyond that contained in categories 1 and 2, and the degree of latitude which should be allowed to the press in the way in which it chooses to present a story. Weighing and balancing these factors is a process which may well lead different people to different conclusions, as one may readily see from consideration of the judgments of the courts below and the opinions given by the several members of the Appellate Committee of your Lordships’ House. [169] In my opinion it is a delicately balanced decision, and the answer to the questions which one must ask is by no means self-evident. My own conclusion is the same as that reached by Lord Hope and Lady Hale. My reasons can be expressed in fairly short compass. Publication of the details about the appellant’s attendance at therapy carried out by NA, highlighted by the photographs printed, constituted in my judgment a considerable (505) intrusion into her private affairs, which was capable of causing substantial distress, and on her evidence did cause it to her. It is difficult to assess how much, if any, actual harm it may have done to her progress in therapy. In her evidence the appellant said that she had not gone back to the World’s End centre of NA since the article was published and that she had only attended about four meetings in other centres in England, though she had gone to meetings abroad and met privately at her home with other NA attendees. It seems to me clear, however, that the publication of the article did create a risk of causing a significant setback to her recovery. In favour of the respondents it is urged that the material in categories 3, 4 and 5 differed very little in kind from that in categories 1 and 2, the view which found favour with the Court of Appeal. My noble and learned friends, Lord Nicholls of Birkenhead and Lord Hoffmann, also emphasised the importance of allowing a proper degree of journalistic margin to the press to deal with a legitimate story in its own way, without imposing unnecessary shackles on its freedom to publish detail and photographs which add colour and conviction. I do not minimise these factors, which are part of the legitimate function of a free press and require to be given proper weight. [170] In my opinion the balance comes down in favour of the appellant on the issues in this appeal. I would not myself attempt to isolate which of the contents of categories 3, 4 and 5 is more harmful or tips the balance. I find it sufficient to hold that the information contained in categories 3 and 4, allied to the photographs in category 5, went significantly beyond the revelation that the appellant was a drug addict

521

522

PART 5 Privacy

and was engaged in drug therapy. I consider that it constituted such an intrusion into the appellant’s private affairs that the factors relied upon by respondents do not suffice to justify publication. I am unable to accept that such publication was necessary to maintain the newspaper’s credibility. [171] I would accordingly hold that the publication of the third, fourth and fifth elements in the article constituted an infringement of the appellant’s right to privacy that cannot be justified and that she is entitled to a remedy. I would allow the appeal and restore the judge’s order.

QUESTIONS 1 What is the test for breach of confidence as a protection against the misuse of private information? 2 Why do the majority and the minority judges decide the case differently? Which line of reasoning do you find more convincing? 3 What relevance, if any, did Campbell’s hypocrisy about her drug-taking have to her asserted right to privacy? 4 What relevance, if any, did Campbell’s publicity-seeking have to her asserted right to privacy? 5 Are photographs information? Should photographs be treated as a separate category of information to verbal descriptions of the same phenomena? 6 What expectations of privacy, if any, can an individual have when he or she is in a public place?

Douglas v Hello! Ltd (No 3)

Copyright © 2015. Oxford University Press. All rights reserved.

[2006] QB 125

[In mid-November 2000, film stars Michael Douglas and Catherine Zeta-Jones were married at the Plaza Hotel, New York. They sold the worldwide exclusive rights to their wedding photographs to OK! magazine for £1 million. In order to protect the deal, a high level of security was used. Only authorised photographers were allowed at the wedding; guests were prohibited from taking their own photographs. A freelance photographer, Rupert Thorpe, managed to avoid the security arrangements to get inside the wedding and to take photographs. Several photographs Thorpe took were sent via Spanish intermediaries to Hello! magazine. Hello! sought to publish the photographs before OK! went to press but was initially restrained. The injunctions were dissolved: see Douglas v Hello! Ltd [2001] QB 967. OK! brought forward its publication schedule so both magazines ultimately ended up being published on the same day. Douglas, Zeta-Jones and Northern and Shell plc, the publisher of OK!, brought proceedings for, inter alia, breach of confidence. At first instance, Lindsay J awarded Douglas and Zeta-Jones £14,600 damages for distress: see Douglas v Hello! Ltd [2003] 3 All ER 996. They appealed to the Court of Appeal, from which the following extract is taken. The proceedings went to the House of Lords but Douglas and Zeta-Jones did not appeal: see OBG Ltd v Allan [2008] 1 AC 1.]

LORD PHILLIPS OF WORTH MATRAVERS MR, CLARKE AND NEUBERGER LJJ (at 159): The Douglases’ claim Disregarding the OK! contract, did the law of confidence protect information about the wedding as private information? [92] We should make clear at the outset that the only issue on liability was whether the photographs published by Hello! infringed rights of confidence or privacy enjoyed by the Douglases. As the judge recorded, Hello! did not seek to argue that it was in the public interest that they should publish the unauthorised photographs or that their article 10 rights of freedom of expression outweighed any rights of confidence or privacy that the Douglases enjoyed. [93] The judge found, at para 66: To the extent that privacy consists of the inclusion only of the invited and the exclusion of all others, the wedding was as private as was possible consistent with it being a socially pleasant event.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 14 Breach of Confidence

He further found that Mr Thorpe took the unauthorised photographs surreptitiously in circumstances where he was well aware that his presence at the wedding was forbidden. Finally the judge found that those responsible for purchasing the unauthorised photographs on behalf of Hello! were aware that the taking of the photographs would have involved at least a trespass or some deceit or misrepresentation on the photographer’s part. [94] Had the wedding taken place in England, and putting on one side the effect of the OK! contract, only an affirmative answer could be given to the question of whether those acting for Hello! knew that the information depicted by the unauthorised photographs was fairly and reasonably to be regarded as confidential or private. [95] Applying the test propounded by the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457, photographs of the wedding plainly portrayed aspects of the Douglases’ private life and fell within the protection of the law of confidentiality, as extended to cover private or personal information. … (at 163) Did the law of confidence protect the Douglases’ commercial interest in information about their wedding? [111] The other head of damages awarded to the Douglases related to the labour and expense of editing the selection of photographs that were to be provided under the contract with OK! This head of damage could only be justified in so far as it represented compensation for interference with the Douglases’ commercial exploitation of their wedding. We agree with Mr Price that this head of claim had nothing to do with interference with private life. It was based on an assertion that the Douglases had a commercial interest in making public information about their wedding, which they were entitled to protect. The judge accepted that the information of what took place at the wedding was similar to a trade secret which the Douglases were entitled to exploit and to keep confidential until exploited. Hello! contend that no such right is known to English law. Whether the law recognises such a right is of importance not merely in relation to the £7,000 damages awarded to the Douglases for interference with their right, but because OK!’s much greater award of damages was premised on a finding that this right was shared with them. (164) [112] The judge held [2003] 3 All ER 996, para 196, that the law of confidence protects ‘those who seek to manage their publicity as part of their trade or profession and whose private life is a valuable commodity’. If this statement is correct the law treats information about a celebrity’s private life as a trade secret and grants an injunction against publication of such information, or damages in respect of it, not because of the distress which the invasion of privacy causes but because of the commercial damage caused by infringing the celebrity’s monopoly right to make such information public. Two questions arise. Was the judge correct to recognise that English law affords protection to private information on this basis? If so, is the protection afforded in respect of events which take place in another jurisdiction? [113] Recognition of the right of a celebrity to make money out of publicising private information about himself, including his photographs on a private occasion, breaks new ground. It has echoes of the droit à l’image reflected in article 9 of the French Code Civil and the German cause of action that Professor Markesinis describes as the ‘tort of publicity claim’: see Markesinis, O’Cinneide, Fedtke & Hunter-Henin, ‘Concerns and Ideas About the Developing English Law of Privacy (And How Knowledge of Foreign Law Might Be of Help)’ (2004) 52 American Journal of Comparative Law 133, 176. Despite the comment of Joshua Rozenberg in Privacy and the Press (2004), p 228, we do not see this as any reason to draw back. We can see no reason in principle why equity should not protect the opportunity to profit from confidential information about oneself in the same circumstances that it protects the opportunity to profit from confidential information in the nature of a trade secret … (165) [120] It remains to consider whether, in so far as the Douglases’ claim is in respect of damage to their commercial interest in the information about their wedding, the law of New York has any greater relevance than it has in relation to their claim for invasion of their privacy. We have concluded that it does not. The Douglases’ claim is for damage done to their commercial interests in this country by publication of the unauthorised photographs in this country. Our reasoning in relation to the claim for invasion of privacy applies equally in respect of this head of claim. The Douglases had taken steps, permitted under the law

523

524

PART 5 Privacy

of New York, which were intended to ensure that their wedding was a private occasion and that no unauthorised (166) photographs were taken or published. Hello! knew this. Hello! also knew that the Douglases expected commercially to exploit their private wedding by the publication of authorised photographs. Hello! deliberately obtained photographs that they knew were unauthorised and published them to the detriment of the Douglases. This renders them liable for breach of confidence under English law. [121] For these reasons the appeal against the judgment in favour of the Douglases is dismissed.

QUESTIONS 1 2

Why could Douglas and Zeta-Jones not protect their interest both as a purely personal one and as a commercial interest? What problems might the reasoning in the case present for celebrities who have both a personal and a commercial interest in their personae?

Copyright © 2015. Oxford University Press. All rights reserved.

Case study: HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 Prince Charles brought proceedings against Associated Newspapers Ltd for breach of confidence and copyright infringement over the publication, and further threatened publication, of extracts from his private diaries in the Mail on Sunday newspaper. The diaries were handwritten and recorded Prince Charles’s impressions of the overseas tours he undertook.100 Prince Charles had photocopies of his diaries circulated to 21 people, giving the diaries a readership of between 50 to 75 people. The envelopes in which they were sent were marked ‘Private and Confidential’.101 The diaries were provided to the Mail on Sunday by a disgruntled ex-employee, Sarah Goodall.102 In mid-November 2005, the Mail on Sunday published an article about Prince Charles’s unguarded thoughts about the handover of Hong Kong to China under the headline ‘Appalling Waxworks’.103 At first instance, Blackburne J granted summary judgment in favour of Prince Charles.104 The Court of Appeal found that the present case did not involve a claim for breach of privacy involving an extension of the traditional approach of breach of confidence, as Goodall clearly owed a contractual and an equitable obligation of confidence to Prince Charles.105 Their Lordships held that the diaries were obviously private,106 describing them as ‘paradigm examples of confidential documents’.107 They rejected the suggestion that the diaries had been so widely circulated that Prince Charles had been deprived of a reasonable expectation of privacy in respect of the diaries.108 Over 30 years, there had never been a breach.109 The fact that Prince Charles had allowed his biographer, Jonathan Dimbleby, access to his diaries did not deprive them of their private or confidential character.110 In terms of balancing the competing rights and freedoms under the European Convention on Human Rights, the right to privacy and freedom of expression, the Court of Appeal held that the test was not simply whether the matter was one of public interest but whether it was in the public interest for the confidence to be breached or conversely whether it should be upheld.111 Balancing all these factors, their Lordships found the case in favour of Prince Charles ‘overwhelming’.112 100 101 102 103 104 105 106 107 108 109 110 111 112

HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 at 110. Ibid at 112. Ibid at 113. Ibid at 111. Ibid at 111. Ibid at 115. Ibid at 116. Ibid at 117. Ibid at 117. Ibid at 118. Ibid at 118. Ibid at 124–25. Ibid at 126.

CHAPTER 14 Breach of Confidence

Case study: Murray v Express Newspapers Plc [2008] 3 WLR 1360 On behalf of their two-year-old son, David, JK Rowling (under her married name, Joanne Murray) and her husband, Dr Neil Murray, brought proceedings against the Sunday Express newspaper and the photographic agency, Big Pictures Ltd, over the taking and publication of photographs of their son.113 The photograph was taken without Rowling’s knowledge as she pushed her son in a stroller down a public street in Edinburgh. Murray claimed that the taking and publication of the photograph was a breach of their son’s privacy. Express Newspapers settled the proceedings with the Murrays. Big Pictures sought summary judgment against the Murrays, which, at first instance, Patten J granted. The Murrays appealed to the Court of Appeal.114 The Court of Appeal found that Patten J had failed to give sufficient weight to the fact that the right being protected was that of David Murray, not JK Rowling.115 Their Lordships held that whether the taking of a photograph of a child on a public street is a breach of privacy depends on the circumstances.116 In the present case, there were a number of photographs taken, rather than a single one; the photographs were taken for a commercial purpose; the photographs had been taken clandestinely and, had the Murrays been aware, they would have objected; and the media had been following Rowling and her family.117 The Court of Appeal found Patten J erred in finding that David Murray had no reasonable expectation of privacy in the circumstances of the case118 and that he had no arguable case.119

14.2.2

Privacy and confidentiality—different concepts?

A significant criticism made concerning the adaptation of the equitable cause of action for breach of confidence to provide a remedy for invasions of privacy is that privacy and confidentiality are similar but nevertheless distinct concepts. This argument is made by some of the judges in the New Zealand Court of Appeal in Hosking v Runting,120 which is relevantly extracted below.

Hosking v Runting Copyright © 2015. Oxford University Press. All rights reserved.

[2005] 1 NZLR 1

[The facts of this case are outlined at 13.4.5.] GAULT P AND BLANCHARD J (at 15) [45]: While that approach may well lead to the same outcome, we consider that it will be conducive of clearer analysis to recognise breaches of confidence and privacy as separate causes of action … [46] … Many privacy cases simply do not fit within this analysis, yet undoubtedly justify legal remedies. [47] The circumstances of Kaye v Robertson could not be brought within the tort of breach of confidence. But for the fortuitous circumstances of the false claim to consent, publication would not have been prevented …

113 114 115 116 117 118 119 120

Murray v Express Newspapers Plc [2008] 3 WLR 1360 at 1364. Ibid at 1365. Ibid at 1367–70, 1380. Ibid at 1370. Ibid at 1370–71, 1382. Ibid at 1380. Ibid at 1385. [2005] 1 NZLR 1.

525

526

PART 5 Privacy

Copyright © 2015. Oxford University Press. All rights reserved.

[48] Privacy and confidence are different concepts. To press every case calling for a remedy for unwarranted exposure of information about the private lives of individuals into a cause of action having as its foundation trust and confidence will be to confuse those concepts. [49] If breach of confidence is to be used as the privacy remedy in New Zealand, then the requirement of a confidential relationship must necessarily change. That will lead to confusion in the trade secrets and employment fields. The English authorities seem largely to ignore the fact that Lord Goff’s dictum was only directed at exceptional cases where the relevant information was ‘obviously confidential’, yet no confidential relationship existed. The expansion of the focus of the cause of action was not contemplated by him to change the nature of the information disclosed, but rather the nature of the relationship or circumstances of the parties. TIPPING J (at 59): [245] As Gault P has demonstrated, the jurisprudence of the United Kingdom Courts has so far declined to recognise a free-standing tort of invasion or breach of privacy. The same can be said of Australia at superior Court level. In the United Kingdom the Courts have chose incrementally to develop the equitable remedy of breach of confidence. But, in so doing, it has been necessary for the Courts to strain the boundaries of that remedy to the point where the concept of confidence has become somewhat artificial. The underpinning element of the breach of confidence cause of action has conventionally been that either by dint of a general or a transactional relationship between the parties, one party can reasonably expect that the other will treat the relevant information or material as confidential and will not publicly disclose it. It is of course of the essence of breach of confidence that for whatever reason the information or material be confidential and intended to remain so. [246] There are by the same token circumstances in which reasonable expectations of privacy will arise and should be recognised by our Courts, quite apart from existing legislative provisions. These occasions will include, but should not necessarily be confined to, circumstances which can appropriately be regarded as involving conventional confidentiality issues. It therefore seems to me, with respect to those who do not share this view, that it is more jurisprudentially straightforward and easier of logical analysis to recognise that confidence and privacy, while capable of overlapping, are essentially different concepts. Breach of confidence, being an equitable concept, is conscience-based. Invasion of privacy is a common law wrong which is founded on the harm done to the plaintiff by conduct which can reasonably be regarded as offensive to human values. While it may be possible to achieve the same substantive result by developing the equitable cause of action, I consider it legally preferable and better for society’s understanding of what the Courts are doing to achieve the appropriate substantive outcome under a self-contained and stand-alone common law cause of action to be known as invasion of privacy. I prefer that terminology to breach of privacy because, to my mind, the word ‘invasion’ more aptly describes the essence of the wrong than the word ‘breach’, the connotations of which are less flexible. (60) [247] The result in substantive terms of recognising a separate tort is not significantly different from the extended form of the breach of confidence cause of action as it is being developed in the United Kingdom. What is at stake is really a matter of legal method rather than substantive outcome. It cannot logically be held that one method is an unjustified limit on freedom of expression whereas another is not. New Zealand Courts have, to a greater or lesser extent, already espoused a separate tort to protect privacy interests. I am not persuaded there is any good reason to put the clock back and confine our law to a method of analysis which does not fit the true nature or the realities of the cause of action.

QUESTIONS 1 Is that which is confidential necessarily private? Is that which is private necessarily confidential? Are privacy and confidentiality distinct concepts? 2 What are the limitations, if any, of using breach of confidence as a means of providing a remedy for invasion of privacy? 3 Do you agree with Tipping J’s assessment that the divergent approaches to the protection of personal privacy that are emerging in the United Kingdom, New Zealand and, to a lesser extent, Australia, are ‘really a matter of legal method rather than substantive outcome’?

CHAPTER 14 Breach of Confidence

14.2.3 Loss of quality of confidence and the public domain If confidential information enters the public domain, it loses its quality of confidence and therefore can no longer be protected by a cause of action for breach of confidence.121 As Kellam J observed in Australian Football League v The Age Co Ltd:122 It would be entirely pointless and indeed, would bring the administration of justice into disrepute, for the court to endeavour to restrain the publication of matters which are well known by a large number of members of the public.123

Thus, a media outlet, seeking to resist a claim for breach of confidence, may attempt to prove that the information at issue in the proceedings is no longer confidential and has entered the public domain. Whether confidential information has lost its quality of confidence is a question of fact.124 A material consideration would be how accessible the information had become.125 The publication of information in widely-circulated print media would destroy the quality of confidence attached to that information.126 Whether the dissemination of information on the internet constitutes entry of confidential information into the public domain is less clear. In Australian Football League v The Age Co Ltd,127 Kellam J found that online discussion and website postings did not constitute sufficiently serious or reputable disclosure such as to destroy the quality of confidence about the information at issue, being the names of players who had tested positive once or twice to the use of illicit drugs.128 In CTB v News Group Newspapers Ltd, a media defendant sought to vary an injunction restraining it from naming a Premier League footballer who had had an extra-marital relationship with a former Big Brother contestant and Miss Wales winner, Imogen Thomas. The identity of the footballer was trending significantly on Twitter. Eady J refused to vary the injunction on the basis that the footballer’s name was in the public domain, stating: It is fairly obvious that wall-to-wall excoriation in national newspapers, whether tabloid or ‘broadsheet’, is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet.129

Copyright © 2015. Oxford University Press. All rights reserved.

The footballer was subsequently revealed to be Ryan Giggs.

14.2.4 The defence of iniquity In Gartside v Outram,130 Woods VC evocatively stated that ‘there is no confidence as to the disclosure of iniquity. You cannot make me the confidant of a crime or a fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to

121 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215 per Lord Greene MR; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 268 per Lord Griffiths; at 285 per Lord Goff of Chieveley; Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 at 525 per Powell J; Australian Football League v The Age Co Ltd (2006) 15 VR 419 at 427 per Kellam J. 122 (2006) 15 VR 419. 123 Australian Football League v The Age Co Ltd (2006) 15 VR 419 at 428. 124 Johns v Australian Securities Commission (1993) 178 CLR 408 at 461–62 per Gaudron J. 125 Australian Football League v The Age Co Ltd (2006) 15 VR 419 at 428 per Kellam J. 126 Ibid at 429 per Kellam J. 127 (2006) 15 VR 419. 128 Australian Football League v The Age Co Ltd (2006) 15 VR 419 at 433. 129 [2011] EWHC (1326 (QB) at 24. 130 (1856) 26 LJ Ch 113.

527

528

PART 5 Privacy

me relating to any fraudulent intention on your part: such a confidence cannot exist’.131 In the United Kingdom, a more expansive public interest defence has been developed.132 However, in Australia, the narrower defence of iniquity applies.133 The ‘iniquity’ needs to be a serious crime; it is not any criminal offence that suffices to absolve a confidant of his or her obligation.134 In Australian Football League v The Age Co Ltd,135 Kellam J accepted that: in order to rely upon the so-called iniquity rule so as to eradicate the protection that would otherwise be granted in equity in respect of confidential information, it is necessary for the person relying upon that defence to establish that: (a) the proposed disclosure will in fact disclose the existence of or the real likelihood of the existence of an iniquity that is a crime, civil wrong or serious misdeed of public importance; (b) that the iniquity to be disclosed is of a character of public importance, in the sense that what is to be disclosed affects the community as a whole, or affects the public welfare; and (c) that the person who is seeking to protect the confidence is so doing in order to prevent disclosure to a third party with a real and direct interest in redressing the alleged crime, wrong or misdeed.136

In this case, Kellam J found that the disclosure of the names of players who had, on one or two occasions, tested positive to illicit drugs, would not disclose an iniquity of a sufficiently serious nature so as to deprive the information of its confidential quality.137

Copyright © 2015. Oxford University Press. All rights reserved.

14.2.5 A public interest defence? In the United Kingdom, there is a broader defence of public interest to a claim for breach of confidence; a defendant is not limited to a disclosure of iniquity.138 A court is required to balance the public interest in maintaining the confidentiality of the information at issue against the public interest in disclosing the information.139 However, even if there is a public interest justifying disclosure of the confidential information in question, it does not necessarily follow that the disclosure in the mass media is justified. Some more limited or targeted disclosure, such as reporting the matter to police or other investigating authorities, may be more appropriate.140 131 Gartside v Outram (1856) 26 LJ Ch 113 at 114. See also Sullivan v Sclanders (2000) 77 SASR 419 at 428 per Gray J. 132 See below at 14.2.5. 133 Sullivan v Sclanders (2000) 77 SASR 419 at 425–27 per Gray J. 134 A v Hayden (1984) 156 CLR 532 at 545–46 per Gibbs CJ. 135 (2006) 15 VR 419. 136 Australian Football League v The Age Co Ltd (2006) 15 VR 419 at 436. 137 Ibid. 138 Fraser v Evans [1969] 1 QB 349 at 362 per Lord Denning MR; Woodward v Hutchins [1977] 1 WLR 760 at 764 per Lord Denning MR; Schering Chemicals Ltd v Falkman Ltd [1982] QB 1 at 21 per Lord Denning MR; Lion Laboratories Ltd v Evans [1985] QB 526 at 536–37 per Stephenson LJ; at 550 per Griffiths LJ; X v Y [1988] 2 All ER 648; (1987) 13 IPR 202 at 213ff per Rose J; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 268 per Lord Griffiths; at 282 per Lord Goff of Chieveley; Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807 per Laws J; Jockey Club v Buffham [2003] QB 462 at 475 per Gray J. 139 Woodward v Hutchins [1977] 1 WLR 760 at 764 per Lord Denning MR; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 268–69 per Lord Griffiths. 140 Initial Services Ltd v Putterill [1968] 1 QB 396 at 405–06 per Lord Denning MR; Lion Laboratories Ltd v Evans [1985] QB 526 at 537 per Stephenson LJ; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 269 per Lord Griffiths; at 282 per Lord Goff of Chieveley.

CHAPTER 14 Breach of Confidence

The public interest defence to a claim for breach of confidence has been rejected by Australian courts,141 although there has been some judicial support for its adoption.142 An explanation for why the iniquity rule is to be preferred and why the public interest defence has been largely rejected in Australia has been provided by Gray J in Sullivan v Sclanders143 in the following terms: Equitable principles are best developed by reference to what conscionable behaviour demands of the defendant rather than by balancing those demands with matters of public interest. This approach avoids the ad hoc judicial idiosyncrasy associated with deciding whether, on the facts overall, it is better to respect or override the obligation of confidence.144

In its most recent report on privacy, the Australian Law Reform Commission identified the unavailability of a public interest defence as being a limitation, from the media’s perspective, if breach of confidence becomes the means by which privacy is protected under Australian law. However, the Commission made no recommendation about it.145

QUESTION 1 Having considered the reasons for and against the defence of iniquity and the public interest defence as potential defences to an action for breach of confidence, which do you prefer? Why?

Copyright © 2015. Oxford University Press. All rights reserved.

14.2.6 Remedies for breach of confidence A plaintiff can seek an account of profits against a defendant who discloses confidential information.146 A plaintiff may also be able to claim damages for distress, as opposed to recognisable psychiatric injury, for breach of confidence.147 This will be particularly important in cases where breach of confidence is used in order to protect personal privacy. Aggravated damages for breach of confidence may be awarded.148 Exemplary damages are unlikely to be awarded for breach of confidence.149 An interlocutory injunction may be obtained to restrain an apprehended breach of confidence. However, a party only has standing to obtain such relief if the obligation of confidence is owed to him or her.150 An injunction can be granted not only to

141 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 451–56 per Gummow J; Smith Kline & French Laboratories (Aus.) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 111 per Gummow J; Sullivan v Sclanders (2000) 77 SASR 419 at 425–26 per Gray J; Australian Football League v The Age Co Ltd (2006) 15 VR 419 at 438 per Kellam J. 142 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 171 per Kirby P; Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 at 525 per Powell J. See also David Syme & Co Ltd v General-Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 309 per Samuels JA. 143 (2000) 77 SASR 419. 144 Sullivan v Sclanders (2000) 77 SASR 419 at 427. 145 Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era: Final Report, Report 123 (2014), [13.42]–[13.49]. 146 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 262 per Lord Keith of Kinkel. 147 As to the position under Australian law on this issue, see Giller v Procopets (2008) 24 VR 1 at 5 per Maxwell P; at 31–34 per Ashley JA; at 96–99 per Neave JA. This has occurred without comment in United Kingdom cases. 148 Giller v Procopets (2008) 24 VR 1 at 5 per Maxwell P; at 34 per Ashley JA; at 104-05 per Neave JA. 149 Ibid at 5 per Maxwell P; at 33 per Ashley JA; at 103 per Neave JA. See also Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 at 342, 422 per Heydon JA. 150 Fraser v Evans [1969] 1 QB 349 at 361 per Lord Denning MR.

529

530

PART 5 Privacy

restrain a person who owes an obligation in confidence from disclosing confidential information,  but  also  a  third  party who obtains or receives confidential information improperly.151

14.3 Case studies from Australian law The following two case studies demonstrate how the equitable cause of action for breach of confidence, in its traditional formulation, has been applied in Australia against media outlets.

Case study: Australian Football League v The Age Company Ltd (2006) 15 VR 419

Copyright © 2015. Oxford University Press. All rights reserved.

In mid-February 2005, the Australian Football League, with the agreement of the AFL Players’ Association, introduced an ‘Illicit Drugs Policy’.152 Under the policy, an AFL player could test positive to ‘illicit drugs’ on two occasions and the matter could be kept confidential between the player and the AFL and club medical officers. However, if a player returned a third positive test, he would be reported to the AFL Tribunal and the matter would become public.153 The types of drugs covered by the policy included amphetamine, cocaine, methamphetamine, heroin, morphine, pethidine, hashish and marijuana.154 The drug testing is administered by the Australian Sports Drug Agency.155 Under the agreement between the AFL and the ASDA, there is an express confidentiality clause.156 The Age Co Ltd and Nationwide News Pty Ltd sought to publish the names of players who had tested positive to illicit drugs on at least one but no more than two occasions; the AFL sought permanent injunctions to restrain these media outlets from so publishing.157 The media outlets pointed to public dissemination of the names of the players, the most extensive reference being made in online discussion fora and website postings.158 Kellam J (as his Honour then was) characterised this material as ‘speculative gossip, innuendo and assertion by unknown persons’,159 which therefore did not deprive the information of its confidential quality by placing it in the public domain.160 Kellam J went on to find that the disclosure of the names of the AFL players would not be the disclosure of an iniquity within the meaning of settled principle in Australia.161 His Honour then considered whether there was a defence of public interest to a claim for breach of confidence under Australian law, observing that the matter ‘is by no means clear and settled’.162 After an extensive review of the authorities,163 Kellam J concluded that the better view was that there was no such defence, but that even if there were one, the balancing of interests would favour the AFL.164

151 Lord Ashburton v Pape [1913] 2 Ch 469 at 475 per Swinfen Eady J; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50 per Mason J; Sullivan v Sclanders (2000) 77 SASR 419 at 428–29 per Gray J. 152 Australian Football League v The Age Co Ltd (2006) 15 VR 419 at 421 per Kellam J. 153 Ibid at 422–23 per Kellam J. 154 Ibid at 421 per Kellam J. 155 Ibid at 422 per Kellam J. 156 Ibid at 423 per Kellam J. 157 Ibid at 420–21 per Kellam J. 158 Ibid at 424–25, 431 per Kellam J. 159 Ibid at 433. 160 Ibid at 432–33. 161 Ibid at 436–37. 162 Ibid at 438. 163 Ibid at 439–40. 164 Ibid at 440.

CHAPTER 14 Breach of Confidence

Case study: State of Victoria v Nine Network (2007) 19 VR 476 During a move of administrative offices of Corrections Victoria, certain files were ‘mislaid’.165 They came into the possession of the Nine Network, which proposed to broadcast a series of stories based upon them. The Nine Network contacted Corrections Victoria to get their side of the story, thereby alerting Corrections Victoria to the accidental disclosure.166 Corrections Victoria obtained interim orders restraining publication.167 At the final hearing, Osborn J found that the State of Victoria needed to demonstrate that it was prejudicial to the public interest to disclose the material at issue, not merely that it would suffer detriment in the sense in which it applied to private parties.168 His Honour then identified the competing public interests. Osborn J accepted that the State of Victoria sought to uphold the public interest in the maintenance of confidentiality in private information, particularly health records; the good order, management and security of prisons; the security and well-being of prisoners, ex-prisoners and prisoners’ families; the privacy of prison officers; the minimisation of deaths in custody; the integrity of the coronial process; and candour in communications between state prison systems.169 The Nine Network sought to uphold the public interest in freedom of information about government generally and prisons particularly; the need to know about misconduct in prisons and the governmental response or lack thereof; the protection of prisoners from abuse by prison staff; the reduction of the incidence of suicide in custody; and the maintenance of good order, management and security of prisons.170 Balancing the competing public interests, Osborn J refused to allow the following documents to be disclosed: • the contents of the medical records of a prisoner allegedly raped and impregnated by a prison officer, because medical records were clearly confidential and it was in the public interest to keep them so;171 • the notes of interview with prison officers, because disclosure would make prison officers in the future less likely to co-operate with investigations, which was not in the public interest;172 • a letter from one prisoner to another, disclosing an alleged sexual relationship with a prison officer, because it was not in the public interest to disclose private correspondence in these circumstances;173 and • an ‘internal management review report’ on the suicide of a prisoner, prior to the coronial inquest.174

Copyright © 2015. Oxford University Press. All rights reserved.

His Honour did allow the disclosure of the following documents, subject to appropriate redaction: • • • • •

165 166 167 168 169 170 171 172 173 174 175 176 177 178 179

an investigation plan for complaints of sexual assaults by prison officers on prisoners;175 the notes of interview with senior management;176 internal prison memoranda dealing with investigations into staff misconduct;177 the record of interview with a prison officer suspected of misconduct;178 and a report of an investigation into staff misconduct.179

State of Victoria v Nine Network (2007) 19 VR 476 per Osborn J. Ibid at 478 per Osborn J. Ibid at 478 per Osborn J. Ibid at 481, 483. Ibid at 479. Ibid at 479–80 per Osborn J. Ibid at 492–94. Ibid at 497. Ibid at 499–500. Ibid at 504. Ibid at 495–96. Ibid at 498. Ibid at 498–99. Ibid at 500. Ibid at 501–03.

531

532

PART 5 Privacy

FURTHER READING

Copyright © 2015. Oxford University Press. All rights reserved.

Aplin, Tanya, Gurry on Breach of Confidence: The Protection of Confidential Information, 2nd edn, Oxford University Press, Oxford, 2012. Meagher, RP, Heydon, JD and Leeming, MJ, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, Butterworths, Chatswood (NSW), 2002, Ch 41. Phillipson, Gavin, ‘Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act’ (2003) 66 Modern Law Review 726. Stanley, Paul, The Law of Confidentiality: A Restatement, Hart Publishing, Oxford, 2008. Toulson RG and Phipps, CM, Confidentiality, 3rd edn, Sweet & Maxwell, London, 2012.

15 Information Privacy

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION This chapter reviews the protection of personal information and communications under federal legislation, and the regulation of surveillance devices under state and territory legislation. The principal Commonwealth law concerning information privacy is the Privacy Act 1988 (Cth) (‘Privacy Act’).1 The scope of the Privacy Act can be disappointing to the uninitiated—it does not create a general right to privacy, but has more limited ambitions relating to data protection. The Privacy Act contains rules on how private organisations and government agencies handle personal information. The regulatory questions that are posed by companies and governments collecting vast amounts of personal data, including what information can be collected, what can be done with it, and on what conditions, are mostly resolved by reference to the Privacy Act. A number of other laws regulate potentially intrusive activities in a way that is designed to protect aspects of personal privacy. The contents of personal communications are protected under the Telecommunications (Interception and Access) Act 1979 (Cth) (‘Interception Act’), which prohibits unauthorised interception of real-time communications (such as telephone calls) and unauthorised access to stored communications (such as email, SMS and voicemail). The Interception Act includes ancillary restrictions on the publication of intercepted information which may affect media organisations. Surveillance devices legislation also exists in each Australian state and territory. These laws do not prohibit surveillance, as such, but create offences relating to the use of surveillance devices that are intended to protect against intrusions on privacy. Surveillance devices laws also variously restrict the publication of information obtained through the use of surveillance devices. These laws, or their successors, are becoming increasingly important as technology develops and information about a person’s habits and communications are more easily collected, stored and shared. 1 A number of other laws deal with information privacy at the state and territory level, or focus on particular types of information. See, for example, the Privacy and Personal Information Protection Act 1998 (NSW), Privacy and Data Protection Act 2014 (Vic), Information Privacy Act 2009 (Qld), Information and Protection Act 2004 (Tas), Information Privacy Act 2014 (ACT), Information Act (NT). Health records are often subject to specific laws, see: Health Records and Information Privacy Act 2002 (NSW), Health Records Act 2001 (Vic), Health Records (Privacy and Access) Act 1997 (ACT). As one last example, Part 13 of the Telecommunications Act 1997 (Cth) includes provisions on dealings with telecommunications data. This chapter focuses exclusively on the federal legislation.

533

534

PART 5 Privacy

15.1 The Privacy Act The Privacy Act adopts a principles-based regulatory approach. The Privacy Act sets out thirteen ‘Australian Privacy Principles’ (‘APPs’) that address the collection, storage, use and disclosure of personal information by government agencies and certain private sector organisations.2 A breach of the APPs may constitute an interference with the privacy of an individual, subject to enforcement action by the Information Commissioner. The Privacy Act, and the APPs, have extra-territorial effect for acts and practices of regulated organisations with an ‘Australian link’3. As discussed further below, however, there are a number of important exemptions under the Privacy Act that limit its scope at home and abroad, in particular, relating to the activities of journalists, politicians and small businesses.

15.1.1 Purpose The Privacy Act was enacted for a number of reasons, including a need to align Australian information privacy protection with international standards. The Organisation for Economic Co-operation and Development (OECD) Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data (1980) required Australia to enact data protection rules that are now reflected in the APPs.4 In addition, the Privacy Act intends to give effect, at least in part, to the right expressed in Article 17 of the International Covenant on Civil and Political Rights.5 This is significant from a theoretical point of view. The European tradition is to see data protection as a human rights issue. European data protection laws refer back to human rights instruments such as the International Covenant on Civil and Political Rights, and data protection is expressed as a fundamental right in the Charter of Fundamental Rights of the European Union.6 The purpose, then, of protecting personal information relates to

Copyright © 2015. Oxford University Press. All rights reserved.

2

The Australian Privacy Principles were introduced into the Privacy Act 1988 (Cth) by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) and took effect on 12 March 2014. Prior to this, the Privacy Act set out the National Privacy Principles, which applied to private organisations, and Information Privacy Principles, which applied to government agencies. The 2012 amendments constituted a substantive update to the regime regulating the handling of personal information in Australia. The amendments implemented 197 of 295 recommendations of a report of the Australian Law Reform Commission in 2008: Australian Law Reform Commission, For Your Information: Privacy Law and Practice, Report 108 (2008); Explanatory Memorandum to the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Cth). The Office of the Australian Privacy Commissioner has published detailed guidelines on the Australian Privacy Principles that explain the Information Commissioner’s interpretation of the APPs. 3 The Privacy Act 1988 (Cth) will apply to an act or practice outside Australia done by an organisation with an Australian link: s 5B(1A). An organisation will have an Australian link if it is formed or incorporated in Australia: s 5B(2). A foreign organisation will have an Australian link if it ‘carries on business’ in Australia, and the relevant personal information was collected or held in Australia: s 5B(3). The language ‘carrying on business in Australia’ is not defined in the Privacy Act 1988 (Cth), but note s 21 of the Corporations Act 2001 (Cth). Note that, while ‘organisation’ is broadly defined under section 6(1) of the Privacy Act, and an individual may be an ‘organisation’, the focus of the Privacy Act remains organisations and not, for instance, individual employees of an organisation bound by the Privacy Act: Rahman v Ashpole [2007] FCA 883 at [16]. 4 Organisation for Economic Co-operation and Development, Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data, 1980. 5 Preamble to the Privacy Act 1988 (Cth). International Covenant on Civil and Political Rights: Article 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. 6 Charter of Fundamental Rights of the European Union (2010/C 83/02): Article 8 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

CHAPTER 15 Information Privacy

rights-based concepts of personal identity and autonomy. Another way of thinking about data protection is as an economic matter. On this view, personal information is something that has commercial value and data protection laws, such as the Privacy Act, are a mechanism through which individuals can control that value by making choices about their personal information—personal information is a commodity, and has currency. On either view, the legislative protection of personal information must be balanced against competing rights or interests, including freedom of expression. How this balance is struck, however, may be influenced by which underlying rationale is preferred. The Privacy Act includes an explicit set of objects. These objects outline the purpose of the legislation and are intended to provide assistance with interpretation.7 The Information Commissioner must have due regard to the objects of the Act in performing his or her functions, and exercising his or her powers, conferred by the Act.8

Privacy Act s 2A—Objects of this Act The objects of this Act are:

Copyright © 2015. Oxford University Press. All rights reserved.

(a) to promote the protection of the privacy of individuals; and (b) to recognise that the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities; and (c) to provide the basis for nationally consistent regulation of privacy and the handling of personal information; and (d) to promote responsible and transparent handling of personal information by entities; and (e) to facilitate an efficient credit reporting system while ensuring that the privacy of individuals is respected; and (f) to facilitate the free flow of information across national borders while ensuring that the privacy of individuals is respected; and (g) to provide a means for individuals to complain about an alleged interference with their privacy; and (h) to implement Australia’s international obligation in relation to privacy.

The above objects were added to the Privacy Act by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth), following a recommendation from the Australian Law Reform Commission (ALRC). The objects now set out in the Act are not an exact reflection of the objects recommended by the ALRC. In particular, the ALRC proposed that the objects of the Privacy Act should: … recognise that the right to privacy is not absolute and to provide a framework within which to balance that right with other human rights and to balance the public interest in protecting the privacy of individuals with other public interests;9

The closest object on point reflected in the current Privacy Act calls for the protection of the privacy of individuals to be balanced with ‘the interest of entities in carrying out their

7 8 9

Explanatory Memorandum to the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Cth), 217. Privacy Act 1988 (Cth) s 29. Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008), Recommendation 5-4.

535

536

PART 5 Privacy

functions or activities’. This is a practical, economic concern and represents a movement away from a human rights-based interpretation of the Privacy Act.10

QUESTION 1 What is the significance of seeing the protection of personal data as a human right versus an economic issue? Which view do you prefer? Consider the potential effects on how the collection, disclosure and use of personal data may be regulated; how the protection of personal data might be balanced against competing interests; and the remedies that may follow from a breach. 

15.1.2 Personal information The Privacy Act is primarily concerned with personal information. This is the subject of an expansive definition under the Act, and means:

Copyright © 2015. Oxford University Press. All rights reserved.

information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not.11

This definition covers basic information about an individual: such as their name, address and contact information. However, its coverage is broader than this. In referring to information about an individual the definition goes beyond information that specifically identifies a person to include the types of information that might be held in a file on them. For example, purchasing habits and preferences, vocational references or assessments on a person’s professional conduct are likely to constitute personal information.12 In referring to information about an individual who is reasonably identifiable, the definition picks up information that, when combined with other information available to an entity, is capable of identifying someone. As an example, a licence plate number would not, by itself, ordinarily be capable of identifying an individual. However, for an entity that had access to a car registration database, it may be capable of identifying someone.13 This means, in assessing whether particular information is subject to the Privacy Act, the assessment must consider the entity that holds the information and what other information is available to that entity. On this basis, an otherwise anonymous identifying number or piece of code (IP logs, cookies), may be able to be connected with additional identifying information such that it constitutes personal information under the Act.14

10 Notably, prior to the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth), the Privacy Act required that the Privacy Commissioner have ‘due regard for the protection of important human rights and social interests that compete with privacy, including the general desirability of a free flow of information (through the media and otherwise) and the recognition of the right of government and business to achieve their objectives in an efficient way’ in the performance of his or her functions under the Act: Privacy Act, s 29(a) (now omitted). This language more clearly invokes a human rights understanding of information privacy, but was deleted in favour of the new objects in section 2A. 11 Privacy Act 1988 (Cth) s 6(1) (definition of personal information). 12 Office of the Australian Information Commissioner, Australian Privacy Principles Guidelines, 1 March 2014, [B.82]. 13 Ibid [B.86]. 14 However, an individual may not be reasonably identifiable if the steps required to do so are excessively time-consuming or costly in all the circumstances: Ibid [B.87].

CHAPTER 15 Information Privacy

The Privacy Act defines sensitive information as a sub-category of personal information that is generally afforded a higher level of protection under the APPs.15 Sensitive information includes information about an individual’s racial or ethnic origin, political opinions, membership of a political association, religious beliefs, philosophical beliefs, sexual orientation, criminal record, or health, genetic or biometric information.16

Copyright © 2015. Oxford University Press. All rights reserved.

15.1.3 The Australian Privacy Principles The Australian Privacy Principles are the central regulatory text in the Privacy Act. The APPs intend to promote transparency and establish certain minimum standards for information handling practices. There are thirteen APPs, structured in five parts. The APPs are intended to follow the ‘information lifecycle’.17 The following paragraphs set out some of the requirements of the APPs. This is a summary only, and does not provide full details of the information privacy obligations that apply to regulated entities. However, these paragraphs give a sense of how the APPs regulate the information handling practices of federal government agencies and many Australian businesses. APP 1 requires that a regulated entity handle information in an open and transparent way.18 A regulated entity must take reasonable steps to implement practices, procedures and systems that ensure the entity complies with the APPs, and will enable the entity to deal with complaints about compliance with the APPs.19 APP 1.3 requires a regulated entity to have a clearly expressed and up-to-date policy about how it manages personal information. This privacy policy must state the kinds of personal information an entity collects, how it collects that personal information, the purposes for which the personal information is collected, and how an individual may make access or correction requests or a complaint about how their personal information has been handled.20 It is probably true that no one in history, or at least only a few unfortunate people, have ever closely read an entity’s privacy policy before providing it with their personal information. However, these documents can still be important. The preparation of a privacy policy forces an organisation to think about how and why it collects personal information. For high-profile organisations, a change to a privacy policy can attract the attention and criticism of interested consumer advocate groups or regulators.21 APP 3 regulates the collection of personal information. It says that a regulated entity must not collect personal information unless the information is reasonably necessary for 15 For example, a regulated entity must not generally collect sensitive information about an individual unless that individual consents (APP 3); the use and disclosure of sensitive information is also more tightly controlled under APP 6. Also see: Office of the Australian Information Commissioner, Australian Privacy Principles Guidelines, 1 March 2014, [B.135]. 16 Privacy Act 1988 (Cth) s 6(1) (definition of sensitive information). 17 Office of the Australian Information Commissioner, Australian Privacy Principles Guidelines, 1 March 2014, [A.7]. 18 Privacy Act 1988 (Cth) Schedule 1, APP 1.1. 19 Ibid APP 1.2. 20 Ibid APP 1.4. 21 See, for example, the European regulatory response to Google changing its privacy policy in 2012: Commission Nationale de l’Informatique et des Libertes (CNIL), Deliberation No. 2013-420 of the Sanctions Committee of CNIL imposing a financial penalty against Google Inc. (3 January 2014).

537

Copyright © 2015. Oxford University Press. All rights reserved.

538

PART 5 Privacy

one or more of the entity’s functions or activities.22 In short, a regulated entity should not collect personal information that it does not need. A regulated entity must not, generally speaking, collect sensitive information about an individual unless the individual consents.23 A regulated entity must collect personal information only by lawful and fair means, and must collect personal information from the individual themselves unless it is unreasonable or impracticable to do so.24 APP 6 addresses the use or disclosure of personal information. It says that, where personal information has been collected for a particular purpose, a regulated entity must not use or disclose the information for another purpose except in specified circumstances.25 Those circumstances include where the individual has consented, or where the secondary purpose is related to the primary purpose and the individual would reasonably expect the entity to use their personal information in that way.26 APP 7 sets out specific rules on direct marketing. If a regulated entity holds personal information about a person, it must not (without consent) use that information for the purposes of direct marketing unless it collected the information directly from the individual, the individual would reasonably expect the entity to use or disclose the information for direct marketing, and the entity provides a simple mechanism by which the individual can request not to receive direct marketing messages.27 These rules do not apply to the extent an activity is covered by the provisions of the Do Not Call Register Act 2006 (Cth) or the Spam Act 2003 (Cth).28 APP 8 concerns the disclosure of personal information to an overseas recipient. A regulated entity must take reasonable steps to ensure that an overseas recipient does not breach the APPs in relation to personal information disclosed to it.29 There are some limited exceptions to this rule. The rule does not apply where an entity reasonably believes the recipient is subject to a law providing substantially similar protection to the APPs and there are mechanisms the individual can access to enforce that law.30 The rule also does not apply where the individual concerned provides express consent to the disclosure.31 Where the rule does apply, if a regulated entity discloses personal information to an overseas recipient and the overseas recipient does something in relation to that information that would be a breach of the APPs, the disclosing entity may be held responsible for that breach as if it had committed the breach itself.32 This is a significant deeming provision. It makes a local entity accountable for the practices of an overseas recipient. In practice, this means compliance with the APPs are often a contractual requirement under agreements that contemplate cross-border disclosures of personal information. APP 10 says that a regulated entity must take reasonable steps to ensure the personal information it collects is accurate, up-to-date and complete. APP 11 relates to the security of 22 23 24 25 26 27 28 29 30 31 32

Privacy Act 1988 (Cth) Schedule 1, APP 3.1 and 3.2. Ibid APP 3.3. Ibid APPs 3.5, 3.6. Ibid APP 6.1. Ibid APPs 6.1, 6.2(a). Ibid APPs 7.1–7.4. Ibid APP 7.8. Ibid APP 8.1. Ibid APP 8.2(a). Ibid APP 8.2(b). Privacy Act 1988 (Cth) s 16C.

CHAPTER 15 Information Privacy

personal information. It similarly says that a regulated entity must take reasonable steps to protect the personal information that it holds from misuse, interference and loss, and from unauthorised access, modification or disclosure.33 A regulated entity must take reasonable steps to destroy or de-identify information that it no longer needs.34 APPs 12 and 13 relate to access and correction requests. A regulated entity must, in general, give an individual access to information held about them on request.35 A principal exception to this rule is where the entity believes giving access would have an unreasonable impact on the privacy of other individuals.36 A regulated entity must take reasonable steps to correct inaccurate, out-of-date, incomplete, irrelevant or misleading personal information that it holds, including on request by an individual.37 The Privacy Act and APPs do not contain any formal data-breach notification requirements. However, the Information Commissioner has issued guidance stating that an organisation should notify affected individuals where there is a real risk of serious harm as a result of a data breach.38

QUESTIONS 1 Are you concerned about organisations (private or government) collecting your personal information? 2 What personal information have you recently disclosed? What were the circumstances of the disclosure? 3 Have you recently (or ever) read a privacy policy of collection statement before disclosing personal information to an organisation? If not, perhaps do so. 4 Has an organisation’s reputed or actual information-handling practices ever affected your dealings with them (i.e. have you withheld information, used a pseudonym or declined to use a service)? 

