Originally published 13/04/2015
Defamation is the area of civil law that deals with protection of reputation (The Law Handbook, 2015). It is the law designed to protect people and small organisations from harmful allegations. Throughout the world persons have been given the right to defend themselves against false accusations or comments, allowing them to protect their reputation against any damages that might resonate from untrue or malicious publications. But defamation law is not uniform across the world and what a person is permitted to publish in one country may not be permitted in another. This paper will discuss the differences between defamation laws in Australia and the United States of America, and looks at whether the US’s stronger defences for journalists result in a higher standard of reporting of public officials than in Australia.
The Australian Defamation Act 2005 outlines the protections available to defendants in the event of defamation action being raised. These are as follows – A defendant can defend themselves if: the ‘imputations carried by the matter of which the plaintiff complains are substantially true’ (Defamation Act 2005, Section 25); some untrue defamatory remarks are considered to be false, but are outweighed by ‘the substantial truth of the contextual imputations’ (ibid, Section 26); if ‘the matter is published in the course of the proceedings of a parliamentary body [or the courts]’ (ibid, section 27); if ‘the defendant proves the matter was contained in a public document . . . [or was a] fair summary of, or a fair extract from, a public document’ (ibid. Section 28); if a defendant can prove ‘the matter was, or was contained in, a fair report of any proceedings of public concern’ (ibid, Section 29); if ‘the recipient has an interest or apparent interest in having information on some subject . . . and the conduct of the defendant . . . is reasonable in the circumstances’ (ibid, Section 30); if ‘the matter was an expression of opinion rather than a statement of fact [that related to public interest]’ (ibid, Section 31); if ‘the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor’ (ibid, section 32); or ‘if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm’ (ibid, Section 33).
Unlike in the United States (where freedom of speech is written into the nation’s Constitution), Australia does not explicitly promise freedom of speech to its citizens. This doesn’t mean Australians do not have an implied freedom of speech (FindLaw Australia, 2015). This implied right extends from two landmark cases in the Australian media law history: Theophanous and Lange. In 1994, the High Court ruled in Theophanous v Herald & Weekly Times there was a ‘constitutional defence’ (ibid) to defamation action, implying the right to free speech. Though this created clarity for the first time in Australian history regarding the right to speech, within five years it had been overturned and replaced with a new ruling: that of Lange v Australian Broadcasting Corporation. In Lange, the High Court ruled “the protection of freedom of communication in the [Australian] Constitution is not absolute, and ‘[i]t is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution’” (ibid). Rather than enforcing the implicit right to free speech in the Constitution as a defence to defamatory allegations, Lange extended the right to qualified privilege (Defamation Act 2005, Section 30). The ruling created a defence to reporting defamatory material about public officials if ‘the recipient has an interest or apparent interest in having information on some subject . . . and the conduct of the defendant . . . is reasonable in the circumstances’ (ibid). Though Lange gave provisions to people when discussing persons in the public eye, it didn’t greatly increase journalists’ defences. But publishers were now allowed to disseminate information about people in the public eye if what they published was ‘reasonable’.
United States laws on reporting public figures were shaped by the landmark case New York Times v. Sullivan (1964). The outcome of this case, in which a public official claimed his image had been damaged in an advert within the New York Times, ruled in the plaintiff’s favour. Though Sullivan was awarded $500,000 in damages (Casebriefs, 2015a), the advert, which criticised the actions of the local police force (Cornell University Law School, 2015), (thus defaming the police commissioner) was found to have been published without malicious intent. Sullivan rules were then set for future defamation actions initiated by public officials; the ruling found ‘the Constitution guarantees require 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’ (Casebriefs, 2015b). While in Australia a publisher is liable for any published defamatory material, public figures in the United States aren’t able to seek damages unless they are able to prove what has been published about them was done so with malicious intent or with a disregard for ensuring what they have written is mostly true. While it would appear the press are given greater freedoms to report public officials in the United States, this does not necessarily equate to a higher standard of reporting. As said by Smolla (1987), the defences available for journalists in the United States promote ‘sloppy and unprofessional journalism’.