Copyright © 2015. Oxford University Press. All rights reserved.

15.1.4 Enforcement The Privacy Act confers a range of functions and powers on the Information Commissioner.39 The Information Commissioner is appointed under the Australian Information Commissioner Act 2010 (Cth) and is supported by the Privacy Commissioner, who is appointed under the same legislation.40 In practice, the Privacy Commissioner exercises most of the privacyrelated functions of the Office of the Information Commissioner, including a central role in ensuring compliance with the APPs. In this chapter we refer to the ‘Commissioner’ meaning the Information Commissioner as a formal matter and the Privacy Commissioner in practice. The enforcement powers available to the Commissioner were substantially expanded

33 34 35 36 37 38

Privacy Act 1988 (Cth) Schedule 1, APP 11.1. Ibid APP 11.2. Ibid APP 12.1. Ibid APP 12.3(b). Ibid APP 13.1. Office of the Australian Information Commissioner Data Breach Notification Guide: A Guide to Handling Personal Information Security Breaches (August 2014). Also see: Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008), Recommendation 51-1 (Data Breach Notification); Office of the Australian Information Commissioner, Sony PlayStation Network / Qriocity: Own Motion Investigation Report (29 September 2011), discussing data breach notification obligations. 39 The main statement of the Privacy Commissioner’s powers is in Part IV Division 2 of the Privacy Act 1988 (Cth). 40 Australian Information Commissioner Act 2010 (Cth) ss 14(1), (4). Also see s 12—Functions and Powers of the Privacy Commissioner.

539

Copyright © 2015. Oxford University Press. All rights reserved.

540

PART 5 Privacy

by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth), following recommendations of the ALRC.41 The Privacy Act establishes a complaints-based enforcement regime for responding to interferences with the privacy of an individual. An act or practice is an interference with the privacy of an individual if it is contrary to the APPs.42 In most cases, an individual must first complain about an interference with their privacy to the relevant entity (the respondent).43 If the individual is not satisfied with the response to their complaint, they may escalate the matter to the Commissioner for investigation.44 The Commissioner must make a reasonable attempt to conciliate the complaint if the Commissioner considers conciliation may be successful.45 The Commissioner may decide not to investigate a complaint for a number of reasons, including if the Commissioner is satisfied that it does not amount to an interference with privacy, it was made more than twelve months after the relevant act or practice, or it is frivolous, vexatious, misconceived, lacking in substance, or not made in good faith.46 The Commissioner may commence an investigation in response to a complaint or on his own motion.47 An investigation may be conducted in such manner as the Commissioner thinks fit.48 The Commissioner has powers to obtain information and documents, to compel attendance, and to examine witnesses.49 The Commissioner also has the power to obtain a judicial warrant authorising a representative to enter the premises of an organisation and inspect documents.50 The result of an investigation may be to dismiss a complaint or take no further action.51 The Commissioner may, alternatively, find the complaint substantiated and may require that the respondent take steps to ensure the conduct is not repeated or continued, require that the respondent perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, declare that the complainant is entitled to a specific amount by way of compensation, or take no further action.52 Any such determination of the Commissioner is non-binding or conclusive between the parties. However, a complainant may apply to the Federal Court or the Federal Circuit Court for an order to enforce the determination.53 Finally, and importantly, the Commissioner may apply to the Federal Court or Federal Circuit Court to impose a civil penalty in response to a serious or repeated breach or 41 See, in particular, Australian Law Reform Commission, For Your Information: Privacy Law and Practice, Report 108 (2008), Chapter 50. 42 Privacy Act 1988 (Cth), s 13(1)(a). The Privacy Act establishes that certain other acts and practices may be interferences with the privacy of an individual. For example, certain acts or practices with respect to tax file numbers (s 13(4)). Other legislation may also provide that an act or practice constitutes an interference with privacy. An act or practice is not an interference with privacy, however, if it is required by an applicable law of a foreign country: s 13D. 43 Privacy Act 1988 (Cth) s 40(1A). 44 Ibid s 36(1). 45 Ibid s 40A(1). 46 Ibid s 41. 47 Ibid s 40. 48 Ibid s 43(2). 49 Ibid ss 44–46. 50 Ibid s 68. 51 Ibid ss 52(1)(a) and 52(1)(b)(iv). 52 Ibid s 52(1). 53 Ibid s 55A.

CHAPTER 15 Information Privacy

interference with the privacy of an individual (in other words, a serious or repeated breach of the APPs).54 At time of writing, the maximum civil penalty is $340,000 for an individual and $1.7 million for a body corporate.55

15.1.5 Exemptions

Copyright © 2015. Oxford University Press. All rights reserved.

The Privacy Act contains a number of exemptions and exceptions that limit its scope.56 The most significant exemption, for the purposes of this book, relates to the activities of journalists. An act done, or a practice engaged in by a media organisation is exempt from the Privacy Act and the APPs if it is done in the course of journalism, provided that organisation is publicly committed to observe published standards dealing with privacy.57 A media organisation is one whose activities involve the preparation or dissemination of material having the character of news, current affairs, information or a documentary; or an opinion on, or analysis of, any of the foregoing.58 This exemption helps to reconcile the Privacy Act 1988 (Cth) with principles of freedom of expression. It favours professional media organisations over amateurs, as a blogger is unlikely to be committed to published standards dealing with privacy in the way an established traditional media organisation might. However, this is unlikely to be an important distinction as smaller operations will often have the benefit of another significant exemption under the Privacy Act which exists for small businesses. Organisations with an annual turnover of $3 million or less are generally exempt from the operation of the Privacy Act.59 This is known as the small business exemption. The purpose of the exemption is to minimise the compliance costs imposed on small business, but it takes a lot of activity outside the sphere of the Privacy Act.60 The Privacy Act also does not, as a general rule, apply to personal information collected, used or disclosed for personal, family or household purposes.61 Further exemptions relate to the activities of registered political parties and certain activities of political representatives,62 employee records,63 disclosures to related bodies corporate,64 and for certain agencies such as the Australian Security Intelligence Organisation.65

54 Ibid ss 13G, 80W. 55 Ibid ss 13G, 80W(5); Crimes Act 1914 (Cth) s 4AA. 56 For detailed discussion, see: Australian Law Reform Commission, For Your Information: Privacy Law and Practice, Report 108 (2008), Volume 2, Part E (Exemptions). 57 Privacy Act 1988 (Cth) ss 7(1)(ee), 7B(4). Examples of published privacy standards include the Australian Press Council Privacy Standards and various industry codes of practice developed under the Broadcasting Services Act 1992 (Cth). 58 Privacy Act 1988 (Cth) s 6 (definition of media organisation). 59 Ibid ss 6C, 6D. 60 See generally: Australian Law Reform Commission, For Your Information: Privacy Law and Practice, Report 108 (2008), Chapter 39. 61 Privacy Act 1988 (Cth) ss 7B(1), 16. 62 Ibid ss 6C(1), 7C. 63 Ibid ss 7(1)(ee), 7B(3). 64 Ibid s 13B(1). 65 Ibid s 7. The ABC and SBS are exempt in relation to programming material and datacast content: s 7(c). The exemption arises as the ABC and SBS are listed as exempt agencies in respect of certain documents under the Freedom of Information Act 1982 (Cth) Sch 2 Div 1.

541

542

PART 5 Privacy

15.1.6 Take-down schemes Attitudes to privacy may be changing as a consequence of new technologies. Contemporary wisdom holds that young people are cavalier with their personal information. While these concerns are easy to overstate, there is evidence to support the view that a general atmosphere of disclosure exists on social media sites and other forums for user-generated content—and this can have a privacy impact. In its major review of Australian privacy laws (now a few years ago), the ALRC considered attitudes to the protection and use of personal information among young people. The ALRC made the following observations, which remain relevant:

Copyright © 2015. Oxford University Press. All rights reserved.

It does appear that young people are more comfortable than their parents, and certainly their grandparents, in sharing personal information, photos and other material on social networking websites. The question is whether this represents the beginnings of an enduring cultural shift, or simply the eternal recklessness of youth, played out in a new medium and utilising new technology. Put another way, will today’s teenagers be horrified in a decade’s time when prospective employers—and prospective partners and in-laws—can easily ‘google up’ intimate and potentially embarrassing images and information?66

A comparatively recent study conducted by the Office of the Australian Information Commissioner on community attitudes to privacy found that, on average, slightly under one in five Australians (17%) had regrets about something they had posted on a social networking site, but this figure increased to a third of young adults aged under 24 (33%).67 The survey question concerned information a person had shared about themselves. There is also the related issue of information posted by a third party becoming part of a seemingly permanent online record. This raises the question of what, if any, recourse should be available to an individual to have personal information about them removed from the internet.68 The ALRC has on occasion discussed, but declined to recommend, a take-down scheme to address the privacy issues arising from the online publication of personal information.69 In a recent Discussion Paper, the ALRC sought views on a particular model of a regulator take-down scheme. Specifically: Question 15–2 Should a regulator be empowered to order an organisation to remove private information about an individual, whether provided by that

66 Australian Law Reform Commission, For Your Information: Privacy Law and Practice, Report 108 (2008), 108; see also Chapter 67. 67 Office of the Australian Information Commissioner, Community Attitudes to Privacy Survey, Research Report (2013), 42. 68 As the Minster for Communications eloquently put the issue: Surely as we reflect on the consequences of the digital shift from a default of forgetting to one of perpetual memory we should be seeking to restore as far as possible the individual’s right not simply to their privacy but to having the right to delete that which they have created in the same way as can be done in the analogue world. Malcolm Turnbull, Minister for Communications, Free at Last! Or Freedom Lost? Liberty in the Digital Age, 2012 Alfred Deakin Lecture (8 October 2012). 69 Australian Law Reform Commission, For Your Information: Privacy Law and Practice, Report 108 (2008), [11.11]–[11.23]; Australian Law Reform Commission, Serious Invasions of Privacy In the Digital Era, Report 123 (2014), [16.12]–[16.17]. The Australian Communications and Media Authority (ACMA) currently administers a take-down notice scheme for prohibited and potentially prohibited online content (as determined by reference to the national classification scheme). For further discussion of the online content scheme see 5.2.

CHAPTER 15 Information Privacy

individual or a third party, from a website or online service controlled by that organisation where: (a) the individual makes a request to the regulator to exercise its power; (b) the individual has made a request to the organisation and the request has been rejected or has not been responded to within a reasonable time; and (c) the regulator considers that the posting of the information constitutes a serious invasion of privacy, having regard to freedom of expression and other public interests?70

One of the advantages of such schemes is that they can offer a quick response to objectionable online content that is more efficient than conducting formal legal proceedings. In the absence of a full hearing, however, take-down procedures can fail to properly take into account balancing considerations such as freedom of speech or available defences. In its subsequent report, the ALRC noted support for the introduction of a regulator take-down scheme, but also observed a risk that such a system may have an undesirably chilling effect on online freedom of expression.71 The report recommended the introduction of a new statutory cause of action for invasion of privacy (discussed at 13.3.3). It did not recommend any specific take-down scheme.

Copyright © 2015. Oxford University Press. All rights reserved.

15.1.7 The right to be forgotten In Google Spain v AEPD the European Court of Justice established its so-called ‘right to be forgotten’. The case involved a demand that Google remove a publication containing personal information from its search results. In this, the complainant called for the Court of Justice to balance the competing fundamental rights of privacy and freedom of expression in the context of EU Directive 95/46. The Directive ‘has the object of protecting fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data’.72 On this occasion, based on Directive 95/46, the Court of Justice found clearly in favour of privacy. It held that, in certain circumstances, particularly where personal information online is inaccurate, inadequate, irrelevant or excessive to the purposes of its collection, a person could demand that it be removed. The principal exception acknowledged by the Court is where there is a ‘preponderant’ interest of the general public in having access to the information in question.

Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González European Court of Justice, Case C‑131/12 (13 May 2014).

[14] On 5 March 2010, Mr Costeja González, a Spanish national resident in Spain, lodged with the AEPD a complaint against La Vanguardia Ediciones SL, which publishes a daily newspaper with a large circulation, in particular in Catalonia (Spain) (‘La Vanguardia’), and against Google Spain and Google Inc. The complaint

70 Australian Law Reform Commission, Serious Invasions of Privacy In the Digital Era, Discussion Paper 80 (2014), Question 15-2. 71 Australian Law Reform Commission, Serious Invasions of Privacy In the Digital Era, Final Report, Report 123 (2014), [16.13]. 72 Directive 95/46/EC of the European Parliament and of the Council, as summarised in Google Spain v AEPD European Court of Justice, Case C‑131/12 (13 May 2014), [3].

543

Copyright © 2015. Oxford University Press. All rights reserved.

544

PART 5 Privacy

was based on the fact that, when an internet user entered Mr Costeja González’s name in the search engine of the Google group (‘Google Search’), he would obtain links to two pages of La Vanguardia’s newspaper, of 19 January and 9 March 1998 respectively, on which an announcement mentioning Mr Costeja González’s name appeared for a real-estate auction connected with attachment proceedings for the recovery of social security debts. [15] By that complaint, Mr Costeja González requested, first, that La Vanguardia be required either to remove or alter those pages so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect the data. Second, he requested that Google Spain or Google Inc. be required to remove or conceal the personal data relating to him so that they ceased to be included in the search results and no longer appeared in the links to La Vanguardia. Mr Costeja González stated in this context that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them was now entirely irrelevant. [16] By decision of 30 July 2010, the AEPD rejected the complaint in so far as it related to La Vanguardia, taking the view that the publication by it of the information in question was legally justified as it took place upon order of the Ministry of Labour and Social Affairs and was intended to give maximum publicity to the auction in order to secure as many bidders as possible. [17] On the other hand, the complaint was upheld in so far as it was directed against Google Spain and Google Inc. The AEPD considered in this regard that operators of search engines are subject to data protection legislation given that they carry out data processing for which they are responsible and act as intermediaries in the information society. The AEPD took the view that it has the power to require the withdrawal of data and the prohibition of access to certain data by the operators of search engines when it considers that the locating and dissemination of the data are liable to compromise the fundamental right to data protection and the dignity of persons in the broad sense, and this would also encompass the mere wish of the person concerned that such data not be known to third parties. The AEPD considered that that obligation may be owed directly by operators of search engines, without it being necessary to erase the data or information from the website where they appear, including when retention of the information on that site is justified by a statutory provision. [18] Google Spain and Google Inc. brought separate actions against that decision before the Audiencia Nacional (National High Court). The Audiencia Nacional joined the actions. [19] That court states in the order for reference that the actions raise the question of what obligations are owed by operators of search engines to protect personal data of persons concerned who do not wish that certain information, which is published on third parties’ websites and contains personal data relating to them that enable that information to be linked to them, be located, indexed and made available to internet users indefinitely. The answer to that question depends on the way in which Directive 95/46 must be interpreted in the context of these technologies, which appeared after the directive’s publication. [20] In those circumstances, the Audiencia Nacional decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: … 3. Regarding the scope of the right of erasure and/or the right to object, in relation to the “derecho al olvido” (the “right to be forgotten”), the following question is asked: must it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by [subparagraph (a) of the first paragraph of Article 14] of Directive 95/46, extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?’

… [35] … it should be pointed out that the processing of personal data carried out in the context of the activity of a search engine can be distinguished from and is additional to that carried out by publishers of websites, consisting in loading those data on an internet page.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 15 Information Privacy

[36] Moreover, it is undisputed that that activity of search engines plays a decisive role in the overall dissemination of those data in that it renders the latter accessible to any internet user making a search on the basis of the data subject’s name, including to internet users who otherwise would not have found the web page on which those data are published. [37] Also, the organisation and aggregation of information published on the internet that are effected by search engines with the aim of facilitating their users’ access to that information may, when users carry out their search on the basis of an individual’s name, result in them obtaining through the list of results a structured overview of the information relating to that individual that can be found on the internet enabling them to establish a more or less detailed profile of the data subject. [38] Inasmuch as the activity of a search engine is therefore liable to affect significantly, and additionally compared with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data, the operator of the search engine as the person determining the purposes and means of that activity must ensure, within the framework of its responsibilities, powers and capabilities, that the activity meets the requirements of Directive 95/46 in order that the guarantees laid down by the directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved. … [63] Google Spain and Google Inc. submit that, by virtue of the principle of proportionality, any request seeking the removal of information must be addressed to the publisher of the website concerned because it is he who takes the responsibility for making the information public, who is in a position to appraise the lawfulness of that publication and who has available to him the most effective and least restrictive means of making the information inaccessible. Furthermore, to require the operator of a search engine to withdraw information published on the internet from its indexes would take insufficient account of the fundamental rights of publishers of websites, of other internet users and of that operator itself. … [80] It must be pointed out at the outset that as has been found in paragraphs 36 to 38 of the present judgment, processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous (see, to this effect, Joined Cases C‑509/09 and C‑161/10 eDate Advertising and Others EU:C:2011:685, paragraph 45). [81] In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the [Charter of Fundamental Rights of the European Union]. Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life. … [87] Indeed, since the inclusion in the list of results, displayed following a search made on the basis of a person’s name, of a web page and of the information contained on it relating to that person makes

545

546

PART 5 Privacy

access to that information appreciably easier for any internet user making a search in respect of the person concerned and may play a decisive role in the dissemination of that information, it is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page.

Copyright © 2015. Oxford University Press. All rights reserved.

Question 3, concerning the scope of the data subject’s rights guaranteed by Directive 95/46 [89] By Question 3, the referring court asks, in essence, whether Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as enabling the data subject to require the operator of a search engine to remove from the list of results displayed following a search made on the basis of his name links to web pages published lawfully by third parties and containing true information relating to him, on the ground that that information may be prejudicial to him or that he wishes it to be ‘forgotten’ after a certain time. [90] Google Spain, Google Inc., the Greek, Austrian and Polish Governments and the Commission consider that this question should be answered in the negative. Google Spain, Google Inc., the Polish Government and the Commission submit in this regard that Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 confer rights upon data subjects only if the processing in question is incompatible with the directive or on compelling legitimate grounds relating to their particular situation, and not merely because they consider that that processing may be prejudicial to them or they wish that the data being processed sink into oblivion. The Greek and Austrian Governments submit that the data subject must approach the publisher of the website concerned. [91] According to Mr Costeja González and the Spanish and Italian Governments, the data subject may oppose the indexing by a search engine of personal data relating to him where their dissemination through the search engine is prejudicial to him and his fundamental rights to the protection of those data and to privacy — which encompass the ‘right to be forgotten’ — override the legitimate interests of the operator of the search engine and the general interest in freedom of information. [92] As regards Article 12(b) of Directive 95/46, the application of which is subject to the condition that the processing of personal data be incompatible with the directive, it should be recalled that, as has been noted in paragraph 72 of the present judgment, such incompatibility may result not only from the fact that such data are inaccurate but, in particular, also from the fact that they are inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they are required to be kept for historical, statistical or scientific purposes. [93] It follows from those requirements, laid down in Article 6(1)(c) to (e) of Directive 95/46, that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed. [94] Therefore, if it is found, following a request by the data subject pursuant to Article 12(b) of Directive 95/46, that the inclusion in the list of results displayed following a search made on the basis of his name of the links to web pages published lawfully by third parties and containing true information relating to him personally is, at this point in time, incompatible with Article 6(1)(c) to (e) of the directive because that information appears, having regard to all the circumstances of the case, to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine, the information and links concerned in the list of results must be erased. … [96] In the light of the foregoing, when appraising such requests made in order to oppose processing such as that at issue in the main proceedings, it should in particular be examined whether the data subject has a right that the information relating to him personally should, at this point in time, no longer be

CHAPTER 15 Information Privacy

linked to his name by a list of results displayed following a search made on the basis of his name. In this connection, it must be pointed out that it is not necessary in order to find such a right that the inclusion of the information in question in the list of results causes prejudice to the data subject. [97] As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public by its inclusion in such a list of results, it should be held, as follows in particular from paragraph 81 of the present judgment, that those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question. [98] As regards a situation such as that at issue in the main proceedings, which concerns the display, in the list of results that the internet user obtains by making a search by means of Google Search on the basis of the data subject’s name, of links to pages of the on-line archives of a daily newspaper that contain announcements mentioning the data subject’s name and relating to a real-estate auction connected with attachment proceedings for the recovery of social security debts, it should be held that, having regard to the sensitivity for the data subject’s private life of the information contained in those announcements and  to  the  fact that its initial publication had taken place 16 years earlier, the data subject establishes a right that that information should no longer be linked to his name by means of such a list. Accordingly, since in the case in point there do not appear to be particular reasons substantiating a preponderant interest of the public in having, in the context of such a search, access to that information, a matter which is, however, for the referring court to establish, the data subject may, by virtue of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46, require those links to be removed from the list of results.

QUESTIONS

Copyright © 2015. Oxford University Press. All rights reserved.

1 Did the European Court of Justice appropriately balance privacy and other interests (in particular, commercial interests and freedom of expression) in the case above? 2 Is this a practical response to the privacy implications of the internet? 

FURTHER READING Australian Law Reform Commission, For Your Information: Privacy Law and Practice, Report 108 (2008), Chapter 9, Overview: Impact of Developing Technology on Privacy. Office of the Australian Information Commissioner, Australian Privacy Principles Guidelines, 1 March 2014. Turnbull, Malcolm (Minister for Communications), Free at Last! Or Freedom Lost? Liberty in the Digital Age, 2012 Alfred Deakin Lecture (8 October 2012).

15.2 Interception A regime to prohibit unauthorised telephone interception was introduced in Australia by the Telephonic Communications (Interception) Act 1960 (Cth). In associated parliamentary debates Sir Garfield Barwick, then the Commonwealth Attorney-General, made the following comments.

547

548

PART 5 Privacy

The Government, whilst appreciating the reluctance of every one of us to authorize an intrusion into privacy, has felt that where the security of the Commonwealth is involved, the safety of us all must overbear that desire for individual privacy which we would otherwise wish to accord to everybody… … The Government has felt that the time has arrived when the use of telephonic interception … should be regulated by a statute of this Parliament which sets out quite unequivocally what are the limits within which and the purposes for which it will not be prohibited. The bill is designed to fulfil that purpose and to make the people of this country comfortable in the knowledge that there will not be any intrusion on their privacy unless there are facts which afford just ground for thinking that their telephone facilities are being used or have become likely to be used to the detriment of the security of this country.73

The principles outlined above continue in current interception legislation. While the privacy of personal communications is respected up to a point, access to the contents of private communications is also seen as fundamentally important to the operations of law enforcement agencies and national security.74 The Telecommunications (Interception and Access) Act 1979 (Cth) (the ‘Interception Act’) therefore balances two objects: to preserve the privacy of personal communications and to specify the circumstances in which lawful interception or access may take place.

Copyright © 2015. Oxford University Press. All rights reserved.

15.2.1 Interception of real-time communications It is an offence under the Interception Act to intercept a communication passing over a telecommunications system.75 ‘Interception’ is defined as listening to, or recording, by any means, a communication in its passage over a telecommunications system, without the knowledge of the person making the communication.76 A communication is taken to be passing over a telecommunications system from the moment it is sent or transmitted until it is accessible to the intended recipient.77 The prohibition against interception applies to the interception of real-time communications, such as voice-calls, and extends to any type of electronic communication in transit over a network.78 73 Sir Garfield Barwick, Telephonic Communications (Interception) Bill 1960, Second Reading Speech, House of Representatives, Hansard (5 May 1960). In the Second Reading Speech, Sir Garfield noted that the total number of intercepts from the first authorized to the date of his speech was 182—or approximately 17 per year across an 11-year period. The Attorney-General’s annual report for the year ending 30 June 2013 noted 4,247 applications for telecommunications interception warrants were made that year, of which 4,232 were granted (15 refused or withdrawn): Australian Government Attorney-General’s Department, Telecommunications (Interception and Access) Act 1979—Annual Report 2012–13, 2013, Table 3. 74 Australian Government Attorney-General’s Department, Telecommunications (Interception and Access) Act 1979— Annual Report 2012–13, 2013; see also Anthony Blunn, Report of the Review of the Regulation of Access to Communications, August 2005, 5. 75 Telecommunications (Interception and Access) Act 1979 (Cth) s 7(1); also note s 5(1) definition of telecommunications system. 76 In R v Padman (1979) 25 ALR 36, in interpreting predecessor legislation to the Interception Act, the Supreme Court of Tasmania rejected the position that ‘the person making the communication’ would only be the person who makes a call (and not the recipient), per Crawford J at 38. 77 Telecommunications (Interception and Access) Act 1979 (Cth) s 5F. 78 On when a communications is ‘passing over a telecommunications system’ see discussion at 15.2.7 below.

CHAPTER 15 Information Privacy

There are some exceptions to the general prohibition against interception. The main exception is that a telecommunications service warrant issued under Part 2–5 of the Interception Act will excuse interception.79

15.2.2

Access to stored communications

The Interception Act includes a separate (parallel) regime for stored communications.80 A stored communication is one that is not passing over a telecommunications system, and is held on equipment operated by a telecommunications carrier.81 The stored communication provisions apply to those communications that have completed their passage over a network and therefore are not able to be ‘intercepted’. Emails, text messages and voicemail stored on a carrier’s equipment are all considered to be stored communications. It is an offence to access a stored communication without the knowledge of the sender or the recipient.82 As for real-time interception, the main exception to this offence provision is that stored communications may be accessed under an appropriate warrant.83

The Leveson Inquiry

Copyright © 2015. Oxford University Press. All rights reserved.

The Leveson Inquiry into the Culture, Practices and Ethics of the Press constituted a substantial inquiry into the press and how it is regulated in the United Kingdom. The final report of the Leveson Inquiry was published in 2012.84 The Inquiry was prompted by the ‘phone-hacking scandal’ in Britain. In particular, a series of revelations about the News of the World accessing and deleting text messages stored on the mobile phone of a missing schoolgirl, Millie Dowler. The Leveson Inquiry noted widespread practices of phone-hacking (interception) by the British press, including cases involving the Royal Household, the Dowlers, Drs Kate and Gerry McCann (following the disappearance of their daughter, Madeleine McCann), and celebrities Sienna Miller and others. Leveson did not make specific findings on any individual cases, deferring to ongoing criminal proceedings, but commented: ‘the evidence drives me to conclude that this was far more than a covert, secret activity, known to nobody save one or two practitioners of the “dark arts”’. Leveson continued to

79 Telecommunications (Interception and Access) Act 1979 (Cth) s 7(2)(b). A separate interception warrant process exists for ASIO and is set out in Pt 2-2 of the Act. Further exceptions exist for network operations and maintenance: ss 7(2)(a)–(ab); and to allow emergency calls to be traced and recorded: ss 7(2)(c), 6(2F), 30. 80 The stored communications provisions were added by the Telecommunications (Interception) Amendment Act 2006 (Cth), following recommendations of the Blunn Report: Anthony Blunn, Report of the Review of the Regulation of Access to Communication, August 2005, [1.5.1]–[1.6.3]. 81 Telecommunications (Interception and Access) Act 1979 (Cth) s 5(1) definition of stored communication. A carrier, for the purposes of the Act, generally means either a carrier or carriage service providers: s 5 definition of carrier. The terms ‘carrier’ and ‘carriage service provider’ refer to different categories of telecommunications service provider, as defined in the Telecommunications Act 1997 (Cth). 82 Telecommunications (Interception and Access) Act 1979 (Cth) s 108(1). The offence provision is drafted such that warrantless access to a stored communication is possible where either party to the communication has knowledge of the access. Access to a stored communication includes listening to, reading or recording such a communication: s 6AA. 83 Ibid s 108(2). A separate warrant regime exists for ASIO. See Pt 3-2. Also note that a stored communication may be accessed by way of a computer access warrant issued under s 25A of the Australian Security Intelligence Organisation Act 1979 (Cth): Interception Act s 108(2)(c). Other available exceptions to the offence of accessing a stored communication mirror those that exist for interception and are set out in s 108(2) of the Telecommunications (Interception and Access) Act 1979 (Cth). 84 Lord Justice Leveson, An Inquiry into the Culture Practices and Ethics of the Press, Report (November 2012). See also 3.1.

549

550

PART 5 Privacy

make a series of recommendations about the establishment of a new independent press regulator. A number of investigations and arrests were conducted in parallel with, and as a result of, the Leveson Inquiry. The effects of the Inquiry in terms of law reform are still playing out.

15.2.3 Use of intercepted information Aside from limiting certain aggressive forms of news-gathering (for example, of the kind documented in the Leveson Inquiry), the particular relevance of the interception regime for media organisations is that the Interception Act may restrict publication of intercepted communications. The offences relating to unauthorised interception and access prohibit primary interception or access and are supported by provisions relating to secondary dealings with intercepted or accessed information. A person may not communicate, make use of, make a record of, or give in evidence, any information that has been lawfully or unlawfully intercepted or accessed, except as expressly permitted by the Interception Act.85 These restrictions may prevent publication of intercepted or accessed material.

John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81

Copyright © 2015. Oxford University Press. All rights reserved.

[The respondent was suspected of being part of a conspiracy to import cannabis resin. The Australian Federal Police commenced an operation that resulted in approximately 80,000 telephone calls being intercepted and 4,000 hours of conversation recorded. It was discovered that the respondent had bet very heavily on horse racing, bribed jockeys to ‘fix’ races, made considerable money out of race fixing and used his activities as a substantial punter to launder the money procured from his drug importation business. Although prohibited under the Interception Act, transcripts of intercepted conversations came into the possession of the appellant, who began to publish stories in The Sydney Morning Herald about race fixing in Sydney, including excerpts from the transcripts. An injunction was ordered at first instance restraining publication. The appellant commenced an appeal arguing, amongst other things, that the restraint on publication was invalid as it conflicted with the implied freedom of political communication and an implied right to free expression.] KIRBY P (at 96): The present case has been conducted on the basis that the relevant (97) interceptions were performed, and the record taken, under a warrant issued under the Act to officers of the Australian Federal Police. Accordingly, such a ‘record’ is of ‘lawfully obtained information’. The object of s 63 [of the Interception Act] is to cast a net which protects, save for the carefully defined exceptions provided by the Act, the record secured under a lawful warrant. The reasons for providing this protection are not difficult to perceive. The general rule of a society such as ours is that telephone communication, although provided largely by government agencies, is private and confidential to the participants. Intrusion into it, even by the government’s law enforcement agencies, is subject to strict control, substantially exercised by judges who must authorise a warrant (s 45 and s 46). The circumstances where the application for a warrant may be made are limited (s 39). Dealing with intercepted information is strictly controlled (especially ss 63, 63A, 63B, 64, 65) …. Such a detailed scheme of control is not accidental. It is designed to protect the privacy and confidentiality of communications passing over the telecommunications system. This is to the benefit of all persons having telecommunication connection within, to or from Australia. Section 63 should not be given a narrow construction, although it appears in a provision to which penal sanctions are attached. This is because of the high public policy, recognised and given effect to by the Act, for the protection of privacy and confidentiality of telecommunications. It takes little imagination to appreciate that, with allegations of 4,000 hours of 85 Telecommunications (Interception and Access) Act 1979 (Cth) ss 63(1), 133(1).

CHAPTER 15 Information Privacy

recording on 149 cassette tapes of about 80,000 telephone calls intercepted, the telephone conversations of many law-abiding citizens will have been recorded in the instant case. They will have expressed themselves, in a high expectation of privacy and confidentiality, about matters which are personal, potentially embarrassing, hurtful and destructive of relationships as well as banal and harmless. It would be an affront to the obvious purpose of the parliament in the Act if the record of such conversations, or any of them, came into the public domain except to the extent permitted by the Act, relevantly, in a prescribed proceeding. In such a proceeding it would be expected that the prosecution and the court would ensure against the misuse of the record, that is, the use of a single extract of supposedly private and confidential conversation which was not strictly necessary to the proof of the criminal charges against an accused upon which it was tendered. The notion of permitting the appellant a free hand, at its own entire discretion, to publish extracts from such a record as it chose to do, is antithetical to the provisions of the Act. It is also incompatible with due respect for a fundamental human right which is as important as the fundamental human right of free expression.

Copyright © 2015. Oxford University Press. All rights reserved.

15.2.4 The boundary between interception and surveillance The Commonwealth has a constitutional head of power allowing it to make laws in respect of telecommunications and therefore interception.86 It does not have constitutional authority to makes laws relating to surveillance, as such. The provisions of the Interception Act are accordingly confined to communications that have a connection with telecommunications networks. Commonwealth interception legislation has been held to cover the field in relation to its subject matter.87 As noted, the Interception Act protects communications passing over a telecommunications system and communications stored and accessed through equipment operated by carriers and carriage service providers. Where a communication leaves a telecommunications system, or is no longer held on equipment operated by a carrier or carriage service provider, it is no longer covered by the Interception Act but enters the province of state- and territory-based surveillance legislation. Australian courts have provided some commentary on the dividing line between interception and surveillance. In R v Migliorini a telephone conversation was taperecorded with the recorder attached to the telephone set by a wire and activated directly by electromagnetic energy passing through the service.88 This was held to be interception.89 In contrast, in T v Medical Board (SA) a telephone conversation was recorded by holding a tape-recorder next to the receiver. Matheson J held this was not interception, noting it ‘involved no interference with the integrity of the telecommunications system’.90

QUESTIONS 1 Are there any circumstances in which journalists or the general public should be allowed to intercept calls or access stored messages (for example, in the course of investigative journalism or whistle-blowing activities)? 2 Also consider whether there are any circumstances in which the disclosure of information intercepted or accessed by a third party, that subsequently comes into the hands of a journalist, should be permitted? Does it matter whether the information was legitimately or illegitimately intercepted or accessed? 86 87 88 89 90

Commonwealth Constitution s 51(v). Miller v Miller (1978) 141 CLR 269; Hilton v Wells (1985) 157 CLR 57 at 74. R v Migliorini [1981] Tas R 80. Ibid at 88 per Cosgrove J. T v Medical Board (SA) (1992) 58 SASR 382 at 399 per Matheson J. See also R v Oliver (1984) 57 ALR 543. Cf T v Medical Board (SA) at 419-21 per Olsson J; R v Curran [1983] 2 VR 133.

551

552

PART 5 Privacy

FURTHER READING Australian Government, Attorney General’s Department, Telecommunications (Interception and Access) Act 1979, Annual Report for the Year Ending 30 June 2013. Australian Law Reform Commission, For Your Information: Privacy Law and Practice, Report 108 (2008), Chapter 73, Other Telecommunications Privacy Issues. Blunn, Anthony, Report of the Review of the Regulation of Access to Communications, August 2005. Senate Standing Committee on Legal and Constitutional Affairs, Comprehensive Revision of the Telecommunications (Interception and Access) Act 1979 (Cth), Report (February 2015).

15.3 Surveillance Surveillance technologies can be very useful in law enforcement and in investigative journalism. Surveillance can also be intrusive, and has the potential to affect the privacy interests of third parties who are not the focus of an investigation. As famously said in a decision of the United States Supreme Court:

Copyright © 2015. Oxford University Press. All rights reserved.

What the ancients knew as ‘eavesdropping’ we now call ‘electronic surveillance’ but to equate the two is to treat man’s first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveller of human privacy ever known.91

Surveillance, as an activity, is not generally regulated under Australian law.92 However, the use of surveillance devices is restricted under state and territory legislation.93 As with the Telecommunications (Interception and Access) Act 1979 (Cth), state and territory surveillance devices laws seek to balance the requirements of law enforcement and potentially legitimate uses of surveillance devices against the concerns to protect individual privacy. These laws define offences that prohibit certain uses of surveillance devices, before providing exceptions to permit acceptable uses of surveillance devices by private individuals and law enforcement agencies. They also restrict the communication of information obtained through the use of surveillance devices. Surveillance laws are not uniform across Australia. Each state and territory has enacted legislation regulating the use of surveillance devices. However, material differences exist between jurisdictions.94 State and territory surveillance legislation was initially directed only at the use of listening devices, such as microphones and tape recorders. As technology has progressed, these laws have been variously updated to regulate the use of optical surveillance

91 United States v White, 401 U.S. 745 (1971) at 23 (per Douglas J). 92 Although some forms of surveillance may implicate stalking or similar criminal offences; and the torts of trespass and nuisance and the equitable action for breach of confidence provide ancillary protection against unwelcome surveillance. 93 Surveillance Devices Act 2007 (NSW); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act 1998 (WA); Surveillance Devices Act (NT); Invasion of Privacy Act 1971 (Qld); Listening Devices Act 1991 (Tas); Listening Devices Act 1992 (ACT); Listening and Surveillance Devices Act 1972 (SA). Workplace surveillance laws also exist in NSW, the ACT and Victoria: Workplace Surveillance Act 2005 (NSW); Workplace Privacy Act 2011 (ACT); Surveillance Devices Act 1999 (Vic), Part 2A. 94 Surveillance Devices Act 2007 (NSW); Surveillance Devices Act 1999 (Vic); Surveillance Devices Act 1998 (WA); Surveillance Devices Act (NT); Listening & Surveillance Devices Act 1972 (SA); Invasion of Privacy Act 1971 (Qld); Listening Devices Act 1991 (Tas); Listening Devices Act 1992 (ACT). For discussion of the differences between these laws see: Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Discussion Paper 80 (2014), Chapter 13. The Commonwealth has enacted legislation concerning the use of surveillance devices by law enforcement officers: Surveillance Devices Act 2004 (Cth).

CHAPTER 15 Information Privacy

devices, tracking devices and data surveillance devices.95 As a result, the law in this area has appropriately been described as a ‘patchwork of divergent legislation’.96 The ALRC has published a report, Serious Invasions of Privacy in the Digital Era (2014), which includes a number of recommendations on Australian surveillance devices laws.97 One of its recommendations is that the Commonwealth Government enact surveillance legislation ‘covering the field’ and establishing national consistency.98 Other recommendations relate to the principles that might be reflected in a new surveillance law and how the ALRC would reconcile certain of the differences that have emerged between the states and territories. The following paragraphs describe the current state of the law on surveillance devices, but also note some proposals for law reform.

15.3.1 Surveillance devices Listening devices The covert use of listening devices is restricted in all states and territories. The definition of a listening device adopted in New South Wales, Victorian and Northern Territory legislation is: any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation …99

Copyright © 2015. Oxford University Press. All rights reserved.

The surveillance devices laws of the remaining states and the Australian Capital Territory include similar definitions.100 All states and territories prohibit the use of a listening device to record a private conversation.101 However, there are differences in how the offence provisions  95 Surveillance legislation in Queensland, Tasmania, South Australia, and the Australian Capital Territory remains exclusively focused on listening devices and has not been updated to specifically address more sophisticated types of surveillance. The West Australian Surveillance Devices Act 1999 (WA) contains provisions on listening devices, optical surveillance and tracking devices, but does not contain provisions on data surveillance devices. New South Wales, Victoria and the Northern Territory have enacted legislation regulating all four types of surveillance device (listening devices, optical surveillance devices, tracking devices and data surveillance devices). However, Victoria and the Northern Territory only regulate the use of data surveillance devices by law enforcement officers and not in general.  96 Standing Committees of Attorneys-General and Australasian Police Ministers Council Joint Working Group on National Investigation Powers, Cross-Border Investigative Powers for Law Enforcement Report, November 2003, 345.  97 ALRC, Serious Invasions of Privacy in the Digital Era, Report 123 (2014).  98 Ibid Recommendation 14-1  99 Surveillance Devices Act 2004 (Cth) s 6 (definition of listening device); Surveillance Devices Act 2007 (NSW) s 4 (definition of listening device); Surveillance Devices Act 1999 (Vic) s 3 (definition of listening device); Surveillance Devices Act (NT) s 4 (definition of listening device). In a step towards national consistency, a joint working group formed by the Standing Committee of Attorneys-General and Australasian Police Ministers’ Council proposed model surveillance devices legislation. Standing Committee of Attorneys-General and the Australasian Police Ministers’ Council Joint Working Group on National Investigation Powers, Cross-Border Investigative Powers for Law Enforcement, Report, November 2003. This model legislation has influenced Commonwealth, New South Wales, Victorian and Northern Territory surveillance devices laws. 100 Listening & Surveillance Devices Act 1972 (SA) s 3 (definition of listening device); Surveillance Devices Act 1998 (WA) s 3 (definition of listening device); Invasion of Privacy Act 1971 (Qld) s 4 (definition of listening device); dictionary to the Listening Devices Act 1992 (ACT) (definition of listening device); Listening Devices Act 1991 (Tas) s 3(1) (definition of listening device). These definitions are generally broad enough to cover any device that captures audio. As such, a camera that also records sound could be considered a ‘listening device’. However, note R v Macnamara (1995) 1 VR 263 on the issue of multifunction devices, where it was held that a warrant authorising the use of a listening device did not authorise the use of a video camera that recorded both sound and vision: at 271 (per curiam). 101 Surveillance Devices Act 2007 (NSW) s 7(1); Surveillance Devices Act 1999 (Vic) s 6(1); Surveillance Devices Act 1998 (WA) s 5(1); Surveillance Devices Act (NT) s 11(1); Listening & Surveillance Devices Act 1972 (SA) s 4; Invasion of Privacy Act 1971 (Qld) s 43(1); Listening Devices Act 1991 (Tas) s 5(1); Listening Devices Act 1992 (ACT) s 4(1).

553

554

PART 5 Privacy

are worded. In New South Wales, for example, section 7(1) of the Surveillance Devices Act 2007 (NSW) states: A person must not knowingly install, use or cause to be used or maintain a listening device: (a) to overhear, record, monitor or listen to a private conversation to which that person is not a party, or (b) to record a private conversation to which the person is a party.

The parallel offence in the Surveillance Devices Act 1999 (Vic), says: 6. Regulation of installation, use and maintenance of listening devices (1) … a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.

The important difference here is that in Victoria (and also in Queensland and the Northern Territory) it is not an offence for a person to record a private conversation to which they are a party.102 This ‘participant monitoring’ exception (discussed further below) does not apply in New South Wales or the remaining states and territories. In each state and territory, the offence of using a listening device to overhear or record a private conversation is permitted where carried out with the consent of all parties to the conversation (although note, even here, requirements can differ between jurisdictions), or in accordance with a warrant.103

Copyright © 2015. Oxford University Press. All rights reserved.

Optical surveillance devices The use of optical surveillance devices is restricted in New South Wales, Victoria, Western Australia and the Northern Territory.104 An optical surveillance device is defined in almost uniform terms across these jurisdictions as any device capable of being used to record visually or observe a (private) activity.105 In Victoria, Western Australia and the Northern Territory, it is an offence to use an optical surveillance device to record or monitor a private activity.106 In New South Wales, the relevant offence is linked to interference with property. It is an offence to use an optical surveillance device to record or observe an activity, if the installation, use or maintenance of the device involves entry onto a premises or vehicle, or interference with a vehicle or 102 Surveillance Devices Act 1999 (Vic) s 6(1), Invasion of Privacy Act 1971 (Qld) s 43(2)(a); Surveillance Devices Act (NT) s 11(1)(a). 103 In some jurisdictions, all ‘parties’ to the conversation must consent (Vic, NT, SA), in others all ‘principal parties’ must consent (i.e. NSW, WA, Tas, ACT). Surveillance Devices Act 2007 (NSW) s 7(2)–(3); Surveillance Devices Act 1999 (Vic) s 6(1)–(2); Surveillance Devices Act 1998 (WA) s 5(2)–(3); Surveillance Devices Act (NT) s 11(1)–(2); Listening & Surveillance Devices Act 1972 (SA) s 4; Invasion of Privacy Act 1971 (Qld) s 4 (definition of private conversation) and 43(2); Listening Devices Act 1991 (Tas) s 5(2)–(3); Listening Devices Act 1992 (ACT) s 4(2)–(3). 104 Surveillance Devices Act 2007 (NSW) s 8; Surveillance Devices Act 1999 (Vic) s 7; Surveillance Devices Act 1998 (WA) s 6; Surveillance Devices Act (NT) s 12. 105 … but does not include spectacles, contact lenses or similar. See: Surveillance Devices Act 2004 (Cth) s 6 (definition of optical surveillance device); Surveillance Devices Act 2007 (NSW) s 4 (definition of optical surveillance device); Surveillance Devices Act 1999 (Vic) s 3 (definition of optical surveillance device); Surveillance Devices Act (NT) s 4 (definition of optical surveillance device); Surveillance Devices Act 1998 (WA) s 3 (definition of optical surveillance device). 106 Surveillance Devices Act 1999 (Vic) ss 3 (definition of private activity) and 7(1); Surveillance Devices Act (NT) ss 4 (definition of private activity) and 12(1); Surveillance Devices Act 1998 (WA) ss 3 (definition of private activity) and 6(1). See also Brown v Palmer [2008] VSC 335.

CHAPTER 15 Information Privacy

other object, without consent of the owner, occupier or person having lawful possession (as applicable).107 These general offence provisions are subject to exceptions—for example, where an optical surveillance device is used with appropriate consents or pursuant to a warrant.108 The tolerance of participant monitoring in Victoria and the Northern Territory extends to optical surveillance conducted in those states.109 The use of optical surveillance devices is not specifically regulated in the Queensland, South Australia, Tasmania or the ACT.

Tracking devices The use of tracking devices is restricted in New South Wales, Victoria, Western Australia and the Northern Territory. A tracking device generally means a device that is capable of being used to determine or monitor the geographical location of a person or object.110 In Victoria, a tracking device is one the primary purpose of which is to determine the geographical location of a person or thing.111 It is an offence in each of these jurisdictions to use a tracking device to determine the geographic location of a person (without the consent of that person) or an object (without the consent of the lawful controller of that object).112 Aside from express or implied consent, exceptions exist in each jurisdiction to permit the use of tracking devices in accordance with a warrant or legal authorisation.113

Data surveillance The surveillance devices laws of New South Wales, Victoria and the Northern Territory address data surveillance devices. A data surveillance device is hardware or software which can be used to record or monitor the input or output of a computer.114 In New South Wales, the use of a data surveillance device in a manner that involves entry onto premises or interference with a computer or computer network (without required consents or a warrant) is an offence.115 Victorian and Northern Territory surveillance devices laws do not generally restrict the use of data surveillance devices, but prohibit the use of data surveillance devices by law enforcement officers without consent or a warrant.116

Copyright © 2015. Oxford University Press. All rights reserved.

Technological neutrality Australian surveillance legislation is device specific. It regulates the use of defined surveillance devices rather than surveillance in principle. In 2001, the New South Wales Law

107 Surveillance Devices Act 2007 (NSW) s 8(1). 108 Surveillance Devices Act 1999 (Vic) s 7(2); Surveillance Devices Act (NT) s 12(2); Surveillance Devices Act 1998 (WA) ss 6(2), (3). 109 Surveillance Devices Act 1999 (Vic) s 7(1); Surveillance Devices Act (NT) s 12(1). 110 Surveillance Devices Act 2007 (NSW) s 4 (definition of tracking device); Surveillance Devices Act (NT) s 4 (definition of tracking device); Surveillance Devices Act 1998 (WA) s 3 (definition of tracking device). 111 Surveillance Devices Act 1999 (Vic) s 3 (definition of tracking device). This means, in Victoria, a multi-function device such as a mobile phone may not be one with the primary purpose of tracking geographical location, and may not be a ‘tracking device’: ALRC, Serious Invasions of Privacy in the Digital Era, Report 123 (2014) [14.33]. 112 Surveillance Devices Act 2007 (NSW) s 9(1); Surveillance Devices Act 1999 (Vic) s 8(1); Surveillance Devices Act (NT) s 13(1); Surveillance Devices Act 1998 (WA) s 7(1). 113 Surveillance Devices Act 2007 (NSW) s 9(2); Surveillance Devices Act 1999 (Vic) s 8(2); Surveillance Devices Act (NT) s 13(2); Surveillance Devices Act 1998 (WA) s 7(2). 114 Note that the definition of ‘data surveillance device’ is different in each of the following: Surveillance Devices Act 2007 (NSW) s 4 (definition of data surveillance device); Surveillance Devices Act 1999 (Vic) s 3 (definition of data surveillance device); Surveillance Devices Act (NT) s 3 (definition of data surveillance device). 115 Surveillance Devices Act 2007 (NSW) s 10. 116 Surveillance Devices Act 1999 (Vic) s 9; Surveillance Devices Act (NT) s 14.

555

556

PART 5 Privacy

Reform Commission (NSWLRC) commented that this device-specific approach was likely to require constant updates to legislation, as technological developments outpace law.117 In its 2014 report, the ALRC similarly recommended that surveillance legislation should be technologically neutral. The ALRC noted certain new surveillance technologies may fall outside the ordinary meaning of ‘device’, such as software and networked systems.118 The advantage of a technologically neutral approach is that it is more likely to accommodate new devices and unforeseen developments in technology. A trade-off, however, could be less legislative certainty where new behaviours or devices test the limits of general principles.119

15.3.2 Lawful surveillance In different ways, the surveillance devices laws of the states and territories create space for forms of lawful surveillance. The main exceptions are for participant monitoring, surveillance conducted for the purpose of protecting a lawful interest, and surveillance conducted in the public interest.

Copyright © 2015. Oxford University Press. All rights reserved.

Participant monitoring It is not an offence under surveillance devices legislation in Victoria, Queensland or the Northern Territory for a party to a private conversation or activity to record that conversation or activity without the consent of the other participants.120 As the ALRC has observed, this inconsistency means that a journalist who records a conversation to which they are a party (without consent) may have committed an offence in one jurisdiction while the same recording would be permitted in another jurisdiction.121 In Miller v TCN Channel Nine, for example, a reporter secretly recorded a private conversation as part of an exposé of a talent scout and was successfully prosecuted under predecessor legislation to the Surveillance Devices Act 2007 (NSW).122 This same activity would not clearly be an offence under the surveillance devices laws of those states that allow participant monitoring. The participant monitoring exception is not popular among law reform commissions. In 2010, the Victorian Law Reform Commission (VLRC) recommended that Victorian surveillance devices legislation be amended to prohibit participant monitoring (subject to some exceptions).123 In its latest report, the ALRC similarly took the view that the protections offered by surveillance device laws are ‘significantly undermined’ by participant monitoring, and recommended that surveillance legislation should not contain a defence or exception for participant monitoring.124 The ALRC acknowledged that participant monitoring may be justifiable where it is reasonably necessary for the protection of a lawful interest, but 117 NSWLRC, Surveillance: An Interim Report, Report 98 (2001), [2.17]. 118 ALRC, Serious Invasions of Privacy in the Digital Era, Report 123 (2014), Recommendation 14-2. 119 NSWLRC, above n 117, [2.16]. 120 Although note that other laws may be relevant, for example in Giller v Procopets an action for breach of confidence was successful where the defendant filmed his sexual activities with the plaintiff on a hidden camera (and later with the plaintiff’s knowledge): Giller v Procopets [2008] VSCA 236. Where covert journalism is not prohibited by statute, such practices could also expose a media organisation to liability in an action for breach of confidence; or for trespass or misleading and deceptive conduct: Craftsman Homes Pty Ltd v TCN Channel Nine [2006] NSWSC 519. 121 ALRC, Serious Invasions of Privacy in the Digital Era, Discussion Paper 80 (2014), [13.38]. 122 (1988) 36 A Crim R 92. 123 VLRC, Surveillance in Public Places, Final Report 18 (2010), Recommendation 18. 124 ALRC, Serious Invasions of Privacy in the Digital Era, Report 123 (2014), [14.49] and Recommendation 14-4.

CHAPTER 15 Information Privacy

that this should be addressed through specific defences or exceptions rather than a general participant monitoring exception.125 In this, participant monitoring is linked to lawful interest and public interest exceptions—which also excuse participant monitoring, but only where it serves some higher purpose.

Protection of lawful interests and surveillance in the public interest In those states that do not have an outright participant monitoring exception, a person may use a listening device to record a private conversation where at least one of the principal parties to the conversation consents, and it is reasonably necessary for the protection of the lawful interests of that principal party.126 This exception is used, for example, to support evidence-gathering, or to prove, or guard against, allegations of improper conduct.127 South Australia and Western Australia extend the concept to cover surveillance carried out in the ‘public interest’.128

Channel Seven Perth v ‘S’ The following extract of Le Miere J’s decision at trial in Channel Seven Perth v ‘S’ provides some discussion of both the lawful interest and public interest exceptions in the context of the Surveillance Devices Act 1988 (WA). The case concerned an application to publish information obtained through the use of a surveillance device. The restrictions on publishing or communicating information obtained through surveillance are discussed further in 15.3.3 below, as are the Court of Appeal’s comments, on appeal from the decision of Le Miere J, on the publication order sought by Channel Seven.

Channel Seven Perth Pty Ltd v ‘S’ (A Company)

Copyright © 2015. Oxford University Press. All rights reserved.

[2005] WASC 175

LE MIERE J [1] The applicant has applied for an order under s 31 of the Surveillances Devices Act 1998 (WA) ("the Act") allowing publication of a conversation and activity recorded using a listening device and an optical surveillance device. [2] The applicant is the licensed holder of a commercial television station in Perth. On 20 July 2005 a reporter or producer with the applicant’s current affairs programme was approached by a woman who I will call “M”. “M” was employed on a casual basis as a receptionist/data input processor by the respondent company. Approximately two months ago she became pregnant. Approximately four weeks ago she informed the company’s general manager that she was pregnant. On 18 July the general manager told “M” that after her shift on 20 July the company would be replacing her. She asked the general manager why he was terminating her. According to “M” the general manager said words to the effect that she was a liability because of her pregnancy – that going up and down the stairs to the office was a liability. According to the general manager he said words to the effect that it was an occupational health and safety issue. Both “M” and the general manager agree that he said that he did not have any problems with her work. On 19 July she was given

125 Ibid [14.56]–[14.57]. 126 Surveillance Devices Act 2007 (NSW) s 7(3)(b)(i); Surveillance Devices Act 1998 (WA) s 5(3)(d) (listening device) 6(3)(b)(iii) (optical surveillance device); Listening & Surveillance Devices Act 1972 (SA) s 7(1); Listening Devices Act 1991 (Tas) s 5(3)(b)(i); Listening Devices Act 1992 (ACT) s 4(3)(b)(i). 127 See general: NSWLRC, Surveillance: An Interim Report, Report 98 (2001), [2.101]. 128 This may be relevant to media organisations, but see further discussion in section 15.3.3 below on publication restrictions. Listening and Surveillance Devices Act 1972 (SA) s 7(1)(b); Surveillance Devices Act 1998 (WA) ss 26 and 27; Surveillance Devices Act (NT) ss 43, 44 (emergency use only).

557

558

PART 5 Privacy

a letter of termination. The letter states that her employment would be terminated as of 21 July 2005 but states no grounds for the termination. [3] Subsequently the producers of the television programme enquired whether “M” would go back to the company with a hidden camera and ask the general manager to explain why she was being let go. “M” agreed to do so. On 20 July “M” went to the company and spoke to the general manager. Her discussion with the general manager was recorded on videotape using the hidden camera. …

The Act

Copyright © 2015. Oxford University Press. All rights reserved.

[6] Sections 5 and 6 of the Act prohibit a person using a listening device or optical surveillance device to record a private conversation or activity, including a conversation or activity to which that person is a party. A private activity is defined by s 3 to mean any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed. Private conversation is also defined in similar terms. It is common ground that the conversation and interview between “M” and the general manager was a private activity and private conversation. However, the prohibitions in s 5 and s 6 are subject to a number of exceptions. Subsection 5(3) provides that the prohibition on using a listening device does not apply to the use of a listening device by or on behalf of a person who is a party to a private conversation if, amongst other things, a principal party to the private conversation consents to that use and the use is reasonably necessary for the protection of the lawful interests of that principal party. Subsection 6(3) is in similar terms in relation to the use of an optical surveillance device. Furthermore, the prohibition on the use of a listening device or an optical surveillance device does not apply to the use of such devices in accordance with Pt 5 of the Act. [7] Part 5, which includes s 26 and s 27, deals with the use of surveillance devices in the public interest. Subsection 26(1) provides that a person who is a party to a private conversation may use a listening device to record the private conversation if a principal party to the private conversation consents to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest. Subsection 26(2) provides that a person who is acting on behalf of a party to a private conversation may use a listening device to record the private conversation if a principal party to the private conversation consents to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest. Subsections 27(1) and (2) contain similar provisions in relation to the use of optical surveillance devices. The words "party" and "principal party" are defined in s 3 of the Act. It is common ground that “M” was a party and a principal party to the conversation and interview with the general manager.

Lawfulness of the Recording [8] The respondent company submitted that the recording of the interview and conversation was unlawful. The respondent submits that “M” does not say in her affidavit that the use of the surveillance devices was reasonably necessary for the protection of her lawful interests and hence s 5(3) and 6(3) do not apply. [9] In my view that is not conclusive of the issue. The relevant requirement of each of par 5(3)(d) and par 6(3)(d) is that the use of the surveillance device was reasonably necessary for the protection of the lawful interests of the principal party, that is “M”. That is to be determined by the application of an objective test. I note that during the committee stage of the Surveillance Devices Bill, Mr Kobelke MLA referred to a situation where an employee used a tape recorder to record his conversation with his employer when the employer abused him and told him the grounds on which he was to be sacked – which were not legal grounds for sacking. The Minister in charge of the bill, Mr Prince, said that if the employee’s intention was to protect his lawful interests, and he recorded the conversation and did not disclose this use to his employer, he was protecting his lawful interest. In the present case “M” considered that she had been improperly dismissed and wished to protect her lawful interests. In my view her use of a surveillance device to record her conversation with the general manager was reasonably necessary for the protection of her lawful interests. [10] Furthermore the applicant submits that at the time the interview and conversation were recorded there were reasonable grounds for believing that the use of the listening device and optical surveillance

CHAPTER 15 Information Privacy

device was in the public interest and hence the recording by the hidden camera was lawful, that is it was authorised by s 26(2) and s 27(2). In her affidavit “M” says that she went to the television channel studios and there met with the programme producer. She says that she wants "to bring this matter to light because I think what my employer did was wrong. I want to show other pregnant women that they should not be taken advantage of". “M” also says in her affidavit that she believes "it is important for my story to be told and for the public to see the explanations given by my employer. I have also lodged a complaint with the Equal Opportunity Commission". [11] Subsections 26(2) and 27(2) make it lawful to use a listening device or optical surveillance device if a principal party to the private conversation consents to that use and there are reasonable grounds for believing that the use of the device is in the public interest. In this case the issue is whether or not there are reasonable grounds for believing that the use of the surveillance device is in the public interest …. “M” used the surveillance device to record the private interview and conversation so that it might be used to inform the public of the explanations given by her employer, to inform the public that what her employer did was wrong and to show other pregnant women that they should not be taken advantage of. I do not have to make any final determination whether or not “M” had reasonable grounds for believing that the use of the surveillance devices was in the public interest. However, the lawfulness of her conduct is relevant to determining whether I should make the publication order sought by the applicant. For that purpose I find that “M” believed that the use of the surveillance devices was in the public interest and she had reasonable grounds for so believing. Objectively, there were reasonable grounds for believing that the use of the surveillance devices was in the public interest. That is not, of course, the same thing as finding that the use of the surveillance devices was in the public interest … [Le Miere J continued to find that, although ‘M’ had reasonable grounds for her belief, he was not convinced that the broadcast of the recorded interview would protect or further the public interest. Accordingly, he declined to make an order authorising the broadcast].

Copyright © 2015. Oxford University Press. All rights reserved.

15.3.3 Dealing with protected information The surveillance devices laws of each state and territory restrict the communication or publication of information obtained through the use of a surveillance device. It is generally an offence to communicate or publish details of a private conversation or activity obtained through the use of a surveillance device, except in specified circumstances.129 In some states and territories the prohibition only applies to material obtained through a contravention of the relevant surveillance devices law (although information obtained under a warrant is generally also protected).130 In other states and territories the prohibition applies to any record of a private conversation or activity obtained through the use of a surveillance device.131 The circumstances in which communication or publication will be permitted differs between the states and territories, but some commonly permitted circumstances include where material is communicated or published with consent or in connection with legal proceedings. In those jurisdictions where the prohibition is more broadly drawn, the exceptions are usually

129 Surveillance Devices Act 2007 (NSW) ss 11, 14, 39, 40; Surveillance Devices Act 1999 (Vic) ss 11, 12; Surveillance Devices Act (NT) ss 15, 16, 51–54; Listening & Surveillance Devices Act 1972 (SA) s 5. See also Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; Surveillance Devices Act 1998 (WA) s 9; Invasion of Privacy Act 1971 (Qld) ss 44, 45; Listening Devices Act 1992 (ACT) ss 5, 6; Listening Devices Act 1991 (Tas) s 10. 130 See, for example: Surveillance Devices Act 2007 (NSW) ss 11, 14, 39, 40; Listening & Surveillance Devices Act 1972 (SA) s 5. 131 See, for example Surveillance Devices Act 1999 (Vic) ss 11, 12; Surveillance Devices Act (NT) ss 15, 16; Surveillance Devices Act 1998 (WA) s 9.

559

560

PART 5 Privacy

more broadly drawn as well. So, for example, Victorian, Northern Territory and Western Australian surveillance devices laws broadly prohibit the communication or publication of information obtained through the use of a listening device or optical surveillance device, but create exceptions for publication or communication for the protection of the lawful interests of the person making the publication or communication.132

Public interest A number of jurisdictions permit the otherwise prohibited communication or publication of information obtained through the use of a surveillance device where it is in the public interest.133 In Western Australia, a person may apply for an order authorising the publication or communication of restricted information in order to ‘protect or further the public interest’.134 Applications for such an order have been made by media companies with mixed success.135

Channel Seven Perth Pty Ltd v ‘S’ (A Company) [2007] WASCA 122

Copyright © 2015. Oxford University Press. All rights reserved.

[Appeal from the judgment of Le Miere J in Channel Seven Perth Pty Ltd v ‘S’ (A Company) [2005] WASC 175, extracted above at 15.3.2] MCLURE JA: [1] The appellant appeals from an order made by Le Miere J on 10 August 2005 dismissing its application under s 31 of the Surveillance Devices Act 1998 (WA) (‘the Act’) for an order allowing publication of a record of a private conversation made by a listening device and an optical surveillance device. [26] … it is significant that a breach of the prohibition against use or publication constitutes a criminal offence. What this and the scheme of the Act reflects is legislative acceptance that there is a strong public interest and public policy against the use, in relation to private conversations and private activity, of covert devices and the publication of such information obtained by the use of covert devices. The weight to be given to that public interest is dictated by the legislature. This strong public interest is also reflected in the requirement in s 31 that the judge be satisfied not simply that publication is in the public interest but that the publication should be made to protect or further the public interest [before authorising publication]. … [38] A matter may be of public interest notwithstanding that it involves the rights and interests of a particular individual. Thus, although the conversation between M and the general manager related to the particular facts surrounding the termination of M’s employment, it raised broader issues of public interest concerning equal opportunity and unfair dismissal. However, that does not put this conversation or activity into an unusual category. Many private conversations or activities as defined would directly or indirectly give rise to issues of public interest. Although that is a necessary condition of the exercise of the power under s 31, it is itself insufficient to satisfy the statutory criterion.

132 See, for example: Surveillance Devices Act 1999 (Vic) ss 11(2)(b); Surveillance Devices Act (NT) ss 15(2)(b); Surveillance Devices Act 1998 (WA) s 9(2)(vi). 133 Surveillance Devices Act 1999 (Vic) s 11(2)(b); Surveillance Devices Act 1998 (WA) ss 9(3)(a), 31; Surveillance Devices Act (NT) s 15(2)(b)(ii) and 46; Invasion of Privacy Act 1971 (Qld) s 45(2)(c)(i); Listening & Surveillance Devices Act 1972 (SA) s 7(3)(c). Also see: Surveillance Devices Act 2007 (NSW) s 40(6) (information obtained under a warrant). 134 Surveillance Devices Act 1998 (WA) s 31(1). 135 Channel Seven Perth Pty Ltd v ‘S’ (A Company) [2005] WASC 175; Channel Seven Perth Pty Ltd v ‘S’ (A Company) [2007] WASCA 122. Cf Re Surveillance Devices Act; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246.

CHAPTER 15 Information Privacy

[39] In this case the conversation and activity was private because the circumstances indicated that privacy was the objectively determined desire of the general manager. His desire for privacy was not for (or to further) any unlawful or improper purpose and did not involve any misuse of the privacy so desired. The general manager’s purpose was to explain to M in good faith why her services had been terminated. Such conduct is to be encouraged rather than discouraged. The prospect of appearing on ‘candid camera’ is likely to operate as a disincentive. The fact that the general manager may turn out to be mistaken in his belief that he was acting lawfully and in M’s best interests does not weigh heavily in the public interest because that will be determined in the appropriate forum. [40] Another relevant factor is the scope of the publication. The appellant proposes to publish the covertly obtained private information to the community at large. This will of course have the result of widening the debate on the public interest issues arising from the private conversation and activity. However, as the primary Judge correctly observed, the appellant could have raised exactly the same issues without instigating the use of covert devices. It may be the case that the appellant could more effectively stimulate audience interest in the issues by using the covertly obtained images and audio. That may be a reflection of the greater entertainment value in witnessing people who are unaware of being filmed. However, I do not regard that as contributing in any meaningful way to the public interest. If the matters relied on by the appellant satisfied the statutory criterion in s 31, there could be widespread use by the media of covertly obtained private information. That outcome is not consistent with the language and purpose of the Act. [41] In my view, the evidence falls well short of providing a proper foundation for a conclusion that the proposed publication should be made to protect or further the public interest. Accordingly, I would dismiss the appeal.

Copyright © 2015. Oxford University Press. All rights reserved.

The authorisation regime in Western Australian legislation is not repeated in other jurisdictions.136 However, the NSWLRC has supported the introduction of an authorisation scheme in New South Wales. A number of media organisations submitted to the commission that a general public interest exception (that is, one that was not dependent on prior authorisation) should be made available to the media. The NSWLRC disagreed, commenting: There is often a fine line between genuine investigative journalism in the best interests of the public, and serious and unjustifiable breaches of privacy. Bound by their duty to present information to the public, equipped with high quality video and sound devices and subject to the pressure of deadlines and getting a ‘scoop’, the media are not always best placed to decide where that line should be drawn. Without an authorisations process, ratings and circulation figures could determine when intrusions into personal privacy are justified.137

Responsible journalism In its 2014 report, the ALRC proposed that surveillance legislation include a defence for responsible journalism relating to matters of public concern and importance as an alternative to a broad public interest defence. The following extract sets out the ALRC’s reasoning.

136 Although see Surveillance Devices Act (NT) ss 46, 47 (relating to an order for publication of information obtained through emergency surveillance in the public interest). 137 NSWLRC, Surveillance: An Interim Report, Report 98 (2001), [6.18]

561

562

PART 5 Privacy

Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era Report 123 (2014) (footnotes omitted)

Copyright © 2015. Oxford University Press. All rights reserved.

Responsible journalism and the public interest Recommendation 14–5 Surveillance legislation should provide a defence for responsible journalism relating to matters of public concern and importance. [14.58] Surveillance will sometimes be necessary and justified when conducted in the course of responsible journalistic activities. The ALRC recommends that surveillance legislation include a defence for responsible journalism, particularly if participant monitoring exceptions are not included in surveillance legislation. Media and journalistic activities offer significant public benefit, and these activities may at times justify the use of surveillance devices without the notice or consent of the individuals placed under surveillance. The removal of participant monitoring exceptions, as recommended above, would restrict the ability of journalists to use surveillance devices in this way. [14.59] For example, a journalist who records a private conversation in which a public figure is expected to reveal evidence of corruption would, absent a participant monitoring exception or other defence, have committed an offence under surveillance legislation. The ALRC considers that this is, generally speaking, an undesirable outcome that could be avoided through the introduction of a defence of responsible journalism. [14.60] At the same time, the ALRC considers that a defence of responsible journalism should be suitably constrained. The defence should not, for example, allow unrestricted freedom to carry out surveillance in circumstances which are not journalistic in nature, where the public interest in a matter is trivial, or where the matter is merely of interest to the public or for the purposes of gossip. [14.61] Consideration should be given to providing distinct responsible journalism defences for the distinct offences of, first, the installation or use of a surveillance device, and second, the communication of information obtained through surveillance. The circumstances that justify communication of information obtained through surveillance may be different from those that justify the installation or use of a surveillance device. A journalist is unlikely to know what information will be obtained under surveillance before the surveillance is completed—for example, a public official may or may not make a comment that suggests corruption during a particular recording. [14.62] A responsible journalism defence to the installation or use of a surveillance device should therefore depend whether it was reasonable for the journalist to believe that the use of the surveillance device was in the public interest, and not on whether the information obtained through surveillance was, in hindsight, information in the public interest. However, considerations of whether the information obtained was in the public interest may be relevant if a responsible journalism defence is to be applied to the use or communication of information obtained through surveillance, rather than the act of surveillance itself. … [14.64] The ALRC is not recommending specific elements of such a defence, and further consideration would be required before such a defence was drafted. However some possible elements, drawn from other laws, include: • the surveillance should be carried out for the purposes of investigating matters of significant public concern, such as corruption; • the defendant must have reasonably believed that conducting the surveillance was in the public interest; • the surveillance was necessary and appropriate for achieving that public interest, and the public interest could not have been satisfied through other reasonable means; and • the defendant must have been an employee or member of an organisation that had publicly committed to observing standards dealing adequately with the appropriate use of surveillance devices by media and journalists.

CHAPTER 15 Information Privacy

QUESTIONS 1 Should the communication or publication of material obtained through the use of a surveillance device be permitted in the public interest? Should this depend on the prior approval of a court (as in Western Australia)? 2 Would you support the introduction of a ‘responsible journalism’ defence under surveillance devices laws?

FURTHER READING

Copyright © 2015. Oxford University Press. All rights reserved.

Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report 123 (2014). New South Wales Law Reform Commission, Surveillance: An Interim Report, Report 98 (2001). Victorian Law Reform Commission, Surveillance in Public Places, Final Report 18 (2010).

563

Copyright © 2015. Oxford University Press. All rights reserved.

Copyright © 2015. Oxford University Press. All rights reserved.

PART 6

Offensive Publications

16 Offensive Publications 567

Copyright © 2015. Oxford University Press. All rights reserved.

16 Offensive Publications

Copyright © 2015. Oxford University Press. All rights reserved.

INTRODUCTION Under the film and publications classification schemes a range of material that once would have been censored is now available to adults. Despite the development of classification schemes as the principal mechanism for censorship in Australia, other common law and statutory offences have been retained. Some legislation has also introduced new restrictions in the area of discrimination. This chapter begins with a brief survey of relevant classification laws before turning to examine a range of laws under the broad heading ‘offensive publications’. These include the traditional criminal offences of obscene, blasphemous and seditious libel and newer civil and criminal provisions proscribing vilification. Questions regarding the law’s approach to ‘offensiveness’ inevitably involve consideration of freedom of expression and the value we place upon it as discussed earlier in Chapter 2.1 Indeed, regulation of offensive publications is objected to by some on the grounds of free speech and yet also advocated by others as a necessary and legitimate limit upon speech, especially where there is concern that offensive publications may harm others or incite violence.2 There are very few modern cases to report concerning obscene, blasphemous and seditious libel and if this book had been written 20 years ago the offences might have been relegated to a ‘history’ chapter and discussed as archaic remnants. However, there have been modern developments that are analogous to these offences and that impose new restrictions on publishing and the media. Just as the obscenity offences have been superseded in many respects by classification, some aspects of blasphemy can be recognised in religious vilification laws, and sedition re-emerged in the debate over Commonwealth anti-terrorism laws which continue to develop. For the media, the obscenity, blasphemy and sedition provisions are unlikely to cause the kind of day-to-day concerns that some of the civil liabilities discussed in earlier chapters of this book, such as defamation3, may cause. So long as the laws are rarely enforced they might seem to be of little practical concern, but some high profile cases and legislative re-enactments have brought the offences back to public attention in recent decades. When the Commonwealth 1 2 3

Monis v The Queen (2013) 249 CLR 92 at 174-175 per Hayne J. See further, Jeremy Waldron, The Harm in Hate Speech, Harvard University Press, Cambridge, Mass., 2012. See Chapter 7 Introduction.

567

568

PART 6 Offensive Publications

sedition laws were reformed in 2005 as part of the anti-terrorism measures, the then Prime Minister, John Howard, responded to concerns expressed by the media about restrictions on free speech by arguing that existing Commonwealth sedition laws had not restricted free speech for 50 years.4 Nevertheless, the controversial nature of sedition and obscenity laws means that they may be subject to ‘crackdowns’ from time to time in response to perceived threats to public order. So long as the laws are extant their impact upon the media and free speech must be considered. These laws, even if some are rarely enforced, may result in selfcensorship by the media because of concerns about potential liability. Self-censorship can be particularly insidious if journalists, editors and media proprietors overestimate the scope of the laws. Concerns about self-censorship by the media have been raised by commentators in relation to the various regulatory regimes discussed in this chapter, and our classification laws are also undergoing re-evaluation in light of convergence of digital media forms. The line between freedom of expression and legitimate regulation of offensive publications will always be contested and shifting, triggering concern over the dangers of heavy-handed censorship or control of the media.

16.1 Classification and censorship

Copyright © 2015. Oxford University Press. All rights reserved.

The Commonwealth does not have any direct constitutional authority over censorship or classification; however, it historically asserted itself through the customs power. The Customs Act 1901 (Cth) provided a mechanism to classify and confiscate publications as ‘prohibited imports’.5 Beyond import restrictions, domestic censorship was effected at the state level through police action, vice squads, postal regulation, and civil and criminal prosecution under various censorship and obscenity Acts. Australia has a conservative history when it comes to censorship. As outlined by one historian: Australia was arguably one of the worst censors in the Western world through most of the century, comparable to Ireland and South Africa. Australian censors were proud to ban what was acceptable in London, Paris and New York, and while the rest of the British Empire was apparently degenerating, they described their role as a ‘bulwark for Anglo-Saxon standards.’ Australia would be the Empire’s moral core …6

In the 1970s, Australian states moved away from controlling publications through offences of obscenity and indecency and started to implement classification schemes. Through the later parts of the twentieth century, responsibility for classification decisions steadily drifted towards the Commonwealth. As it stands, a cooperative national classification scheme

4 5 6

Elizabeth Colman, ‘Way Clear for Sedition Laws’, The Australian, 5 December 2005, 4. The Australian Customs Service may still seize or detain objectionable material at the point of import or export: Customs Act 1901 (Cth) ss 50 and 112; Customs (Prohibited Imports) Regulations 1956 (Cth) r 4A; Customs (Prohibited Exports) Regulations 1958 (Cth) r 3. Nicole Moore, Secrets of the Censors: Obscenity in the Archives, Speech Presented at the National Archives of Australia in Canberra, 2 May 2005.

CHAPTER 16 Offensive Publications

is administered by the Australian government, with the states and territories handling enforcement.7 Classification is an inexact science and can cause a lot of controversy—particularly where material is banned (or ‘refused classification’). There is a direct conflict here between principles of freedom of expression and concerns to protect society, particularly children, from harmful material. The following section introduces the national classification scheme and the principles that apply when classifying publications, films and computer games. The section considers the concept of a ‘reasonable adult’ and how the classification scheme fits with the implied freedom of political communication.

16.1.1 Censorship Australian censorship decisions were traditionally based on concepts of obscenity and indecency and justified on moral grounds. The classic test of obscenity, as expressed in R v Hicklin was: Whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.8

A movement away from morality as a justification for censorship occurred during the 1950s and 1960s with courts in Australia and the United States preferring to emphasise offence to community standards as a determinant.9 This was evident in Fullagar J’s decision in R v Close, where his Honour wrote: … the word ‘obscene’, as an ordinary English word, has nothing to do with corrupting or depraving susceptible people … it is used to describe things which are offensive to current standards of decency and not things which may induce sinful thoughts …10

This focus on ‘standards of decency’ remains in the current national classification scheme.

Copyright © 2015. Oxford University Press. All rights reserved.

16.1.2 The National Classification Scheme In 1983 the Commonwealth and the states and territories agreed to pursue uniform classification standards, with each state and territory implementing legislation based on the Classification of Publications Ordinance 1983 (ACT). In a report on censorship procedure delivered in 1991, the Australian Law Reform Commission recommended that legislation dealing with the classification of films and publications should be drawn into a national

7

There are minor differences between states in the execution of the national classification scheme. Certain states retain the ability to classify publications or computer games, or to override classification decisions made by the Classification Board. Queensland retains the power to classify computer games under s 5 of the Classification of Computer Games and Images Act 1995 (Qld) and publications under s 9 of the Classification of Publications Act 1991 (Qld). South Australia is set apart from other states in that it provides for the classification of theatrical performances under the Classification of Theatrical Performances Act 1978 (SA), even if this is rarely done. South Australia also retains the right to classify material itself: Classification (Publications, Films and Computer Games) Act 1995 (SA) ss 16 and 17. 8 R v Hicklin (1868) LR 3 QB 360 at 371 per Cockburn J. 9 See R v Close (1948) VLR 445; Roth v United States 354 US 476 (1957); Crowe v Graham (1968) 121 CLR 275. 10 R v Close (1948) VLR 445 per Fullager J at 463.

569

570

PART 6 Offensive Publications

scheme.11 Consistent with this recommendation, Commonwealth, state and territory ministers responsible for censorship agreed on a revised co-operative legislative scheme for censorship (the national classification scheme), which gave the Commonwealth responsibility for classifying publications, films and computer games.12 The current regime in Australia adopts the view that classifying content into appropriate categories and providing consumer advice will allow readers and viewers to make their own decisions about the material they access. Certain content is restricted, fulfilling child protection objectives and ensuring that people who wish to avoid such material can do so. Material will be banned (or refused classification) only where such a decision can be justified on the grounds that it is socially harmful. Resolving exactly what should be refused classification, and what criteria should be applied in making such a decision is, of course, quite difficult. Community standards and what is offensive to the hypothetical ‘reasonable adult’ are central to the national classification scheme. The object of restricting publications that are socially harmful is balanced against the liberal principle that ‘adults should be able to read, hear and see what they want’.

National Classification Code (May 2005) Section 1

Copyright © 2015. Oxford University Press. All rights reserved.

Classification decisions are to give effect, as far as possible, to the following principles: (a) adults should be able to read, hear and see what they want; (b) minors should be protected from material likely to harm or disturb them; (c) everyone should be protected from exposure to unsolicited material that they find offensive; (d) the need to take account of concerns about: (i) depictions that condone or incite violence, particularly sexual violence; and (ii) the portrayal of persons in a demeaning manner.

Classification (Publications, Films and Computer Games) Act 1995 (Cth) Section 11—Matters to be taken into account The matters to be taken into account in making a decision on the classification of a publication, a film or a computer game include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults; and (b) the literary, artistic or educational merit (if any) of the publication, film or computer game; and (c) the general character of the publication, film or computer game, including whether it is of a medical, legal or scientific character; and (d) the persons or class of persons to or amongst whom it is published or is intended or likely to be published.

11 Australian Law Reform Commission, Film and Literature Censorship Procedure, Report No 55, September 1991, Recommendation 2. 12 Agreement Relating to a Revised Co-operative Legislative Scheme for Censorship in Australia (28 November 1995).

CHAPTER 16 Offensive Publications

The Classification Act 1995 (Cth) (‘Classification Act’) names the classification categories that are available for films, computer games and publications.13 The scope of each category is defined through the National Classification Code made under the Classification Act.14 Classification guidelines made under the Act amplify the criteria in the National Classification Code by providing more detailed descriptions of the types of material that will come within each classification.15 The minister has determined Guidelines for the Classification of Publications 2005, Guidelines for the Classification of Films 2012 and Guidelines for the Classification of Computer Games 2012. Classifying material under the Classification Code and relevant guidelines involves an assessment of the impact of classifiable elements. Classifiable elements include: adult themes, violence, sex, language, drug use and nudity. The impact of classifiable elements is determined by considering the treatment of individual elements as well as their cumulative effect. For publications, emphasis, tone frequency and the amount of visual or written detail will affect the impact of classifiable elements. For films and computer games, impact may be higher where a scene or game-play sequence involves close-ups or slow motion, is prolonged or repeated, or is realistic rather than stylised. Context is also an important consideration.16 Classification decisions are made at first instance by the Classification Board in accordance with criteria set out in the National Classification Code and relevant guidelines.17 An application to the Classification Review Board to have a classification decision reconsidered may be made by the minister, the original applicant for classification, the publisher or a ‘person aggrieved’ by the original decision.18 Such a review may be sought for commercial reasons, for instance, where a classification restricts, or is likely to limit the audience for, a film. However, a review may also be sought for political reasons. The Classification Act 1995 (Cth) contemplates that ‘a person aggrieved’ could include an organisation or person with a particular interest in the ‘contentious aspects’ of the theme or subject matter of the material being classified.19

Copyright © 2015. Oxford University Press. All rights reserved.

16.1.3 Publications The national classification scheme does not require all publications to be classified before being offered for sale in Australia.20 Only submittable publications—those which are likely to warrant restriction to adults—need to be classified. A submittable publication is one which contain depictions or descriptions that are likely to cause the publication to be refused classification; are likely to cause offence to a reasonable adult (to the extent the publication should not be sold or displayed as an unrestricted publication); or are unsuitable for a minor to see or read.21 The national classification scheme establishes four classification 13 14 15 16

Classification Act 1995 (Cth) s 7. Ibid s 6. Ibid s 12. Guidelines for the Classification of Publications 2005; Guidelines for the Classification of Films 2012; Guidelines for the Classification of Computer Games 2012. 17 Classification Act 1995 (Cth) ss 9–10. 18 Ibid s 42(1). The relevant State or Territory ministers can also ask the (Commonwealth) minister to apply for a classification decision to be reviewed: s 42(2). 19 Ibid s 42(3). 20 A publication is any written or pictorial matter, but does not include a film, computer game, or an advertisement for a publication, film or computer game: Classification Act 1995 (Cth) s 5 (definition of publication). 21 Classification Act 1995 (Cth) s 5.

571

572

PART 6 Offensive Publications

categories for published material: Unrestricted; Restricted Category 1; Restricted Category 2; and Refused Classification.22 The Guidelines on the Classification of Publications 2005 note that the Unrestricted classification covers a wide range of material and may include publications that are not recommended for some readers. For instance, risqué publications that are not suitable for people who are under 15 may still be unrestricted but should carry appropriate consumer warnings. Unrestricted publications may include low impact violence that is not gratuitous, emphasised or exploitative. Sexual activity involving consenting adults may be ‘discreetly implied’ and some level of sexualised nudity is permissible. Bona fide artworks that may offend some sections of the community may also be unrestricted. Material that is classified Restricted Category 1 is legally restricted to adults. Publications in this category may involve realistic violence and sexual activity between consenting adults short of actual sexual activity. Drug use is permitted, and there are virtually no limits on coarse language. Publications classified Restricted Category 2 can involve actual sexual activity between consenting adults, and even ‘revolting and abhorrent phenomena’. Publications classified Restricted Category 1 or Restricted Category 2 may not be sold to minors. Where a publication lacks any moral, artistic or other values and offends against generally accepted standards of morality, decency and propriety accepted by reasonable adults to the extent that it should not be classified, it will be Refused Classification. Publications that describe or depict sexual activity involving children, bestiality, extreme violence or sexual violence will be quickly drawn within the Refused Classification category. Publications that promote, incite or instruct in matters of crime, or depict sex, violence drug use or abhorrent phenomena may also be refused classification. It is an offence to sell a publication that has been refused classification in all states and territories of Australia.23

Copyright © 2015. Oxford University Press. All rights reserved.

16.1.4 Films and computer games The national classification scheme treats films and computer games similarly. As a basic rule, all films need to be classified before they are offered for sale, hire or public exhibition; however, a number of different types of film are exempt from classification.24 Similar to films, in general, all computer games need to be submitted for classification before being sold or demonstrated, but exemptions exist for software used in the course of business, science or education.25 The classification categories available for films and computer games can be broken down into advisory categories (G—General; PG—Parental Guidance; and M—Mature), restricted categories (MA15+—Mature Accompanied; and R18+—Restricted), and sexually 22 Ibid s 7. 23 For offence provisions relating to restricted or refused classification publications, see: Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW), Part 3; Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic), Part 3; Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT), Part 3; Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), Part 7, Division 2; Classification of Publications Act 1991 (Qld), Part 3; Classification (Publications, Films and Computer Games) Act 1995 (SA), Part 5; Classification of Publications, Films and Computer Games Act (NT), Part 5; Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas), Part 2. 24 Films that focus on business, accounting, professional scientific, educational, current affairs, hobbyist, sporting, family, live performance, musical presentation, religious, community or cultural, social sciences or natural history may be exempt from classification: Classification Act 1995 (Cth) s 5B(1). 25 Classification Act 1995 (Cth) s 5B(2).

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 16 Offensive Publications

explicit material which is either restricted or refused classification (X18+—Restricted; and RC—Refused Classification), although note that there is no X18+ category available for computer games. These categories are explained in the Guidelines for the Classification of Films 2102 and the Guidelines for the Classification of Computer Games 2012. The first of the advisory classification categories (G—General) exists for material intended for a general audience and should be accordingly mild. Any classifiable elements such as sex or violence should be very limited and justified by context. Material that is classified PG—Parental Guidance may contain material that some children find upsetting or confusing but still requires that any sex, violence or coarse language should be mild and infrequent. M—Mature material is not recommended for people under 15 years old, but there are no legal restrictions on access. Moderate violence is permitted as is discreetly implied sexual activity. Aggressive or strong coarse language may be used infrequently. MA15+—Mature Accompanied material is legally restricted. It cannot be sold to people who are under 15 years old, and can only be exhibited to people under 15 if they are accompanied by a parent or guardian. MA15+ content can involve strong coarse language and implied sexual activity. Themes such as crime, suicide, drug and alcohol dependency and death may be dealt with. R18+—Restricted classified films and computer games may be offensive to sections of the community and can only be sold or exhibited to adults. Such material may involve simulated sexual activity, violence, implied sexual violence (if justified by context and, in the case of games, if not related to an incentive or reward) and there are almost no restrictions on coarse language. X18+—Restricted covers sexually explicit films with real depictions of sexual activity between consenting adults. Sexual violence, coercion and anything that purposefully demeans the people involved in the activity is not permitted. Films classified X18+ can only legally be sold in the Northern Territory or the Australian Capital Territory.26 Films that involve child sexual abuse, extreme violence, instruction or promotion in matters of crime or violence or offensive depictions of sexual violence will be banned, or classified as RC—Refused Classification. It is an offence to sell or exhibit films or computer games that are refused classification.27 The Guidelines for the Classification of Computer Games 2012 make some specific comments on the effect of interactivity. The guidelines suggest there is a difference between passive viewing and its effect on a viewer as compared with actively controlling outcomes by making choices to take or not take action. The guidelines also state that due to the interactive nature of computer games and the active repetitive involvement of the participant, as a general rule, computer games may have a higher impact than similarly themed depictions in film. 26 Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT), Part 6; Classification of Publications, Films and Computer Games Act (NT) s 49 (this is an offence provision, but note that it does not state an outright prohibition). 27 For offence provisions relating to restricted or refused classification films and computer games, see: Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW), Part 2 (films), Part 4 (computer games); Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic), Part 2 (films), Part 4 (computer games); Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT), Part 2 (films), Part 4 (computer games); Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), Part 7, Division 3 (films), Division 4 (computer games); Classification of Computer Games and Images Act 1995 (Qld), Parts 3-5; Classification of Films Act 1991 (Qld), Parts 3-5; Classification (Publications, Films and Computer Games) Act 1995 (SA), Part 4 (films), Part 6 (computer games); Classification of Publications, Films and Computer Games Act (NT), Part 4 (films), Part 6 (computer games); Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas) Part 3 (films), Part 4­ (computer games).

573

574

PART 6 Offensive Publications

Classification and cinema In classification, perhaps more than any other area, there is a clear link between law and cultural production. Censorship laws and cinema have had a mutually influential relationship. The ‘Hays Code’ was adopted by the film industry in the United States in 1930 as a set of self-regulatory moral and ideological principles, which have had a lasting impact on cinema. The Hays Code was both highly puritan and prescriptive. The full text of the Hays Code included ‘General Principles’, ‘Particular Applications’ of the General Principles, and ‘Reasons Underlying the General Principles.’ As a snapshot, the Hays Code made strictly applied assertions such as: ‘the fact that the nude or semi-nude body may be beautiful does not make its use in the films moral’, ‘excessive and lustful kissing, lustful embraces, suggestive postures and gestures, are not to be shown’ and ‘the treatment of bedrooms must be governed by good taste and delicacy.’ The last of these principles was the source of the traditional practice in American film and television to have husbands and wives sleeping in separate beds—a practice that was scandalously abandoned in The Flintstones and The Brady Bunch in the 1960s. In response to the Hays Code, a suggestive visual language was developed by Hollywood so it could continue to deal with otherwise prohibited subject matter. As written by Doherty: The Code regulated the spoken word and visible image, but the unsaid and the unseen lurk under the lilt of the dialogue and beyond the edge of the frame: the spectator only has to fill in the blanks … watching the camera track over set design and fade to black, audiences learned to be cryptographers and connoisseurs … Except to the dim-witted or underaged, the neon-lit clues are giveaways. A shot of a couple embracing dissolves to ocean surf pounding against the shore, a camera pans laterally from couch to rug to fireplace. Often, after the elliptical pause, the viewer is then assured that the offscreen interlude had not, in fact, initiated what the mind’s eye had just conjured. The couple is clothed and unruffled, not spent and satisfied. Perhaps they were only talking.28

The Hays Code was replaced by a voluntary film rating system in 1968.

Copyright © 2015. Oxford University Press. All rights reserved.

16.1.5

The ‘reasonable adult’

The concepts of community standards and the reasonable adult are central to the national classification scheme. These are changing standards, however, and can be hard to pin down. In 2006 Adultshop.com Limited (Adultshop) submitted a film, Viva Erotica, to the Classification Board for classification. The film was a montage of non-violent, sexually explicit scenes created specifically to test Australian classification standards. The Classification Board gave the film an X18+ rating, with the effect that the film was not legally available for sale or hire in Australia, except in the Australian Capital Territory and the Northern Territory. Adultshop applied to the Classification Review Board seeking to have the film reclassified R18+. In submissions to the Classification Review Board, the Australian Family Association pressed the view that the X18+ rating was appropriate.29 In support of Adultshop, the New South Wales Council for Civil Liberties argued, that as a consequence of new technology, there had been a shift in community standards and ‘majoritarian’ values would not be offended by Viva Erotica.30 Adultshop, for its part, submitted that although the film contained real depictions of actual sex between consenting adults, it was not offensive

28 Thomas Doherty, Hollywood’s Censor: Joseph I Breen and the Production Code Administration, Columbia University Press, New York, 2007, 98–99. 29 Classification Review Board Decision, Viva Erotica, 22 November 2006 and 6 December 2006 at 7.3. 30 Ibid at 7.2.2.

CHAPTER 16 Offensive Publications

to a reasonable adult.31 The Classification Review Board maintained the X18+ classification, noting the clear rule in the guidelines for R18+ content of ‘simulation, yes—the real thing, no’.32 The Classification Review Board also made the following comments on community standards: The Review Board does not believe that community standards are uniform among Australian adults in the context of sexually explicit films. There is a wide spectrum of views such that notions of ‘majoritarianism’ are difficult to apply. Many adults would not be offended by the material in Viva Erotica or by ‘stronger’ sexually explicit material. Conversely, many would be offended by even the most fleeting of sexually explicit scenes in an artistic film. From this broad spectrum including older and younger, liberal and conservative, passionate and ambivalent views, the Review Board must use its own perception, its experience and available evidence to form the best view in the circumstances of the current standards of the Australian community and reasonable adults.33

Adultshop challenged the decision on a range of administrative grounds but was unsuccessful, both at first instance and on appeal.34 In the Federal Court decision Jacobson J further discussed the concepts of community standards and the reasonable adult and how these standards might be determined. His Honour observed that the test was not a simple majoritarian calculation as to whether 51% of the community would, or would not, be offended.35 The application of the test is to reflect ‘community views’. The broadly representative nature of the classifying body is meant to reflect community views. The Review Board is, accordingly, to make its own assessment of how much the material is likely to offend the sensibilities of a reasonable adult, guided by the classification guidelines as an expression of current community standards.36

Copyright © 2015. Oxford University Press. All rights reserved.

16.1.6 Classification and the Implied Freedom of Political Communication In Brown v Classification Review Board (the ‘Rabelais’ case),37 the Full Court of the Federal Court held that the national classification scheme is compatible with the implied freedom of political communication in the Australian Constitution. The extract below sets out certain comments from Merkel J in the first instance decision on the relationship between the national classification scheme and the implied freedom of political communication. The background information which precedes it is from the appeal judgment. The appellants were the editors of a student newspaper. One of the articles published in the July 1995 edition of the newspaper was entitled ‘The Art of Shoplifting’ and contained a ‘step by step guide to shoplifting’. Following complaints from retailers, the chief censor of the Commonwealth Office of Film and Literature refused classification of the newspaper on the basis that the article ‘promotes, incites or instructs in matters of crime or violence’. This had the effect of prohibiting distribution of the newspaper. An application by the appellants 31 32 33 34

Ibid at 7.1.1. Ibid at 7.4.5. Ibid at 7.4.3. Adultshop.com Ltd v Classification Review Board [2007] FCA 1871; Adultshop.com Ltd v Classification Review Board [2008] FCAFC 79. 35 Adultshop.com Ltd v Classification Review Board [2007] FCA 1871, [141]. 36 Ibid [139–140]. 37 (1998) 154 ALR 67.

575

576

PART 6 Offensive Publications

to the Classification Review Board for a review of the chief censor’s decision was dismissed. The appellants then sought judicial review of the board’s decision. That application was also dismissed. The appellants then appealed to the Full Court of the Federal Court. The appellants submitted that the primary judge had misconstrued the National Classification Code (the Code) and had erred in holding that it was open to the Classification Review Board to find that the article fell within the terms of the Code. It was submitted that before an article could ‘instruct’ in matters of crime it had to be shown that the intent and likely effect of the publication were to cause the commission of the crime. Further, the appellants argued that, in construing the Code, regard should be had to the implied constitutional freedom of political discussion, the common law recognition of freedom of speech and the provisions of the International Covenant on Civil and Political Rights.38

Brown v Classification Review Board (1997) 145 ALR 464

MERKEL J (at 474):

Copyright © 2015. Oxford University Press. All rights reserved.

Is the classification of the article in breach of the implied constitutional freedom? The applicants did not challenge the constitutional validity of the Act on the ground that it infringed the implied constitutional freedom of political communication and discussion. However, the main contention on behalf of the applicants was that the article, being primarily ‘political’ in character and appearing in a political context, was protected by the implied constitutional freedom. Accordingly, so it was said, the board erred in law in construing the Code and the article in a manner which denied that protection. The argument raises an issue of some importance. Under the Constitution, the Commonwealth cannot enact legislation which infringes the implied constitutional freedom. It must follow that a decision made under an enactment also cannot infringe the freedom. In such cases either the decision might be in excess of the power conferred under the enactment or, subject to interpreting the enactment as being within constitutional power, the enactment might be in excess of the power conferred under the Constitution. (475) There are a number of answers to the contention. (1) As discussed earlier, the implied freedom is not absolute and gives way to laws giving effect to legitimate countervailing interests. In general, laws which prohibit or restrict conduct which is likely to be harmful to the rights of life, liberty and property of others constitute legitimate protection of countervailing interests and are beyond the scope of the implied constitutional freedom. For the reasons outlined earlier, it is open to Australian legislatures to conclude that incitement to, promotion of or instruction in the commission of crime constitute such conduct. (2) It can be accepted that the article must be construed in the political context in which it appears in the Rabelais publication. The introductory section, which advocates shoplifting as a means of redistributing wealth from the rich to the poor also contains political speech. However, in the same way as changes in ‘content, emphasis or context’ may cause non-political private speech to develop into political speech on a matter of public concern (see Theophanous at CLR 124), so too may such changes cause an article introduced by political speech to develop into non-political speech. That is precisely what has occurred in respect of ‘The Art of Shoplifting’. The introduction to the article proffers a political justification or rationale for shoplifting but that does not result in the detailed information and guide to shoplifting, which is systematically furnished in the balance of the article, also being characterised as political.