To determine who can and cannot claim damages in the United States, a public figure test was introduced. Public figures are people who are: “involuntary public figures who attain . . . status through no purposeful action of his or her own” (Tobin, 1994. P. 388); “the all-purpose public figure who occupies a position of such pervasive power and influence, or such pervasive fame or notoriety that he or she must be deemed a public figure for all purposes and all contexts” (ibid), and “the voluntary, limited public figure who voluntarily injects himself or herself into a public issue or to the forefront of a particular public controversy” (ibid). The Supreme Court has said the public figure test represents “A profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open and that such debate may include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials” (Rosenblatt v Baer, 1966). A person who enters into common public debate in the US is a public figure and by entering debate they are surrendering many defamation protection rights.
United States defamation law exists to support its Constitution and its right to freedom of speech. The restriction on public figures to take publishers to court over each potentially defamatory remark is in place to promote the use of the right to speech. Public officials and figures, says Tobin (1994, p. 389) ‘enjoy great access to channels of effective communication relative to private plaintiffs. It is therefore assumed that this enables them to counteract any false statements directed against them. Second, by entering the public domain, public officials and figures are deemed to accept that as a necessary consequence of their position they will be subject to greater public scrutiny and criticism’.
It’s clear the increased defences for journalists creates a buffer for them with regards to publishing untrue, defamatory comments. With such a defence not available in Australia, there are those who regard the United States system as one that offers journalists too much protection. Kenyon (2004) wrote ‘In the US – where defamation plaintiffs face much heavier burdens than under the Anglo-Australian law – defamatory allegations against political and corporate actors are published more frequently than in Australia’ (p. 407) and ‘In [one] study’s sample . . . US articles contained defamatory allegations at nearly three times the rate of . . . Australian articles’ (p. 407).
The question persists: do Australia’s more strict laws on defamation result in less open, lower quality reporting on public figures than in the United States? Do our laws have a ‘chilling effect’ (Kenyon, 2010)? To do this we will look at two landmark cases in Australia and the United States. These are the 2014 Australian Treasurer for sale scandal and the 1988 Hustler Magazine v. Falwell case in the United States.
While the following cases are but two examples of defamation action being taken in a long history of media law, the pair contrast what is acceptable and what is unacceptable in the United States and in Australia. They may shed light on the level at which public figures are likely to take a publication to court in one country and potentially win, while another, much more defamatory remark, may see them lose in the other.
In Australia, the 2014 headline story in The Age, The Sydney Morning Herald and The Canberra Times, “Treasurer for sale”, resulted in Australian Treasurer Joe Hockey taking legal action against the papers for defamation. Mr Hockey argues the articles imputed he “accepted, or was prepared to accept, bribes; that he corruptly solicited payments in order to influence his decisions; and that he corruptly sold privileged access to businesspeople and lobbyists in return for donations to the Liberal Party” (Rolph, 2014). Whether or not the alleged offences were imputed within the articles is up for debate, but this essay looks at the standards imposed upon journalists when reporting public officials. Would this article, which reported on actual events (imputations disregarded) have been enough for a public official in the United States to mount a case? It’s unlikely. A public official would have a hard time proving the articles were written with malice.
In the United States, in Hustler Magazine v. Falwell (1988), Hustler was taken to court over an advert published within their magazine that claimed a US politician had admitted to “a drunken, incestuous encounter with his mother in an outhouse” (Casebriefs.com, 2015c). The satirical piece was posed as a genuine Q&A report, and described the politician’s supposed first sexual encounter in which he describes his mother as “looking better than a Baptist whore with a $100 donation” (Hustler, 1983). Falwell claimed the advert was “the most hurtful, damaging, despicable, low-type personal attack that [he could] imagine one human being can inflict upon another” (Linder, 2015). But despite the clear untruth behind what was published, Falwell’s place in the public eye meant he was unable to recover any damages from the allegations made. A unanimous Supreme Court decision found “many things done with motives that are less than admirable are protected by the First Amendment” (ibid) but that “at the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern” (ibid). Because of the protections afforded by the Constitution of the United States, Falwell was unable to recover any damages from what was a targeted, critical piece. Would such a publication have been accepted in Australian media law? There are no examples of similar defamatory remarks being made about Australian public officials, but that Hustler was able to avoid punishment for its publication is a strong example of the leniency of United States defamation law and the strong defences available to publishers.