38 This background introduction is from the Australian Law Reports headnote in Brown v Classification Review Board (1998) 154 ALR 67.

CHAPTER 16 Offensive Publications

Two examples suffice. An instruction manual on the use of explosives to effectively destroy a high rise building does not become political speech or expression merely because the justification or rationale proffered in the manual for the destruction is political. Likewise, an instruction manual on how to engage in drug trafficking in schools does not become political speech merely because it is distributed by an extremist political group seeking to undermine the established order in society. It is beyond question that the RC classification confirmed by the board was based on the portion of the article which furnished the ‘step by step guide to shoplifting’ and not on the rationale or justification for doing so. The RC classification did not apply to the content of the Rabelais publication without the article, or to the article without the guide to shoplifting. Accordingly, it is simply erroneous to treat the classification as infringing the implied constitutional freedom of political communication and discussion. (3) In Australia non-political speech may be impaired or restricted by the legislature or by administrative decisions lawfully made under legislative enactments. Accordingly, in so far as the Act and the complementary legislation enacted pursuant to the cooperative agreement make provision for administrative decisions which restrict freedom of non-political speech, that impairment or restriction is valid and effective under Australian law. For the reasons set out earlier the administrative decision made by the board under the Act does not impair or restrict political speech. Accordingly, the board did not err in law in not acceding to the arguments of the applicants based on Theophanous.

There are current moves to further streamline and reform the classification system following recommendations made by the Australian Law Reform Commission in its report ‘Classification—Content Regulation and Convergent Media’ which was published in February 2012.39 These reforms continue and include a first tranche of changes aimed at modernising the system to make it more efficient and adaptable to the digital media environment.40 Beyond these reforms lie larger questions about the interrelationship of law and morality that connect to changing social attitudes and fundamental notions of the place of law in society.41

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 On what basis should material be censored (refused classification)? Is the preservation of morality a valid reason? Is this substantively different to ‘community standards’ and what is offensive to a ‘reasonable adult’? What is the difference? 2 Would you expect the availability of restricted material online to have an impact on classification standards? Does it make sense for X18+ material to continue to be prohibited (in most states), notwithstanding the prevalence of such content online? 3 Consider the publication that was refused classification in the Rabelais case. The publication was ultimately refused classification as it instructed in matters of crime. In what sense is this political speech? Is it valid to censor material on the basis that it instructs in matters of crime? If not ‘The Art of Shoplifting’, what publications should be censored on this basis?

39 Australian Law Reform Commision, ‘Classification—Content Regulation and Convergent Media’, Report No 118, 2012. 40 Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Act 2014 (Cth). 41 See for example the debate over such questions between H. L. A. Hart and Lord Devlin in the 1950s and 1960s: Lord Devlin, The Enforcement of Morals, Oxford University Press, Oxford, 1959; H. L. A. Hart, Law, Liberty and Morality, Oxford University Press, London, 1963.

577

578

PART 6 Offensive Publications

16.2 Obscenity The publication of obscene matter is a common law criminal offence.42 There is also a ‘complex web’43 of statutory offences for publicly selling, distributing and exhibiting obscene, offensive or indecent material.44 Simon Bronitt and Bernadette McSherry have argued that the numerous criminal offences concerning obscene publications bolster the classification system and encourage self-censorship.

Simon Bronitt and Bernadette McSherry, Principles of Criminal Law, 2nd edn, Law Book Co, Sydney, 2005, 617–18 In light of the significant statutory reforms in this area, the offence of obscene libel would rarely be prosecuted nowadays. It does not follow that the crime of obscenity is obsolete. Indeed, the potential breadth and indeterminacy of common law and statutory offences dealing with obscene and indecent material are fundamental to the effective operation of the national system of cooperative regulation and classification schemes … The uncertainty surrounding the scope of Commonwealth, State and Territory offences encourages publishers and suppliers of potentially obscene or indecent material to submit to a ‘voluntary’ National Code of Classification, compliance with which confers immunity from prosecution. These nebulous definitions of obscenity and indecency also empower informal censorship by law enforcement officials such as the police and customs officials, and encourage a high degree of self-censorship by publishers and suppliers.

Copyright © 2015. Oxford University Press. All rights reserved.

Very occasionally obscenity charges are brought and the controversial ‘Piss-Christ’ case involving the National Gallery of Victoria is an example.45 The Catholic Archbishop of Melbourne applied to the Supreme Court of Victoria for an injunction to restrain the National Gallery of Victoria from displaying Andres Serrano’s controversial photograph of a plastic crucifix submerged in the artist’s urine.

Pell, Archbishop of Melbourne v Council of Trustees of National Gallery of victoria [1998] 2 VR 391

HARPER J (at 391): Andres Serrano is an artist of international significance. A public exhibition of his work is to open tomorrow, Friday, 10 October 1997, in the National Gallery of Victoria, as part of the Melbourne Festival.

42 Crowe v Graham (1968) 121 CLR 375, 390–91. The common law offence has been abolished in South Australia and the Australian Capital Territory: Criminal Law Consolidation Act 1935 (Cth) Sch 11 cl 1(26); Law Reform (Abolitions and Repeals) Act 1996 (ACT) s 4 (repealed). 43 Simon Bronitt and Bernadette McSherry, Principles of Criminal Law, 2nd edn, Law Book Co, Sydney, 2005, 618. 44 See for instance: Crimes Act 1900 (NSW) s 578C; Summary Offences Act (NT) s 53; Criminal Code Act 1899 (Qld) s 228; Summary Offences Act 1953 (SA) s 33; Criminal Code Act 1924 (Tas) s 138; Summary Offences Act 1966 (Vic) s 17; Criminal Code Act Compilation Act 1913 (WA) s 202. In South Australia there is also a somewhat obscure restriction on salacious reporting of legal proceedings in newspapers: Summary Offences Act 1953 (SA) s 35. 45 Another controversy regarding art and offense, though not obscenity, was the debate in 2008 surrounding acclaimed artist Bill Henson. See further Dan Meagher, ‘Investigating “indecent, obscene or pornographic” art: Lessons from the Bill Henson controversy’ (2009) 14 Media and Arts Law Review 292.

CHAPTER 16 Offensive Publications

The gallery proposes to include in the exhibition a photograph created by the artist in 1987. It depicts a crucifix. A reproduction is in evidence in the proceeding before me. It shows the crucified Christ as if enveloped in a mist which is infused with the colours of a red and gold sunset. Of itself, it is not only inoffensive, but might be thought to be a reverent treatment of a sacred symbol of the Christian Church, membership of which is claimed by the artist himself. (at 392) The work has nevertheless created much controversy. This is entirely understandable. The title ‘Piss Christ’ provides one reason why. The account of its creation provides another. The crucifix was, according to the artist, immersed in urine when the photograph was taken. In other words, the person who for Christians is the son of God and the founder of their church, is shown immersed in excrement. Mr Serrano is quoted in an article exhibited in the present proceeding as saying, ‘It dawned on me that piss would give a nice yellow.’ He is also quoted in the same article as saying: ‘Urine symbolises waste, but is also a necessary bodily function; and perhaps the urine humanized Christ.’ It is against this background that the Archbishop of the Catholic Archdiocese of Melbourne, the most reverend Dr George Pell, has initiated proceedings in this court. He seeks an injunction restraining the Council of Trustees of the gallery from publicly exhibiting the photograph. He claims a particular interest in the matter because he is the chief teacher of, and has pastoral responsibility for the guidance of, all Catholics in the Archdiocese on matters of faith and morals. He claims, at para 6 of the indorsement on the writ, that: The public display of the work would constitute:

Copyright © 2015. Oxford University Press. All rights reserved.

(a) the exhibiting or display of an indecent or obscene figure or representation contrary to the provisions of section 17(1)(b) of the Summary Offences Act 1966; and (b) the common law misdemeanour of publishing a blasphemous libel by reason of the fact that the photograph is so offensive, scurrilous and insulting to the Christian religion that it is beyond the decent limits of legitimate difference of opinion and is calculated to outrage the feelings of sympathisers with or believers in the Christian religion. The Archbishop’s standing to bring this proceeding has not been challenged by the defendant. Nor has the Council of Trustees cast serious doubt on the proposition that the photograph is offensive, scurrilous and insulting at least to a very large number of Christians, including a very large number of Catholics, and has outraged their feelings. It has been argued that this outrage can be accommodated by refusing to attend the exhibition; but that is at best a merely partial answer. The outrage is generated as much by the knowledge that this work is being exhibited, in public, within the Archdiocese, and in a gallery of which this State is very proud, as it is by viewing the picture itself.

Affidavits have been sworn by the plaintiff and, in opposition, by the director of the gallery (Dr Timothy Potts). Dr Potts deposes to his belief that Mr Serrano intends in his work to investigate contemporary spirituality. He also deposes to the fact that the photograph is reproduced in (among other publications) a book of undoubted scholarship by an art critic of undoubted eminence: Robert Hughes, American Visions: The Epic History of Art in America (1997). In addition to this, the gallery is itself an institution of very high standard. These observations are relevant. It is necessary to say at once, however, that their relevance is not attributable to any assumption by me of the role of art critic. It would not merely be presumptuous, but quite wrong, of me to attempt any such thing. It is not relevant to my task, and it would take the court into places in which it has no business to be …. (at 393) It is entirely consistent with this that the court treat with the greatest respect the views both of the Archbishop and of the director of the gallery—and of those who speak with sincerity on either side. The court should do no less were the symbol in question sacred to an indigenous, or some other, faith. Indeed, it is arguably desirable that those who organise exhibitions of this kind adopt the same approach. (at 394) … It is, by s 17(1)(b) of the Summary Offences Act 1966, forbidden to exhibit or display an indecent or obscene figure or representation in a public place and within the view of any person in that place. The gallery is a public place, and the Council of Trustees intends to exhibit or display the photograph in the gallery for the public (or at least those members of it who are over the age of 18 years) to view.

579

580

PART 6 Offensive Publications

The question, were a charge to be laid in relation to the work, would be whether it was indecent or obscene. These words convey one idea—a failure to meet recognised standards of propriety. Such a failure at the lower end of the scale would amount to an indecency; and at the upper end of the scale would amount to an obscenity: R v Stanley [1965] 2 QB 327 at 333 per the Lord Chief Justice, Lord Parker. Each of the words ‘indecent’ and ‘obscene’ is associated more with lewdness than with blasphemy. For example, the definition of ‘obscene’ in Butterworths Australian Legal Dictionary 1997 is as follows: 1 Filthy, bawdy, lewd, or disgusting. 2 Unduly emphasizing matters of sex, crimes of violence, gross cruelty, or horror, so as to offend against the common sense of decency.

(at 395) In the same work the word ‘indecent’ is defined as follows:

1 Unbecoming or offensive to common propriety. 2 An affront to modesty. An act is indecent if it would offend the ordinary modesty of the average person.

And the expression ‘indecent act’ is there defined as:

An act which right-minded persons would consider to be contrary to community standards of decency or which right thinking people would consider an affront to sexual modesty.

Similarly in the Macquarie Dictionary, 2nd ed, 3rd reprint, the word ‘obscene’ is defined as follows: 1 Offensive to modesty or decency; indecent; inciting to lust or sexual depravity; lewd. 2 Abominable; disgusting; repulsive.

The question whether this photograph is indecent or obscene is, given its religious context, and given that the court must have regard to contemporary standards in a multicultural, partly secular and largely tolerant, if not permissive, society, is not easy. The fact that the indecent or obscene quality of the photograph comes not from the image as such, but from its title and the viewer’s knowledge of its background, does not make the task easier.

[Harper J also considered blasphemous libel (discussed below) and reasons for refusing injunctive relief in criminal cases. He was not convinced that display of the art work would breach the criminal law and so refused to grant an injunction in the Andres Serrano case.]

Copyright © 2015. Oxford University Press. All rights reserved.

16.3 Blasphemy Under the common law it is a criminal offence to publish a scurrilous criticism of the Christian religion. The origins of this offence are steeped in English history when an attack upon the Church of England was considered to be an attack upon the state. The New South Wales Law Reform Commission reviewed the history of blasphemy in its 1994 report46 and considered the possibility that the common law offence had not survived transportation to the colonies where there was no established church and the possibility that it had lapsed through prolonged disuse, but proceeded upon the assumption that the offence still existed.47 The commission recommended that the common law offence of blasphemy be abolished and suggested that community hostility towards groups on the grounds of religion should be addressed in anti-discrimination legislation.48 Tasmania is the only Australian state to have a statutory offence of blasphemy.49 The common law offence has been abolished in the Australian Capital Territory.50 Various state 46 47 48 49 50

New South Wales Law Reform Commission, Blasphemy, Report no 74, 1994, [2.4]. Ibid [2.17]. Ibid [4.81]–[4.82]. Criminal Code 1924 (Tas) s 119. Law Reform (Abolitions and Repeals) Act 1996 (ACT) s 4 (repealed).

CHAPTER 16 Offensive Publications

Acts assume the existence of the common law offence. For instance the Crimes Act 1958 (Vic) s 469AA provides for the destruction of documents containing blasphemous libel and the Crimes Act 1900 (NSW) s 574 states that no person shall be liable to prosecution for blasphemy ‘where the publication is by way of argument, or statement, and not for the purpose of scoffing or reviling, nor of violating public decency, nor in any manner tending to a breach of the peace.’ The existence of the offence was considered by the Victorian Supreme Court in the ‘Piss Christ’ case.51 Harper J held that the exhibition of the photograph at the National Gallery of Victoria would not lead to a breach of the peace and refused to grant an injunction in that case.

Pell, Archbishop of Melbourne v Council of Trustees of National Gallery [1998] 2 VR 391

HARPER J (at 393) There can be no doubt that Mr Serrano’s work is deeply offensive to many Christians, as well as to many non-Christians who are offended at the offence given to others. The question is whether the court should intervene. It was submitted on behalf of the Archbishop that it should. The public display of this photograph would, it was submitted, constitute the common law misdemeanour of publishing a blasphemous libel. The court should issue an injunction restraining the Council of Trustees from committing this offence. In reply, the Council of Trustees argued that blasphemous libel is not now, if it ever was, an offence known to the law of this jurisdiction; and even if such an offence presently exists, it is inappropriate to restrain a threatened breach by use of the civil remedies which the plaintiff seeks to invoke. It seems clear that the law of England recognises the publication of a blasphemous libel as a crime: Whitehouse v Lemon (also known as R v Lemon) [1979] AC 617. In his speech in that case, Lord Scarman, at 658, quoted with approval a portion of the article by Professor Kenny in (1922) 1 CLJ at 127 where the professor said:

Copyright © 2015. Oxford University Press. All rights reserved.

The common law does not interfere with the free expression of bona fide opinion. But it prohibits, and renders punishable as a misdemeanour, the use of coarse and scurrilous ridicule on subjects which are sacred to most people in this country.

At the beginning of his speech in Whitehouse v Lemon (also known as R v Lemon) [1979] AC 617 Lemon’s case, Lord Scarman, after stating that he did not subscribe to the view that the common law offence of blasphemous libel serves no modern purpose, continued at 658: On the contrary, I think that there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquility of the kingdom.

In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt. To this I add the observation that a plural society such as contemporary Australia operates best where the law need not bother with blasphemous libel because respect across religions and cultures is such that, coupled with an appropriate capacity to absorb the criticisms or even jibes of others, deep offence is neither intended nor taken.

51 The facts of the case are discussed above: see 16.2.

581

582

PART 6 Offensive Publications

The law in England does not necessarily coincide with the law in Victoria. Blasphemous libel was originally part of the machinery by which the State protected itself; or rather (since the State saw itself as a secular manifestation of the church, with which it formed one indivisible entity) the law which made blasphemous libel a criminal offence protected the State in protecting the church: Taylor’s Case (1676) 1 Vent 293; 86 ER 189. In the report of that case the following appears: [B]lasphemous words [are] not only an offence to God and religion but a crime against the law, State and government, and therefore punishable in this Court.

I interpolate to say the Court of Kings Bench. The quotation continues: For to say, religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved, and that Christianity is parcel of the Laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law.

Copyright © 2015. Oxford University Press. All rights reserved.

But this unity did not survive the journey to the Australian colonies. Not only has Victoria never recognised an established church, but now s 116 of the Australian Constitution forbids the Commonwealth making any law for establishing any religion. It may be, as the defendant submits, that the offence of publication of a blasphemous libel has lapsed through desuetude. It does appear that only one prosecution has been instituted in Victoria this century, and that was withdrawn before trial: P Coleman, Obscenity, Blasphemy, Sedition: 100 Years of Censorship in Australia, 2nd ed, (1974), pp 72–3. Nevertheless, if Lord Scarman is right, there may be a place in a pluralist society for retaining the offence—although if Lord Scarman is right, its rebirth as a law protecting much more than the Christian faith would be a necessary part of the new order. Not only may there be a place in a multicultural society for the offence of blasphemous libel of any recognised faith, but the ancient misdemeanour of that name may have survived transportation to the colonies. Certainly, there is a body of judicial opinion to the effect that it has: see, for example, Ogle v Strickland (1987) 13 FCR 306 at 317 per Lockhart J. Moreover, by inserting s 369AA into the Crimes Act 1958 the Parliament of Victoria recognised the existence, or at least the possibility of the existence, of the offence. … (at 395) As Mr Burnside QC, senior counsel for the defendant, points out, difficulties apart from those already mentioned surround the offence of publication of a blasphemous libel. If the offence does exist, what are its ingredients? It is clear enough that in order to amount to a blasphemous libel the matter complained of must raise the risk of a breach of the peace, perhaps general civil unrest: see, for example, the report on Blasphemy of the New South Wales Law Reform Commission, para 2.22 where the following appears: [B]lasphemy was perceived as a threat to social order and the ‘bonds of civil society’. Consequently, under both s 574 [a section which I interpolate to say is of the Crimes Act New South Wales] and the common law, the publication also must have the tendency to cause a breach of the peace. There is some debate as to the precise meaning of a ‘breach of the peace’ in this context. One broad approach includes any public situation in which there is danger to person or property, without necessarily involving general disorder. There is also authority for a narrower concept of liability, however, which would limit blasphemy to publications which cause widespread social unrest.

There is no evidence before me of any unrest of any kind following or likely to follow the showing of the photograph in question. In these circumstances, I am not in a position to say that a breach of the criminal law would be committed were the work to form part of the Serrano exhibition. If, in these circumstances, I were to grant the relief sought by the plaintiff, I might thereby use the force of the law to prevent that which, by the same law, is lawful. [Harper J dismissed the application for injunctive relief.]

CHAPTER 16 Offensive Publications

16.4 Sedition Sedition concerns publications that promote public disorder or violence against the State or its institutions. The origins of Australian sedition laws can be found in the history of the English Crown’s attempts to punish any violation of a subject’s allegiance. Expressed in this way it might seem to be a law of greater concern to publishers of radical pamphlets than the commercial media in Australia, but there were Australian cases in the twentieth century involving publications in newspapers, including an action in 1960 against a newspaper editor for criticising a South Australian Royal Commission.52 Even though very few prosecutions have been taken against the media, the laws are broad enough to make many publications potentially seditious.53

16.4.1 History The history54 of sedition was reviewed by the Australian Law Reform Commission (ALRC) in its 2006 report.

Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, Report No 104, 2006

Copyright © 2015. Oxford University Press. All rights reserved.

(at 47) [2.2] The law of sedition prohibits words or conduct deemed to incite discontent or rebellion against the authority of the state. Historically, ‘sedition’ described a number of common law or statutory offences— namely, uttering seditious words, publishing or printing seditious words, undertaking a seditious enterprise, or engaging in a seditious conspiracy. Traditionally, for a word or activity to be seditious it must be said, written or done with a ‘seditious intention’. [2.3] The classic definition of seditious intention is found in Sir James Fitzjames Stephen’s Digest of the Criminal Law, published in 1887: (at 48) A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of, Her Majesty, her heirs or successors, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite Her Majesty’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst Her Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes of such subjects.

[2.4] The legal elements of sedition offences have traditionally been ill-defined. The vagueness of the language used to describe the notion of seditious intention makes it difficult to demarcate the precise boundaries of sedition offences. In Boucher v The King, the Supreme Court of Canada stated that ‘probably no crime has been left in such vagueness of definition’. [2.5] Historically, the law of sedition has been used to punish a wide range of behaviour—from satirical comment or mere criticism of authority, to the incitement of violent uprising. The scope and application of the law have fluctuated significantly over time. In view of this, Professor Eric Barendt observed: 52 Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, Report No 104, 2006, 58. 53 Laurence Maher, ‘The Use and Abuse of Sedition’ (1992) 14 Sydney Law Review 287, 303–04. 54 For a detailed history of sedition, see Graham McBain, ‘Abolishing the Crime of Sedition: Part 1’ (2008) 82 Australian Law Journal 543.

583

584

PART 6 Offensive Publications

What used to be regarded as a clear case of seditious libel in both England and the United States is now generally considered to be merely the vehement expression of political opinion, and therefore the classic instance of constitutionally protected speech.

[2.6] The historical account set out below reveals that the development and use of sedition laws have been influenced strongly by the changing political climate and the degree of public support for existing state institutions; theories about the relationship between citizen and state; and evolving notions of the relationship between action, idea, association and responsibility. It also reveals that there has been a general trend in the common law courts to narrow the scope of sedition offences in accordance with the contemporary emphasis on the importance of freedom of expression and open political debate. A distinction has thus been drawn between the expression of political opinion with reformist aims and the advocacy of revolutionary or violent political action. [2.7] However, as discussed below, an examination of prosecutions in Australia in the 20th century also reveals cases in which the law of sedition has been used to stifle political dissent in a manner that many would consider incompatible with modern democratic processes. (at 49)

The origins and evolution of common law sedition Early origins [2.8] The law of sedition derives from the law of treason, which since feudal times has punished acts deemed to constitute a violation of a subject’s allegiance to his or her lord or monarch. Sedition and treason are related conceptually because seditious words or conduct can stir up opposition to the established authority. For this reason, it has been said that sedition ‘frequently precedes treason by a short interval’. … (at 53)

Copyright © 2015. Oxford University Press. All rights reserved.

Sedition in Australia [2.21] The Australian states inherited the British common law of sedition. State prosecutions for sedition were brought at various periods throughout the 19th and early 20th centuries. Notably, sedition laws were used to prosecute: • John Macarthur, founder of the Australian merino wool industry, for seditious behaviour against Governor Bligh in 1807–08; • Governor Darling’s political opponents, including critics in the press, in the early 1800s; • Henry Seekamp, the editor and owner of the Ballarat Times at the time of the Eureka Stockade in 1854; • anti-conscriptionists who opposed Australia’s involvement in the First World War; and • F W Paterson, the Member for Bowen from 1944–50, for expressing support for the workers’ struggle against capitalism at a public meeting in 1930. … (at 55)

Communist Party prosecutions [2.28] The advent of federal sedition offences coincided with the foundation of the Communist Party of Australia (CPA), although this was not alluded to extensively in the parliamentary debates. It is widely thought that the enactment of the federal sedition provisions was prompted by concerns about the Bolshevik Revolution and its impact on radical socialist activity in Australia. It also has been suggested that the federal government was motivated to enact such provisions because it did not trust the Labor-controlled states to suppress ‘subversive’ activities in accordance with its policies. … (at 58) [2.37] The extension of the sedition offences has been explained, at least in part, by reference to the evolving Cold War context and the desire of the Chifley Government to prove to the Australian public and to the United States and British Governments that it was taking measures to combat the internal threat of communism. This is underscored by the selective manner in which sedition was prosecuted:

CHAPTER 16 Offensive Publications

The intensity of Australian political debate in the early Cold War period was such that, had the Commonwealth and State authorities enforced the law of sedition consistently, the courts would not have been equipped to cope with the avalanche of sedition prosecutions that would have ensued …. A cursory reading of the daily newspapers in the years 1947–1949 or the literature produced by all the political parties reveals countless examples of inflammatory speech and expressive conduct which clearly fell within the harsh sedition provisions of the Crimes Act 1914. Yet, in an environment in which inflammatory political speech was commonplace, no sedition prosecutions were brought against any of the CPA’s equally determined and ruthless opponents on the far right of the political spectrum.

[2.38] Although sedition appears not to have been widely prosecuted, there is evidence that the federal investigative authorities frequently sought advice from the Attorney-General’s Department in the early 1950s to determine whether it could use sedition laws to prosecute CPA members and activists. It has been suggested that more sedition prosecutions were not instituted due to uncertainty caused by a pending appeal brought by one CPA member who had been convicted of publishing an article criticising Australia’s involvement in the Korean War. [2.39] The most recent Commonwealth sedition prosecution was in 1953, when a member of the CPA was tried unsuccessfully for publishing an article that derided the monarchy. The most recent sedition prosecution at the state or territory level appears to have been in South Australia in 1960, where a newspaper editor was charged with seditious libel for criticising the Royal Commission inquiring into the Stuart murder case. [Citations omitted.]

16.4.2 The states

Copyright © 2015. Oxford University Press. All rights reserved.

Common law sedition offences still exist in New South Wales and Victoria55 but have been abolished in South Australia56 and the Australian Capital Territory.57 There are also statutory sedition offences in the various Criminal Codes.58 The Commonwealth Criminal Code expressly provides that the state and territory laws are not excluded to the extent that they are capable of operating concurrently.59

16.4.3 Commonwealth The law of sedition, or at least prosecutions for the offence, were in abeyance in contemporary Australia and it might have seemed as though the offence had become an anachronism. However, worldwide threats of terrorism since the attacks in the United States on 11 September 2001 and London in 2005 brought sedition back to the attention of the Commonwealth Parliament. Commonwealth sedition laws were revised by the Anti-Terrorism Act (No 2) 2005 (Cth) as part of major reforms that expanded police and intelligence powers in relation to terrorism. Offences under the Criminal Code Act 1995 (Cth) s 80.2 (inserted by the 2005 Act) included urging another person or group to do one of the following with force or violence: overthrow the Constitution or government; interfere

55 Australian Law Reform Commission, above n 52, 81. 56 Criminal Law Consolidation Act 1935 (SA) Sch 11 cl 1(26). 57 Law Reform (Abolitions and Repeals) Act 1996 (ACT) s 4 (repealed). 58 See Criminal Code Act 1899 (Qld) ss 44–46, 52; Criminal Code Act Compilation Act 1913 (WA) ss 44–46, 52; Criminal Code Act 1924 (Tas) ss 66–67; Criminal Code Act (NT) ss 44–48. 59 Criminal Code (Cth) s 80.6.

585

586

PART 6 Offensive Publications

in parliamentary elections; use force or violence against another group or other groups; assist the enemy or those engaged in armed hostilities. The Australian Law Reform Commission (ALRC) reviewed these new sedition provisions in 2006 and concluded that the term ‘sedition’ was an inaccurate description of the amended provisions and that the title ‘urging political or inter-group force or violence’ was more appropriate.60

Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, Report No 104, 2006 (at 61) [2.49] Despite having fallen out of use in the past 50 years, the Australian Government stated [in 2005] that in the counter-terrorism context, ‘sedition is just as relevant as it ever was’, particularly to ‘address problems with those who communicate inciting messages directed against other groups within our community, including against Australia’s forces overseas and in support of Australia’s enemies’. (at 62)

Do we need the term ‘sedition’?

Copyright © 2015. Oxford University Press. All rights reserved.

Characterising the offences in s 80.2 [2.50] There is little doubt that, on any dispassionate analysis, the new sedition laws introduced in 2005 are better than the laws they replaced—both in terms of the technical operation of the provisions and their protection of human rights. Three of the new offences contained in s 80.2 of the Criminal Code shift the emphasis from speech that is merely critical of the established order to exhortations to use force or violence against established authority, voters or particular groups within the community. It is very difficult to understand why exhortations to use force or violence should not be prohibited by federal law, provided that the offences are properly framed. [2.51] Thus, as a result of the amendments to the old Commonwealth sedition provisions in 2005, the offences in s 80.2 are now conceptually closer to the criminal laws of incitement and riot than they are to ‘sedition’, as the term has traditionally been understood. [2.52] Notwithstanding this amendment, a great deal of the debate and media coverage continued to assert that a person could fall foul of the new laws by saying such things as ‘the Government was wrong to send troops to Iraq’, or ‘Australia needs to cut its ties with the British Crown’, or that a university lecturer would be in trouble for asking students of politics or rhetoric to ‘study the speeches of Hitler’. Such analysis of the coverage of the current sedition provisions is wrong in law: the substantive provisions demonstrate that mere criticism of government action—unless it urges force or violence and is outside the parameters of the defence in s 80.3—will not be caught by the main offence provisions. [2.53] … the history of sedition prosecutions indicates that, perhaps to a greater extent than any other offence except treason, sedition is a quintessentially ‘political’ crime, in that this offence has been used to criminalise expression that is critical of the established order. This has helped fuel concerns expressed by members of the community, and politicians across party lines, that there is potential for the law to overreach, and to inhibit freedom of expression and free association. … (at 65) [2.67] It is unclear why, after substantially modifying the offences in 2005, the Australian Government chose to retain the term ‘sedition’ to describe the new offences. On the contrary, there are strong reasons not to retain this term. As elaborated below, (at 66) the term ‘sedition’ does not accurately describe the offences in s 80.2; and the continued use of this term is problematic because of the history of sedition as an offence. 60 Australian Law Reform Commission, above n 52, Recommendation 2.1.

CHAPTER 16 Offensive Publications

‘Sedition’: an inaccurate description [2.68] In light of the amendments in 2005, ‘sedition’ is not an accurate description of the offences in s 80.2. There are several factors at play here. As explained earlier, the crime of sedition traditionally has been used to criminalise expression that is merely critical of government and established authority. By framing the principal offences (other than s 80.2(7) and (8) …) as proscribing the urging of force or violence, the Australian Parliament made a significant change that distinguishes the present offences from the sedition offences of the past. [2.69] Parliament also included a new offence in s 80.2(5)—namely, urging inter-group force or violence. This is a public order offence aimed at punishing and deterring violence between different groups in the Australian community and bears little relationship with historical conceptions of ‘sedition’. [2.70] In addition, sedition is not necessary as a descriptor. Although Part 5.1 and Division 80 of the Criminal Code are now headed ‘Treason and sedition’ and s 80.2 is headed ‘Sedition’, no reference is made to ‘sedition’ within any of the substantive provisions of the Code. A parallel might be drawn here with the United States ‘seditious conspiracy’ offence, which refers to the term only in the title of the offence, but not in the text of the provision itself. It has been suggested that this is because the term ‘sedition’ does not convey a clear legal meaning.

Sedition and its historical baggage

Copyright © 2015. Oxford University Press. All rights reserved.

[2.71] Another consequence of retaining the term ‘sedition’ goes more to the broad social understanding of the law than to its technical construction. In this report, the ALRC makes a range of recommendations to improve the existing law. Some of these represent technical refinements to the drafting. Mainly, however, the recommendations are aimed at ensuring there is a bright line between freedom of expression—even when exercised in a challenging or unpopular manner—and the reach of the criminal law, which should focus on exhortations to the unlawful use of force or violence. [2.72] The ALRC is confident that these recommendations will achieve the desired aim in terms of technical improvements to the law. It would be unfortunate, however, if continued use of the term ‘sedition’ were to cast a shadow over the new pattern of offences. The term ‘sedition’ is much too closely associated in the public mind with its (at 67) origins and history as a crime rooted in criticising—or ‘exciting disaffection’ against—the established authority. [Citations omitted.]

The Australian Law Reform Commission (ALRC) made a series of recommendations including that the defendant ought to intend that the force or violence that they are urging will occur.61

16.4.3.1 Free speech and the Commonwealth counter-terrorism provisions The media were particularly concerned about the effect of the 2005 provisions on freedom of speech.62 Media organisations made submissions to the Australian Law Reform Commission (ALRC) suggesting that the media, journalists and artists should be exempt from the offences.63 The National Association for the Visual Arts (NAVA) was opposed to such an 61 Australian Law Reform Commission, above n 52, 175. For criticisms of the ALRC recommendations, see Simon Bronitt and James Stellios, ‘Sedition, Security and Human Rights: “Unbalanced” Law Reform in the “War on Terror”’ (2006) 30 Melbourne University Law Review 923, 935–37. 62 See, for example: Tom Allard, ‘Fear That Law Changes Will Curb Free Speech’, The Sydney Morning Herald (Sydney) 9 September 2005, 9; Samantha Maiden, ‘Rivals Unite to Lobby on Sedition’, The Australian, 27 October 2005, 16; Matthew Westwood, ‘Curbs on Ideas Pose a Risk’, The Australian, 4 November 2005, 16; Elizabeth Colman, ‘Artists Defend Free Speech’, The Australian, 5 November 2005, 2; Chris Merritt, ‘Warning against Sedition Strictures’, The Australian, 24 November 2005, 15; Michelle Grattan, ‘Terror Laws Threat to “Basic Civil Liberties”: Law Council’, The Age (Melbourne) 5 December 2005, 6. 63 Australian Law Reform Commission, above n 52, 159.

587

588

PART 6 Offensive Publications

exemption because it would be difficult to determine to whom it would apply. The ALRC did not support exemptions for the media, but proposed reforms to the offence so that it would not unduly impinge upon free speech.64 In December 2008 the Commonwealth Attorney-General announced that the ALRC’s recommendations would be implemented.65 The scope of the present provisions in ss 80.2, 80.2A, 80.2B and 80.2C has been narrowed in certain respects, but the core provisions concerning urging violence and advocating terrorism remain broad. The provisions include a good faith defence in s 80.3 and apply to an extended geographical jurisdiction as per s 80.4 to cover foreign acts. Concerns with national security and counter-terrorism continue to result in legislative reforms, accompanied by debates concerning the impact of tough measures on a free and independent investigative media. The latest round of measures includes proposed data retention legislation and the National Security Legislation Amendment Act (No 1) 2014 (Cth), which have resulted in debate over the appropriate level of governmental surveillance required to counter the threat of terrorism and whether data retention and national security legislation might expose the media and their sources to prosecution from embarrassed governments, as well as infringe privacy.

Copyright © 2015. Oxford University Press. All rights reserved.

16.4.4 Inciting hostility between groups within society As already discussed, prosecutions for sedition have been rare in recent years. In England a private prosecution was attempted against Salman Rushdie for publication of The Satanic Verses for the common law offences of blasphemous and seditious libel.66 The book deeply offended many Muslims and there were public demonstrations against it in the United Kingdom and elsewhere. The applicant failed because common law blasphemous libel is restricted to vilification of Christianity and did not extend to Islam.67 The case was also argued that Salman Rushdie and his publishers had committed sedition because The Satanic Verses had created discontent among Her Majesty’s subjects, hostility between different classes or sections of those subjects and a breakdown in diplomatic relations between the United Kingdom and the State of Iran. That argument also failed. Inciting hostility between different groups within the community is not seditious at common law—it must amount to an attack on the state.68 Ultimately, as Kath Gelber has argued the analogy between sedition and vilification is ‘false’ and unhelpful.69 Reforms to sedition laws at the Commonwealth level are welcome, but there remains a degree of conceptual confusion in the mix of laws which currently seek to regulate offensive publications, and debate over the balance between liberty and security is unlikely to cease.

64 Ibid 160–161, 164, 259–261. 65 Commonwealth Attorney-General, Robert McClelland, Comprehensive Response to National Security Legislation Reviews, Media Release, 23 December 2008. 66 R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429. 67 Ibid at 447. 68 Ibid at 453. 69 Katharine Gelber, ‘The False Analogy between Vilification and Sedition’ (2009) 33 Melbourne University Law Review 270.

CHAPTER 16 Offensive Publications

QUESTIONS 1 Given that prosecutions are so rare, are common law and statutory obscenity offences of any relevance to the Australian media? Why? 2 Does blasphemy apply to religions other than Christianity? Should it? 3 Should the criminal offence of blasphemy be abolished? Consider arguments for and against. 4 Should the media be concerned about the impact of sedition laws, and other counter-terrorism measures, on free speech? Why? How can we balance the value we place on free speech with our concern with protecting communities from hate speech and incitement to violence?

16.5 Racial, religious and homosexual vilification 16.5.1 Introduction

Copyright © 2015. Oxford University Press. All rights reserved.

Australia has a variety of laws at state and federal level that proscribe vilification70 on the grounds of race. The state regulatory schemes operate concurrently with the federal laws and the federal Act makes it clear that there is no inconsistency intended by these overlapping regimes.71 The vilification laws vary between the state and federal jurisdictions, but they include criminal offences, civil complaints-based processes in tribunals and tort law. It might seem at first glance that vilification laws will be of greater concern to publishers of anonymous pamphlets or controversial websites72 than to the commercial media. However, complaints about vilification are not confined to extreme forms of hate speech and the commercial media has appeared as a respondent in a range of state and Commonwealth vilification cases.73 Journalists and media proprietors are more likely to encounter vilification laws than some of the other laws proscribing offensive publications discussed earlier in this chapter and their impact upon free speech has been a controversial issue. The following sections will focus upon the defences that attempt to strike a balance between the prohibition of vilification and the protection of free speech. In some of the states the grounds of vilification extend to sexuality, homosexuality, transgender and transsexuality,74 HIV or AIDS status75 and disabilities.76 Victoria,77 Queensland78 and Tasmania79 have enacted religious vilification provisions. Racial vilification 70 The term ‘vilification’ concerns speech and other acts that incite hatred. It is also referred to as ‘hate speech’ in the academic literature. See, for example, Katherine Gelber and Adrienne Stone (eds), Hate Speech and Freedom of Speech in Australia, Federation Press, Sydney, 2007. 71 Racial Discrimination Act 1975 (Cth) s 6A. 72 Such as the one produced by Dr Frederick Toben on his Adelaide Institute website: Jones v Toben [2002] FCA 1150; Toben v Jones (2003) 129 FCR 515. Dr Toben was held to be in contempt of court for breaching court orders and undertakings in that case: Jones v Toben [2009] FCAFC 104. 73 See, for example: Bryant v Queensland Newspapers Pty Ltd [1997] HREOCA 23; Wanjurri v Southern Cross Broadcasting (Aus) Ltd (2001) EOC ¶93–147; John Fairfax Publications v Kazak [2002] NSWADTAP 35; Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267; Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105; Burns v Laws [2008] NSWADTAP 32; Trad v Jones (No 3) [2009] NSWADT 318; Jones v Trad [2011] NSWADTAP 19; Jones v Trad (2013) 86 NSWLR 241; Trad v Jones (No 7) [2014] NSWCATAD 225. 74 Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1991 (Qld); Anti-Discrimination Act, 1998 (Tas). 75 Anti-Discrimination Act 1977 (NSW); Discrimination Act 1991 (ACT). 76 Anti-Discrimination Act 1998 (Tas). 77 Racial and Religious Tolerance Act 2001 (Vic) s 8; also criminal provisions s 25. 78 Anti-Discrimination Act 1991 (Qld) ss 124A, 131A. 79 Anti-Discrimination Act 1998 (Tas) ss 17, 19.

589

590

PART 6 Offensive Publications

is covered in all jurisdictions and will be considered first with a focus on the Commonwealth. Material on homosexual and religious vilification will be extracted at the end of this section of the chapter and will illustrate the state provisions and contrasting approaches to the defences.

16.5.2 History The first of the vilification laws was passed in New South Wales in 1989 and other states and territories80 followed throughout the 1990s. The federal provisions commenced in 1995 and the last states to pass legislation in this field were Queensland and Victoria in 2001.81 There was significant debate in the media and parliaments when these laws were passed about their potential impact upon free speech.82 A good deal of attention in that early debate was focused upon criminal sanctions that have never been deployed. Concerns about the impact of the civil complaints procedures were allayed to a certain extent by exemptions designed to protect public debate, the media, academic inquiry and artistic expression.

16.5.3 Constitutional validity The implied freedom of communication relating to political or governmental matters has been discussed in detail in Chapter 2.83 The Federal Court84, the Victorian Court of Appeal85, the New South Wales Court of Appeal86 and the Queensland Court of Appeal87 have held that the vilification statutes are reasonably and appropriately adapted to serve the legitimate end of preventing vilification and so are valid.88

Copyright © 2015. Oxford University Press. All rights reserved.

16.5.4 Acts done in public In all jurisdictions the vilifying act must be done in public. The Commonwealth Act uses the phrase: ‘otherwise than in private’. The publishing and broadcasting activities of the media are clearly activities done in public and the preliminary work of journalists leading up to publication may also be held to be outside the private realm. The Federal Court held in McGlade v Lightfoot89 that a statement made by a politician to a journalist during an interview at the politician’s electoral office with the intention that it would be published in a newspaper article was an act ‘otherwise than in private’.90

80 The Northern Territory is the exception. 81 Racial and Religious Tolerance Act 2001 (Vic); Anti-Discrimination Amendment Act, 2001 (Qld). 82 Luke McNamara and Tamsin Solomon, ‘The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?’ (1996) 18 Adelaide Law Review 259, 271–77. 83 See 2.4. 84 Jones v Scully (2002) 120 FCR 243 at 304–06. 85 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 at 245–46, 263–66. 86 Sunol v Collier (No 2) (2012) 260 FLR 414. 87 Owen v Menzies [2013] 2 Qd R 327. 88 For a discussion, see Nicholas Aroney, ‘The Constitutional (In)validity of Religious Vilification Laws: Implications for their Interpretation’ (2006) 34 Federal Law Review 287. 89 (2002) 124 FCR 106. 90 See below at 16.5.7 for further details of this case.

CHAPTER 16 Offensive Publications

McGlade v Lightfoot (2002) 124 FCR 106

CARR J (at 116): [38] The relevant facts are that the respondent was a politician who, at the material time, was moving from a State Parliament to the Commonwealth Parliament. When Mr Kitney from the Australian Financial Review requested an interview, the respondent must have realised (and I so infer) that the interview had the purpose of obtaining his views on such matters as might be raised at the interview and that there was a reasonable likelihood that what he said would be published in the Australian Financial Review. Mr Kitney recorded the interview with the assent of the respondent. There is no evidence to suggest that the respondent asked that his comments be ‘off the record’. The evidence, including the evidence that the respondent never complained to Mr Kitney about publication of his remarks, points quite clearly to the interview being ‘on the record’, that is, for publication. [39] I acknowledge that, once the interview had been conducted, the respondent may have had little say in whether his remarks were actually published. So, to some extent, whether the story was published or ‘spiked’ was largely out of his control. [40] However, on the facts of this matter I find that by the respondent’s act he caused his words to be communicated to the public within the meaning of s 18C(2)(a). The respondent deliberately and intentionally engaged in conduct, the natural consequence of which was the publication of his words. I infer that he intended that consequence, although it is not necessary to make that inference in order to find causation: … Accordingly, I find that when the respondent made the respondent’s statements he did an act otherwise than in private.

16.5.5 Criminal sanctions There are no federal criminal offences. Most of the states have criminal offences, but Dan Meagher has reported that only one person has been convicted of a racial vilification crime in Australia since the first law was passed in 1989.91 The ‘harm threshold’92 for the criminal provisions in most of the states is threats of, or incitement to threaten, physical harm.93

Copyright © 2015. Oxford University Press. All rights reserved.

16.5.6 Civil wrongs—the states The ‘harm threshold’ for the civil wrongs varies between the state and federal schemes. In the states the threshold is higher: to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of people on the ground of their race.94 The focus in the state legislation is upon the impact of the act on the audience and whether others are likely to be incited. When considering the concept of ‘incitement’ in the state Acts there is no need to prove intention to incite. The focus is upon the effects of the public act. The provisions do not turn on proof of incitement of a specific person but rather the likely effect, although 91 Dan Meagher, ‘So Far No Good: The Regulatory Failure of Criminal Racial Vilification Laws in Australia’ (2006) 17 Public Law Review 209, 210. 92 This term is used by Dan Meagher: see ‘So Far So Good? A Critical Evaluation of Racial Vilification Laws in Australia’ (2004) 32 Federal Law Review 225, 231. 93 Anti-Discrimination Act 1977 (NSW) s 20D; Racial Vilification Act 1996 (SA) s 4; Racial and Religious Tolerance Act 2001 (Vic) s 24; Discrimination Act 1991 (ACT) s 67; Anti-Discrimination Act 1991 (Qld) s 131A. In Western Australia the offence involves incitement of racial animosity or racist harassment: Criminal Code (WA) ss 76–80F. 94 Anti-Discrimination Act 1977 (NSW) s 20C; Anti-Discrimination Act 1991 (Qld) s 124A; Civil Liability Act 1936 (SA) s 73; Anti-Discrimination Act 1998 (Tas) s 19; Racial and Religious Tolerance Act 2001 (Vic) ss 7–8; Discrimination Act 1991 (ACT) s 66.

591

592

PART 6 Offensive Publications

evidence of actual effect may be relevant to the assessment of remedies. The impact of the incitement should be considered from the perspective of the audience.95

16.5.7 Civil wrong—Commonwealth At the federal level the civil ‘harm threshold’ is lower. It is unlawful to do an act that is reasonably likely to offend, insult, humiliate or intimidate another person or a group of people because of the race, colour, or national or ethnic origin of the person or group.96

Racial Discrimination Act 1975 (Cth) 18C. Offensive behaviour because of race, colour or national or ethnic origin (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. Note: Subsection (1) makes certain acts unlawful. Section 46P of the Human Rights and Equal Opportunity Commission Act 1986 allows people to make complaints to the Human Rights and Equal Opportunity Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

Copyright © 2015. Oxford University Press. All rights reserved.

A mere slight is insufficient. The focus here is upon the victims of the vilifying speech and whether they are ‘reasonably likely’ to be offended, insulted, humiliated or intimidated. The ‘reasonably likely’ phrase incorporates an objective standard and has been interpreted as a ‘reasonable victim’ of the relevant race or ethnic background informed by community standards.

McGlade v Lightfoot (2002) 124 FCR 106

[In this case a politician who was interviewed by a journalist and reported in a newspaper was held to have engaged in vilification when he made comments about Aboriginal people being primitive.] CARR J (at 111): [17] It appears from the Financial Review article that during the interview the question arose of teaching Aboriginal culture in schools. The Financial Review article included the following: Mr Lightfoot questioned interpretations of history which identified traditional Aboriginal people as being somewhere in the mid-point on the civilisation spectrum. ‘Aboriginal people in their native state are the most primitive people on earth’, Mr Lightfoot said. ‘I think history has been distorted by people not accepting what I’ve said at face value.’

95 See discussion in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 below at 16.5.9.1. 96 Racial Discrimination Act 1975 (Cth) s 18C.

CHAPTER 16 Offensive Publications

The former member of the Pastoralists and Graziers Association said as a result he remained vehemently opposed to the teaching of Aboriginal culture in schools. ‘If you want to pick out some aspects of Aboriginal culture which are valid in the 21st century, that aren’t abhorrent, that don’t have some of the terrible sexual and killing practices in them, I’d be happy to listen to those’, he said. But otherwise I’m opposed to it. (The words which I have underlined are identified in the application as ‘the respondent’s comments’. The act of making those comments forms the basis of the complaint. I shall refer to them in the same manner in these reasons.)

[18] Mr Kitney’s evidence is that what he wrote in the Financial Review article accurately represented the comments made by the respondent in the interview and that the respondent had never questioned him about the accuracy of the representation of his comments in the article. [19] I accept all of Mr Kitney’s evidence. … (at 116) Whether the respondent’s act was reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people [42] The use of the words ‘reasonably likely’ suggests that the test is an objective one. The authorities confirm that this is the case: [43] In Hagan, Drummond J said this (at [15]):

Copyright © 2015. Oxford University Press. All rights reserved.

It is apparent from the wording of s 18C(1)(a) that whether an act contravenes the section is not governed by the impact the act is subjectively perceived to have by a complainant. An objective test must be (at 117) applied in determining whether the act complained of has the necessary offensive, insulting, humiliating or intimidatory quality for it to be within the sub-section. The question so far as s 18C(1)(a) is concerned is not: how did the act affect the particular complainant? But rather would the act, in all the circumstances in which it was done, be likely to offend, insult, humiliate or intimidate a person or a group of people of a particular racial, national or ethnic group?

[44] In Jones v Scully, Hely J admitted evidence from the applicant about the subjective effect of the distribution of the respondent’s leaflets in that case on each of the applicant and his witnesses. His Honour, following Hagan, ruled that that evidence was admissible, but was not determinative in answering the question. [45] I propose to take the same approach as that taken in Hagan and Jones v Scully. [46] The first logical step is to identify a person or a group of people who, on the basis of a reasonable likelihood, may have been affected in the manner described in s 18C. In my opinion, the relevant person or a group of people would at least include an Aboriginal person or a group of Aboriginal persons leading a traditional way of life. But Mr G M McIntyre, counsel for the applicant, submitted that the respondent’s act should also be assessed from the aspect of its reasonably likely effect on an Aboriginal person or a group of Aboriginal persons who attach importance to their Aboriginal culture. I accept that submission. In my view, there is no need to construe s 18C(1)(a) restrictively. [47] The next step is to assess, objectively, whether the respondent’s act was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate any of those persons. [48] In Creek at 356–357 [16] Kiefel J expressed the opinion that: ‘To “offend, insult, humiliate or intimidate” are profound and serious effects, not to be likened to mere slights.’ [49] Hely J in Jones v Scully referred to this passage in Creek with apparent approval. His Honour also referred to the fact that in his Second Reading Speech, the Attorney-General had said that the Commission was familiar with the scope of such language and has applied it in a way that deals with serious incidents only: Hansard (15 November 1994), p 3341.

593

594

PART 6 Offensive Publications

[50] In Jones v Toben, Branson J in referring to the above passage in Creek sounded a note of caution at 651–652 [92]: … I do not understand her Honour to have intended by the above observation to imply that a gloss should be placed on the ordinary meaning of the words that Parliament chose to include in s 18C of the RDA. Rather, I understand her Honour to have found in the context provided by s 18C of the RDA a legislative intent to render unlawful only acts which fall squarely within the terms of the section and not to reach to ‘mere slights’ in the sense of acts which, for example, are reasonably likely to cause technical, but not real offence or insult. (See also Jones v Scully per Hely J at [102].) It would be wrong, in my view, to place a gloss on the words used in s 18C of the RDA.

[51] I intend to follow in this case the same approach taken by the judges in the three cases which I have just mentioned. It was common ground in those cases, as I have said above, that the words ‘offend, insult, humiliate or intimidate’, should be given their ordinary English meanings. … (at 119) [53] Mr McIntyre submitted that the respondent’s act would have been reasonably likely to offend the relevant persons in the sense of causing them to be wounded or hurt and to feel displeasure or annoyance, and thus to be offended. They would also, so he submitted, be reasonably likely to be humiliated by having their pride or self-respect lowered and by being mortified and made to feel low or humble. He did not submit that they would be reasonably likely to be intimidated. [54] I have examined the Australian Financial Review article and the subsequent article in The West Australian newspaper with a view to setting the respondent’s statements in context. Part of that context includes, in my view, the circumstance that the respondent was then a Senator-elect giving an interview to a journalist from a prominent national daily newspaper having a wide circulation. [55] Initially the respondent is quoted as saying: Aboriginal people have enough rights in Australia as it is now. No-one can kid me that 1.5 per cent of the people can own over half Australia already and have an implied right to the rest of Australia except the cities.

(at 120) …

Copyright © 2015. Oxford University Press. All rights reserved.

The mere fact that some of their forbearers [sic] were here first with no title or no ownership of land hardly validates them owning a significant part of Australia.

[56] The applicant, in my view correctly, does not complain that these remarks were reasonably likely to offend, insult, humiliate or intimidate a relevant person. They constitute, in my opinion, a robust statement of a point of view which although likely to be controversial would not reasonably be likely in itself to give real offence or insult. Nevertheless, the terms in which those introductory comments are made set part of the scene and, in my opinion, give a degree of colour to what followed. [57] The next paragraph in the Financial Review article reads as follows: Mr Lightfoot questioned interpretations of history which identified traditional Aboriginal people as being somewhere in the mid point on the civilisation spectrum.

[58] There then followed the passages which I have set out above at [17]. I shall not repeat them here, but I will refer to the first of the respondent’s statements as ‘the primitive’ statement and the second one as ‘the culture’ statement. [59] The word ‘primitive’ has a wide range of meanings. It can mean ‘old fashioned, simple, unsophisticated’. But it can also mean ‘undeveloped, crude or belonging or pertaining to a culture characterised by isolation, low technology and simple social and economic organisation’—see the Shorter Oxford English Dictionary at p 2354. [60] In the context of Mr Lightfoot’s other observations, and in particular the introductory comments which I have set out above, I think a reasonably objective person would read the use of the word ‘primitive’ not as being some benign observation by way of contrast with, say, western civilisation, but as a pejorative remark carrying the least favourable meaning of that word, that is, undeveloped or crude.

CHAPTER 16 Offensive Publications

[61] In my opinion, the making of the primitive statement was reasonably likely, in all the circumstances, to offend and insult an Aboriginal person who continues to lead a traditional way of life and also any other Aboriginal persons who are related to those persons or who are descendants of Aboriginal people who formerly led a traditional way of life. As Branson J observed in Jones v Toben the words ‘offend’ and ‘insult’ involve closely related concepts. [62] I do not think that the making of the primitive statement was reasonably likely to humiliate or intimidate the relevant persons. In my assessment the respondent’s act would not be reasonably likely to lower their pride or self-respect or to render them timid. I now turn to the culture statement. [63] It will be remembered that this statement was made in the context of the question whether Aboriginal culture should be taught in schools. In my view, a reasonable construction of what the respondent said was as follows: • there were some aspects of Aboriginal culture which were abhorrent including some which [in the respondent’s view] were terrible sexual and killing practices; • there were some aspects of Aboriginal culture which were not valid in the 21st century; • he was happy to listen to a proposal which would involve teaching in schools about those aspects of Aboriginal culture which did not fall within (at 121) the above descriptions, but was otherwise opposed to the teaching of Aboriginal culture in schools. [64] With a considerable degree of hesitation, I have reached the same conclusion in relation to the culture statement as my conclusion in respect of the primitive statement, that is, that it was reasonably likely to offend or insult the relevant persons which I have identified above but not to humiliate or intimidate them. [65] I would have reached a different conclusion if those observations were made on their own but they were not. They were made in the context of the introductory comments and the primitive statement. … (at 122) [74] The respondent by choosing not to put any evidence before the Court has, in my view, quite clearly failed to discharge the onus of proof that any of the statutory exemptions apply. I find that the complaint which is the subject matter of this application has been established.

Copyright © 2015. Oxford University Press. All rights reserved.

16.5.8 Defences There are exemptions in the state and federal statutes that are relevant to the media. These exemptions protect acts done reasonably and in good faith for academic, artistic, scientific or research purposes or in the public interest including discussion or debate.97

Racial Discrimination Act 1975 (Cth) 18D. Exemptions Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of public interest; or (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

97 Racial Discrimination Act 1975 (Cth) s 18D; Anti-Discrimination Act 1977 (NSW) s 20C(2); Anti-Discrimination Act 1991 (Qld) s 124A(2); Civil Liability Act 1936 (SA) s 73(1); Racial and Religious Tolerance Act 2001 (Vic) s 11; Discrimination Act 1991 (ACT) s 66(2).

595

596

PART 6 Offensive Publications

Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105

Copyright © 2015. Oxford University Press. All rights reserved.

[This case concerned a cartoon titled ‘Alas poor Yagan’ that was published in a Western Australian newspaper during a public controversy about the return of the skull of an Aboriginal man that had been sent to England and displayed in a museum in Liverpool in the nineteenth century. There were disputes within Indigenous communities about who had the right to negotiate and arrange the return of the skull. There was also a wider public debate about government grants given to Indigenous representatives to travel to London to negotiate the return. The cartoon lampooned those events. The Human Rights and Equal Opportunity Commission held a ‘reasonable’ Aboriginal person would be offended by the work,98 but the newspaper publisher was protected by an exemption. The complainant sought review in the Federal Court but the application was dismissed.99 A majority of the Full Federal Court then dismissed an appeal.100 An application for special leave to appeal to the High Court was refused.101] FRENCH J (at 107): [1] The story of the Western Australian Aboriginal leader, Yagan, and his death at the hands of two young settlers in 1833 is a tale of colonial tragedy. It has sadly familiar overtones of mutual incomprehension, fear, prejudice and retribution. The sequel to his death, the severing and smoking of his head and its removal to England for display in a museum, demonstrated a contempt for his humanity which is striking even at this historical remove. [2] The recovery of Yagan’s head from a graveyard in Liverpool and its return to Australia with a group of Aboriginal elders in 1997 was accompanied by a degree of sometimes undignified acrimony over who had the appropriate cultural claims, by descent, to bring the remains back. The conduct of those involved in the controversy was lampooned in a cartoon published in the Western Australian newspaper in September 1997. The cartoon reflected upon the mixed ancestry of some of the Aboriginal people involved. It implied an unseemly desire on the part of some of them to take advantage of public funding to travel to England and it suggested that their conduct had caused disunity amongst Nyoongar people in the Perth area. It implied the frivolous use by an Aboriginal leader of the dreamtime serpent, the Wagyl, to frighten a child who was cynical about the publicly funded trip to England. It also depicted the head of Yagan in a cardboard box expressing a desire to return to England. [3] The cartoon led to a complaint to the Human Rights and Equal Opportunity Commission that its distribution was conduct reasonably likely to offend, insult, (at 108) humiliate or intimidate Nyoongar people and was done on account of their race. The complaint alleged that the conduct was unlawful by virtue of s 18C of the Racial Discrimination Act 1975 (Cth). It was dismissed by a Commissioner of the Human Rights Commission applying the ‘artistic works’ exemption under the Racial Discrimination Act. A challenge to his decision by way of judicial review was dismissed by a judge of this Court. One of the complainants, Mr Bropho, now appeals against that decision. The appeal raises the question of the appropriate balance, in the Act, between the prohibition of racial vilification and the protection of freedom of expression and, in particular, the statutory requirement of reasonableness and good faith in the exercise of that freedom. … (at 128)

The construction of s 18D—reasonableness …

[79] There are elements of rationality and proportionality in the relevant definitions of reasonably. A thing is done ‘reasonably’ in one of the protected activities in paras (a), (b) and (c) of s 18D if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks

 98  99 100 101

Corunna v West Australian Newspapers Ltd (2001) EOC ¶93–146. Bropho v Human Rights & Equal Opportunity Commission (2002) 72 ALD 321. Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105. Bropho v Human Rights and Equal Rights Opportunity Commission [2005] HCA Trans 9.

CHAPTER 16 Offensive Publications

is reasonable. It does allow the possibility that there may be more than one way of doing things ‘reasonably’. The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the Court. The judgment will necessarily be informed by the normative elements of ss 18C and 18D and a recognition of the two competing values that are protected by those sections. [80] An act will be done reasonably in the performance, exhibition or distribution of an artistic work if it is done for the purpose and in a manner calculated to advance the purpose of the artistic expression in question. An act is done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes, if it bears a rational relationship to those purposes. The publication of a genuine scientific paper on the topic of genetic differences between particular human populations might, for one reason or another, be insulting or offensive to a group of people. Its discussion at a scientific conference would no doubt be reasonable. Its presentation to a meeting convened by a racist organisation and its use to support a view that a particular group of persons is morally or otherwise ‘inferior’ to another by reason of their race or ethnicity, may not be a thing reasonably done in relation to para (b) of s 18D. [81] The same kind of criterion may be applied to acts done in reports or comments on events or matters of public interest. A presentation of a report or comment which highlights, in a way that is gratuitously insulting or offensive, a matter that is irrelevant to the purported question of public interest under discussion may not be done ‘reasonably’. A feature article on criminal activity said to be associated with a particular ethnic group would in the ordinary course be expected to fall within the protection of para (c). If it were written in a way (at 129) that offered gratuitous insults by, for example, referring to members of the group in derogatory racist slang terms, then it would be unlikely that the comment would be offered ‘reasonably’. [82] The ways in which the concept of reasonableness is brought to bear in the context of s 18D are no doubt as numerous in their variety as are the circumstances in which alleged racial vilification may arise. The preceding comments do not purport to offer an exhaustive account of the concept of reasonableness nor a definitive view about the examples offered. Rather, they are intended to illustrate the kind of task that faces a court applying s 18D.

Copyright © 2015. Oxford University Press. All rights reserved.

The construction of s 18D—good faith as honesty and fidelity to obligation [83] The requirement in s 18D that the protected conduct be done in ‘good faith’ raises the definitional question—what is meant by ‘good faith’ in this context? Associated with that is the question whether good faith is to be assessed subjectively or objectively, or by some combination of subjective and objective factors and whether, and to what extent, it overlaps the requirement of reasonableness. … (at 131) [94] In my opinion, the balance struck in ss 18C and 18D between proscription and freedom requires more in the exercise of the protected freedom than honesty. Section 18D assumes that the conduct it covers would otherwise be unlawful under s 18C. The freedom it protects is broadly construed. But, given that its exercise is assumed to insult, offend, humiliate or intimidate a person or group of persons on the grounds of race, colour or national or ethnic origin, there is no legislative policy which would support reading ‘good faith’ more narrowly than its ordinary meaning. [95] How does this approach operate in the context of s 18D? It requires a recognition that the law condemns racial vilification of the defined kind but protects freedom of speech and expression in the areas defined in paras (a), (b) and (c) of the section. The good faith exercise of that freedom will, so far as practicable, seek to be faithful to the norms implicit in its protection and to the negative obligations implied by s 18C. It will honestly and conscientiously (at 133) endeavour to have regard to and minimise the harm it will, by definition, inflict. It will not use those freedoms as a ‘cover’ to offend, insult, humiliate or intimidate people by reason of their race or colour or ethnic or national origin.

The construction of s 18D—good faith—subjective and objective [96] It follows from the preceding discussion that good faith may be tested both subjectively and objectively. Want of subjective good faith, ie, seeking consciously to further an ulterior purpose of racial vilification

597

598

PART 6 Offensive Publications

may be sufficient to forfeit the protection of s 18D. But good faith requires more than subjective honesty and legitimate purposes. It requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act. This may be assessed objectively. … (at 133) [101] Generally speaking the absence of subjective good faith, eg, dishonesty or the knowing pursuit of an improper purpose, should be sufficient to establish want of good faith for most purposes. But it may not be necessary where objective good faith, in the sense of a conscientious approach to the relevant obligation, is required. In my opinion, having regard to the public mischief to which s 18C is directed, both subjective and objective good faith is required by s 18D in the doing of the free speech and expression activities protected by that section. [102] A person acting in the exercise of a protected freedom of speech or expression under s 18D will act in good faith if he or she is subjectively honest, and objectively viewed, has taken a conscientious approach to advancing the exercising of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it. That is one way, not necessarily the only way, of acting in good faith for the purpose of s 18D. On the other hand, a person who exercises the freedom carelessly disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt may be found not to have been acting in good faith. [A majority of the Full Federal Court dismissed the appeal: the s 18D exemption applied in this case.102]

Justice French tested good faith both subjectively and objectively in Bropho v Human Rights & Equal Opportunity Commission.103 The Victorian Court of Appeal has taken a different approach.104 Another important Federal Court case involving the media where the exemptions in s 18D were found not to apply is Eatock v Bolt.105 Bromberg J broadly followed the approach of French J in Bropho in relation to good faith which he reconciled with that of Lee J. The decision has prompted debate and calls for reform.

Copyright © 2015. Oxford University Press. All rights reserved.

EATOCK V BOLT (2011) 197 FCR 261

[This case concerned newspaper articles by the journalist Andrew Bolt published in the Herald Sun by the Herald & Weekly Times (‘HWT’) which suggested that a number of prominent ‘fair-skinned’ Indigenous Australians were in fact not genuinely Aboriginal but identified as Aboriginal Australians to seek benefits. The articles were found to be offensive in the terms of s 18C and the exemptions in s 18D were found not to apply due to inaccuracies in the articles and their derisive and provocative tone. Bromberg J ordered the parties to confer as to remedies, including the publishing of a corrective notice. The Bolt case triggered a political debate regarding vilification laws and free speech. Attorney-General Brandis proposed amendments to ss 18C

102 Another illustrative case involving the media where the s 18D exemption did apply is Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389. 103 (2004) 135 FCR 105. 104 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207: see below at 16.5.9.2. This approach was also preferred in New South Wales, by Bathurst CJ in Sunol v Collier and Another (No 2) (2012) 260 FLR 414 at 424. 105 (2011) 197 FCR 261.

CHAPTER 16 Offensive Publications

and D as a result, though subsequently those amendments were withdrawn following strong expressions of community sentiment that vilification laws were necessary.106] BROMBERG J (at 270): [1] Ms Eatock has brought this proceeding on her own behalf and on behalf of people like her who have fairer, rather than darker, skin and who by a combination of descent, self-identification and communal recognition are, and are recognised as, Aboriginal persons. [2] Ms Eatock complains about two newspaper articles written by Mr Andrew Bolt and published by the second respondent (“HWT”) in the Herald Sun newspaper and on that paper’s online site. She also complains about two blog articles written by Mr Bolt and published by HWT on the Herald Sun website. [3] Broadly speaking, the nature of her complaint is that the articles conveyed offensive messages about her and people like her, by saying that they were not genuinely Aboriginal and were pretending to be Aboriginal so they could access benefits that are available to Aboriginal people. Ms Eatock wants the law to address this conduct. She wants declarations and injunctions and an apology from HWT. She calls in aid the Racial Discrimination Act 1975 (Cth) (“the RDA”). She claims that by their conduct, Mr Bolt and HWT have contravened s 18C of the RDA. [4] In order to succeed in her claim, Ms Eatock needs to establish that:

Copyright © 2015. Oxford University Press. All rights reserved.

• It was reasonably likely that she and the people like her (or some of them) were offended, insulted, humiliated or intimidated by the conduct; and • That the conduct was done by Mr Bolt and HWT including because of the race, colour or ethnic origin of Ms Eatock or of the people like her. [5] Mr Bolt and HWT dispute that the messages Ms Eatock claims were conveyed by the articles, were in fact conveyed. They deny that any offence was reasonably likely to be caused and also that race, colour or ethnic origin had anything to do with Mr Bolt writing the articles or HWT publishing them. They also say that if Ms Eatock should establish those elements which she needs to satisfy the Court about, their conduct should not be rendered unlawful, because it should be exempted or excused. For that purpose, they rely on s 18D of the RDA. [6] Section 18D exempts from being unlawful, conduct which has been done reasonably and in good faith for particular specified purposes, including the making of a fair comment in a newspaper. It is a provision which, broadly speaking, seeks to balance the objectives of s 18C with the need to protect justifiable freedom of expression. … (at 271) [8] For the reasons that follow, I have determined that some of the messages (what lawyers call “the imputations”) which were conveyed by the two newspaper articles, were reasonably likely to offend, insult, humiliate or intimidate the people in question (or some of them), and that those articles were written or published by Mr Bolt and HWT including because of the race, colour or ethnic origin of those people. I have not been satisfied that the conduct is exempted from unlawfulness by s 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained erroneous facts, distortions of the truth and inflammatory and provocative language and that as a result, the conduct of Mr Bolt and HWT is not justified in the manner required by s 18D of the RDA. … (at 354) [considering s 18D] [410] In my view, even outside of political discourse, freedom of expression is not merely a freedom to speak inoffensively: R (on the application of Gaunt) v Offıce of Communications [2011] 1 WLR 2355 at [22] (Lord Neuberger MR). But there are areas of discourse where incivility is less acceptable, including because it is more damaging to social harmony. Additionally, a distinction may be drawn between harsh language 106 See further: Sarah Joseph, ‘Free Speech, Racial Intolerance and the Right to Offend: Bolt Before the Court’ (2011) 36(4) Alternative Law Journal 224; Katharine Gelber and Luke McNamara, ‘Freedom of Speech and Racial Vilification in Australia: “The Bolt Case” in Public Discourse’ (2013) 48(4) Australian Journal of Political Science 470; David Rolph, ‘Racial Discrimination, Defamation and Freedom of Expression’, Gazette of Law and Journalism, 9 April 2013.

599

Copyright © 2015. Oxford University Press. All rights reserved.

600

PART 6 Offensive Publications

directed at a person and harsh language directed at a person’s opinion: R v Offıce at [27] (Lord Neuberger MR); Catch the Fire at [34] (Nettle JA). [411] In Bropho at [69], French J recognised that freedom of speech is not limited to expression which is polite or inoffensive. However, the minimisation of harm which French J spoke of involves a restraint upon unnecessarily inflammatory and provocative language and gratuitous insults. The language utilised should have a legitimate purpose in the communication of a point of view and not simply be directed to disparaging those to whom offence has been caused: Toben at [77] (Kiefel J). [412] I accept that the language utilised in the Newspaper Articles was inflammatory and provocative. The use of mockery and derision was extensive. The tone was often cynical. There is no doubt that the Newspaper Articles were designed to sting the people in the “trend” and in particular those identified therein. The language was not simply colourful, as Mr Bolt’s counsel described it. It was language chosen by Mr Bolt in writing articles intended to confront those that he accused with “the consequences of their actions” and done with the expectation that they would be both “offended” and “upset” and in the hope that they would be “remorseful” (the words quoted are Mr Bolt’s). [413] I also agree that the Newspaper Articles contain gratuitous references. The emphasis on colour was gratuitous. References made to Mr McMillan’s sexuality were further obvious examples. There were also gratuitous references to Mr McMillan pretending to be a “victim”, which are based on a selective misrepresentation of what Mr McMillan actually said (2A-11 to 15). I accept that much of the mockery, derision and gratuitous asides were directed at named individuals but I reject the contention of Mr Bolt and HWT that the impact is to be regarded as confined, in each case, to the person impugned. The tone and gratuitous nature of both the specific and general comments made contributed to the disrespectful manner in which the people in the “trend” were dealt with and contributed to the intimidatory effect of the articles. (355) [414] The extent of mockery and inflammatory language utilised by Mr Bolt to disparage many of the individuals which the Newspaper Articles deal with, far exceeded that which was necessary to make Mr Bolt’s point … The articles are replete with comments and a derisive tone that have little or no legitimate forensic purpose to the argument propounded and in the context of the values which the RDA seeks to protect are not justified, including by an asserted need to amuse or entertain. … (at 357) [421] Mr Bolt is a journalist of very significant public standing and influence. His evidence suggests that his columns are popular and widely read. They will have been read by persons inclined to regard Mr Bolt as speaking with authority and knowledge. They will likely have been read by some persons susceptible to racial stereotyping and the formation of racially prejudicial views. I have no doubt that some people will have read the Newspaper Articles and accepted the imputations conveyed to the ordinary reader as true and correct and that racially prejudiced views have been “reinforced, encouraged or emboldened”. [422] I have also taken into account what I regard to be the serious nature of the offensive conduct involved and its reasonably likely consequences upon the Aboriginal people concerned. Beyond the hurt and insult involved, I have also found that the conduct was reasonably likely to have had an intimidatory effect on some people. [423] I have taken into account the value of freedom of expression and the silencing consequences of a finding of contravention against Mr Bolt and HWT. Given the seriousness of the conduct involved, the silencing consequence (358) appears to me to be justified. The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law. Additionally, I take into account that the conduct was directed at an expression of identity. An expression of identity is itself an expression that freedom of expression serves to protect. That expression also deserves to be considered and valued. Identity has a strong connection to one of the pillars of freedom of expression — “self-autonomy stems in large part from one’s ability to articulate and nurture an identity derived from membership in a cultural or religious group”: Keegstra at 763. [424] Even if I had been satisfied that the s 18C conduct was capable of being fair comment, I would not have been satisfied that it was said or done by Mr Bolt reasonably and in good faith.

CHAPTER 16 Offensive Publications

[425] In my view, Mr Bolt’s conduct involved a lack of good faith. What Mr Bolt did and what he failed to do, did not evince a conscientious approach to advancing freedom of expression in a way designed to honour the values asserted by the RDA. Insufficient care and diligence was taken to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct and insufficient care and diligence was applied to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice. The lack of care and diligence is demonstrated by the inclusion in the Newspaper Articles of the untruthful facts and the distortion of the truth which I have identified, together with the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides. For those reasons I am positively satisfied that Mr Bolt’s conduct lacked objective good faith. … (at 363)

Findings of contravention and relief [452] For the reasons I have given I am satisfied that: • Some Aboriginal persons of mixed descent who have a fairer, rather than darker skin, and who by combination of descent, self-identification and communal recognition are, and are recognised as Aboriginal persons were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the Newspaper Articles that: 1. There are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, of which the identified individuals are examples, who are not genuinely Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to falsely identify as Aboriginal; and 2. Fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.

• That in Mr Bolt writing and HWT publishing those parts of the Newspaper Articles which conveyed the imputations, they each did so including because of the race, ethnic origin or colour of the Aboriginal persons there described; • That the conduct of Mr Bolt and HWT is not exempted by s 18D of the RDA from being unlawful because:

Copyright © 2015. Oxford University Press. All rights reserved.

1. it was not done reasonably and in good faith in the making or publishing of a fair comment, within the terms of s 18D(c)(ii); or 2. done reasonably and in good faith in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest, within the terms of s 18D(b).

[453] On the basis of those findings, I am satisfied that each of Mr Bolt and HWT engaged in conduct which contravened s 18C of the RDA. In the case of HWT, I am also satisfied that as Mr Bolt’s employer, it is liable for the contravention by Mr Bolt by reason of s 18E of the RDA. … (at 364) [461] It is important that nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification including (365) challenging the genuineness of the identification of a group of people. I have not found Mr Bolt and HWT to have contravened s 18C simply because the Newspaper Articles dealt with subject matter of that kind. I have found a contravention because of the manner in which that subject matter was dealt with.

16.5.9 Religious vilification Victoria,107 Queensland108 and Tasmania109 have enacted religious vilification provisions. The Victorian provisions extracted below are of interest as an example of religious vilification 107 Racial and Religious Tolerance Act 2001 (Vic) ss 8, 25. 108 Anti-Discrimination Act 1991 (Qld) ss 124A, 131A.

601

602

PART 6 Offensive Publications

and also as an example of the ‘harm threshold’ that applies in the state vilification statutes: to incite hatred against, serious contempt for, or severe ridicule of a person.110

Racial and Religious Tolerance Act 2001 (Vic) 3 Definitions In this Act— religious belief or activity means— (a) holding or not holding a lawful religious belief or view; (b) engaging in, not engaging in or refusing to engage in a lawful religious activity; …

8

Religious vilification unlawful

(1) A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons. Note: Engage in conduct includes use of the internet or e-mail to publish or transmit statements or other material.

9

Motive and dominant ground irrelevant

(1) In determining whether a person has contravened section 7 or 8, the person’s motive in engaging in any conduct is irrelevant. (2) In determining whether a person has contravened section 7 or 8, it is irrelevant whether or not the race or religious belief or activity of another person or class of persons is the only or dominant ground for the conduct, so long as it is a substantial ground.

Copyright © 2015. Oxford University Press. All rights reserved.

11

Exceptions—public conduct

(1) A person does not contravene section 7 or 8 if the person establishes that the person’s conduct was engaged in reasonably and in good faith— (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for— (i) any genuine academic, artistic, religious or scientific purpose; or (ii) any purpose that is in the public interest; or (c) in making or publishing a fair and accurate report of any event or matter of public interest. (2) For the purpose of subsection (1)(b)(i), a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising.

16.5.9.1 The meaning of ‘incites’ A complainant does not need to establish that the respondent intended to incite hatred, or that anyone actually was incited. The question then arises: who is the audience that might potentially have been incited? In the case below there were some points of disagreement between Nettle JA and Neave JA about whether section 8 of the Racial and Religious Tolerance Act 2001 (Vic) involves incitement of an ‘ordinary reasonable’ audience or an ‘ordinary’ audience. This difference may not alter the outcome when publication is by the mass media to the general public, but may be relevant when there is a specialised audience 110 See discussion above at 16.5.6.

CHAPTER 16 Offensive Publications

such as the Christian audience in this case. The court agreed in this case that the nature of audience was relevant and incitement was not judged against the community as a whole.

Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207

[Catch the Fire Ministries Inc is an Australia-wide Christian ministry. The second and third appellants were Pastor Nalliah and Pastor Scot, both pastors of the Assemblies of God church in Australia. The Islamic Council of Victoria Inc represents Muslims and Islamic societies in Victoria. The Islamic Council brought a complaint against Catch the Fire Ministries in relation to newsletter and website publications and statements made by Pastor Scot at a public seminar expressing his views on the Qur’an (Koran) and the religious beliefs of Muslims. The Victorian Civil & Administrative Tribunal held for the Islamic Council at first instance.111 That decision was overturned by the Victorian Court of Appeal and the matter was remitted to the tribunal. The parties then settled the matter and issued a joint statement.112] NETTLE JA (at 211): [12] The ordinary reasonable reader test of whether conduct ‘incites’ hatred came from the decision of the New South Wales Administrative Appeals Tribunal in Kazak v John Fairfax Publications Ltd concerning s 20C(1) of the Anti-Discrimination Act 1977 (NSW). That section provided that:

Copyright © 2015. Oxford University Press. All rights reserved.

It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

[13] The New South Wales tribunal took the view that the word ‘incites’ in s 20C should be given its ordinary meaning of ‘Urge, spur on … stir up, animate, stimulate to do something’. It also held that the operation of s 20C was not limited to what it called ‘actual incitement’ and thus that it was sufficient to engage the operation of s 20C that conduct appear as likely to stimulate hatred, serious contempt or serious ridicule. That meant, it was said, that one was to ignore any special characteristics or proclivities to which the audience or potential audience might be subject and to assess the matter by reference to the standard of the ‘ordinary reasonable reader’. In other words, one was to assume a ‘person of fair average intelligence who is not perverse, morbid, suspicious of mind or avid for scandal’. [14] In my view, however, that reasoning is not altogether apposite in relation to s 8 of the [Victorian] Act. I accept that ‘incites’ in s 8 means ‘urge[s], spur[s] on … stir[s] up, animates[s] or stimulate[s]’. That accords with the plain and ordinary meaning of the word and also with the criminal law’s conception of incitement, upon which (212) s 8 appears loosely to be based. I also allow that incitive conduct is capable of contravening s 8 without necessarily causing hatred or serious contempt or revulsion or serious ridicule. As with the common law criminal offence of incitement, I view s 8 as directed to inchoate or preliminary conduct, whether or not it causes the kind of third party response it is calculated to encourage. In that sense, the section is prophylactic. But that said, I do not accept that one should exclude from consideration the nature of the audience to whom the conduct is directed. [15] The idea of the ‘ordinary reasonable reader’ belongs to the law of defamation. It has as its object the protection of individuals against false allegations calculated to lower them in the esteem of their fellows. Contrastingly, s 8 does not prohibit statements about religious beliefs per se or even statements which are critical or destructive of religious beliefs. Nor does it prohibit statements concerning the religious beliefs of a person or group of persons simply because they may offend or insult the person or group of persons. The proscription is limited to that which incites hatred or other relevant emotion and s 8 must be applied so as to give it that effect. [16] Evidently, there can be no incitement in the absence of an audience. It is not a contravention of s 8 to utter exhortations to religious hatred in the isolation of an empty room. If conduct is to incite a reaction, 111 Islamic Council of Victoria Inc v Catch the Fire Ministries Inc [2004] VCAT 2510. 112 Victorian Civil and Administrative Tribunal, Joint Statement of the Islamic Council of Victoria Inc, Catch the Fire Ministries Inc, Daniel Nalliah and Daniel Scot, Press Release, June 22, 2007, available at .

603

604

PART 6 Offensive Publications

Copyright © 2015. Oxford University Press. All rights reserved.

it must reach the mind of the audience. And if conduct is to be perceived as inciting a particular reaction, it must reach the mind of an audience as something which encourages that reaction. So, for conduct to incite hatred or other relevant emotion it must reach the mind of an audience as something which encourages those emotions. So, therefore, the question of whether it has that effect will depend upon the perception of the audience. [17] Of course, where statements are published generally as they might be in a book or newspaper or by posting on a website, one may need to have regard to all manner of persons who are likely to see them and absorb them. But it is otherwise where the audience is select. Thus, for example, it is conceivable that a statement made about religious beliefs in the course of a talk-back radio broadcast could run foul of s 8 of the Act while the same thing said as part of intellectual discourse within a seminary or faculty of theology would not have that effect. And examples can be multiplied. [18] In my view, one may usually assume a degree of reasonableness. Parity of reasoning with the law relating to misleading and deceptive conduct suggests that s 8 has in view the effect of conduct on a reasonable member of the class of persons to whom the conduct is directed. But, for the reasons already expressed, the perception of a reasonable member of the class of persons to (213) whom conduct is directed will not always be the same as the perception of the so-called ordinary reasonable reader. Whatever the circumstances, it will in each case be necessary to consider the audience and bring it to account. [19] So to say does not deny ‘the ordinary reasonable reader’ a role in the assessment of religious vilification. As will be seen, he or she or at least something very like them has a large role to play in the application of s 11. But for the purposes of s 8 I think the test is different. It is a question of whether the natural and ordinary effect of the conduct is to incite hatred or other relevant emotion in the circumstances of the case. … NEAVE JA (254):113 [157] Section 8 is not directed at religious vilification in the abstract but is concerned with the effect of the alleged inciter’s words or conduct on those exposed to that behaviour. If that were not the case, a person could deliberately inflame the emotions of people known to have prejudiced views towards a particular religious group and then avoid the application of s 8 by saying that the behaviour would not have incited an ordinary reasonable audience. With one minor qualification, I therefore agree with Nettle JA’s view that s 8 requires consideration of the effect of the conduct on a member of the class to which it is directed. [158] The minor qualification relates to Nettle JA’s reference in [18] to a ‘reasonable’ member of the class to which that conduct is directed. Despite the common use of the concept of reasonableness, both in the common law and in legislation, I have avoided that formulation because the concept of ‘a reasonable member of the class’ may be inappropriate in the context of racial or religious vilification. For example, in considering whether anti-semitic remarks made to a group of neo-Nazis were likely to incite them to hatred or other relevant emotion it would be both absurd and offensive to consider the effect of those words on a (255) ‘reasonable’ neo-Nazi. For that reason it may be more appropriate to consider the effect of the words or conduct on an ‘ordinary’ member of the class to which it is directed, taking account of the circumstances in which the conduct occurs. I would therefore agree with Nettle JA’s view at [19] that the test for the purposes of s 8 is ‘whether the natural or ordinary effect of the conduct is to incite hatred or other relevant emotion in the circumstances of the case’. [159] Those circumstances include both the characteristics of the audience to which the words or conduct are directed and the historical and social context in which the words are spoken or the conduct occurs. It is trite to remark that the social and historical context in which words are spoken, or behaviour occurs, alters from time to time. Changes in social context mean that words directed against members of a particular racial or religious group could be found to have the relevant inciting effect at one time which they would not have at another time. For example words attacking a racial or religious group at a time when Australia was at war with a country from which members of that group originally came might be likely to incite hatred or other relevant emotion against members of that group, whilst the same words said in peace-time would not be likely to incite this response. Whether particular words have this effect is a question of fact. Social context is also relevant in considering the effect of s 11 of the Act.

CHAPTER 16 Offensive Publications

16.5.9.2 Defences The Victorian Court of Appeal in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc also considered the defences and took a different approach to the good faith element in the exception to infringement in this case to that adopted by Justice French in the Bropho case.114

Catch the Fire Ministries Inc v Islamic Council of Victoria Inc

Copyright © 2015. Oxford University Press. All rights reserved.

(2006) 15 VR 207

NETTLE JA (at 239): Section 11 [exceptions] … [89] … it is appropriate that I say something further about the effect of s 11. Contrary to the approach of the Tribunal, I do not accept that the test of bona fide and reasonably for the purposes of s 11 [of the Victorian Act] is the same as the test laid down by French, J in Bropho for the purposes of s 18D of the Racial Discrimination Act 1975 (C’th). Under s 11, the question is whether the conduct in which a person (‘the defendant’) has engaged should be seen as having been engaged in reasonably and in good faith for a genuine academic, artistic, religious or scientific purpose. In my view it follows that, assuming no lack of honesty, one should ordinarily start with the identification of the purpose for which the defendant is said to have engaged in the conduct and determine whether it answers the description of an academic, artistic, religious or scientific purpose. … (at 240) [92] Having reached that point, I think that one should move next to the question of whether the defendant had engaged in the conduct reasonably and in good faith for the genuine religious purpose. According to ordinary acceptation, to engage in conduct bona fide for a specified purpose is to engage in it honestly and conscientiously for that purpose. In my view that appears to be the intent of s 11. The legislative requirement that the conduct be engaged in not only in good faith but also reasonably means that objective standards will be brought to bear in determining what is reasonable. Despite what has been held under s 18D of the Racial Discrimination Act, I see no reason to load objective criteria into the conception of good faith in s 11, or otherwise to treat it as involving more than a ‘broad subjective assessment’ of the defendant’s intentions. In my view, the requirement that conduct have been engaged in bona fide for a genuine religious purpose within the meaning of s 11 will be established if it is shown that the defendant engaged in the conduct with the subjectively honest belief that it was necessary or desirable to achieve the genuine religious purpose. [93] That then leaves the question of whether the conduct was engaged in reasonably for the genuine religious purpose, and plainly as I see it that does involve an objective analysis of what is reasonable and therefore calls for a determination according to the standards of the hypothetical reasonable person. [94] Therein, however, is a further complication. It is not all that long ago that the standards of the hypothetical reasonable person were spoken of in terms of the man on the Clapham omnibus. So long as the population of this country was of predominantly Anglo-Celtic extraction, that was perhaps as apposite here as it was in United Kingdom. But today, as in the United Kingdom, our society is (at 241) different. It is now a polytopic multicultural society and we recognise, and indeed the Preamble to the Act makes clear, that the standards of reasonable persons are the standards of an open and just multicultural society. Accordingly, where as here the conduct in question consists in the making of statements for a religious purpose, the question of whether it was engaged in reasonably for that purpose must be decided according to whether it would be so regarded by reasonable persons in general judged by the standards of an open and just multicultural society.

114 See above at 16.5.8.

605

606

PART 6 Offensive Publications

Copyright © 2015. Oxford University Press. All rights reserved.

[95] Such an assessment may not always be easy. A society which consists of varied cultural groups necessarily has the benefit, and bears the burden, of a plurality of standards. Hence, in this society, to speak of persons in general is to speak of persons who in large part have different standards. And to speak of what is reasonable among them it is to invoke an idea which as between them is to a considerable extent informed by different standards. Nevertheless, experience has taught us that reasonable members of an open and just multicultural society are inclined to agree on the basics. [96] In my view one is entitled to assume that a fair and just multicultural society is a moderately intelligent society. Its members allow for the possibility that others may be right. Equally, I think, one is entitled to assume that it is a tolerant society. Its members acknowledge that what appears to some as ignorant, misguided or bigoted may sometimes appear to others as inspired. Above all, however, one is entitled to assume that it is a free society and so, therefore, one which insists upon the right of each of its members to seek to persuade others to his or her point of view, even if it is anathema to them. But of course there are limits. Tolerance cuts both ways. Members of a tolerant society are as much entitled to expect tolerance as they are bound to extend it to each other. And, in the scheme of human affairs, tolerance can extend each way only so far. When something goes beyond that boundary an open and just multicultural society will perceive it to be intolerable despite its apparent purpose, and so judge it to be unreasonable for the purpose for which it was said. [97] In Bropho, French, J made the point that the question of whether something is said bona fide and reasonably for a genuine purpose may depend as much on the place where it is said and by whom it is said as it does upon its content. So, to adopt and adapt his Honour’s example, what is said at a religious seminar by a true believer in one religious faith concerning the perceived inadequacies of the tenets of another might be regarded as said bona fide and reasonably for a genuine religious purpose of ‘witnessing’ to adherents of the other persuasion, even though, if the same thing were said on talk-back radio by a person who had no religious beliefs and no interest in ‘witnessing’ to those who do, it would be totally unacceptable. (at 242) [98] Of necessity, the standards of an open and just multicultural society allow for differences in views about religions. They acknowledge that there will be differences in views about other peoples’ religions. To a very considerable extent, therefore, they tolerate criticism by the adherents of one religion of the tenets of another religion; even though to some and perhaps to most in society such criticisms may appear illinformed or misconceived or ignorant or otherwise hurtful to adherents of the latter faith. It is only when what is said is so ill-informed or misconceived or ignorant and so hurtful as to go beyond the bounds of what tolerance should accommodate that it may be regarded as unreasonable.

16.5.10 Homosexual vilification In some of the states there are civil wrongs and criminal offences for sexuality and gender-identity vilification. The grounds of vilification extend to sexuality, homosexuality, transgender and transsexuality,115 HIV or AIDS status116 and disability.117 In Queensland vilification on the grounds of sexuality includes heterosexuality while in New South Wales the provision is confined to homosexuality. While there are differences in the various state jurisdictions in relation to the kinds of sexuality and gender identity included and how they

115 Discrimination Act 1991 (ACT) ss 66(1)(b)–(c), 67(1)(d)(ii)–(iii); Anti-Discrimination Act 1977 (NSW) ss 38R–38T, 49ZS–49ZTA; Anti-Discrimination Act 1991 (Qld) s 124A; Anti-Discrimination Act 1998 (Tas) s 19(c). 116 Discrimination Act 1991 (ACT) ss 66(1)(d), 67(1)(d)(iv); Anti-Discrimination Act 1977 (NSW) ss 49ZXA–49ZXC. 117 Anti-Discrimination Act 1998 (Tas) s 19(b).

CHAPTER 16 Offensive Publications

are defined,118 other elements in the offences are based upon the state racial vilification provisions discussed above: specifically it is a public act that incites hatred towards, serious contempt for, or severe ridicule of, a person.

16.5.10.1 Defences The state vilification Acts also exempt certain acts done ‘reasonably’ and in ‘good faith’ as discussed above,119 and includes exceptions based upon concepts drawn from defamation such as fair reports and absolute privilege.

Anti-Discrimination Act 1977 (NSW) 4 Definitions homosexual means male or female homosexual. …

49ZS. Definition In this Division: public act includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

Copyright © 2015. Oxford University Press. All rights reserved.

49ZT. Homosexual vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

The New South Wales Administrative Decision Tribunal Appeal Panel has considered the concepts of reasonableness and good faith for the purposes of exceptions to homosexual vilification. The Appeal Panel preferred a mixed subjective/objective approach to good 118 See further discussion in Neil Rees, Simon Rice and Dominique Allen, Australian Anti-discrimination Law, Second Edition, Federation Press, Sydney, 2014, [10.6.1]–[10.6.4], [10.6.6]–[10.6.9]. 119 See 16.5.8 and 16.5.9.2.

607

608

PART 6 Offensive Publications

faith but accepted that the same standard might be achieved if the objective standard of reasonableness requires prudence, caution and diligence, objectively viewed.120

Burns v Laws [2008] NSWADTAP 32

Copyright © 2015. Oxford University Press. All rights reserved.

[This case concerned a complaint brought against the well known Radio 2UE Sydney broadcaster John Laws arising from comments he made about the American actor and celebrity, Carson Kressley, known for his role in the television show Queer Eye. Carson Kressley had attended the Melbourne Cup and appeared on television coverage of the race day. The New South Wales Administrative Decisions Tribunal determined that John Laws had engaged in vilifying conduct but that it had been done reasonably and in good faith for a purpose in the public interest. The Appeal Panel of the Tribunal reversed that decision and imposed a higher standard of good faith and reasonableness.] O’Connor K DCJ, Grotte E and Nemeth de Bikal L, non judicial members: [34] The Tribunal, in ruling as it did on the good faith requirement, adopted the view preferred by Nettle JA in Catch the Fire, and is consistent with previous authority in this Tribunal. For example in the Western Aboriginal Legal Service case, the Tribunal dealt with the equivalent exception in the racial vilification civil liability provision of the ADA. At [122] of its reasons it said of the phrase ‘good faith’, it ‘would appear to be the converse of acting with malice’, and that the crucial factor was ‘whether the commentator honestly believed in the truth of what he or she said’. [35] The appellant presses the view that a higher standard should be accorded to the requirement of good faith in line with the views expressed by French J in Bropho, which in turn, in our view, are consistent with the previous leading Federal Court cases on the point. … [38] The Federal Court judges have not seen it as sufficient for a respondent to demonstrate lack of bad faith, malice or absence of an improper purpose. [39] As the Federal Court judges have seen it, the reliance on the exception or defence arises in circumstances where the maker of the statement has been found to have engaged in offensive conduct. The Federal Court decisions have all referred to the objectives of anti-vilification provisions in connection with their discussion of the reasonableness and good faith exception. [40] The exception is seen as operating in an environment where the maker of the statement has chosen to engage in conduct that is prima facie in breach of the law. Accordingly, it is not enough for the maker of the statement to plead ‘honest ineptitude’ …. [41] Before examining more closely the debate surrounding the meaning to be given to the ‘good faith’ requirement, and whether its appraisal is subjective, objective or mixed subjective/objective, it is necessary to refer first to the approach adopted in the case law to the assessment of ‘reasonableness’. [42] As noted above, the authorities all see the expression as being objective. Many of the cases, especially in this Tribunal, have used the yardstick, very familiar in the law, of the judgment of the hypothetical bystander, described often as ‘the ordinary, reasonable person’. There has been a debate as to what qualities or attributes should be accorded to that person. Nettle JA in Catch the Fire invested the hypothetical person with several special characteristics that he felt a reasonable person in modern society with a commitment to laws of the present kind would be expected to possess. [43] In Bropho the approach preferred does not use as the reference point the ordinary reasonable person but instead proceeds to address what would be ‘reasonable’ by reference to considerations seen as relevant. Nettle JA did not question this approach. The reasonable person was seen as someone who might have regard to particular matters including the kind of considerations listed by French J. In the early Tribunal decision, Western Aboriginal Legal Service, the kind of considerations to which the reasonable person might have regard was 120 In New South Wales, the approach of the Court of Appeal of Victoria in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 was preferred by Bathurst CJ in Sunol v Collier and Another (No 2) (2012) 260 FLR 414 at 423.

CHAPTER 16 Offensive Publications

discussed briefly. Some of the factors endorsed by French J trace back to the dicta in Western Aboriginal Legal Service. In this case the Tribunal adopted French J’s approach to the assessment of reasonableness.

Good faith [The Appeal Panel discussed Bropho and Catch the Fire.] … [65] The respondent [Mr Laws] submitted that the approach taken by French J [in Bropho121] was wrongly informed by consideration of other Commonwealth statutory frameworks where the relevant requirement is solely a ‘good faith’ one. They were not composite ‘reasonableness and good faith’ requirements. This point is alluded to in the last sentence of the Tribunal’s remarks at para [193]. In our view, French J and the other Federal Court judges to whom we have referred were well aware that they were dealing with a dually expressed requirement. [66] In our view, the higher standard of good faith should form part of the appraisal of the conduct of a respondent seeking to rely on s 49ZT(2)(c) [of the NSW Act]. In our view, it is vital to the effective operation of an anti-vilification law of the present kind that persons actively engaged in otherwise offensive discourse with the wider community demonstrate conscientiousness in upholding the policy and objectives of antivilification provisions. [67] Anti-vilification laws seek to furnish a degree of protection to groups of people historically the subject of unlawful discrimination and deep-seated prejudice resulting in them being treated unequally as compared to other members of the community not having those characteristics. A number of Members of Parliament who spoke in support of the law under notice in this case saw a direct link between the making of vilifying statements about homosexual persons and the occurrence of unprovoked assaults on homosexual persons (‘gay bashing’) and, sometimes, outright murder. See for example Second Reading of the Bill (a Private Member’s Bill), Ms Moore (Member for Bligh), Hansard (Legislative Assembly), 11 March 1993, 657; and the subsequent debate reported 13 April, 29 April, 16 September, 17 November 1993. [68] A similar point is made by Lee J in Bropho:

Copyright © 2015. Oxford University Press. All rights reserved.

137 The Act is a statement, first, that acts done because of race promote a significant mischief in the community, sufficient to require intervention by statutory prohibition, and second, unless good cause is shown for the conduct concerned, it is in the greater public interest that the right of free expression be controlled by removing from public discourse racially based acts that offend, insult, humiliate or intimidate members of a race within the community thereby tending to set one part of the community against another.