It’s clear how Lange and Theophanus have influenced the potential outcome of the Treasurer for sale case. Were the articles defamatory or did the newspapers in question express their right to Lange’s qualified privilege extension? Was the United States Supreme Court correct in its judgement that the Constitution, and the Sullivan case, provide protection for journalists that should extend to protect them for articles as defamatory as in the Falwell case? While both outcomes were and will be judged because of the precedent for defamation law in each country, do the looser restrictions in the United States promote a higher standard of journalism? I think not, and my view is supported by a number of academics who concluded that having fewer restrictions on what can and cannot be published doesn’t increase the output of quality reporting for the public concern, but opens up a world wherein the media can report practically anything so long as the defamed can’t prove they acted with malice or disregard for fact-checking. Marjoribanks and Kenyon (2003) quoted an anonymous journalist who said “It inherently seems to me that the US media can say things that simply should not be published. And that leads to sloppy journalism”. I cannot disagree.
Casebriefs. 2015a. New York Times Co. v. Sullivan. Accessed April 12, 2015. http://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/defamation/new-york-times-co-v-sullivan/
Casebriefs. 2015b. New York Times Co. v. Sullivan. Accessed April 12, 2015. http://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/defamation/new-york-times-co-v-sullivan/2/
Casebriefs.com, 2015c. Hustler Magazine v. Falwell. http://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/privacy/hustler-magazine-v-falwell/
Donnelly, R. History of Defamation. Wisconsin Law Review, 1949. Vol. 1949(1). P. 99, 104.
FindLaw Australia. 2015. Do we have the right to freedom of speech in Australia? Accessed April 12, 2015. http://www.findlaw.com.au/articles/4529/do-we-have-the-right-to-freedom-of-speech-in-austr.aspx
Hustler (Nov, 1983). © 1983 Hustler Magazine, Inc.
Kenyon, Andrew T. 2004. Lange and Reynolds Qualified privilege: Australian and English defamation law and practice. Melbourne University Law Review.
Kenyon, Andrew T. 2010. Investigating Chilling Effects: New Media and Public Speech in Malaysia, Singapore and Australia. International Journal of Communication 4. pp. 440-467.
Linder, D. 2014. The Falwell v Flynt Trial (1984). University of Missouri-Kansas City. http://law2.umkc.edu/faculty/projects/ftrials/falwell/trialaccount.html
Marjoribanks, T. & Kenyon, A. T. 2003. Negotiating News: Journalistic practice and defamation law in Australia and the US. Australian Journalism Review. Vol. 25(2). P. 31-49.
Rolph, D. 2014. Hockey’s defamation suit shows need for wider free speech debate. The Conversation. http://theconversation.com/hockeys-defamation-suit-shows-need-for-wider-free-speech-debate-27057
Smolla, R. 1987. Dunn & Bradstree, Hepps, and Liberty Lobby: A New Analytic Primer on the Future Course of defamation. Georgetown Law Journal 1519 at 1528.
The Law Handbook: Your practical guide to the law in Victoria. What is defamation? 2.4.2 Defamation. Fitzroy Legal Service Inc. 2015. http://www.lawhandbook.org.au/handbook/ch24s02s01.php
Tobin, John. 1994. The United States public figure test: Should it be introduced into Australia? UNSW Law Journal. pp. 388, 389, 392
Defamation Act 2005. Sections 25-33. http://www5.austlii.edu.au/au/legis/wa/consol_act/da200599/s28.html
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
New York Times Co. v. Sullivan (1964) 372 U.S. 967 84 S. Ct. 1130 12 L. Ed. 2d 83 1964 U.S.
Rosenblatt v Baer (1966) 383 US 75 at 85 quoting New York Times v Sullivan 376 US 254 at 283
Theophanous v Herald & Weekly Times (1994) 182 CLR 104.