[69] This case involves a popular broadcaster with an immense following and reach in the Australian community. [70] A broadcaster works in a regulatory framework that contains several impairments on the exercise of freedom of speech such as the law of defamation, contempt law, specific laws (relating for example to jury deliberations) and the regulatory standards imposed by broadcasting authorities. These impairments exist to meet other public interests—such as the fair protection of individual reputation and the administration of justice. The constraints now under notice are a more recent addition to these long-standing impairments of free speech. [71] While we prefer, like the Federal Court, a mixed subjective/objective approach to the assessment of good faith, if the matters we see as relevant to the good faith inquiry are taken up in considering reasonableness there is no fundamental difficulty. The test enunciated by French J imposes a higher standard on the doing of the act than merely an absence of bad faith or the like. It requires a conscientious approach to the doing of the act once a decision is taken to engage in conduct which prima facie contravenes antivilification provisions. [72] Accordingly, we will turn to the issues raised by the appeal in relation to the way the primary Tribunal assessed reasonableness.

121 See above at 16.5.8.

609

610

PART 6 Offensive Publications

Reasonableness [73] We have already noted, in our summary of the propositions that appear to be relatively well established, that the assessment of ‘good faith’ and the assessment of ‘reasonableness’ involve separate inquiries. We should note that there is support in the case law for a more relaxed approach. … [87] In our view there is no reference either in the Tribunal’s statement of relevant considerations at para [209—approach to interpreting ‘reasonably’] or in the majority’s objective appraisal of the conduct undertaken at paras [260] to [280] to the following matters, which we see as at the heart of the more positive understanding of good faith which we think is required by the statute: • Whether the respondent’s conduct, objectively viewed, manifested an honest and conscientious endeavour to have regard to and minimise the harm it would, by definition, inflict. • Whether the respondent’s conduct, objectively viewed, involved the exercise of the level of prudence, caution and diligence, which, in the context of the Act, ensured that due care was taken to avoid or minimize the consequences of the offensive statements. [88] As the appellant noted in his submissions, in its concluding observations at para [282] the Tribunal used the word ‘pernicious’ to describe the respondent’s conduct: 282. We have decided first that the statements made by Mr Laws caused harm to homosexual men in a way that s 49ZT(1) seeks to prevent. This conduct on his part does him no credit. As an experienced and reputable commentator, he should have been aware—and indeed he subsequently stated that he had become aware—that his statements were pernicious in this respect.

[89] In dealing with the applicability of the exception, the Tribunal said at para [276] that the broadcast was ‘harmful, to a significant extent, to homosexual people’. [90] In our view, these two findings raise a serious question as to whether the good faith standard as we see it operating could in the circumstances be satisfied. [91] While, as we later explain, we accept that post-event conduct may be taken into account in forming a view as to the subjective intention of a person at a prior time, we see some difficulty in taking account of post-event conduct in the assessment of such matters as whether due care, diligence and prudence was exercised so as to minimise the offence given.

Copyright © 2015. Oxford University Press. All rights reserved.

Conclusions in respect of grounds 1 and 2 [92] We acknowledge that Nettle JA’s approach, and that of the Tribunal below, has the appeal of simplicity in expression and application. We do not understand the primary Tribunal in this case to have gone so far as to suggest that the factors that French J and Lee J brought into play on the ‘objective’ side of the good faith assessment had no relevance at all to the overall appraisal of a respondent’s conduct. Nettle JA’s judgment is less clear, in our opinion, on this point. [93] In our view, if the approach to good faith is simply left as a substantially subjective one, it is essential that the particular matters which we think should be canvassed on the objective side of the good faith inquiry be taken up as part of the reasonableness assessment. [94] In our view the Tribunal did not take up the objective aspect of the good faith standard as part of its assessment of reasonableness. The first two grounds of appeal are established.

In determining the question of whether NSW vilification laws infringed the implied freedom of political communication in the case of Sunol v Collier and Another (No 2) Bathurst CJ engaged in a helpful analysis of the broader case law above and of the requirements of s 49ZT of the Anti-Discrimination Act 1977 (NSW) which prohibits homosexual vilification.122 Bathurst CJ concluded: 122 Sunol v Collier and Another (No 2) (2012) 260 FLR 414 at 424. See further: Burns v Sunol [2012] NSWADT 246; Burns v Sunol [2014] NSWCATAD 2; Burns v Sunol [2014] NSWCATAD 61; Burns v Sunol [2014] NSWCATAD 62.

CHAPTER 16 Offensive Publications

[41] In these circumstances, s 49ZT should be construed as follows: (a) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement. (b) It is not necessary for a contravention that a person actually be incited. (c) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed. (d) It is not necessary to establish an intention to incite. (e) For the public act to be reasonable within the meaning of s 49ZT(2)(c) it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out. (f) For the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose.123

Copyright © 2015. Oxford University Press. All rights reserved.

QUESTIONS 1 The Commonwealth has adopted a different ‘harm threshold’ from that used by the states in the various vilification statutes. Discuss the different approaches from the perspective of media respondents. Should there be a uniform approach throughout Australia? 2 What conduct by journalists and broadcasters might demonstrate an absence of good faith for the purposes of the free speech/public interest defences to vilification? Do you agree with the approach taken by Bromberg J in the Bolt case? Is there a case for reform of our vilification laws? Or would they be less controversial in free speech terms if we had stronger protection for speech elsewhere, say through a Bill of Rights? 3 Dan Meagher has argued that the case law has produced two possible interpretations for the term ‘reasonably’ in the free speech/public interest defences for vilification. One is the reasonableness of the message, the other is the reasonableness of the method or manner by which the message is conveyed. Meagher examined the extrinsic parliamentary material and submitted ‘that when one considers why the defences were included in the first place’ the better view is that ‘reasonably’ refers to the method of conveying the message.124 Consider these two possible interpretations from the perspective of the media and its role in public debate. 4 Of the laws discussed in this chapter, which may lead to self-censorship by journalists because of uncertainty about their scope? Discuss.

FURTHER READING Aroney, Nicholas, ‘The Constitutional (In)validity of Religious Vilification Laws: Implications for their Interpretation’ (2006) 34 Federal Law Review 287. Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, Report No 104, 2006. Bronitt, Simon and Stellios, James, ‘Sedition, Security and Human Rights: “Unbalanced” Law Reform in the “War on Terror” ’ (2006) 30 Melbourne University Law Review 923. Gelber, Katharine, ‘The False Analogy between Vilification and Sedition’ (2009) 33 Melbourne University Law Review 270. Gelber, Katharine and McNamara, Luke, ‘Freedom of Speech and Racial Vilification in Australia: “The Bolt Case” in Public Discourse’ (2013) 48(4) Australian Journal of Political Science 470.

123 Ibid at 421–24 per Bathurst CJ. 124 Dan Meagher, ‘So Far So Good? A Critical Evaluation of Racial Vilification Laws in Australia’ (2004) 32 Federal Law Review 225, 247–48.

611

612

PART 6 Offensive Publications

Copyright © 2015. Oxford University Press. All rights reserved.

Gelber, Katherine and Stone, Adrienne (eds), Hate Speech and Freedom of Speech in Australia, Federation Press, Sydney, 2007. Harris, Bede, ‘Pell v Council of Trustees of the National Gallery of Victoria: Should Blasphemy be a Crime? The “Piss Christ” Case and Freedom of Expression’ (1998) 22 Melbourne University Law Review 217. Joseph, Sarah, ‘Free Speech, Racial Intolerance and the Right to Offend: Bolt Before the Court’ (2011) 36(4) Alternative Law Journal 224. McBain, Graham, ‘Abolishing the Crime of Sedition: Part 1’ (2008) 82 Australian Law Journal 543. McNamara, Luke, Regulating Racism: Racial Vilification Laws in Australia, University of Sydney Institute of Criminology, Sydney, 2002. Maher, Laurence ‘The Use and Abuse of Sedition’ (1992) 14 Sydney Law Review 287. Maher, Laurence ‘Dissent, Disloyalty and Disaffection: Australia’s Last Cold War Sedition Case’ (1994) 16 Adelaide Law Review 1. Meagher, Dan, ‘So Far So Good? A Critical Evaluation of Racial Vilification Laws in Australia’ (2004) 32 Federal Law Review 225. Meagher, Dan, ‘Inciting Racial Violence as Sedition: A Problem of Definition?’ (2006) 30 Criminal Law Journal 289. Meagher, Dan, ‘So Far No Good: The Regulatory Failure of Criminal Racial Vilification Laws in Australia’ (2006) 17 Public Law Review 209. Meagher, Dan, ‘Investigating “indecent, obscene or pornographic” art: Lessons from the Bill Henson Controversy’ (2009) 14 Media and Arts Law Review 292. New South Wales Law Reform Commission, Blasphemy, Report No 74, 1994. Rees, Neil, Rice, Simon and Allen, Dominique, Australian Anti-discrimination Law, Second Edition, Federation Press, Sydney, 2014, Ch 10. Rolph, David, ‘Racial Discrimination, Defamation and Freedom of Expression’, Gazette of Law and Journalism, 9 April 2013. Saul, Ben, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28 University of New South Wales Law Journal 868.

Copyright © 2015. Oxford University Press. All rights reserved.

PART 7

Freedom of Information

17 Freedom of Information 615

Copyright © 2015. Oxford University Press. All rights reserved.

17 Freedom of Information INTRODUCTION

Copyright © 2015. Oxford University Press. All rights reserved.

Many of the earlier chapters in this book have dealt with content regulation and other legal restrictions on how the media uses information. This final chapter is somewhat different in that it concerns enforceable rights of access to information. Australian freedom of information (FOI) legislation grants every person a right of access to documents in the possession of government agencies and official documents of ministers, subject to certain exemptions. The system is founded upon the principles of accountability through ‘open government’.1 The media plays an important role in this process by publishing government information obtained under FOI. It can be a useful tool for journalists, although they regularly complain about unwarranted reliance by agencies upon exemptions, as well as delays in decisionmaking and significant costs.2 Freedom of information was introduced throughout Australia in the last two decades of the twentieth century. The first two jurisdictions were the Commonwealth3 and Victoria,4 both in 1982, and those Acts informed the developments in the other states.5 The Commonwealth and

1

Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, Report No 77 (ALRC) and Report No 40 (ARC) (1995), 11. 2 Some recent examples include: Sharri Markson, ‘What’s the big secret? Aunty turns down requests to tot up its capital employees’, The Australian, 27 October 2014, 23; Chris Vedelago, ‘Stonnington refuses to reveal property hit list‘, Sunday Age (Melbourne), 5 October 2014, 13; Karen Collier, ‘Authority will not release financial modelling’, Herald Sun (Melbourne), 8 April 2013, 4; Julia Medew, ‘Ambulance Victoria won’t release data on cardiac arrests’, The Age (Melbourne), 21 September 2014; Sean Parnell, ‘Secrecy the watchword as FOI laws get short shrift’, The Australian, 9 May 2014, 32; Miles Kemp, ‘Top Secret Council won’t reveal parking fine parameters’, The Advertiser (Adelaide), 10 December 2013, 8. However, many other articles report information successfully obtained under FOI. 3 Freedom of Information Act 1982 (Cth). For a history of the origins of Australian government secrecy and the introduction of freedom of information, see Greg Terrill, ‘The Rise and Decline of Freedom of Information in Australia’, in Andrew McDonald and Greg Terrill (eds), Open Government: Freedom of Information and Privacy, Macmillan, Basingstoke UK, 1998, 89. 4 Freedom of Information Act 1982 (Vic). 5 Rick Snell, ‘Freedom of Information: The Experience of the Australian States—An Epiphany?’ (2001) 29 Federal Law Review 343, 344.

615

616

PART 7 Freedom of Information

Victorian Acts were followed by New South Wales in 19896 and the other states in the 1990s.7 The Northern Territory passed combined freedom of information and privacy legislation in 2002.8 There is a pattern to the various Acts and the key features relevant to the media will be identified in this chapter with a focus on the Commonwealth system. Variations in the states will be noted when relevant.

17.1 A history of secrecy Before considering how the current freedom of information system works, and making the inevitable criticisms when it does not work, it is important to understand how secret Australian governments were in the past. FOI access to government documents compels publication when the authors of those documents would prefer to maintain secrecy; granting this right of access was a radical shift in public administration. There are, of course, numerous exemptions to FOI access but these are based upon the principle that disclosure of some information would be contrary to the public interest. The fact that departmental staff or ministers would rather not have certain information disclosed, or that it causes them embarrassment, ought to be irrelevant.9 This is very different to the way private organisations operate and very different to the way Australian governments operated up until the 1980s. In his book Secrecy and Openness: The Federal Government from Menzies to Whitlam and Beyond, Greg Terrill reminds us that ‘modern governments are much better at explaining their thinking than those of the 1970s or earlier’.10 Justice Kirby wrote the following overview of the history of secrecy in Australian public administration and the objectives underlying the introduction of freedom of information in his judgment in the Osland case.11

Osland v Secretary, Department of Justice

Copyright © 2015. Oxford University Press. All rights reserved.

(2008) 234 CLR 275

KIRBY J (at 301): [60] … Australian public administration inherited a culture of secrecy traceable to the traditions of the counsellors of the Crown dating to the Norman Kings of England. Those traditions were reinforced in later dangerous Tudor times by officials such as Sir Francis Walsingham. They were then

6

Freedom of Information Act 1989 (NSW) (Now: Government Information (Public Access) Act 2009 (NSW); also Freedom of Information Act 1989 (ACT). 7 Freedom of Information Act 1991 (SA); Freedom of Information Act 1991 (Tas) (Now: Right to Information Act 2009 (Tas); Freedom of Information Act 1992 (Qld) (Now: Right to Information Act 2009 (Qld)); Freedom of Information 1992 (WA). 8 Information Act (NT). 9 The Commonwealth, New South Wales, Queensland and Northern Territory Acts expressly state that the risk of embarrassment to the government, or misinterpretation of the information by the applicant, are not relevant considerations when deciding whether disclosure of a document would be contrary to the public interest: Freedom of Information Act 1982 (Cth) s 11B(4); Government Information (Public Access) Act 2009 (NSW) s 15; Right to Information Act 2009 (Qld) Sch 4 Part 1; Information Act (NT) s 50. See also: Right to Information Act 2009 (Tas) Sch 2. 10 G Terrill, Secrecy and Openness: The Federal Government from Menzies to Whitlam and Beyond, Melbourne University Press, Melbourne, 2000, 7. For a history of the origins of Australian government secrecy and the introduction of freedom of information, see also Greg Terrill, ‘The Rise and Decline of Freedom of Information in Australia’, in Andrew McDonald and Greg Terrill (eds), Open Government: Freedom of Information and Privacy, Macmillan, Basingstoke UK, 1998, 89. 11 Discussed further below: see 17.8.3.

CHAPTER 17 Freedom of Information

strengthened by the enactment throughout the British Empire of official (at 302) secrets legislation. A pervasive attitude developed ‘that government “owned” official information’. This found reflection in a strong public service convention of secrecy. The attitude behind this convention was caricatured in the popular television series Yes Minister in an aphorism ascribed to the fictitious Cabinet Secretary, Sir Arnold Robinson: ‘Open Government is a contradiction in terms. You can be open—or you can have government.’ The ensuing laughter has helped to break the spell of the tradition by revealing its presumption when viewed in the contemporary age with its more democratic values. [61] In Australia, the culture of governmental secrecy was sustained both by statute and by common law. In 1966, inspired by the example of legislation in Scandinavian countries, the Congress of the United States of America adopted a Freedom of Information Act. This, in turn, enlivened discussion about reform elsewhere. In 1982, an Australian federal Freedom of Information Act was enacted. This stimulated initiatives in the state sphere, where, because the public service dated to colonial times, it was sometimes more traditional and more secretive in its procedures than the federal service, dating as it did only to 1901. [62] The basic purpose of the introduction of freedom of information (‘FOI’) legislation is the same in all jurisdictions. It is to reinforce ‘the three basic principles of democratic government, namely, openness, accountability and responsibility’. The central objective is to strengthen constitutional principles of governance not always translated into reality because of a lack of material information available to electors. Fundamentally, the idea behind such legislation is to flesh out the constitutional provisions establishing the system of representative government; to increase citizen participation in government beyond a fleeting involvement on election days; and to reduce the degree of apathy and cynicism sometimes arising from a lack of real elector knowledge about, or influence upon, what is going on in government. … [66] (at 303) … that purpose is a radical one. It assigns very high importance to a public interest in greater openness and transparency in public administration. Given the historical background, the attitudinal shift that FOI legislation demanded of Ministers, departments, agencies and the public service is nothing short of revolutionary. The courts ought not to obstruct that shift. On the contrary, they should strive to interpret FOI legislation in a manner harmonious with its objectives, doing so to the fullest extent that the text allows.

Copyright © 2015. Oxford University Press. All rights reserved.

17.2 Rationales and objects There is a democratic rationale underpinning all the Australian freedom of information schemes. FOI is founded upon the principles of transparency and public participation in the democratic process. To participate effectively in a democracy, the public must be well informed. In the first annual report on the operation of the 1982 Commonwealth Act12 the Commonwealth Attorney-General listed the following basic purposes and benefits that the FOI legislation was intended to confer:

Commonwealth Attorney-General, Freedom of Information Act 1982: Annual Report for the Period December 1982–June 1983, 1983, xi The basic purposes of FOI legislation, and the benefits which it is intended to confer upon the relationship between citizens and government, are as follows: • to improve the quality of decision-making by government agencies in both policy and administrative matters by removing unnecessary secrecy surrounding the decision-making process; • to enable groups and individuals to be kept informed of the functioning of the decision-making process as it affects them and to know the kinds of criteria that will be applied by government agencies in making those decisions;

617

618

PART 7 Freedom of Information

• to develop further the quality of political democracy by giving the opportunity to all Australians to participate fully in the political process; • to enable individuals, except in very limited and exceptional circumstances, to have access to information about them held on government files, so that they may know the basis on which decision that can fundamentally affect their lives are made and may have the opportunity of correcting information that is untrue or misleading.

Copyright © 2015. Oxford University Press. All rights reserved.

Some of these objectives have been fulfilled to a greater extent than others by the Commonwealth and state FOI regimes.13 In relation to the second—public access to information about the criteria applied by government agencies in their decision-making processes—there have been improvements with the publication of such materials.14 The fourth purpose listed above—access by individuals to information about themselves— has been extensively used and is one of the least controversial parts of the FOI schemes.15 Commonwealth FOI annual reports disclose that the greatest number of FOI requests is for personal information about the applicant and that fewer of these applications are refused.16 The other two purposes stated by the Commonwealth Attorney-General in the first freedom of information annual report concern the workings of government and democracy, and the outcomes for these are more difficult to assess. Whether access to information (either through individual applications or media disclosure) necessarily facilitates full participation in the political process is a question for political scientists that is beyond the scope of this work.17 It is clear that a central tenet of freedom of information law is that democracy is enhanced when information is available to electors.18 The first purpose listed by the Commonwealth Attorney-General in the 1983 annual report concerned improvement of government decision-making processes. Freedom of information was introduced in Australia following major reforms in administrative 13 In 2010 the objects in the Commonwealth Act were restated to emphasise a pro-disclosure purpose: Freedom of Information Amendment (Reform) Act 2010 (Cth). 14 Agencies are required to publish information about their organisation, functions and procedures, their decision-making powers, the categories of documents they hold, and the policy documents they maintain: Freedom of Information Act 1982 (Cth) ss 8–8D; Freedom of Information Act 1989 (ACT) ss 7–8; Government Information (Public Access) Act 2009 (NSW) ss 6, 18; Information Act (NT) s 11; Right to Information Act 2009 (Qld) ss 20–21; Freedom of Information Act 1991 (SA) ss 9–10; Freedom of Information Act 1982 (Vic) ss 7–8; Freedom of Information Act 1992 (WA) ss 94–97. The corollary of this requirement to publish is that in a number of the jurisdictions there are provisions that state a person shall not be subjected to any prejudice if he or she was not aware of an agency’s rule or policy, and if information about it had not been published as the Act required: Freedom of Information Act 1982 (Cth) s 10; Freedom of Information Act 1989 (ACT) s 9; Government Information (Public Access) Act 2009 (NSW) ss 23-24; Right to Information Act 2009 (Qld) s 20(3); Freedom of Information Act 1991 (SA) s 10(3); Freedom of Information Act 1982 (Vic) s 9. See also proactive disclosure discussed below at 17.4. 15 The FOI Acts also allow individuals to seek correction of their personal information held by governments if they believe that information is incomplete, incorrect, out of date or misleading. 16 In 2013–2014, 79.7 per cent of all Commonwealth FOI requests were for documents containing ‘personal’ information: Office of the Australian Information Commissioner, Freedom of Information Act 1982 Annual Report 2013–2014, 2014, 130. See table 9.5 page 133 to compare figures on refusals of requests: . 17 Participation may involve a range of levels of involvement from transparency (the supply of information to the public) through to invitations to the public to supply information and be involved in consultation, to full participation in the decision-making process with televoting. See discussion in Patrick Bishop and Glyn Davis, ‘Mapping Public Participation in Policy Choices’ (2002) 61 Australian Journal of Public Administration 14. 18 See Justice Kirby above at 17.1.

CHAPTER 17 Freedom of Information

law that updated judicial review of administrative decision-making, and introduced the Ombudsman and merits review by the Administrative Appeals Tribunal.19 Following on from those reforms the decision-making processes of government departments and agencies were also opened up to public scrutiny by allowing access to the documentary record of those decisions under FOI. There has been a great deal of disagreement about which stages in the decision-making process ought to be transparent. While departments and ministers may be prepared to disclose finalised policies, decisions and reasons, they are often reluctant to reveal the background to the development of policies and argue that public servants will be deterred from giving frank and fearless advice if it is subjected to public scrutiny. The key phrase in the attorney-general’s description of this purpose of improving decision-making processes is the removal of ‘unnecessary secrecy’. But, when is secrecy ‘necessary’ in the public interest? The numerous exemptions that restrict disclosure in the FOI Acts are justified on the grounds that the public interest is sometimes best served by maintaining secrecy. The question then arises: what is the appropriate balance between rights of public access to unpublished government information and the need for confidentiality to protect private and public interests?20 The scope and application of the exemptions have been controversial and particularly contested by the media.

17.3 Official secrecy and information management

Copyright © 2015. Oxford University Press. All rights reserved.

17.3.1 Secrecy

As Justice Kirby outlined in the extract above,21 the freedom of information schemes reversed a long tradition of official secrecy in public administration in Australia. Freedom of information legislation still sits somewhat uncomfortably alongside a large number of Australian Acts that impose secrecy obligations upon government officials. These secrecy provisions seriously restrict voluntary disclosures outside of freedom of information. The Australian Law Reform Commission (ALRC) has identified a wide range of secrecy provisions in federal legislation: in 2009 the ALRC found 507 distinct secrecy provisions in 175 Acts and regulations.22 The Commonwealth Crimes Act 1914 includes a general provision on disclosure of information by Commonwealth officers. Section 70 does not impose an obligation of secrecy and the source of the duty not to disclose must be found in common law or equitable obligations or other specific legislative provisions. If a Commonwealth officer breaches such a duty he or she may be guilty of a criminal offence.

19 Anthony Mason, ‘The 30th Anniversary: A Judicial Perspective’ (2007) 58 Admin Review 13. Sir Anthony Mason described the implementation of freedom of information as a ‘substantial disappointment’. 20 This was debated extensively for over a decade before the Commonwealth FOI legislation was passed: Commonwealth Attorney-General, Freedom of Information Act 1982: Annual Report for the Period December 1982–June 1983, 1983, 1, 5. 21 See 17.1. 22 Australian Law Reform Commission, Review of Secrecy Laws, Discussion Paper 74, 2009, 33. The ALRC ­considered the protection of classified and security sensitive information in an earlier review: Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, Report No 98, 2004.

619

620

PART 7 Freedom of Information

Crimes Act 1914 (Cth) s 70 70 Disclosure of information by Commonwealth officers (1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence. (2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence. Penalty: Imprisonment for 2 years.

R v Kessing

Copyright © 2015. Oxford University Press. All rights reserved.

[2007] NSWDC 138

[A former Commonwealth Customs officer, Allan Kessing, was convicted under the Crimes Act 1914 (Cth) s 70. The case concerned disclosure of information from two Australian Customs Service security reports for Sydney’s Kingsford Smith Airport to Martin Chulov and Jonathan Porter, both journalists with The Australian newspaper.23 The information was published as part of a wider story concerning the conviction of Australian Schapelle Corby in Indonesia for drug importation. The journalists did not cooperate with the investigation and did not give evidence in the case.24 The New South Wales Court of Criminal Appeal dismissed an appeal against the conviction.25] BENNETT SC DCJ: [12] The Crown alleged that in the course of his former work as an officer of the Australian Customs Service, the offender came into possession of the two reports described in the charge [concerning security at Sydney Kingsford Smith Airport], and between 10 May 2005, when he resigned from his position as a customs officer, and 31 May 2005, he communicated the content of these documents to Mr Chulov and Mr Porter, who were at the time employed as journalists with The Australian newspaper. [The jury returned a guilty verdict] … [18] Counsel for the offender also made reference in his opening remarks to the notorious prosecution of Schapelle Corby in Indonesia, and suggested the connection between that matter and airport baggage handlers. He cross-examined with regard to this, to suggest that there was some justification for the disclosure of the contents of the reports, whoever might have been responsible for it. Since the offender denied any involvement in the communication, and continues to maintain that position, there could not sensibly be any claim by him that he had a lawful justification or excuse, the proof of which was upon him: section 70(2) Crimes Act 1914 (Cth). Counsel did no more than make an oblique reference to such matter in his closing address. … [51] The Crown was put to strict proof with regard to the allegation that it was the offender who communicated the content of these reports to the journalists. The case, from beginning to end, was conducted according to the proposition that he did not do so. There was extensive cross-examination of witnesses called in the Crown case to establish the opportunities that were available for others to communicate the content of these reports to the journalists.

23 Martin Chulov and Jonathan Porter, ‘Airport Staff “Smuggling Drugs”—Secret Customs Report Exposes Criminal Links’, The Australian, 31 May 2005, 1. 24 Kessing v R (2008) 73 NSWLR 22 at [52], [57]. 25 Kessing v R (2008) 73 NSWLR 22.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 17 Freedom of Information

[52] At the same time, however, with reference made to the Corby matter in Indonesia and to an operation that led to the apprehension of a number of individuals charged with the importation of cocaine through Sydney Airport, the proposition that the publication of these reports was in some way an act of public service was sought to be developed. [53] The implication in this is that the offender had not communicated the contents of the reports, but if he was found to have done so, it was with justification because the public had an interest in knowing what was contained in these documents. Section 70(2) of the Crimes Act 1914 provides for the defence of lawful justification or excuse, the proof whereof was for the offender had he wanted to justify his actions before the jury. The offender persisted and persists with his denial of this conduct. [54] It has been impossible to ignore entirely the publicity that this matter has attracted since the trial and the comments offered in the electronic and print media in terms that the offender should be shown gratitude for what he has been found to have done. There is a significant level of sympathy for the offender. [55] Although aware of some of these publications I have placed them aside from the matters that I bring to account for the determination of sentence. They are not before me as evidence and are not relevant to that question. [56] In the submissions made by the learned Crown, my attention was taken to Commonwealth of Australia v John Fairfax & Sons Limited (1980) 147 CLR 39 and the observation of Mason J at p 52 regarding the unacceptability in this democratic society of restraint upon the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action. His Honour made the point that the court will determine any claim of confidentiality by the government by reference to public interest. Unless disclosure is likely to injury the public interest, the information will not be protected. [57] One could not cavil with this principle. [58] This said, I do not accept the submission that the evidence presented in these proceedings establishes that there was a shortfall in the standards to be expected of the Australian Customs Service such as to justify the belief that has been attributed to the offender by those who presently applaud his conduct. [59] However, accepting that it is in the public interest to expose the inadequacy of an agency of government manifested by its failure to respond in a timely fashion to an internal report generated at the lower levels of the organisation to inform management of operational and related concerns, that is an entirely different matter from the unauthorised dissemination of the information harvested in the course of operational activities and the intelligence developed therefrom, upon which the report was generated, such as has occurred in this instance. [60] Whether or not it is appropriate to view the offender in the heroic light with which he has been bathed by some for having exposed what he represents to be inadequate aspects of management within the Australian Customs Service concerned with Sydney Airport, there was no justification whatsoever for the communication of the content of these reports. It has been conceded that there is no evidence of any particular operations having been put at risk, and there is no evidence that any particular law enforcement officer or group of law enforcement officers were put at risk by reason of this publication in the course of operational duties including those of a covert nature. However, I accept the submission by the Crown regarding the potential that the conduct of which the offender has been found guilty had for doing so. At his level within Australian Customs one would not expect the offender to know the extent of operations being undertaken by this service or other law enforcement agencies whether conducted individually or under the auspices of a co-ordinated project. Had there been any such projects under way, in any way connected with the organisations and individuals employed at Sydney Airport to which the newspaper articles have referred, it is at least probable the operations and those engaged upon them in any covert capacity would have been at some risk. [61] Additionally, the content of the articles published in the newspaper have the capacity to taint the reputation of people engaged in work in the specific areas identified at Sydney Airport whether or not the suspicions represented could ultimately be shown to have had any merit. Even accepting that there was justification for these suspicions, it would be surprising to find that all of those engaged in those areas of work would be shown to be engaged upon criminal conspiracies such as the articles described.

621

622

PART 7 Freedom of Information

Nevertheless, those who were innocent of any wrongdoing must still bear the ignominy of the general allegations made, some of which were expressed with reference to cultural and religious characteristics of the persons discussed. [62] Relevant to the assessment of the impact of the newspaper articles is the source from which they were prepared, identified within them, and likely to have been viewed as entirely authoritative irrespective of the weaknesses that have been identified in the reports themselves. [63] I agree with the submission made by the Crown that this is to be assessed objectively as a serious offence. I also bring to account the breach of trust demonstrated by the offender in its commission. … [83] The offender is convicted and is sentenced to imprisonment for a period of nine months. Pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth), I order that the offender be released forthwith conditionally upon entering into recognizance in the sum of $1,000.00, without surety, to be of good behaviour for a period of nine months.

Even when public servants might wish to provide informal access to information they may be legally obliged to maintain secrecy unless the formal procedures of freedom of information are followed. The FOI Acts grant some protection to agencies, ministers and government officers from legal actions arising from disclosure of information if they release documents as required or permitted by the FOI legislation, or if the officer making the FOI determination believes in good faith that the document must be disclosed.26

Copyright © 2015. Oxford University Press. All rights reserved.

17.3.2 Information management The freedom of information schemes also counterbalance, to a certain extent, the strategic management of information through official statements and media releases. Suppression and carefully timed release of information are techniques of information control used extensively by governments.27 Journalists are often on both sides of this process, working for the media seeking access to information and as press secretaries and government media advisers managing information flows. The number of media advisers employed by state and federal governments has increased in recent years28 and journalists report that informal requests for information from government are invariably forwarded to a media or public relations unit.29

26 Protection is granted in relation to actions for defamation, breach of confidence, and criminal offences: Freedom of Information Act 1982 (Cth) ss 90–92; Government Information (Public Access) Act 2009 (NSW) ss 113–115; Right to Information Act 2009 (Qld) ss 170–174; Freedom of Information Act 1991 (SA) ss 50–52; Right to Information Act 2009 (Tas) ss 51–52; Freedom of Information Act 1982 (Vic) ss 62–63; Freedom of Information 1992 (WA) ss 104–107; Freedom of Information Act 1989 (ACT) ss 77–78; Information Act (NT) ss 151–153. In the case of the Commonwealth and Australian Capital Territory Acts, protection from infringement of copyright is also granted: Freedom of Information Act 1982 (Cth) s 90–91; Freedom of Information Act 1989 (ACT) s 77. 27 For a discussion of the strategic management of information by government, see Greg Terrill, Secrecy and Openness: The Federal Government from Menzies to Whitlam and Beyond, Melbourne University Press, Melbourne, 2000, 196. 28 Cameron Houston, ‘Government’s Wages of Spin Jump 400%’, Sunday Age (Melbourne), 7 December 2008, 11; Michael Owen, ‘Government’s $19m Spin Machine: Government’s Spend on Spin’, The Advertiser (Adelaide), 22 September 2008, 1. Significantly, information for these articles was obtained by the journalists under freedom of information. 29 Irene Moss, The Report of the Independent Audit of the State of Free Speech in Australia, 31 October 2007, 24.

CHAPTER 17 Freedom of Information

17.4 Proactive disclosure—disclosure logs In its 2008 report the Queensland independent review panel, chaired by David Solomon, recommended a range of reforms for FOI in that state including a ‘push model’ in which FOI would be the ‘Act of last resort’.30 Under a ‘pull’ model documents must be sought with a specific application, whereas under a ‘push’ model government agencies should routinely and proactively release information without the need for an FOI request. Proactive publication has been included in recent reforms to the Queensland, Commonwealth and New South Wales FOI legislation. Information in documents to which agencies routinely give access in response to FOI requests (other than personal and business information) should be published without waiting for an application.31 In the reformed jurisdictions agencies are also required to publish documents on the internet (other than personal and business) that have been released to individual applicants in response to FOI applications, or at a minimum information about documents that have been released.32 These are called disclosure logs.33 FOI disclosure logs make a wealth of information available to the public. Publishing documents that have been released pursuant to an FOI request can cause some problems for journalists if their investigative work is preempted.34 Journalists have argued that there should be a delay of at least a few days before documents are published to the world at large.35 A short delay might assist daily newspapers and the electronic media, but not necessarily journalists involved in longer investigative projects. From the public’s perspective, disclosure logs can provide context and more detail than media reports alone and could counter arguments against disclosure on the grounds that the public is misled by reporting incomplete information.

Copyright © 2015. Oxford University Press. All rights reserved.

17.5 Right to access documents under FOI Australian freedom of information legislation grants every person a legally enforceable right to access unpublished36 documents in the possession of government agencies and official documents of ministers, unless they are exempt documents.37 There is no standing test; any person may apply. Once disclosed there are no restrictions under FOI on the further 30 FOI Independent Review Panel, The Right to Information: Reviewing Queensland’s Freedom of Information Act (June 2008), 16–17, 34; based upon suggestions by academic Moira Patterson: Moira Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State, LexisNexis Butterworths, Sydney, 2005, 498. 31 Freedom of Information Act 1982 (Cth) s 8(2)(g). 32 Freedom of Information Act 1982 (Cth) s 11C; Right to Information Act 2009 (Qld) ss78–78B; Government Information (Public Access) Act 2009 (NSW) ss 25–26 33 For examples of disclosure logs see: ; ;  . 34 Sophie Morris, ‘Freedom to Beat those Scoops’, Australian Financial Review, 31 May 2008, 7. Office of the Australian Information Commissioner, FOI Disclosure Logs Discussion Paper, March 2011, 15. 35 Office of the Australian Information Commissioner, FOI Disclosure Logs Discussion Paper, March 2011, 15. The agency must publish within 10 days: Freedom of Information Act 1982 (Cth) s 11C(6). 36 There is no right to access under the FOI process documents that are open to public access or available for purchase. 37 Freedom of Information Act 1982 (Cth) s 11; Freedom of Information Act 1989 (ACT) s 10; Government Information (Public Access) Act 2009 (NSW) s 9; Information Act (NT) s 15; Right to Information Act 2009 (Qld) s 23; Freedom of Information Act 1991 (SA) s 12; Right to Information Act 2009 (Tas) s 7; Freedom of Information Act 1982 (Vic) s 13; Freedom of Information 1992 (WA) s 10.

623

624

PART 7 Freedom of Information

dissemination of information recorded in the document, but other laws discussed earlier in this book may impose some limits. Release of a document under FOI does not authorise the applicant to defame a person, breach a confidence or infringe copyright. A person’s reason for applying ought not to be a reason for refusing access.38 This is an important principle from the media’s perspective: access must not be refused to journalists because they intend to publish.

17.5.1 Access to documents Although the title is freedom of information, all the Australian statutory schemes actually concern access to documents or records.39 For information to be accessed it must have been recorded. Of course, in modern bureaucracies a great deal of information is recorded. Nevertheless, it is worth noting that some information is ephemeral, and information that was, for instance, communicated in conversations or meetings is not available unless a record was kept. Documents include information stored electronically and in other media. Access may be given in various forms: by allowing the applicant to inspect a document or view or hear an audio-visual article, or by providing a paper or electronic copy.

Copyright © 2015. Oxford University Press. All rights reserved.

17.5.2 Documents in the possession of government agencies and ministers Documents of a government agency are those held by the agency, or in its possession or control. This includes both documents it has produced and documents it has received.40 Some of the state Acts expressly state that possession or control includes documents that the agency is entitled to access.41 Agencies are variously defined in the Acts. Commonwealth agencies are defined as departments or prescribed authorities, which are bodies established for a public purpose.42 At a state level, agencies also include government departments and public authorities, along with local government authorities. There are lists of exempt agencies, bodies and  offices such as the Auditor-General, security agencies, police integrity and anti-corruption  commissions,  and many others. Official documents in the possession of ministers are also covered by freedom of information. These include documents in the possession of a minister in his or her capacity as a minister and relating to the affairs of an agency.43

38 Freedom of Information Act 1982 (Cth) s 11(2); Right to Information Act 2009 (Qld) s 41(3); Freedom of Information Act 1982 (Vic) s 25A(4); Freedom of Information Act 1992 (WA) s 10(2); Johnson Tiles Pty Ltd v Esso Australia Ltd (No 3) (2000) 98 FCR 311 at 316. 39 In New South Wales access is to government information, which is defined as ‘information contained in a record held by an agency’: Government Information (Public Access) Act 2009 (NSW) s 4. Similarly in Tasmania information must be recorded: Right to Information Act 2009 (Tas) s 5. See also Information Act (NT) s 4. Throughout the following discussion the term ‘documents’ will be used generally. 40 Freedom of Information Act 1982 (Cth) s 4; Freedom of Information Act 1989 (ACT) Dictionary; Government Information (Public Access) Act 2009 (NSW) sch 4 cl 12; Right to Information Act 2009 (Qld) s 12; Freedom of Information Act 1982 (Vic) s 5; Freedom of Information 1992 (WA) Glossary cl 4. 41 Government Information (Public Access) Act 2009 (NSW) sch 4 cl 12; Right to Information Act 2009 (Qld) s 12; Freedom of Information 1992 (WA) Glossary cl 4. See also Beesley v Australian Federal Police (2001) 111 FCR 1. 42 Freedom of Information Act 1982 (Cth) s 4. 43 See Office of the Premier v Herald and Weekly Times Pty Ltd (2013) 38 VR 684.

CHAPTER 17 Freedom of Information

17.5.3 Third party consultations Before a decision is made to grant access to documents containing personal or business information, and in some jurisdictions documents affecting inter-governmental relations, agencies are required to consult with the subject of the information and give him or her an opportunity to make submissions about whether the document ought to be exempt from disclosure.44 Third parties do not have the power to veto disclosure and an agency may decide to disclose against their wishes. If an agency decides to release a document in those circumstances, the third party must be notified and given an opportunity to appeal the decision.

17.5.4 Fees and charges

Copyright © 2015. Oxford University Press. All rights reserved.

Application fees and further charges may be applied, depending upon the nature of the application. These processing charges can add up to significant amounts. The level of charges and the basis upon which they are calculated vary between the different jurisdictions: for instance there is no application fee for Commonwealth FOI but there are processing charges. Some jurisdictions also allow for reductions in cases of hardship or where the application is in the public interest. In the following case Stephanie Peatling, a journalist with The Sydney Morning Herald newspaper, applied to the Commonwealth Department of Employment and Workplace Relations for access to documents relating to the federal government’s ‘Welfare-to-Work’ program. Ms Peatling also requested that any fees charged ‘be halved for the public interest’. The department quoted $13,055.50 in processing costs and refused the application for reduction in those charges. After an unsuccessful internal review Ms Peatling appealed to the Administrative Appeals Tribunal. The tribunal affirmed the decision under review. The prima facie position was that applicants should contribute to the cost of processing FOI requests and the commercial media will find it difficult to argue for reduced charges in the public interest.45 However, the actual amounts recovered reflect only a small fraction of the costs of FOI to agencies.46

Peatling and Department of Employment and Workplace Relations (2007) 44 AAR 494

WALKER DP (at 512): [59] … DEWR officers [advised] that over 90 percent of the documents falling within the scope of the FOI request contain information that is sensitive or confidential. The FOI costing estimate prepared for the applicant proceeded on the basis that only about 315 pages of the requested material could be released.

44 Known as ‘reverse-FOI’; see discussion in Moira Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State, LexisNexis Butterworths, Sydney, 2005, 141–45. 45 Peatling and Department of Employment and Workplace Relations (2007) 44 AAR 494 at 518–19. Cf Encel v Department of Broadband Communications and The Digital Economy (2008) 47 AAR 215. 46 Office of the Information commissioner, Review of charges under the Freedom of Information Act 1982, 2012, 5.

625

Copyright © 2015. Oxford University Press. All rights reserved.

626

PART 7 Freedom of Information

(at 521) … [115] The evidence in this case shows that the Herald intends to publish news stories and feature articles derived from the information in the requested documents as part of its normal newspaper publishing activities. The Herald has a freedom of information editor and lodged over 60 FOI requests in the first six months of 2006 alone. It has established internal procedures for approving the payment of FOI fees and charges. The request for access to the Welfare-to-Work documents is thus plainly made in the ordinary course of the Herald’s newspaper publishing business. Further, there is no evidence that the Herald will not proceed with the request if the application for reduction of the charges does not succeed. Mr Polden very properly conceded as much, although he argued that the evidence ‘comes close’ to saying so. [116] The factor I have identified does not mean that a profitable news outlet could never satisfy s 29(5). For example, a country radio station might meet the test if it were seeking access to documents containing information of direct importance to those living in its reception area but the charges were beyond the resources it could allocate to news gathering. So might a capital city broadsheet investigating a matter of public importance that involved such a quantity of material created over a long period that it could not commercially absorb the charges. In each case the application could be characterised as not being within the ordinary course of the applicant’s business. The applicant might also be able to show that it could not proceed with the request unless the charges were waived or reduced. [117] Mr Oakley deposed that ‘upfront costs of the order of those imposed by DEWR in the present case are a very substantial disincentive to the paper using FOI at a level we should be using it’. There can be little doubt that charges of the order of $13,069.15, whether individually or cumulatively, are a disincentive to FOI requests. But all pricing operates by providing incentives and disincentives to use more or less of particular resources, thereby tending towards the ultimate maximisation of consumer welfare. The existence of disincentive effects does not in itself mean that the charge should be reduced. [118] Mr Moore went further in his opening remarks and in Exhibit A2, arguing that the respondent had frustrated the impact of the FOI Act and that the imposition of such charges would make use of the Act in practical terms unworkable. The media would not pursue FOI applications if it were required to meet full fees, he said. In fact, however, the Herald has been pursuing FOI requests, 60 of them in the first six months of 2006 alone, apparently without the benefit of any fee reductions. The argument that such charges make the Act unworkable, in the absence of evidence of hardship or that the Herald would not proceed with the request unless the charges are reduced, is essentially an argument about policy that finds no support in the legislation and guidelines as they stand. It is a matter for political debate in the public arena. [119] I therefore conclude that countervailing considerations outweigh the public interest values in s 29(5)(b). The decision under review should be affirmed.

The FOI schemes require government agencies to inform applicants about decisions concerning charges and provide reasons for a decision to exempt documents. Requests for access to documents may be refused if the agency is satisfied that the work involved in processing the application would ‘substantially and unreasonably divert the resources of the agency from its other operations’.47 Agencies are obliged to work with the applicant to reduce the scope of the application in such cases. 47 Freedom of Information Act 1982 (Cth) s 24; Freedom of Information Act 1989 (ACT) s 23; Government Information (Public Access) Act 2009 (NSW) ss 53(5), 60; Information Act (NT) s 25; Right to Information Act 2009 (Qld) s 41; Freedom of Information Act 1991 (SA) s 18; Right to Information Act 2009 (Tas) s 19; Freedom of Information Act 1982 (Vic) s 25A; Freedom of Information 1992 (WA) s 20.

CHAPTER 17 Freedom of Information

17.5.5 Time limits Authorised FOI officers are required to make decisions on applications within specified time limits. These vary between the different jurisdictions and there are provisions for extensions of time under some of the Acts. If a decision is not made within the prescribed time the applicant may seek review on the basis of a deemed refusal.48 The FOI annual reports disclose the percentage of requests that are processed within the relevant timeframes.49

17.6 Exemptions

17.6.1 Exempt agencies A range of agencies are expressly excluded from the freedom of information Acts. For example the Australian Secret Intelligence Service, Australian Security Intelligence Organisation and Inspector-General of Intelligence and Security are exempt from Commonwealth freedom of information, among others.50 For agencies that are covered by the provisions, some documents may be exempt from disclosure. While agencies may rely upon an exemption to refuse access, there is no requirement that these documents be kept secret and nothing in the freedom of information Acts is intended to prevent or discourage disclosure of information by agencies and ministers.51Access may be granted to documents that have been edited to conceal exempt parts if it is reasonably practicable to do so. Applicants must be informed of the editing.

Copyright © 2015. Oxford University Press. All rights reserved.

17.6.2 Categories of exemptions In all jurisdictions there are some documents that will not be disclosed in the public interest. Traditionally a series of exemptions is listed; some of those exemptions will include a public interest test whereby disclosure may still be required unless that would be contrary to the public interest. For other categories parliament will determine that everything within the relevant category will be exempt. Most jurisdictions adopt a list of exemptions of one kind or another, but they can operate quite differently for similar categories. The following list of exemptions is taken from the Commonwealth Act52: Exemptions: • • • • • •

Documents affecting national security, defence or international relations Cabinet documents Documents affecting enforcement of law and protection of public safety Documents to which secrecy provisions of enactments apply Documents subject to legal professional privilege Documents containing material obtained in confidence

48 See for example: Freedom of Information Act 1982 (Cth) s 15AC. 49 See, for instance: Office of the Australian Information Commissioner, Freedom of Information Act 1982 Annual Report 2013–2014, 2014, 139. 50 Freedom of Information Act 1982 (Cth) s 7 and Sch 2. 51 Freedom of Information Act 1982 (Cth) s 3A; Freedom of Information Act 1989 (ACT) s 13; Government Information (Public Access) Act 2009 (NSW) s 10; Information Act (NT) s 10 (2); Right to Information Act 2009 (Qld) s 4; Freedom of Information Act 1991 (SA) s 3(3); Right to Information Act 2009 (Tas) s 12; Freedom of Information Act 1982 (Vic) s 16(2); Freedom of Information 1992 (WA) s 3(3). 52 Freedom of Information Act 1982 (Cth) Part IV.

627

628

PART 7 Freedom of Information

• • • •

Parliamentary Budget Office documents Documents disclosure of which would be contempt of Parliament or contempt of court Documents disclosing trade secrets or commercially valuable information Electoral rolls and related documents

Public interest conditional exemptions: • Commonwealth—State relations etc. • Deliberative processes • Financial or property interests of the Commonwealth or Norfolk Island • Certain operations of agencies • Personal privacy • Business • Research • The economy Lists of this kind do not give a full indication of the scope of particular exemptions. Exemptions are often expressed in terms of the damage that might result from disclosure. For example, in the Commonwealth Act it is not all documents concerning the economy that will be exempt, but only those that could have a substantial adverse effect on the economy if disclosed.

Freedom of Information Act 1982 (Cth) 47J Public interest conditional exemptions—the economy

Copyright © 2015. Oxford University Press. All rights reserved.

(1) A document is conditionally exempt if its disclosure under this Act would, or could be reasonably expected to, have a substantial adverse effect on Australia’s economy by: (a) influencing a decision or action of a person or entity; or (b) giving a person (or class of persons) an undue benefit or detriment, in relation to business carried on by the person (or class), by providing premature knowledge of proposed or possible action or inaction of a person or entity.

Following major reforms, the Queensland and New South Wales FOI systems have made the public interest the paramount consideration in the decision-making process when assessing exemptions and the traditional lists of exemptions have been eschewed.53 In these states there are strong presumptions in favour of disclosure. Nevertheless, these Acts still specify some information that parliament considers it would be contrary to the public interest to disclose.54 Agencies are also able to respond to a request by refusing to confirm or deny the existence of certain exempt documents when it might be harmful to confirm their existence.55 As can be seen from the list above, there are numerous exemptions that may be used to deny access to applicants. Cases involving Cabinet and internal working documents will 53 Right to Information Act 2009 (Qld) s 48–49; Government Information (Public Access) Act 2009 (NSW) s 12. 54 Right to Information Act 2009 (Qld) sch 3; Government Information (Public Access) Act 2009 (NSW) sch 1. 55 Freedom of Information Act 1982 (Cth) ss 25; Freedom of Information Act 1989 (ACT) s 24; Information Act (NT) ss 21(4), 24(3), 60(2); Right to Information Act 2009 (Qld) s 55; Freedom of Information Act 1991 (SA) s 23(3); Freedom of Information Act 1982 (Vic) s 27(2)(b); Freedom of Information 1992 (WA) s 31; Right to Information Act 2009 (Tas) s 22(4).

CHAPTER 17 Freedom of Information

be discussed below as examples of exemption claims. These exemptions are of particular relevance to media applicants who seek access to sensitive political and policy information.

17.6.2.1 Cabinet documents As the following case Fisse v Treasury56 illustrates, the courts and tribunals recognise a strong public interest in maintaining Cabinet confidentiality and collective decision-making whatever the subject matter being considered. In that case the deputy president noted that the public interest in Cabinet confidentiality is unaffected by the lapse of time and that disclosure is only allowed at a Commonwealth level through the archives.57 Some states have introduced a 10-year period for exemption of Cabinet documents.58

Freedom of Information Act 1982 (Cth)

Copyright © 2015. Oxford University Press. All rights reserved.

34 Cabinet documents General rules (1) A document is an exempt document if: (a) both of the following are satisfied: (i) it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted; (ii) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or (b) it is an official record of the Cabinet; or (c) it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or (d) it is a draft of a document to which paragraph (a), (b) or (c) applies. (2) A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies. (3) A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed. Exceptions (4) A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies. (5) A document by which a decision of the Cabinet is officially published is not an exempt document. (6) Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless: (a) the disclosure of the information would reveal a Cabinet deliberation or decision; and (b) the existence of the deliberation or decision has not been officially disclosed.

56 Fisse v Department of Treasury (2008) 48 AAR 131. 57 Archives Act 1983 (Cth). 58 Government Information (Public Access) Act 2009 (NSW) sch 1 cl 2(2)(b) 10 years; Right to Information Act 2009 (Qld) sch 3 cl 2(1) 10 years (if brought into existence after commencement of the new Act); Freedom of Information Act 1991 (SA) Sch 1 cl 1(2)(b) 20 years (although see policy to disclose after 10 years: Government of South Australia, Department of the Premier and Cabinet Circular PC-031, Disclosure of Cabinet Documents 10 Years or Older, 1 January 2013); Right to Information Act 2009 (Tas) s 26(2)) 10 years; Freedom of Information Act 1982 (Vic) s 28(2) 10 years; Freedom of Information 1992 (WA) Sch 1 cl 1(4) 10 years; Information Act (NT) s 45(3) 10 years.

629

630

PART 7 Freedom of Information

Fisse v Department of Treasury (2008) 48 AAR 131

[In October 2001 the Commonwealth Government announced that there would be an independent review of the competition provisions in the Trade Practices Act 1974 (Cth). In May 2002 the Dawson Committee was appointed to conduct the review and its report was released in April 2003. The Dawson Committee recommended that serious cartel conduct should be subject to criminal sanctions. A working group was set up to consider the committee’s recommendations. The working party included officials from the Commonwealth Treasury and Attorney-General’s departments, the Australian Competition and Consumer Commission (ACCC) and the Commonwealth Director of Public Prosecutions (CDPP). The working party reported to the Treasurer in April 2004 and the executive summary from the report was attached to a Cabinet submission presented to Cabinet in June 2004. An exposure draft Bill and discussion paper were released by Treasury for public consultation. Lexpert Publications Pty Ltd, and its managing director Brent Fisse, sought access under freedom of information to a range of documents including submissions prepared by the ACCC to the Dawson Committee and all reports prepared by the working party. Mr Fisse is a writer and practitioner in the field of competition law. Parts of the Working Party report that contained factual material were released, but not material concerning questions of law and policy. Two documents became the focus of the legal proceedings:

Copyright © 2015. Oxford University Press. All rights reserved.

• the executive summary of the Working Party report (exemption claimed under s 34—Cabinet document); • the whole Working Party report (exemption claimed under s 36—internal working documents). Access was refused and Mr Fisse appealed to the AAT.] Professor GD WALKER, Deputy President (at 144): [76] As was noted above, it is not disputed that the executive summary was in fact submitted to Cabinet. The area of controversy is whether it was ‘brought into existence for the purpose of submission for consideration by the Cabinet’. The applicant also contends that the summary was not put to Cabinet ‘for its consideration’, but only for its information. [77] The time at which the document was brought into existence is the time at which the purpose must be ascertained: Re Aldred and Department of Foreign Affairs and Trade. Consequently, if it was originally created for a different purpose, the fact that it was subsequently decided to submit it to Cabinet does not bring it within the exemption: Re Hudson and Department of the Premier, Economic and Trade Development. [78] The applicant submits that the 2005 press release gave no indication that the report had been created for the purpose of submission to Cabinet, nor did the (at 145) 2003 press release, which spoke of the working party being ‘expected to report to the Treasurer by the end of 2003’. Further, Mr Anagnostis’s email of 1 June 2007 … stated that PM&C was not satisfied that the exchange of correspondence between the Treasurer and the Prime Minister (annexure MC3) sufficiently indicated a clear intention that the report, including the executive summary, was to be brought into existence for the purpose of submission for consideration by the Cabinet. [79] As to whether the executive summary was submitted to Cabinet for its consideration rather than merely for its information as argued by the applicant, the evidence of Ms Croke, who had examined the records, was that the executive summary of the report formed part of a submission to Cabinet that was in fact considered by Cabinet. On 21 June 2004, the Cabinet considered a submission sponsored by the then Treasurer that related to the review of the cartel conduct provisions, and the executive summary was an attachment to that submission … [80] The evidence provides no basis for an inference that the summary was provided merely for Cabinet’s information. On the contrary, it consisted of material that was central to Cabinet’s discussion. The fact that it was incorporated as an attachment, rather than in the body of the submission, may represent a purely stylistic expedient that can be adopted for a variety of reasons, such as not incorporating matters of detail that might hinder the flow of the argument and make it harder to understand. [81] As regards the purpose for which the summary was created, while the Treasurer’s letter of 24 July 2003 does seek the prime minister’s approval to establish a working party that would report to the Treasurer himself, part of the arrangements for which approval is sought is the proposal that the issue be

CHAPTER 17 Freedom of Information

brought to Cabinet, together with any necessary expressions of support from the justice minister or any recommendations put forward for Cabinet’s endorsement. [82] In his reply of 4 September 2003 … the prime minister notes that the working group is to report to the Treasurer by the end of 2003 and proceeds to say ‘I look forward to Cabinet considering the recommendations early in 2004’. The word ‘recommendations’ appears to refer to the working party’s report on the topics listed in its terms of reference, or at least those of them which the Treasurer, in consultation with the justice minister, has decided to support. Ms Croke’s evidence interprets the correspondence in the same way and adds that in accordance with usual practice, the executive summary would be attached to, and form part of, the Cabinet submission. … (at 146) [89] The executive summary was part of the subject matter of the Cabinet meeting’s discussions on that topic and cannot be said merely to have been placed before Cabinet for its information. The Treasurer was not bringing the ‘issue’ of criminal penalties before Cabinet in a general or abstract way, but was putting forward concrete proposals developed following a working group or ‘workshopping’ approach that Cabinet had itself discussed and approved. Further, even though the Treasurer may not have supported all the working group’s recommendations as set out in the executive summary, the course of events and the language of the various communications make it highly probable that the Treasurer’s expressed position on the criminal penalties issue would have been structured in accordance with the recommendations in the executive summary. To that extent, it could disclose the minister’s position in the manner discussed in CFMEU. [90] The copyright notice on the imprint page clearly implies that the working party, at least, envisaged that its report might in due course be published. That, however, is not inconsistent with a purpose of submitting the report, or the executive summary, to Cabinet for its consideration. Publication might or might not follow later. [Walker DP held that the executive summary was brought into existence for the purpose of being submitted to Cabinet. On appeal,59 the Full Court of the Federal Court held that that finding was open to the tribunal. While Buchanan and Flick JJ thought the evidence supporting that conclusion was slender60 and ‘the subject of considerable reservation’,61 there had been no error of law.62 In his judgment, Flick J considered the historical origins of Cabinet confidentiality.]

Fisse v Secretary, Department of the Treasury Copyright © 2015. Oxford University Press. All rights reserved.

(2008) 172 FCR 513

Cabinet as Part of the Executive Government FLICK J (at 539): [95] At the forefront of the applicant’s submissions was a proposition that the Tribunal had erred by informing itself as to the correct construction or application of s 34(1)(a) more by reference to those principles relevant to a determination of a claim for public interest immunity privilege — or Crown privilege — rather than by reference to the terms of s 34(1) itself. [96] Although the terms of s 34(1) must be construed and applied, it is not considered that there is  such  a clear dichotomy between those principles now set forth in s 34 and those common law principles protecting the confidentiality of Cabinet. Section 34 cannot be so easily divorced from its historical origins.

59 60 61 62

Fisse v Secretary, Department of the Treasury (2008) 172 FCR 513. Ibid at 536. Ibid at 556. Ibid at 537.

631

632

PART 7 Freedom of Information

[97] The importance of Cabinet as an institution of Executive Government, and the confidentiality ascribed by convention to its deliberations, has been long recognised. But little is known about its workings. Writing in 1872, Walter Bagehot said of Cabinet: The most curious point about the cabinet is that so very little is known about it. The meetings are not only secret in theory, but secret in reality. By the present practice, no official minute in all ordinary cases is kept of them. Even a private note is discouraged and disliked. The House of Commons, even in its most inquisitive and turbulent moments, would scarcely permit a note of a cabinet meeting to be read. No minister who respected the fundamental usages of political practice would attempt to read such a note. The committee which unites the law-making power to the law-executing power—which, by virtue of that combination, is, while it lasts and holds together, the most powerful body in the state—is a committee wholly secret. No description of it, at once graphic and authentic, has ever been given. It is said to be sometimes like a rather disorderly board of directors, where many speak and few listen—though no one knows: The English Constitution (2nd ed, 1909) at 14.

Copyright © 2015. Oxford University Press. All rights reserved.

(at 540) As noted by the Tribunal in the present proceeding (in part), the role of Cabinet and the importance attached to the confidentiality of its deliberations was further summarised in Whitlam v Australian Consolidated Press Ltd (1985) 73 FLR 414 by Blackburn CJ as follows (at 421–422): With no pretensions to qualification as a political theorist, I believe I can propound that aspect of the principle in words which are sufficient for the present purpose. Cabinet is a group of persons who have in common certain political aims. It has to make decisions which must command support in Parliament and, it is hoped, will command substantial support in the electorate. The common political aims are necessarily broad; in their particular applications they may be the subject of disagreement among members of Cabinet. Each member of Cabinet has a personal responsibility to his conscience and also a responsibility to the Government. Discussion and persuasion may abolish the disagreement, or they may merely reduce it, or leave it unaltered. If any disagreement remains there must nevertheless be a decision, but it will be one which some members like less than others. Both practical politics, and good Government, require that those who like it less must still publicly support it. If such support is too great a strain on a Minister’s conscience, he can resign. So the price of the acceptance of Cabinet office is the assumption of the liability to support Cabinet decision. The burden of that liability is shared by all, and supported by the convention that every member is entitled to insist that whatever his own contribution was to the making of the decision, whether favourable or unfavourable, every other member will keep it secret. The maintenance of the rule of the secrecy of individual contributions to discussion, and votes, in Cabinet, provides a guarantee of the most favourable conditions possible for the utmost frankness in the expression of views. To reveal the view, or vote, of a member of Cabinet, expressed or given in Cabinet, is not only to disappoint an expectation on which that member was entitled to rely, but also to reduce the security of the continuing guarantee, and above all, to undermine the principle of joint responsibility. Joint responsibility supersedes individual responsibility; in accepting responsibility for the joint decision, each member is entitled to the assurance that he will be held responsible only for that, and only as one member of the whole Cabinet which made it; and that he will not be held responsible for any different view which he may have expressed. To all this, of course, must be added the obvious and basic fact that it is part of the machinery of the government of the country; it is not the rules or customs of a private society which concern us. Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilisation.

Reference may also be made to the observations of Black CJ, Tamberlin and Sundberg JJ in Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 at [24]–[32].

CHAPTER 17 Freedom of Information

[98] The importance of Cabinet as an institution of the Executive Government was obviously not questioned by the applicant. His position simply was that the common law principles relevant to the protection of the workings of Cabinet were of no relevance — or of limited relevance — to the construction or application of s 34 of the 1982 Act to such facts as were found by the Tribunal. The common law principles relevant to a determination of privilege in respect to Cabinet papers have been extensively canvassed (eg, Hodgson D, ‘Recent Developments in the Law of Public Interest Immunity: Cabinet Papers’ (1987) 17 Victoria U Wellington L Rev 153) and need not presently be re-agitated. (at 541) [99] When determining a claim for exemption made pursuant to s 34 of the 1982 Act, it may readily be accepted that it is the terms of that section which must be construed and applied. But the relevance of the common law principles protecting the secrecy of the workings of Cabinet cannot be divorced entirely from s 34. That section, it has been said, “provides the mechanism whereby that secrecy may be preserved”: Re Anderson and Department of Special Minister of State (1986) 4 AAR 436. Deputy President Hall there observed: [20] Section 34 of the FOI Act recognises the political reality of Cabinet as an institution of the Executive Government of the Commonwealth (cf s 35). It is a long-established principle of responsible government that the deliberations of Cabinet are secret (see Sir Ivor Jennings Cabinet Government 3rd ed, p 267). As Blackburn J said in his decision in Whitlam v Australian Consolidated Press Ltd (unreported, No SC 1899/76, 4 March 1985):

Copyright © 2015. Oxford University Press. All rights reserved.

“Cabinet secrecy is an essential part of the structure of government which centuries of political experience have created. To impair it without a very strong reason would be vandalism, the wanton rejection of the fruits of civilization.”

Section 34 provides the mechanism whereby that secrecy may be preserved. The protection accorded to documents submitted to Cabinet for its considerations and to official results of Cabinet is not, however, absolute. A document by which a decision of Cabinet was officially published may, of course, be disclosed: see s 34(1)(d). In addition, where a document of a kind referred to in s 34(1)(a), (b) or (c) contains purely factual material, that document is not, to that extent, protected from disclosure, unless the conditions specified in s 34(1a)(a) and (b) are satisfied. It must necessarily be recognised, however, that the Freedom of Information Act represents a shift in emphasis away from tendencies of secrecy in government to open government. When reviewing public interest immunity claims and the objectives of Freedom of Information legislation, it has thus been observed that “[o]pen government involves a shift from the assumption that government information is secret unless there are public interest grounds for disclosure (PII) to the assumption that all information held by government is accessible upon request unless there are public interest grounds for withholding it (FOI)”: Cossins A, ‘Revisiting Open Government: Recent Developments in Shifting the Boundaries of Government Secrecy under Public Interest Immunity and Freedom of Information Law’ (1995) 23 FL Rev 226 at 256. [100] The established convention as to Cabinet confidentiality and those common law principles relevant to determining a claim for public interest immunity in respect to Cabinet deliberations, it is considered, may inform the legislative objective sought to be achieved—particularly in relation to s 34 of the 1982 Act. The legislative objective in passing s 34 was self-evidently to give effect to the long-established principles of Cabinet confidentiality and to protect from disclosure the workings of Cabinet. The Second Reading Speech of 18 August 1981 thus records in part: … Only in some cases are the exempt documents defined by reference to the nature of the document itself, such as Cabinet and Executive Council documents. It is of the essence of Cabinet government that the deliberations of Cabinet and of the Executive Council should be protected from mandatory disclosure. Of course, (542) the tenor of many Cabinet decisions, as well as various Executive Council decisions are published. The documents which make these decisions public are not, of course, exempt documents under the Bill.

[101] It nevertheless remains the task of the Tribunal, and of this Court on appeal, to apply the terms of the 1982 Act to the facts as found. That Act attempts to incorporate (not only in s 34 but also in sections such as ss 37 and 42) claims for withholding information which would have been withheld at common law; it is

633

634

PART 7 Freedom of Information

also an Act which more fundamentally confers a right of access, subject only to those exemptions defined by those statutory provisions in Part IV. Given the legislative objective of ensuring openness in government, it is of fundamental importance that the terms of the 1982 Act providing for exemptions are construed according to their terms. [102] It may also readily be accepted that an assessment as to the “public interest” required under s 36(1)(b) of the 1982 Act involves — at least in part — an assessment as to the reasons for and the basis upon which the common law has long recognised the need for confidentiality as to Cabinet decisions, submission and deliberations. [103] The applicant contends that the Tribunal has trespassed beyond the words of ss 34 and 36; the first respondent denies that contention and maintains that the reasons provided by the Tribunal — properly construed — expose nothing other than an application of the statutory language to the facts as found. [104] It is considered that the contentions of the applicant are to be rejected.

17.6.2.2 Deliberative processes (internal working documents)

Copyright © 2015. Oxford University Press. All rights reserved.

In Fisse v Treasury the Administrative Appeals Tribunal considered Cabinet material63 and then went on to consider the internal working documents exemption in relation to the whole working party report that had not been submitted to Cabinet. The working party report was created for the purpose of assisting the government to come to a decision on whether to criminalise serious cartel conduct. It was a document that, if released, would disclose deliberative processes of government (then s 36, now s 47C). Unlike the exemption for Cabinet documents, the internal working documents exemption—now described as the deliberative processes exemption—includes a public interest element. The principal question before the tribunal was whether disclosure of the report would be contrary to the public interest (s 36(1)(b)). The tribunal decided against disclosure, and the public interest in the maintenance of Cabinet confidentiality prevailed.64 The 2010 reforms to the Commonwealth Act65 recast the s 36 exemption as a public interest conditional exemption for deliberative processes: s 47C.

Freedom of Information Act 1982 (Cth) 47C Public interest conditional exemptions—deliberative processes General rule (1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of: (a) an agency; or (b) a Minister; or (c) the Government of the Commonwealth; or (d) the Government of Norfolk Island.

63 See above at 17.6.2.1. 64 Fisse v Department of Treasury (2008) 48 AAR 131 [125], upheld on appeal: see Fisse v Secretary, Department of the Treasury (2008) 172 FCR 513 at 556 per Flick J. 65 Freedom of Information Amendment (Reform) Act 2010 (Cth).

CHAPTER 17 Freedom of Information

Exceptions (2) Deliberative matter does not include either of the following: (a) operational information (see section 8A); (b) purely factual material. (3) This section does not apply to any of the following: (a) reports (including reports concerning the results of studies, surveys or tests) of scientific or technical experts, whether employed within an agency or not, including reports expressing the opinions of such experts on scientific or technical matters; (b) reports of a body or organisation, prescribed by the regulations, that is established within an agency; (c) the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function. Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Copyright © 2015. Oxford University Press. All rights reserved.

Freedom of Information Act 1982 (Cth) 11A Access to documents on request Scope (1) This section applies if: (a) a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to: (i) a document of the agency; or (ii) an official document of the Minister; and (b) any charge that, under the regulations, is required to be paid before access is given has been paid. (2) This section applies subject to this Act. Mandatory access—general rule (3) The agency or Minister must give the person access to the document in accordance with this Act, subject to this section. Exemptions and conditional exemptions (4) The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document. Note: Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A (objects—information or documents otherwise accessible)). (5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest. Note 1: Division 3 of Part IV provides for when a document is conditionally exempt. Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)). Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document. (6) Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both: (a) a conditionally exempt document; and (b) an exempt document: (i) under Division 2 of Part IV (exemptions); or (ii) within the meaning of paragraph (b) or (c) of the definition of exempt document in subsection 4(1).

635

636

PART 7 Freedom of Information

Copyright © 2015. Oxford University Press. All rights reserved.

11B Public interest exemptions—factors Scope (1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5). (2) This section does not limit subsection 11A(5). Factors favouring access (3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following: (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure; (d) allow a person to access his or her own personal information. Irrelevant factors (4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest: (a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government; (aa) access to the document could result in embarrassment to the Government of Norfolk Island or cause a loss of confidence in the Government of Norfolk Island; (b) access to the document could result in any person misinterpreting or misunderstanding the document; (c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made; (d) access to the document could result in confusion or unnecessary debate. Guidelines (5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.

The deliberative documents exemptions illustrate the competing public interests in freedom of information law. There is the public interest in the disclosure of information about government that is founded upon principles of open government, and an opposing public interest in the effective and efficient administration of government that at times requires the early stages in government decision-making and policy development to be undertaken in confidence. How these competing public interests ought to be balanced has long been a contentious question. ‘The absence of a clear indication of the harm that the exemption is designed to protect results in the exemption being subject to differing interpretations and difficult to apply.’66 Government departments often argue that it is necessary to maintain secrecy so that advisers will give frank and fearless advice. This argument was considered in detail by the Australian Information Commissioner in three cases when journalists, and an opposition member, sought access to incoming briefs prepared by the public service for new governments after an election.67

66 Alan Hawke, Review of the Freedom of Information Act 1982 and Australian Information Commissioner Act 2010, 2013. 67 Crowe and Department of the Treasury [2013] AICmr 69; Parnell & Dreyfus and Attorney-General’s Department [2014] AICmr 71; Crowe and Department of Prime Minister and Cabinet [2014] AICmr 72.

CHAPTER 17 Freedom of Information

Crowe and Department of the Treasury [2013] AICmr 69

Australian Information Commissioner, Professor John McMillan Background [4] This application for review relates to a request by Mr David Crowe, a journalist, for access to pages of the ‘blue book’ prepared by Treasury in the lead up to the 2010 election for the Australian Parliament. [5] The blue book, as it is colloquially known in government, is a bundle of briefing documents that are customarily prepared by Australian Government departments in the caretaker period before a federal election. The blue book is a high level briefing provided to the department’s new Minister in the event that a Coalition government is formed following the election; the description ‘red book’ applies to the brief prepared for a Minister in a Labor government. The blue book is drafted with reference to the current policy objectives of the Department and the election commitments of the incoming government. Collectively, the blue book and red book are referred to as ‘incoming government briefs’. [6] A federal election was held on 21 August 2010. On 16 December 2010, Mr Crowe applied to the Department for access to six pages of the blue book, in particular:

Copyright © 2015. Oxford University Press. All rights reserved.

page 2 of the Overview section of the Treasury’s 2010 incoming government brief for a potential Coalition government (the so-called ‘Blue Book’), which deals with delivering a credible fiscal strategy; pages 24 to 27 from Attachment C to the Overview section of the Blue Book, which deals with climate change and market based mechanisms; and Attachment H at pages 42 to 43 of the Overview section of the Blue Book.

[7] On 24 December 2010, the Department advised that the documents requested by the applicant were exempt in full under s 47C of the FOI Act … Section 47C is described in the FOI Act as a ‘public interest conditional exemption’. It applies to documents that contain deliberative matter, the disclosure of which would be contrary to the public interest at the time of decision. [8] By letter dated 19 January 2010, Mr Crowe sought Information Commissioner review (IC review) of the Treasury decision under s 54N of the FOI Act. [Before the Information Commissioner’s review the Department released some paragraphs and the decision under review concerned the remaining paragraphs. “It is sufficient description to say that these pages contain commentary and high level policy advice on issues that may require decision by a new government”. [12]] … [15] Mr Sterland’s and Professor Weller’s affidavits [on behalf of the Government] explained that there is a high degree of commonly understood practice and convention across government departments relating to the type of matters covered by incoming government briefs, and their security and confidentiality. Both described how the practice emerged and key aspects of current practice. Professor Weller stated: The practice of preparing for transition has a long lineage. In 1972 [the Department of the Prime Minister and Cabinet] was seen to be unprepared for the first new government in 23 years. Then Prime Minister Gough Whitlam agreed to a convention by which Opposition shadow ministers could, after the election writs were issued, talk to the heads of departments so that the latter could be aware of what the Opposition was proposing to do, and prepare plans in order to start policy implementation as soon as possible after the election. All departments now prepare briefs so that, whoever is the government, they are ready to implement its policies.

[16] The practice that has developed, described earlier, is that ‘incoming government briefs’ comprise ‘red books’, prepared for a Labor government, and ‘blue books’, prepared for a Coalition government. [17] Mr Sterland’s affidavit stated that following the 1972 election it was recognised that incoming government briefs were necessary, particularly when a new government was formed, to ensure a smooth transition between governments and to assist the expedient establishment of the new government and new Ministers in portfolios.

637

Copyright © 2015. Oxford University Press. All rights reserved.

638

PART 7 Freedom of Information

[18] Professor Weller stated that incoming government briefs were important within the Australian system of government, in which a new Prime Minister-elect is, in effect, in power from the day the election results are known. The Prime Minister must be prepared to lead the government within a week of the election. Similarly, new Ministers are immediately regarded as responsible for the portfolios they hold. … [21] Mr Sterland stated that in his experience, incoming government briefs are ‘amongst the most important and highly confidential documents produced’ by departments. Access is ‘typically confined to a small number of senior officials in the relevant agency’. [22] Mr Sterland stated that when the election result and incoming Minister for the elected government is confirmed, the department will deliver the relevant incoming government brief. The new government does not have to accept the advice contained in the brief. Mr Sterland stated that for this reason an incoming government brief is similar to the confidential advice given to ministers when they prepare for a cabinet meeting. Because of the confidential nature of the material, the incoming government brief prepared for the unsuccessful political party is tightly held. Some departments (such as Treasury) have a practice of destroying that brief, while others (such as Prime Minister and Cabinet) retain the brief with restricted access. By convention, neither the Government nor the unsuccessful party has access to the incoming government brief prepared for the unsuccessful party. … [40] An issue arising in this case is whether a class claim can succeed under s 47C of the FOI Act. In principle the answer is no. Section 47C is a conditional public interest exemption. A person can be refused access under the Act to a document that contains deliberative matter as defined in s 47C only if release of the document ‘at that time would, on balance, be contrary to the public interest’ (s 11A(5)). As that wording indicates, it is necessary to balance competing public interest considerations to decide whether an exemption claim should be upheld at a particular point in time. [41] A contrast can be drawn between s 47C and some other FOI Act exemption provisions that, in effect, allow a class claim to succeed without further inquiry. Four examples are the exemptions applying to: ‘an official record of the Cabinet’ (s 34(1(b)); a document that is ‘of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege’ (s 42(1)); ‘an electoral roll’ (s 47A(2)(a)); and a document that contains information the disclosure of which is prohibited by a secrecy provision listed in Schedule 3 of the Act (s 38). The only issue arising under those exemptions is whether a document fits the relevant description; there is no separate inquiry into whether disclosure would be injurious to the public interest or any special interest. [42] This poses something of a dilemma in applying s 47C to incoming government briefs. At the threshold, an exemption claim is likely to be framed as a class claim that is meant to apply to all incoming government briefs (or at least to the deliberative portions of a brief). This is illustrated by the points made in the three affidavits referred to earlier in these reasons. The view expressed by Professor Weller, Mr Sterland and Dr Gruen [for the Government] was that an incoming government brief would be robbed of its essential and valuable character if it was released prematurely in response to an FOI Act request. Emphasis was placed on the general need to protect the confidentiality of briefs, rather than upon the need to protect the contents of a particular brief. They likened this to protecting Cabinet records. [43] As noted earlier, since Sankey v Whitlam68 in 1978, courts do not treat class claims as conclusive, even claims to protect Cabinet records. However, the context for resolving a public interest immunity claim is different to the context for resolving an FOI exemption claim. The rejection of an FOI exemption claim results in the general public release of a document, including publication of a document on an agency disclosure log (s 11C). The release is likely to constitute a precedent that is expected to be followed whenever a similar FOI request is made to any government agency. [44] By contrast, a court deals with a public interest immunity claim in the context of a particular proceeding in which a litigant asserts that a document is necessary to the conduct of their case. Having regard to the legal and factual issues arising in that case, the court must balance the public interest in the 68 (1978) 142 CLR 1.

CHAPTER 17 Freedom of Information

due administration of justice against the public interest (for example) in protecting the proper functioning of government. If the public interest immunity claim is rejected the documents will not necessarily be released publicly. If they are, the release is likely to be an exceptional event that is tied to that particular proceeding. [45] The upshot of that analysis is that room must be given for class claims to be raised and considered under s 47C. This should be exceptional rather than normal, and should not be the only or the determinative issue in the case. To the extent possible a class claim should be connected to or explained by reference to the contents of the documents in dispute. Regard must also be had to whether, in the matter under consideration, there are particular public interest considerations that would outweigh a class claim that might otherwise succeed. It will usually be necessary too, in conducting an IC review, to inspect the documents to ascertain the relevance and strength of the class claim. Protection of candour and confidentiality as a public interest consideration [46] A central theme in the affidavit evidence of Mr Sterland, Professor Weller and Dr Gruen was that the confidentiality of incoming government briefs is essential to preserve (respectively) ‘candour and confidentiality’, ‘unvarnished frank advice’ and ‘frank and candid briefs’. The broader context in which that view is to be assessed is that ‘frankness and candour’ contentions have generally fallen into disfavour, at least when advanced on a class claim basis. … [49] There is nevertheless a wider skepticism, including in an FOI context, about accepting frankness and candour claims. A recent inquiry by Dr Allan Hawke AC into the FOI Act was required by government to examine FOI Act exemptions, having regard to ‘the necessity for the government to continue to obtain frank and fearless advice from agencies and from third parties who deal with government’. Dr Hawke’s report commented:

Copyright © 2015. Oxford University Press. All rights reserved.

This Review inclines to [the] view that officials should be happy to publicly defend any advice given to a minister and if they are not happy to do so then they should rethink the advice. This is consistent with the view expressed by Senator Faulkner in launching the [FOI] reforms; that the tradition of frank and fearless advice is more robust, and that public servants would be able to work professionally within the new FOI framework as they do within other accountability mechanisms.

… [51] Frankness and candour claims have had a checkered history in Australian FOI practice. An early view, which became the starting point for analysis in later cases, was a list of five factors — dubbed ‘the Howard factors’ — which Davies J, President of the Administrative Appeals Tribunal, said might support a claim that disclosure of an internal working document would be contrary to the public interest: Re Howard and the Treasurer (1985) 7 ALD 626. The second of the Howard factors was that ‘disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest’ (635). [52] Nearly twenty years later in another AAT case, Re McKinnon and Secretary, Department of the Treasury (2004) 86 ALD 138, President Downes J expressed a similar though more qualified view. He noted that ‘[c]laims associated with the “frankness and candour” argument have been upheld although in its direct formulation it is said to have been discredited’ (at 149). Specifically, Downes J distinguished between arguments based on protection of frankness and candour and arguments based on the need for confidentiality in internal discussions. He noted that confidentiality arguments had been upheld by a President and Deputy Presidents of the Tribunal, to protect ‘direct, free and confidential communications with Ministers and their staff’ by civil servants (146). Another confidentiality claim that had been upheld was that ‘the risk of disclosure would tend to cause officers to communicate sensitive advice orally and not to commit it to writing’ (147). On appeal to the High Court in McKinnon, support for Downes J’s approach was expressed by Callinan and Heydon JJ, commenting that ‘jeopardy to candour, and the desirability of written communications, obviously cannot readily be dismissed’. [53] A reason typically given in other AAT cases for not accepting simpliciter a frankness and candour argument is that to do so would elevate it to a ‘disguised class claim’. Standing alone, the argument would smother other public interest considerations and be based on little more than the presence of

639

Copyright © 2015. Oxford University Press. All rights reserved.

640

PART 7 Freedom of Information

confidential or candid advice in an internal document. It has thus been said a number of times since Howard that confidentiality and frankness and candour arguments will be treated ‘as facets of the public interest to be weighed and evaluated in each case with other competing considerations’, and will not be accepted ‘in the absence of compelling evidence’, or ‘unless a very particular factual basis is laid for the making of the claim’. The same has been said by State review bodies dealing with a similar exemption — for example, that a frankness and candour claim should be supported by ‘clear, specific and credible evidence’, or should ‘state with precision the kinds of tangible harm to effective decision-making processes … that can be expected to flow from disclosure’. [54] Another relevant development was the amendment of the FOI Act in 2010. Two changes are noteworthy for the present discussion. The first is that the objects clause (s 3) was recast to express more strongly a presumption in favour of public access and disclosure. Notably, the objects clause now declares that among the objects of the Act are to ‘promote Australia’s representative democracy [by] increasing scrutiny, discussion, comment and review of the Government’s activities’ (s 3(2)(b)). [55] Secondly, the former ‘Internal working documents’ exemption (s 36) was recast as ‘Public interest conditional exemptions — deliberative processes’ (s 47C). At the heart of this exemption is the requirement, as before, that a document containing deliberative matter is exempt only if disclosure would ‘be contrary to the public interest’ (s 11A(5)). However, the FOI Act now spells out public interest factors that favour public access, and factors that are irrelevant. Factors favouring access include promoting the objects of the Act and informing debate on a matter of public importance (s 11B(3)). Irrelevant factors include three that are worded similarly to three of the Howard factors that could formerly support a claim that disclosure would be contrary to the public interest — the risk of misinterpretation or misunderstanding of a document following disclosure, the high seniority of the author of the document, and confusion or unnecessary debate following disclosure (s 11B(4)(b), (c), (d)). [56] Notably, the two other Howard factors were not declared to be irrelevant factors — communications in the course of policy development, and inhibition of frankness and candour in pre-decisional communications. Those two factors must nevertheless be qualified, in light of both the case law following Howard and the changes to the FOI Act in 2010. In Guidelines that I [the Australian Information Commissioner] have issued under s 93A of the FOI Act (to which agencies must have regard: s 93A(2)) I advised that those two factors are not, in the terms expressed in Howard, consistent with the new objects clause of the FOI Act and the list of public interest factors that agencies are required to consider (s 11B(3)). [57] An obvious qualification is that any public interest factors that favour non-disclosure must be balanced against factors that favour disclosure. The observation in 1979 of the Senate Standing Committee on Constitutional and Legal Affairs, in a report on proposed FOI legislation, holds as true today: ‘the prospect of disclosure can cause individuals to be less candid and frank; but the real issue is whether, on balance, the efficiency and the output of deliberative processes is affected’. [58] Another qualification is that a claim that disclosure of confidential, forthright or candid advice would prejudice the proper functioning of government must be explained and related to a particular practice, process, policy or program in government. As that implies, such a claim can be still be considered as a public interest consideration favouring non-disclosure. Confidentiality and candour claims have been questioned and criticised, but not discredited as relevant FOI considerations. [59] Whether a claim will be upheld will depend on the nature of the claim, considered along with other supporting and competing public interest considerations. At most, therefore, a list of examples may develop of where protection of confidentiality and candour has been a persuasive element of a claim that has been upheld. The present case provides an example. Though the decision relates specifically to pages of the Treasury blue book, a strongly influential factor in this decision is the need to safeguard the tradition by which a Minister in a newly-elected government can receive a confidential brief from the public service that provides constructive and candid commentary for the Minister’s consideration. That consideration is likely to have the same relevance in any later case dealing with FOI access to incoming ministerial briefs. A later case may nevertheless require consideration of other public interest considerations different to those considered in this case.

CHAPTER 17 Freedom of Information

On Balance the Australian Information Commissioner was satisfied that disclosure of the paragraphs from the Treasury blue book would be contrary to the public interest.69 The need to develop policy and obtain advice away from the public gaze is not always accepted as a basis for refusing access and the public interest in open public debate sometimes prevails. Another argument regularly proffered is that disclosure of material used in the deliberative process may mislead the public if it is unclear which elements were officially adopted and which rejected, or if the material was intended for a specific qualified audience.70 These arguments about confusion that may lead to ill-informed public debate assume a lack of sophistication in the community and are not necessarily accepted by tribunals and courts.71 Once the information is published it can be interpreted and commented upon by experts, and governments can give context to documents by releasing additional information.72

McKinnon v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 47 AAR 393

Copyright © 2015. Oxford University Press. All rights reserved.

[Journalist Michael McKinnon has challenged a number of FOI exemption decisions through the Administrative Appeals Tribunal and the courts. He took one Treasury decision all the way to the High Court.73 In the following case Mr McKinnon sought access to documents arising from a consultancy undertaken by Edith Cowan University for the Department of Families, Community Services and Indigenous Affairs (FaCSIA) on childcare needs and preferences of Indigenous families throughout Australia. The department decided that the draft reports submitted by Edith Cowan University did not meet the requirements of the tender and so did not accept them as a final report. Two draft reports submitted by Edith Cowan University were identified for the FOI request: one dated May 2006 and a subsequent undated version. The department determined that the draft reports were exempt under s 33A (documents affecting relations with the states), s 36 (internal working documents) and s 40 (documents concerning certain operations of agencies). After an unsuccessful internal review McKinnon sought review of the decision by the Administrative Appeals Tribunal. Deputy President Forgie held that the reports were not exempt under s 33A or s 40. Ms Forgie held that both reports were prepared for the department’s deliberative purposes and fell within s 36 (1)(a) but that it would not be contrary to the public interest to release and allow public discussion of the later version of the report.] FORGIE (Deputy President) (at 429): [124] … I am satisfied that both documents come within the terms of s 36(1)(a) of the FOI Act. That finding requires me to consider whether their release would be contrary to the public interest as set out in s 36(1)(b). As Gleeson CJ and Kirby J said in McKinnon, a consideration of that question (at 430) involves a judgment as to where the public interest lies. It is made in the context of the right to access to documents that is given by the FOI Act but is limited by the need to protect essential public interests. 69 Crowe and Department of the Treasury [2013] AICmr 69 [92]. For other cases concerning applications for incoming government briefs see: Parnell & Dreyfus and Attorney-General’s Department [2014] AICmr 71; and Crowe and Department of Prime Minister and Cabinet [2014] AICmr 72. 70 See discussion in Moira Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State, LexisNexis Butterworths, Sydney, 2005, 294–99. 71 The Commonwealth, New South Wales, Queensland, Northern Territory and Tasmanian Acts expressly state that possibility of misinterpretation of the information, or confusion or unnecessary debate, are not relevant considerations when deciding whether disclosure of a document would be contrary to the public interest: Freedom of Information Act 1982 (Cth) s 11B(4)(b), (d); Government Information (Public Access) Act 2009 (NSW) s 15(d); Right to Information Act 2009 (Qld) Sch 4 Part 1; Information Act (NT) s 50(2)(d); Right to Information Act 2009 (Tas) Sch 2. 72 See, for instance, discussion by Callinan and Heydon JJ in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 466–67. 73 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423.

641

Copyright © 2015. Oxford University Press. All rights reserved.

642

PART 7 Freedom of Information

[125] Ms Shugg’s [Branch Manager, Child Care Services and Policy] evidence focused on four main areas in which disclosure of the two documents would have an adverse effect. One was on the relations between the Commonwealth and the States. The second was on the trust that FaCSIA needs to build between it and groups of people who are socially disadvantaged. The third was on the way in which the documents were viewed and used. They could be used to build up hopes and expectations that could not be met by government. The fourth was that the documents would be regarded as reflecting the view of the government. [126] I will begin with the fourth area of concern. It seems to me that a right minded person reading the whole of the documents in the context of the tender document would not gain the impression that they represent government policy. Even without access to the tender document, I would reach the same conclusion. Certainly, they contain recommendations but they are recommendations to FaCSIA by the ECU just as the consultations are reported on and the factual material is given to FaCSIA by the ECU. The documents cannot be read reasonably as positions adopted by FaCSIA or as information with which FaCSIA necessarily agrees. One way in which a person may think that a report of the sort prepared by the ECU represents the position of an agency or of government may come about if that person were to think that the agency or government had a guiding, or even a controlling, hand in its preparation. That is to say, that person thought that the agency or government had a guiding or controlling hand extending far beyond a hand that simply requested it and, by means of the tender documents, circumscribed all or some of the methodology that was adopted and the scope of the final product. That is not suggested in the evidence that was given in this case. Certainly, ECU was commissioned to carry out consultations and to write a draft and a final report but there is nothing in the terms of its engagement that suggest it was required to reach a particular outcome. The fact that the FaCSIA purchased the services of the ECU does not entitle it, FaCSIA, to go beyond the terms of their contract. The only evidence that I have of those terms is in the tender documents and they do not suggest that the ECU was required to reach a particular outcome. [127] The third aspect raises the way in which the documents will be viewed if they are released. They will raise the hopes and expectations of a community. Speaking in general terms and without reference to what may, or may not, be in the documents, it is readily understandable that people will be heartened by any recommendations that they see as in their interests or in the interests of those they care about or of the wider community in which they live. It is heartening to know that someone is ‘on side’ as it were or at least has not thrown up new obstacles in the way of those interests. To think, however, that people in the Australian community will regard a report that has been commissioned by an agency as representing a final outcome in some way is, in my view, to underestimate them. They are realistic and stoical in their ability to separate a report from an independent body such as a university and its recommendations from the government’s agencies and its recommendations to government and from the government and its decisions. They have to do it regularly for there are many examples of such reports. … (at 431) [130] Mr Niall [counsel for the department] submitted that the Commonwealth should be able to negotiate with interested groups without its being told that its independent experts had held a contrary view. The Commonwealth itself has not formed a view. It is inappropriate for there to be documents in the public domain that suggest it called for data. Policy development should occur in an orderly way. There should be communications with all contributing to the outcome. The orderly development of policy would not be possible if information were to be released all along the way. [131] I do not disagree with Mr Niall’s submission that policy development should occur in an orderly way but I do disagree with a suggestion that disclosure of material of the sort found in the ECU’s documents will compromise the process … (at 432) [132] … a government is clearly entitled to promote and defend its actions in developing policy on the basis of what it has done or proposes to do. Unless it chooses to do so, it does not have to explain why it has not chosen other courses. Whether it does so is a matter to be decided on the basis of its own (at 433) political judgment. When it comes to a situation in which any interest of government in maintaining secrecy can be weighed with other interests, it is necessary to have regard to the other interests in disclosure.

Copyright © 2015. Oxford University Press. All rights reserved.

CHAPTER 17 Freedom of Information

[133] The documents prepared by the ECU contain material that has a number of features as I have already described. It may be that the material will not find universal favour or it may be that it will. Whether it does or not is not relevant. They are documents that provide information relevant to an informed debate regarding Indigenous child care and advice and recommendations that can be used to stimulate debate. Policy development can benefit from the stimulation that is provided by the disclosure of such material. That is not to say that it will be the only material which is relevant. That is not to say that it will necessarily be accepted or rejected but it is to say that it will make a contribution to an informed debate on a subject of major importance not only to the Indigenous members of the Australian community but to all members of the Australian community. [134] Trust is the second matter that Ms Shugg raised. It is said that disclosure of the documents will threaten the trust that has been built up with Indigenous communities. That could be the case in some instances but it is difficult to see how that can be when I have regard to the material in the documents. It appears to be sensitively written and is written in language to preserve the anonymity of the source of any information or opinion unless that came from a source such as a Commonwealth or State government or from published material. The privacy of individual persons and their families has been preserved. [135] I note Ms Shugg’s evidence that SNAICC [Secretariat of National Aboriginal and Islander Child Care] considers that the documents do not always reflect the consultations accurately and that they do not reflect its views. That may be so or it may not and is not a matter on which I can or wish to make any findings. If there are inaccuracies, it might well be thought that they should be drawn into the light of public scrutiny. That would seem to be more in the public interest than to leave the documents available only to FaCSIA or those to whom it chooses to reveal them. I accept Ms Shugg’s evidence that FaCSIA is drawing upon the documents to a certain extent. Without the possibility of public scrutiny, those who were consulted are not in a position to point to any inaccuracies. FaCSIA may be drawing upon the documents for information that does not accurately reflect the information, views and opinions obtained from those consulted. That would not accord with sound public policy. … (at 434) [138] Taking all of these matters into account, I have decided that the development of Indigenous child care policy is an issue in which the public interest [can be found] in having an informed debate to get the best result for such an important matter. That interest outweighs any need for government to develop its policies outside the range of public view. With one qualification, disclosure would not be contrary to the public interest. That one qualification relates to the earlier of the two documents. It is clearly an incomplete draft of the later document. Although I am reluctant to subscribe to a confusion argument, I think that in this case, it would be, on balance, contrary to the public interest to give access to an incomplete draft of a document obtained from a consultant when what appears to be its final version is available. For that reason, I find that disclosure of the document dated May 2006 would be contrary to the public interest but that disclosure of the later document would not. Therefore, the document dated May 2006 is exempt from disclosure under s 36 of the FOI Act but the later document is not.

17.7 Culture change—Information commissioners To be truly effective, freedom of information requires political support and a major cultural shift in the bureaucracy.74 There needs to be a willingness to disclose within agencies and independent monitoring of the system. In its 2008 report the Queensland independent review panel, chaired by David Solomon, recommended a range of reforms 74 FOI Independent Review Panel, The Right to Information: Reviewing Queensland’s Freedom of Information Act, 2008, 312–13.

643

644

PART 7 Freedom of Information

for FOI in that state including ensuring that the Information Commissioner acts as its ‘champion’. As  well  as the merits review functions discussed below, information commissioners undertake a diverse range of educational and oversight roles to encourage government agencies to comply with disclosure obligations, and investigate and report on non-compliance. In 1995 in a combined report the Australian Law Reform Commission (ALRC) and Administrative Review Council (ARC) recommended that the Commonwealth establish a statutory office of Information Commissioner to oversee the administration of the FOI Act that had been in operation since 1982.75 The ALRC and ARC argued:

Copyright © 2015. Oxford University Press. All rights reserved.

There is no person or organisation who has general responsibility for overseeing the administration of the FOI Act. Nor is there any authority which monitors the way agencies administer the Act, identifies and addresses difficult or problematic issues and provides assistance and advice to the public on FOI. Although the Act is overseen to some extent by the Attorney-General’s Department and the Ombudsman, the mechanisms provided are fragmented and the AttorneyGeneral’s Department is not sufficiently independent of the Executive. The Review considers that many of the shortcomings in the current operation and effectiveness of the Act can be attributed to this lack of a constant, independent monitor of and advocate for FOI.76

This was not a new recommendation: the ALRC and ARC noted that Justice Michael Kirby had called for independent oversight of FOI as early as 1983.77 The ALRC and ARC concluded that an independent FOI advocate was required ‘to monitor and improve the administration of the FOI Act and to provide assistance, advice and education to applicants and agencies about how to use, interpret and administer the Act’.78 It took 15 years for these proposals to be implemented at the Commonwealth level.79 Established in 2010 the Office of the Australian Information Commissioner had been in operation for only 4 years when funding was withdrawn in the 2014 budget and a Bill was introduced to abolish the Office.80 At the end of 2014 the Bill was still before the Senate. At a State and Territory level, Tasmania and South Australia are the only jurisdictions without an Information Commissioner. In those States the Ombudsman takes on some of the tasks including external merits review.81

75 Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, Report No 77 (ALRC) and Report No 40 (ARC) (1995). 76 Ibid 61–62. 77 Ibid 62. 78 Ibid 5. The Open Government report did not recommend that the statutory office of FOI Commissioner ­exercise merits review powers. 79 Freedom of Information Amendment (Reform) Act 2010 (Cth); Australian Information Commissioner Act 2010 (Cth). 80 Freedom of Information Amendment (New Arrangements) Bill 2014 (Cth). 81 See recommendations made by the South Australian Ombudsman for the introduction of a dedicated independent FOI ‘champion’: Ombudsman SA, An audit of state government departments’ implementation of the Freedom of Information Act 1991 (SA), 2014, 100–101. In South Australia the State Records’ Office undertakes the role of reporting on agencies’ FOI performance and issuing guidelines.

CHAPTER 17 Freedom of Information

17.8 Review of FOI decisions 17.8.1 Internal review

There is a range of different mechanisms for review of freedom of information decisions at Commonwealth, state and territory level. If a decision about access is made within an agency by someone other than a minister or principal officer, the first step for a dissatisfied applicant is usually internal review within the agency that holds the documents. Internal review can correct errors, but when there is little prospect of a different outcome it can sometimes delay progress to an external review.82 In the 2010 reforms to the Commonwealth Act83 internal review was made optional: an applicant could choose to proceed straight to external review by the Australian Information Commissioner. At the time of writing the Commonwealth was attempting to abolish the Information Commissioner and return external merits review of FOI decisions to the Administrative Appeals Tribunal. As part of that process internal reviews would become a mandatory step in the review process once again.

Copyright © 2015. Oxford University Press. All rights reserved.

17.8.2 External review If an applicant is dissatisfied with an agency’s decision to refuse access a full review on the merits by a body external to the agency is required. External merits review bodies for freedom of information decisions vary among the Australian jurisdictions. Reviews may be undertaken by an ombudsman84, a tribunal85, or an information commissioner.86 The external review bodies engage in merits review and can substitute their own decisions87 on whether an exemption applies to a document, including any public interest test that applies to the relevant category. For many of these jurisdictions there is a two-tiered system of external merits review after the initial internal review. For example, a further review of a decision of an information commissioner by a tribunal. There are a variety of different systems operating, for example the Victorian Information Commissioner does not have the power to review decisions of ministers and principal officers or exemption claims on the grounds of Cabinet documents or national security: the tribunal reviews those decisions.88 Queensland has a single

82 New South Wales Ombudsman, Opening up Government: Review of the Freedom of Information Act 1989, 2009, 92. 83 Freedom of Information Amendment (Reform) Act 2010 (Cth). 84 In South Australia and Tasmania . 85 Commonwealth Administrative Appeals Tribunal ; ACT Civil and Administrative Tribunal ; New South Wales Civil and Administrative Tribunal ; Victorian Civil and Administrative Tribunal ; South Australian Civil and Administrative Tribunal . 86 Commonwealth Australian Information Commissioner ; Office of the Information Commissioner Queensland ; New South Wales Information and Privacy Commission ; Freedom of Information Commissioner Victoria ; Office of the Information Commissioner Western Australia ; Northern Territory Office of the Information Commissioner

87 Cf the New South Wales Information Commissioner who makes non-binding recommendations to the agency: Government Information (Public Access) Act 2009 (NSW) s 92–93. 88 Freedom of Information Act 1982 (Vic) s 49A(3)–(5).

645

646

PART 7 Freedom of Information

tier of external merits review with review of decisions of the Queensland Office of the Information Commissioner to the Queensland Civil and Administrative Tribunal being confined to questions of law. The information commissioners, tribunals and ombudsmen are administrative decision-makers and in all jurisdictions the courts have judicial review powers for errors of law.89 At the heart of the debate over external merits review is the fundamental question: who should decide when official secrecy is in the public interest? A major reform in recent years has been the removal in many jurisdictions of what were referred to as ‘conclusive certificates’.90 Ministers or agency heads had the power to issue certificates that established ‘conclusively’ that a document was exempt under certain categories of exemption and that  disclosure would be contrary to the public interest. Some limited external review remained possible91 but the power to refuse access was retained by the original decision-maker. With the removal of conclusive certificates in most jurisdictions it is the external merits review body that makes the final determination on whether a document can be characterised as exempt and that includes deciding the public interest element. One major difference is that if a merits review body determines that a document is an exempt document it does not have the discretion to release documents regardless of that exempt status. In Victoria the Civil and Administrative Tribunal does have a unique power in the form of a public interest override.

Copyright © 2015. Oxford University Press. All rights reserved.

17.8.3 Victorian public interest override The freedom of information Acts do not prohibit disclosure and ministers and agencies may decide to grant access to a document even though it could be characterised as an exempt document. The external review bodies do not exercise this discretion: the question in external review proceedings is always whether the document can be characterised as an exempt document. However, the Victorian Act grants a power to the Civil and Administrative Tribunal to disclose some exempt documents when the tribunal is of the opinion that disclosure is in the public interest.92 This public interest override is unique in Australian FOI legislation;93 it was considered in the Osland case when the tribunal applied the override to documents otherwise protected by legal professional privilege.

89 Shergold v Tanner (2002) 209 CLR 126. 90 See Freedom of Information (Removal of Conclusive Certificate and Other Measures) Act 2009 (Cth); Freedom of Information (Miscellaneous) Amendment Act 2004 (SA); Freedom of Information Amendment Act 2008 (ACT). The States with entirely reformed FOI systems have not included conclusive certificates: Right to Information Act 2009 (Qld); Government Information (Public Access) Act 2009 (NSW); Right to Information Act 2009 (Tas). Conclusive certificates remain in the following States: Freedom of Information Act 1982 (Vic) s 28(4); Freedom of Information 1992 (WA) s 36, Sch1 cl 1; Information Act (NT) s 60. 91 For example under the old Commonwealth certificates the Administrative Appeals Tribunal was restricted to reviewing whether there were reasonable grounds for the claims made in a certificate: McKinnon v Secretary, Department of Treasury (2006) 228 CLR. The High Court held that the phrase ‘establishes conclusively’ did not oust the jurisdiction of the Federal Court to judicially review a minister’s decision to issue a certificate: Shergold v Tanner (2002) 209 CLR 126. 92 Freedom of Information Act 1982 (Vic) s 50(4); except for documents exempt under ss 28 (Cabinet documents), 29A (documents affecting national security), 31(3) (a document created by the Bureau of Criminal Intelligence or the Intelligence and Covert Support Department of Victoria Police), and 33 (personal privacy). 93 Osland v Secretary, Department of Justice (2008) 234 CLR 275 at 288.

CHAPTER 17 Freedom of Information

Freedom of Information Act 1982 (Vic) 32 Documents affecting legal proceedings (1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. A document of the kind referred to in section 8(1) is not an exempt document by virtue of (2)  subsection (1) of this section by reason only of the inclusion in the document of a matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8(1). …

50

Applications for review

… (4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

Osland v Secretary, Department of Justice (No 2)

Copyright © 2015. Oxford University Press. All rights reserved.

(2010) 241 CLR 320 (footnotes omitted)

[Heather Osland was convicted of the murder of her husband in a highly publicised case involving claims of battered woman syndrome. Mrs Osland and her son, David Albion, were both charged with the murder. They both relied upon self-defence and provocation as defences. There was evidence of domestic violence and the prosecution accepted that the deceased had been violent and abusive in the past. Mrs Osland was convicted of murder but the jury was unable to reach a verdict in relation to her son. David Albion was acquitted in a retrial. His mother was sentenced to 14 and a half years, with a non-parole period of nine and a half years. After unsuccessful appeals94 Mrs Osland petitioned the Governor of Victoria for mercy seeking a pardon. The Osland case became a cause celebre95 and a Heather Osland Support and Action Group was established.96 After the Osland appeal to the High Court was dismissed the Chief Justice of the Supreme Court of Victoria called for reform relating to ‘battered women’s syndrome’.97 The case was cited by the Victorian Law Reform Commission in its report on defences to homicide that led to law reform.98 Mrs Osland’s petition for mercy was refused. The Victorian Attorney-General issued a press release referring to a joint advice from three Queen’s Counsel that had recommended that her petition be denied. Mrs Osland sought access under freedom of information to documents relating to her petition, including the joint advice and other legal advice. The Victorian Department of Justice refused access under s 32 (legal professional privilege). Mrs Osland argued throughout the Tribunal and court proceedings that by issuing the press release the attorney-general had waived legal professional privilege in the joint advice. This argument failed at every level in the legal proceedings. The whole court of the High Court held that privilege in the joint advice had not been waived.99

94 95 96 97 98 99

Osland v The Queen (1998) 197 CLR 316. ‘Too Long a Sacrifice’, The Age (Melbourne), 21 February 1998, 11. Fergus Shiel, ‘End Draws Near for Defence of Provocation’, The Age (Melbourne), 5 October 2005, 3. Melinda Brown, ‘Memorial Oration Seeks Provocation Review’ (1999) 73(6) Law Institute Journal 33. Victorian Law Reform Commission, Defences to Homicide: Final Report, 2004. Osland v Secretary, Department of Justice (2008) 234 CLR 275.

647

648

PART 7 Freedom of Information

The Victorian Civil and Administrative Tribunal inspected the documents and, despite legal professional privilege, ordered that the public interest required that access to the documents be granted (under s 50(4)). The tribunal thought it relevant that the attorney-general had obtained advice from different sources.100 The Department of Justice appealed the tribunal decision and the Victorian Court of Appeal held that there was no basis for disclosure of the documents in the public interest.101 The Court of Appeal did not inspect the documents. Heather Osland appealed to the High Court. The High Court allowed the appeal.102 The majority judges in their joint judgment held that because the tribunal had identified the possibility of inconsistency in the different advices, the Court of Appeal ought to have examined the documents itself.103 The matter was remitted to the Victorian Court of Appeal which affirmed its earlier decision to refuse Mrs Osland’s request for access.104 That decision of the Victorian Court of Appeal was, in turn, reversed by the High Court because the Court of Appeal had gone beyond its limited role of reviewing for error of law and had substituted its own decision on whether the public interest required disclosure of the documents.105 The orders in the second Court of Appeal decision were set aside by the High Court and the Victorian Civil and Administrative Tribunal’s original order granting access to the documents was reinstated.106] FRENCH CJ, GUMMOW AND BELL JJ (at 328): [9] Where a request is made by a person to an agency or a Minister for access to a document of the agency or an official document of the Minister and the relevant charge is paid, the person requesting shall be given access to the document in accordance with the FOI Act. But the obligation thus imposed on the agency or Minister does not extend to giving access to an exempt document. [10] The FOI Act sets out various classes of exempt documents. One such class is specified in s 32(1): “A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.”

Another class, defined in s 30, comprises internal working documents whose disclosure “would be contrary to the public interest”. [11] Where a decision to grant access to a document in accordance with a request is refused, the applicant for access may apply to the Tribunal for a review of that decision. Section 50(4) provides:

Copyright © 2015. Oxford University Press. All rights reserved.

“On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.”

[12] Relevantly to this appeal, the exercise of the power conferred by s 50(4) requires satisfaction of two conditions. The first is the condition that, as a matter of law, the material before the Tribunal is capable of supporting the formation by it of an opinion that the public interest requires that access to the documents should be granted. That condition may also be expressed as a limitation, namely, that the opinion referred to by the sub-section is an opinion which is such that it can be formed by a reasonable decision-maker who correctly understands the meaning of the law under which that decision-maker acts. The second (329) condition is that the Tribunal actually forms the opinion that the public interest requires that access to the documents should be granted. This is an evaluative and essentially factual judgment. If the Tribunal forms the requisite opinion, its power to grant access is enlivened. In the ordinary case, the exercise of the power will be subsumed in the formation of the necessary opinion.

100 Osland v Secretary, Department of Justice (2005) 23 VAR 378 [52–53]. 101 Secretary, Department of Justice v Osland (2007) 26 VAR 425. 102 Osland v Secretary, Department of Justice (2008) 234 CLR 275. 103 Ibid at 301. See also Kirby J at 320. 104 Secretary, Department of Justice v Osland (No 2) (2009) 25 VR 490. 105 Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320. 106 Ibid 346 at 354, 356.

CHAPTER 17 Freedom of Information

[13] The FOI Act neither defines nor expressly limits the range of matters relevant to the “public interest” which may require that access should be granted. As was said in the joint judgment in this Court on the first appeal, “[t]here are obvious difficulties in giving the phrase ‘public interest’ as it appears in s 50(4) a fixed and precise content”. The nature of “public interest” determinations in the exercise of statutory powers was described in O’Sullivan v Farrer :

Copyright © 2015. Oxford University Press. All rights reserved.

“the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’.”

[14] The power to grant access on public interest grounds is not, in terms, vested in the relevant Minister or agency. By virtue of s 16 they retain their freedom to grant access to exempt documents. Rather, it is a power included in the powers conferred on the Tribunal. In this respect it is unique in freedom of information legislation in Australia. It has been called a “significant and exceptional” power and “a most extraordinary provision”. These epithets do not justify its characterisation, propounded by the Secretary, as a (330) power to be exercised only in “exceptional circumstances”. Those words are not in the statutory text. Their use may misdirect the inquiry required by s 50(4). They may be taken erroneously to limit the range of matters relevant to the public interest. Nor do they sit easily with the proper approach to the construction of the FOI Act, which is to “further, rather than hinder, free access to information” under it. Having said that, it must be accepted that the word “requires” which appears in s 50(4) directs the decision-maker to identify a highthreshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest. The terminology of the sub-section does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power. It is, like many common law standards, “predicated on fact-value complexes, not on mere facts”, to be applied by the decision-maker. … (at 345): [48] The nature of the differences between the advices, throwing up opinions about the fairness and authority of the criminal justice system, the circumstances of Mrs Osland’s situation, and asserted inadequacies in the law in relation to chronic domestic violence, was such as to be capable of supporting the formation of an opinion that the public interest required the disclosure of the documents. It was, at the very least, arguable, in the circumstances of the case, that the high-threshold public interest standard was met and that the public interest required disclosure of the contending, essentially normative propositions which the Attorney-General had before him when he recommended that Mrs Osland’s petition be denied. The differences between the authors of the advices were on questions readily comprehensible by members of the public. They did not turn upon arcane disagreements, likely to be misunderstood, about the interpretation of the relevant law. Against the weight of such considerations, in applying s 50(4) of the FOI Act the interests protected by legal professional privilege, and recognised by s 32(1) of that Act, in the particular case were arguably of diminished importance. When the Attorney-General received the advices which he did from various members of the legal profession, he did so on behalf of the public and not as a private citizen. Such continuing public interest as there was in the privilege attaching to the documents in the (346) circumstances of this case was capable of being put to one side against the public interest in disclosure.

17.9 Does FOI work for the media? While external merits review processes are of great interest to administrative and media lawyers, relatively few FOI applications proceed to review. When faced with a refusal to release documents, journalists will often report on government secrecy and failure of the system, rather than pursue protracted internal and external reviews. There are numerous systemic problems faced by media applicants in the early stages of a freedom of information application. The report of the Independent Audit of the State of Free Speech in Australia,

649

650

PART 7 Freedom of Information

chaired by Irene Moss, identified a number of barriers to access to government information faced by the media.

Irene Moss, Report of the Independent Audit of the State of Free Speech in Australia, 31 October 2007, 102–3 Barriers to access to information under FOI

Copyright © 2015. Oxford University Press. All rights reserved.

While there are some differences between the various Acts and administrative practices, some common themes emerge from reports, reviews and the experience of FOI users. The following is a summary of the main issues identified as barriers to effective use of FOI. • A continuing culture of secrecy is evident in some areas of government. It affects FOI administration. FOI is not the subject of consistent advocacy, leadership and support. • Political intervention, or the significance that may be attached to political considerations in the course of decision-making, gives rise to a perception that in some cases these factors outweigh the public interest in disclosure. • The laws in most instances do not require a pro-disclosure bias in making decisions on access. Often technical legal considerations override the objectives and the spirit and intention of legislation. • The scope of FOI is limited. Some agencies or particular functions of agencies are excluded from the operation of FOI Acts. Privatisation and contracting out have also resulted in documents previously accessible about the conduct of public functions being placed outside the scope of FOI. • The impact of other legislation on FOI, including privacy laws and laws containing secrecy provisions, can lead to confusion, and in some cases limit access. • Poor record-keeping practices affect the effectiveness of FOI. There is evidence that important information about aspects of government operations is not systematically recorded. • Exemptions are subject to a wide range of interpretations, particularly where public interest considerations in favour of disclosure or non-disclosure of documents need to be weighed and balanced. • Powers to issue conclusive or ministerial certificates to deny access, and the fact that such certificates are subject to limited rights of review, can operate as an unreasonable constraint on access.107 • Delay in responding to requests and slow processes for review of determinations means that requests for documents can take months, sometimes years to resolve. • Cost is a barrier to access. Criteria for reduction of costs are difficult to satisfy. Tribunal or court processes are expensive. Grounds on which cost orders are available to applicants who succeed on external review are limited to tightly defined special circumstances.

QUESTIONS 1 What are the arguments for and against media access to unpublished government documents? 2 Should the media pay for the full cost of retrieving and disclosing documents under freedom of information? 3 When should Cabinet documents be disclosed to the public? 4 Who should decide when publication is in the public interest and when it is contrary to the public interest? What criteria should be used to make this assessment? 5 If unpublished documents disclose that a government decision-maker has been given conflicting advice, should those documents be released under FOI? Consider reasons for and against.

107 Now significantly diminished—see above at 17.8.2.

CHAPTER 17 Freedom of Information

FURTHER READING

Copyright © 2015. Oxford University Press. All rights reserved.

Australian Law Reform Commission and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982, Report 77 (ALRC) and Report 40 (ARC) (1995). FOI Independent Review Panel, The Right to Information: Reviewing Queensland’s Freedom of Information Act, 2008 (‘Solomon Report’), available at: . Paterson, Moira, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State, LexisNexis Butterworths, Sydney, 2005. Popple, James, ‘The OAIC FOI Experiment’ (2014) 78 Australian Institute of Administrative Law Forum 31. Terrill, Greg, Secrecy and Openness: The Federal Government from Menzies to Whitlam and Beyond, Melbourne University Press, Melbourne, 2000.

651

652

Copyright © 2015. Oxford University Press. All rights reserved.

INDEX ABC see Australian Broadcasting Corporation (ABC) absolute privilege  236–8 common law position  236–7 improper motive irrelevant in  236 statutory position  238 access to information see freedom of information (FOI) ACMA see Australian Communications and Media Authority (ACMA) administration of justice see contempt of court; open justice principle; scandalising the court advertising Australian content in  75 misleading or deceptive conduct  312, 317 sponsorship announcements vs  87–8 Aereo decision  67 aerial trespass  477–9 age-verification mechanism (restricted access systems) 109 aggravated damages, for defamation  275–8 airspace, trespass to land  477–9 anti-discrimination legislation  580 anti-hoarding rules  87 anti-siphoning scheme  86–7 anti-trust laws  142 apology, as remedy for defamation  284–5 audience reach rule  126–7 Australian Broadcasting Corporation (ABC) 7–9 ABC Code of Practice  95–6 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd 439–50 Australian Communications and Media Authority (ACMA)  47, 53 broadcasting co-regulatory scheme see broadcasting services Commercial Radio Codes of Practice and  79 enforcement powers  90–4 online content regulation  108–15 see also online content scheme Australian Competition and Consumer Commission (ACCC)  132–42 deregulation and re-regulation and  142–6 Australian Constitution anti-vilification laws and  590 see also implied freedom of political communication

Australian Consumer Law (Cth) see misleading or deceptive conduct Australian content in advertising  75 commercial television  74–5 online content scheme  108–13 Australian Press Council (APC)  47–51, 53 complaints-handling process  57 review of journalism standards  54–9 Specific Standards  56 Standards of Practice  43 Standards Project  54–9 Statement of General Principles  55–6 Australian Privacy Principles  534, 537–9 blasphemy  580–2, 588 bloggers see social media bodily privacy, defined  430 breach of confidence  489–532 case studies from Australian law  530–1 case studies from UK law  504–30 cause of action  489–503 basis of  492 equitable, in the UK  454–5 duty to be of good faith  492 government information  497–8 identity 495 information having quality of confidence 492 obligation of confidence personal 498–501 pre-existing relationship, requirement of 501–3 relaxation of  501–3 who is bound by  498 personal secrets  492–5 photographs and video footage  495–7 privacy protection in the UK  503–30 defence of iniquity  527–8 loss of quality of confidence and the public domain 527 privacy and confidentiality distinguished 525–6 public interest defence  528–9 remedies 529–30 ‘tort of misuse of private information’ 503–25 breach of duty of care see negligence British press phone-hacking scandal see Leveson Inquiry

Index

Copyright © 2015. Oxford University Press. All rights reserved.

broadcasting services  60–103 categories of  68–9 co-regulatory scheme  69–70 ACMA enforcement powers  90–4 codes of practice  69 licence conditions  70 program standards  70 defined 64–8 foreign investment  147 licence conditions  70 rationales and regulatory principles  61–3 relationship between competition and regulation 141–2 see also commercial television broadcasting services bullying online  114, 116 Cabinet documents, FOI and  629–34 cable television see subscription television carriage service providers  108 safe harbour for  117–18 celebrities right of publicity (US)  454 right to sue for defamation  158 censorship classification schemes as mechanism for  567 justification for  569 through customs power  568 child pornography  114 children Children’s Television Standards 2009 (CTS) 73–4 criminal proceedings concerning  344–6 cyber-bullying  114, 116 Christian religion, scurrilous criticism of see blasphemy cinema see films and computer games citizen journalists  38 see also social media class licensed services  89 classification 567–77 films and computer games  572–4 Free TV Australia  72 implied freedom of political communication and 575–7 justification for censorship  569 National Classification Scheme  569–71 online content  109 reasonable adult  574–5 submittable publications  571–2 codes of practice ABC 95–6 broadcasting services  69

commercial radio  78–9 commercial television  72 community broadcasting services  88 MEAA Code of Ethics  43, 57–9 SBS 95–6 subscription television  85 comment see fair comment; honest opinion commercial broadcasting services  68 commercial content services  108–9 see also online content scheme commercial media  9–10 historical development  6 commercial radio  77–84 ABA, Commercial Radio Inquiry 80–3 codes of practice & guidelines  78–9 disclosure of commercial agreements  83–4 licensing and licence conditions  77–8 standards 80–4 talkback radio  80–3 commercial television broadcasting services 71–7 code of practice  72 licensing and licence conditions  70–2 material of local significance  72 public interest standards  73–7 Australian content in advertising  75 Australian Content Standard  74–5 Children’s Television Standards 2009 (CTS) 73–4 Convergence Review  76–7, 143 future of  75–7 see also broadcasting services communications networks see carriage service providers; interception; internet; online content scheme; surveillance community broadcasting services  68, 87–8 codes of practice  88 licensing and licence conditions  87–8 sponsorship announcements  87–8 community media  10–11 historical development  6 community standards  574–5 community television  99–100 competition regulation  132–46 87B undertakings  135 approval processes  133–5 broadcasting laws and  141–2 competition and diversity  140–1 Convergence Review  143 deregulation and re-regulation  142–6 FOXTEL/Austar 135–40 market definition  133 public interest test  143

653

Copyright © 2015. Oxford University Press. All rights reserved.

654

Index

competition regulation cont. sector-specific media ownership rules  142, 144 threshold questions  144–5 complaints processes ABC Code of Practice  95–6 ACMA enforcement powers  90–4 Australian Press Council  57 Australian Privacy Principles  540 online content scheme  107–8 SBS Codes of Practice  95–6 computer games see films and computer games confidential information see breach of confidence Constitution, Australian see Australian Constitution Constitution of the United States  11, 23–5 consumer protection  312 see also misleading or deceptive conduct consumer warnings  572 contempt of court  358–426 civil or criminal  359, 364 contempt by publication  359 courts, defined  359–68 disclosure of journalists’ sources common law  418–20 statutory provisions  420–1 disobeying court orders or breaching undertakings to the court  422–4 inferior courts of record  359–60 mode of proceedings  368 other forms of  410–24 other tribunals and bodies  360–3 penalties 424 revealing jury deliberations common law  414–15 statutory provisions  415–18 scandalising the court see scandalising the court standard of proof  364–8 standing to prosecute  363 sub judice contempt see sub judice contempt superior courts of record  359 undermining court orders of secrecy  410–14 who may be liable for  363–4 see also open justice principle content service enterprises  53 see also online content scheme control see media ownership and control Convergence Review media regulation  53–4 public interest standards  76–7, 143

co-regulatory schemes broadcasting see broadcasting services online content see online content scheme corporations claims in injurious falsehood  298 misleading or deceptive conduct  313 privacy 445–6 right to sue for defamation common law provisions  165–9 excluded corporations  169–70 genuinely small corporations  169–70 not-for-profit corporations  169–70 presumption of damage  157 statutory provisions  169–70 counter-terrorism, sedition laws and 585–8 court files, access to  348–50 court proceedings conducting proceedings in camera 331–2 contempt see contempt of court excluding persons from court  332 fair and accurate reports of defences to defamation  245–7 sub judice contempt and  394–5 nature of an ‘open court’  329–31 openness of see open justice principle recording and televising  355–6 scandalising the court see scandalising the court social media use in courtrooms  356–7 witnesses 332 criminal offences criminal defamation  155–6 instruction in matters of crime  575–7 sanctions for vilification  591 sufficiently serious content in online content scheme 114 suppression orders for proceedings concerning a child  344–6 cross-media ownership rules  124 Crown see government bodies cyber-bullying  114, 116 damage to reputation see defamation damages aggravated vs exemplary  278 nominal 263 see also exemplary damages; remedies data protection see information privacy data retention, media freedom and  39, 588 data surveillance devices  555 dead, defamation of the  158–9

Copyright © 2015. Oxford University Press. All rights reserved.

Index

defamation 149–288 cause of action  173–4 civil and criminal jurisdiction  155–6 claims, limitation period for  170–1, 216 defamatory capacity and meaning  172–202 bane and antidote  182–4 cause of action  173–4 defamatory capacity  174 defamatory matter  172–3 defamatory meaning  174 implications and inferences  180–2 imputations of suspicion and guilt 184–7 interpreting defamatory matter  176 natural and ordinary meaning  179 ordinary, reasonable reader  174–6, 179, 187–8, 192, 196, 203 professional reputation  195–6 ridicule 194–5 role of context  176–9 sectional standards  196–201 shun and avoid  192–3 tests for what is defamatory  187–92 true innuendoes  179–80 defamatory matter originating from another person 214–15 defences see defences to defamation distinction between libel and slander  156–7 historical development  152–4 identification 202–13 direct identification  203–4 fictitious and real person have same name 207 indirect identification  208–11 persons with same name  205–7 relevance of defendant’s intention  203 where member of a group  211–13 injurious falsehood distinguished  292–7 judge and jury, role of  171–2 liability for  151–220 limitation period  170–1, 216 misleading or deceptive conduct, overlap with 315–16 negligence, overlap with  298–312 presumption of damage  157–8 privacy, indirect protection of  487–8 protection of reputation vs freedom of expression 151–2 public figures  158 publication 214–20 internet intermediaries  214–15 multiple publication rule  215–16 multistate publication  218–20

republication 217–18 uniform defamation laws  218–20 what constitutes publication  214–15 who is a publisher  214–15 remedies see remedies for defamation reputation defined  152 standing to sue  158–70 corporations 165–70 defamation of the dead  158–9 government bodies  159–61 partnerships 161–5 uniform defamation laws  154–5 multistate publication  218–20 role of juries  171–2 defences to defamation  221–67 absolute privilege see privilege contextual truth  230–6 ‘pleading back’  232–4 fact and comment distinguished  254–5 fair comment  253–7 fact vs comment  254–5 reasonableness 255–6 honest opinion  256–7 Hore-Lacy defence  226–30 innocent dissemination  257–62 statutory defence  262 technology changes and  258–61 justification 221–4 history and rationale  221–2 minor inaccuracies  222–3 proof of truth alone a complete defence 221–2 public interest or benefit requirement 221–2 relevance of intention  224 statutory defence of truth  221–2 substantial truth  222–3 Polly Peck defence  225–30 contextual truth and  234–6 criticised in Australia  226–8 current status  229–30 extraction of a ‘common sting’  225–8 interaction with defence of contextual truth 234–6 substantial truth and  225–8 qualified privilege see privilege triviality 263–7 digital broadcasting  95–103 digital radio  100–3 future of  102 new digital services  101–2 regulatory framework  100–1 standard access entitlements  101

655

656

Index

Copyright © 2015. Oxford University Press. All rights reserved.

digital television  95–100 community television  99–100 content on digital multichannels  99 policies 97–9 disclosure logs (FOI)  623 discrimination see anti-discrimination legislation distribution, innocent dissemination  257–62 diversity  120–3, 125–6 under the Broadcasting Services Act 125–6 competition regulation and  140–1 diversity in control  123 diversity of content  121–2 media diversity rules  125 neutrality in the ‘marketplace of ideas’.  123 ‘unacceptable media diversity situation’—the 5/4 Rule  125–6 documents access to court files  348–50 discovered documents  350–5 see also freedom of information (FOI) drama expenditure, local  85–6 duty of care  299 see also negligence economic loss see negligence electronic communications see carriage service providers; interception; internet; online content scheme; surveillance emotional distress breach of confidence  529 private nuisance  486–7 see also negligence equity breach of confidence and  454–5, 492, 503–4, 525, 530–1 remedies for defamation  279–84 European Convention on Human Rights 25 privacy and  470–6, 503–4 privacy in comparative perspective  454–5 exemplary damages aggravated damages distinguished  278 defamation 277–8 trespass to land  479–81 exempt agencies (FOI)  627 expression see freedom of expression fair comment  253–6 defence to defamation  253–7 defence to scandalising the court  405–7 distinction between fact and comment 254–5 reasonableness as an element of  255–6 false innuendoes  180

false statements  153 see also defamation falsehood, injurious see injurious falsehood fictitious persons, identification and  207 films and computer games, offensive publications 572–4 filtering of online content  113–16 Finkelstein Inquiry into media regulation 47–53 FOI legislation see freedom of information (FOI) foreign investment  146–8 Foreign Investment Review Board (FIRB)  147 fourth estate  5 see also journalists FOXTEL/Austar merger  135–40 Free TV Australia, classification schemes  72 freedom of expression  15–40 ‘acts of expression’  17 concept of ‘freedom’  16 counter-terrorism provisions and  587–8 express protections of  23–6 European Convention on Human Rights 25 First Amendment to the Constitution of the United States  23–5 International Covenant on Civil and Political Rights 1966 (ICCPR)  25–6 fair comment see fair comment ‘freedom of speech’ compared to  16–17 honest opinion see honest opinion implied freedom of political communication see implied freedom of political communication Independent Audit of the State of Free Speech 649–50 limits to  16 media freedom and  37–40 offensive publications as  568 privacy and  541 rationales for  17–22 political and government integrity  21 self-determination 22 truth 18–20 ‘speech’, scope of  16–17 tort of invasion of privacy and  453 freedom of information (FOI)  615–51 barriers to access  649–50 culture change in  643–4 disclosure logs  623 effectiveness of for the media  649–50 exempt agencies  627 exemptions, categories of  627–43

Index

Copyright © 2015. Oxford University Press. All rights reserved.

Cabinet documents  629–34 deliberative processes  634–43 history of secrecy  616–17 information commissioners  643–4 information management  622 internal working documents  634–43 official secrecy  619–22 proactive disclosure  623 public interest  636, 646–9 rationales and objects  617–19 review of FOI decisions  645–9 external review  645–6 internal review  645 Victorian public interest override 646–9 right to access documents under  623–7 access to documents  624 documents in the possession of government agencies and ministers 624 fees and charges  625–6 third party consultations  625 time limits  627 freedom of the press see press freedom free-to-air television, anti-siphoning scheme 86–7 games, computer see films and computer games gender-identity vilification  606 see also vilification government bodies access to documents in the possession of government agencies and ministers 624 breach of confidence  497–8 defamation of  159–61 political and government integrity  21 see also public service media Habermasian ideals, for public sphere  4 homosexual vilification  591–2, 606–11 defences 607–11 honest opinion  253–7 see also fair comment Hore-Lacy defence  226–30 hostility, inciting  588 see also sedition hosting services defined 108 response to prohibited content  109 see also online content scheme humiliation see vilification

identity breach of confidence  495 identification, liability for defamation  202–13 pseudonym orders  346–8 implied freedom of political communication 26–36 classification and censorship and  575–7 defamation and  159–61 Lange qualified privilege and  247–50 scandalising the court and  409–10 scope of  34–6 incite, construction of  602–4, 611 Independent Press Standards Organisation (IPSO) 47 infliction of wilful injury  476 information commissioners  643–4 information control  622 information management, FOI and  622 information privacy  533–63 defined 430 see also personal information ‘information providers’, misleading or deceptive conduct by  316–19 injunctions 279–84 interlocutory injunctions  279–84 breach of confidence  530 injurious falsehood  298 misleading or deceptive conduct  319 private nuisance  486 trespass to land  480 injurious falsehood  289–98 cause of action in  291–2 damages recoverable  298 economic loss  298 non-economic loss  298 defamation distinguished  292–7 extent of liability in  297 historical development of  289–91 interlocutory injunctions  298 liability for  297 malice in  292–6 remedies 298 statements amounting to  297 test for remoteness of damage  297 see also defamation innocent dissemination  257–62 innuendoes 179–80 insult see vilification interception 547–52 access to stored communications  549–50 boundary with surveillance  551 communication passing over a telecommunications system  548–9

657

658

Index

Copyright © 2015. Oxford University Press. All rights reserved.

interception cont. Leveson Inquiry  44–7, 549–50 of real-time communications  548–9 use of intercepted information  550–1 interlocutory injunctions  279–84 breach of confidence  530 injurious falsehood  298 international broadcasting services  68, 89–90 International Covenant on Civil and Political Rights 1966 (ICCPR)  25–6 internet carriage service providers  108 safe harbour for  117–18 contempt by publication on the  393–4 government regulation of  104 loss of quality of confidence and the public domain 527 right to be forgotten  543–7 streamed audiovisual content  64–8 take-down schemes  542–3 see also online content scheme internet intermediaries and internet service providers ISP-level filtering  113–16 liability for defamation  214–15 multiple publication rule and  215–16 safe harbours see online content scheme intrusion upon seclusion  453 investigative journalism see journalists investment, foreign see foreign investment Islam, not included in blasphemy laws  588 ISPs see internet intermediaries and internet service providers journalists dealing with protected information  561–3 disclosure of journalists’ sources  418–21 ‘foot-in-door journalism’ see trespass to land fourth estate  5 interception by see interception standards see Australian Press Council (APC) surveillance and see surveillance see also media regulation; news reporting judges see contempt of court; court proceedings; scandalising the court juries in defamation proceedings  171–2 assessment of damages  269–70 revealing jury deliberations common law  414–15 statutory provisions  415–18 sub judice contempt and  377–9

land, interests in see private nuisance; trespass to land Lange qualified privilege  247–50 law enforcement interception in see interception surveillance in see surveillance lawful surveillance see surveillance lesbians, vilification of see vilification Leveson Inquiry into the Culture, Practices and Ethics of the Press  44–7, 549–50 libel and slander distinguished  156–7 licences 70 community broadcasting  87–8 radio 77–8 television 70–2 links services defined 108 response to prohibited content  109–13 see also online content scheme listening devices  553–4 defined 553 interception of real-time communications 548–9 use of to record a private conversation 553–4 live content services defined 108 response to prohibited content  109 see also online content scheme; streamed audiovisual content local councils see government bodies malicious falsehood see injurious falsehood marital relationships, obligation of confidence in 498–501 markets, media  133 media contents of this book  12–13 as a ‘public sphere’  4 sectors in  5–12 social and political role  3–14 traditional and social media  11 see also news reporting Media, Entertainment and Arts Alliance (MEAA), code of ethics  43, 57–9 media freedom  37–40 see also freedom of expression media markets  133 media ownership and control  119–48 under the Broadcasting Services Act 125–32 audience reach rule  126–7 concept of control  127–32

Copyright © 2015. Oxford University Press. All rights reserved.

Index

media diversity rules  125 ‘in a position to exercise control’  127–32 statutory control rules  126–7 ‘unacceptable 3-way control situation’— the 2/3 Rule  126 ‘unacceptable media diversity situation’— the 5/4 Rule  125–6 competition regulation see competition regulation evolution of Australian laws  124 foreign investment see foreign investment pluralism and diversity  120–3 competition and  140–1 diversity in control  123 diversity of content  121–2 meaning of  120–3 media diversity rules  125 neutrality in the ‘marketplace of ideas’ 123 pluralism and  123 ‘unacceptable media diversity situation’ 125–6 sector-specific rules  142, 144 media regulation  41–150 adequacy of press self-regulation  43–4 broadcasting services  60–103 Convergence Review  53–4, 76–7, 143 Finkelstein Inquiry  47–53 Leveson Inquiry  44–7, 549–50 media ownership  119–48 online content see online content scheme print media and journalists  43–61 reviews of press regulation  43–54 see also specific media media reporting see news reporting mental harm see psychiatric injury ‘mere wind’, no action would lie for  153 ministers, right to access documents of  624 misleading or deceptive conduct  312–20 application to corporations  313 elements of liability  313–15 ‘information providers’  316–19 meaning of ‘in trade or commerce’ 314–15 meaning of ‘misleading or deceptive’ 313–14 overlap with defamation  315–16 ‘prescribed information provider’ defence 316–19 remedies 319–20 ‘safe harbour’ defence for media outlets 316–19

mobile premium services  108 see also commercial content services morality  569–70, 572 see also community standards; offensive publications multiple publication rule, defamation and 215–16 multistate publication, defamation and 218–20 national broadcasting services  7–9, 68, 95–6 National Classification Scheme  569–71 national security see interception; surveillance negligence 298–312 Australian law  300–6 overlap with defamation  298–300, 306 United Kingdom law  306–12 News Corporation, phone-hacking see Leveson Inquiry News Media Council (NMC)  47–8, 50–3 news media organisation, defined  334 News of the World, phone-hacking see Leveson Inquiry news reporting ‘bare facts’ reports  395–6 court proceedings see court proceedings FOI and  649–50 ‘foot-in-door journalism’ see trespass to land interception in news-gathering see interception non-publication and suppression orders 332–46 see also journalists; press freedom newspapers, media diversity rules and  125 nominal damages  263 non-publication orders common law  332–3 defined 334 statutory provisions  333–46 not-for-profit corporations, right to sue for defamation 169–70 obscenity 578–80 classical test of  569 self-censorship 578 offensive publications  567–612 blasphemy see blasphemy classification see classification obscenity see obscenity sedition see sedition vilification see vilification official secrecy see secrecy

659

Copyright © 2015. Oxford University Press. All rights reserved.

660

Index

online content scheme  104–18 complaints 107–8 content service enterprises  53 content services Australian content  108–13 defined 108 cyber-bullying  114, 116 filtering 114–16 history of online content regulation  105–6 non-legislative measures  114 outline 106–7 overseas content  113 prohibited content  109–13 sufficiently serious content—criminal laws 114 technical measures  114 see also internet; safe harbours online simulcasts  64–7 open government see freedom of information (FOI) open justice principle  323–57 access to court files  348–50 conducting proceedings in camera  331–2 discovered documents  350–5 excluding persons from court  332 implied undertaking and  350–5 nature of an ‘open court’  329–31 non-publication or suppression orders common law  332–3 general statutory provisions  333–44 secret process or confidential material 332 specific statutory provisions  344–6 pseudonym orders  346–8 recording and televising court proceedings 355–6 social media use in courtrooms  356–7 see also contempt of court open narrowcasting services  68 open-line radio see talkback radio opinion see fair comment; honest opinion optical surveillance devices  554–5 overseas content  113 ownership of media see media ownership and control parliamentary proceedings, reports of defences to defamation and  245–7 sub judice contempt and  395 personal information breach of confidence and  492–5, 498–501 defined 536

identifying information  536 interception of see interception Privacy Act 1988 (Cth)  536–7 right to be forgotten  543–7 sensitive information defined  537 surveillance and see surveillance take-down schemes  542–3 see also privacy phone-hacking see Leveson Inquiry photographs, breach of confidence and  495–7 pluralism in media ownership  120–3 point-to-point services  64 political communication see implied freedom of political communication political role of the media see social and political role of the media politicians, right to sue for defamation  158 Polly Peck defence  225–30 criticised in Australia  226–8 current status  229–30 extraction of a ‘common sting’  225–8 substantial truth and  225–8 ‘prescribed information provider’ defence 316–19 press see journalists; Leveson Inquiry; news reporting; publication Press Complaints Commission (PCC) (UK) 45–7 press freedom  37–40 see also freedom of expression printers, defence of innocent dissemination 258–62 privacy 429–547 breach of confidence and  503–30 common law rights  435–52 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd  448–50 development of  438–48 privacy law reform  450–1 public figures and the right to a private life 451–2 comparative perspective  452–76 European Union law  470–6 New Zealand law  456–70 right of publicity  454 United Kingdom law  454–6 United States law  452–4 concept of privacy  430–4 confidentiality distinguished from  525–6 indirect protection of privacy  476, 487–8 see also defamation; private nuisance; trespass to land

Copyright © 2015. Oxford University Press. All rights reserved.

Index

information privacy  430, 533–63 interception and see interception Privacy Act 1988 (Cth)  533–47 Australian Privacy Principles  534, 537–9 enforcement 539–41 exemptions and exceptions  541 personal information  536–7 purpose 534–6 right to be forgotten  543–7 take-down schemes  542–3 privacy as a human right  435 Prosser’s taxonomy of torts (US)  452–3 statutory cause of action for invasion of privacy 450–1 surveillance of private activities see surveillance privacy of communications, defined  430 private media ownership see commercial media private nuisance  481–7 intentional infliction of harm  486–7 interference with use and enjoyment of land 481 liability for  481–5 remedies 486 privilege absolute privilege  236–8 common law position  236–7 improper motive irrelevant in  236 statutory position  238 qualified privilege  238–53 common law defence  238–9 court and parliamentary reports  245–7 defeating the common law defence 250–2 improper motive or malice  250–2 Lange qualified privilege  247–50 right of reply  240–5 statutory defence  252–3 professional reputation, defamation and 195–6 property rights, privacy protection and  476 protection of reputation see defamation pseudonym orders  346–8 psychiatric injury breach of confidence  529 private nuisance  486–7 see also negligence public disorder, promotion of see sedition public figures right of publicity  454 right to a private life  451–2 right to sue for defamation  158

public interest standards, broadcasting services  73–7, 143 public service media  7–9 historical development  6 see also community media publication dealing with protected information 559–63 defamatory matter originating from another person 214–15 defence of innocent dissemination 258–62 intercepted communications  550–1 proactive disclosure  623 to publish, defined  334 see also defamation; offensive publications publicity, right of  454 punitive damages see exemplary damages pure economic loss see negligence qualified privilege  238–53 common law defence  238–9 court and parliamentary reports  245–7 defeating the common law defence 250–2 improper motive or malice  250–2 Lange qualified privilege  247–50 right of reply  240–5 statutory defence  252–3 racial vilification see vilification radio see commercial radio; digital radio records see documents regulation see competition regulation; media regulation religion blasphemy  580–2, 588 religious vilification  601–6 defences 604–6 meaning of ‘incites’  602–4, 611 remedies breach of confidence  529–30 defamation see remedies for defamation injurious falsehood  298 misleading or deceptive conduct  319–20 private nuisance  486 trespass to land  479–81 remedies for defamation  268–88 alternative or complementary remedies 286–8 court-ordered corrections  287 right of reply  286–7

661

662

Index

Copyright © 2015. Oxford University Press. All rights reserved.

remedies for defamation cont. damages 269–78 aggravated 275–7 aggravated vs exemplary  278 assessment of  269–70 available heads of  270 cap on for non-economic loss  274–6 compensatory 271–5 exemplary 277–8 injunctions 279–84 offers of amends  284–5 reporting see news reporting reputation defined 152 professional 195–6 see also defamation restricted access systems (age-verification mechanism) 109 retention of data see data retention ridicule, defamation and  194–5 safe harbours  116–18 Broadcasting Services Act 1992 (Cth)  117 Copyright Act 1968 (Cth)  117–18 misleading or deceptive conduct  316–19 satellite delivery see subscription television SBS see Special Broadcasting Service (SBS) scandalising the court  397–410 defence of fair comment  405–7 defence of justification  408 implied freedom of political communication and 409–10 reciprocal responsibility of commentators 407–8 secrecy history of FOI and  616–17 information management  622 official secrecy  619–22 personal secrets and breach of confidence 492–5 undermining court orders of  410–14 sectors in Australian media  5–12 commercial media  9–10 community media  10–11 historical development  6 public service media  7–9 sector-specific media ownership rules  142, 144 social media  11–12 sedition 583–9 Commonwealth laws  585–8 free speech and counter-terrorism provisions 587–8

history 583–5 inciting hostility  588 state laws  585 self-censorship 568 offensive publications  578 self-regulation broadcasting see broadcasting services online content see online content scheme sexual offences, suppression orders  344 sexual relationships, obligation of confidence 498–501 sexuality and gender-identity vilification  606 see also homosexual vilification sexually explicit films see films and computer games slander slander and libel distinguished  156–7 slander of title or slander of goods  289–92, 294 social and political role of the media  3–14 fourth estate  5 media as a ‘public sphere’  4 social and political purposes  3–5 see also sectors in Australian media social media range of  11 sub judice contempt  393–4 take-down schemes  542–3 traditional media and  11 use in courtrooms  356–7 Special Broadcasting Service (SBS)  7–9 SBS Codes of Practice  95–6 speech, freedom of see freedom of expression sponsorship announcements  87–8 sporting events, anti-siphoning scheme  86–7 streamed audiovisual content  64–8, 106 sub judice contempt  359, 368–71 ‘bare facts’ reports  395–6 context 379 disclosure of previous convictions  372–7 disparagement of parties  385–8 effect of publication on witnesses  379–82 identification 382–5 judge or jury trial  377–9 ‘prejudgment contempt’  388–92 by publication on the internet  393–4 relevance of intention  392–3 reports of court proceedings  394–5 reports of parliamentary proceedings  395 social media and contempt of court  393–4 statements of guilt and innocence  371–2 types of conduct amounting to  371–96 when a matter is sub judice  369–71

Index

Copyright © 2015. Oxford University Press. All rights reserved.

subscription broadcasting services  68 subscription narrowcasting services  68 subscription television  84–7 anti-hoarding rules  87 anti-siphoning scheme  86–7 codes of practice  85 licensing and licence conditions  85 local drama expenditure  85–6 subterranean space, trespass to land  477–9 suicide, standard for reporting of  56 suppression orders common law  332–3 defined 334 statutory provisions  333–46 violent crimes  344 surveillance 552–63 boundary with interception  551 dealing with protected information  559–63 defence for responsible journalism  561–3 public interest  560–1 lawful surveillance  556–9 Channel Seven Perth v ‘S’ 557–9 lawful interest exception  557–9 participant monitoring exception  556–7 public interest exception  557–9 surveillance devices  552–6 data surveillance devices  555 device-specific approach  555–6 listening devices  553–4 optical surveillance devices  554–5 technological neutrality  555–6 tracking devices  555 suspicion and guilt, imputations of  184–7 talkback radio, inquiry into  80–3 telecommunications see carriage service providers; interception; internet; online content scheme; surveillance telephonic interception see interception television see commercial television broadcasting services; community television; digital television; subscription television territorial privacy, defined  430 terrorism, sedition laws and  585–8 tracking devices  555 Trade Practices Act 1974 (Cth) see misleading or deceptive conduct

trespass to land  476–81 aerial trespass  477–9 damages 479–81 defences 479 remedies 479–81 title to sue for  477 tribunals, contempt and  360–3 see also contempt of court true innuendoes, defamation and  179–80 truth defence to defamation  221–3, 230–6 defence to scandalising the court  405–7 as rationale for freedom of expression 18–20 United Nations ICCPR  25–6 United States Constitution  11, 23–5 user-generated content  5, 11 user-level filtering  113 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor 435–8 video footage, breach of confidence and 495–7 video on demand (VOD) services  64 vilification 589–611 acts done in public  590–1 civil wrongs Commonwealth 592–5 states 591–2 constitutional validity  590 criminal sanctions  591 defences 595–601 ‘false’ analogy with sedition  588 history 590 homosexual  591–2, 606–11 religious defences 604–6 meaning of ‘incites’  602–4, 611 see also offensive publications violence, urging of see sedition voice-calls and voicemail, interception of 548–9 WikiLeaks 38 wilful injury, infliction of  476

663

Media Law: Cases, Materials and Commentary offers an engaging and accessible introduction to the dynamic field of media law. It examines the basic principles of substantive areas of law that can affect the practice of contemporary media organisations, including defamation, invasion of privacy and freedom of information. Using carefully selected excerpts from recent cases and legislation, and insightful author commentary, this text explores important media law concepts and helps readers place these into both legal and cultural contexts. This second edition discusses the levels of content regulation as applied to print, broadcast and online media, and the sector-specific rules that impact on ownership and control of media outlets. Media Law also incorporates critical perspectives from a range of academic disciplines, including media and cultural studies, to offer conceptual frameworks in which Australian media law can be understood and interpreted.

Features of this edition: •

 Comprehensively updated with current legislation, recent High Court decisions and contemporary, topical case studies and reports



Revised ‘Part 2: Media Regulation’, with new chapters ‘Print Media and Journalists’, ‘Broadcasting Services’ and ‘Online Content’, and discussion of the Finkelstein Inquiry and the Convergence Review



 Review questions throughout each chapter encourage deeper learning and discussion

David Rolph is an Associate Professor in the Faculty of Law, University of Sydney. Matt Vitins is a Senior Associate at Allens. Judith Bannister is a Senior Lecturer in the Adelaide Law School, University of Adelaide. Daniel Joyce is a Lecturer in the Faculty of Law, University of New South Wales.

ISBN 978-0-19-559848-3

9 780195 598483