Understanding defamation law in Australia: An Overview

Transcript:

Welcome everyone, as you all join our zoom event for this evening, and good evening to everyone joining a really really warm welcome to the 1st of our spring. Justice talks in our Justice Talk series for the Brennan Justice and Leadership Program.

Tonight we are hearing from our esteemed guest, Professor David Rolfe, who is Australia's preeminent expert on defamation and media law, and who will be giving us a very ambitious overview of defamation law in Australia as an introduction to the topic

for those of you I haven't met. My name is Associate Professor Anthea Vogel. I am a permanent faculty member here at UTS, and I'm also the faculty co-director of the Brennan Justice and Leadership Program.

I am joined tonight by a few key members of our Brennan team, Mayan Granot, who is one of the student co-directors of the Brennan justice and leadership program, and who will be familiar to many of you Bec Keen from our student programs, team and Monica Reid, our academic services manager.

and a number of fellow members of the Faculty and Brennan Justice Management Committee and of course, our special guest for this evening, Professor David Rolfe. So a warm welcome to you, David.

Thank you.

Before we launch into today's proceedings. I want to begin with an acknowledgement that the UTS Faculty of Law, where I currently am, is situated on the unceded lands of the Gadigal people. We pay respect to their elders, past and present, acknowledging them as the traditional owners of this land. We acknowledge that these lands have always been places of law, and today exist within plural legal worlds.

As I often note at the beginning of our, the acknowledgement of country couldn't be more relevant to the Brennan justice and leadership program, with its primary concern with contemporary questions of justice, and very frequently indigenous justice and sovereignty in the kinds of things that we present on and talk about in the program

Before we launch into official proceedings. I'll go through some very light zoom housekeeping, which will be familiar to most of you attending, I'm sure. Most importantly, this zoom is being recorded, but only for teaching, learning and the purposes of the Brennan justice program, and only those of you who pop your video on or who speak will be included in the recording tonight.

I want to note. There will be time for some questions at the end, and we really really encourage you to participate and put your questions to Professor Rolfe while he is with us as an expert in this area.

At the end of the talk Mayan will open up the Q. And a. Please feel free to pop some questions in the chat, though, as the talk is going on once the Q. And A. Is open, feel free to raise your hand, and even dare I say it? Turn your video on in order to pose a question, but you can also pop some questions in the chat at the end of the presentation too.

Lastly, your ROJ points will automatically accrue for attending tonight's presentation. But if your name on Zoom is at all different to your Uts student name or your name is registered in careers. Hub. Please just send Beck Keen a private message throughout the talk to let her know the name that you're registered under in careers. Hub.

Now that our housekeeping settled, I would like to introduce Professor Rolfe in a little more detail to you all.

David is a professor of law at the University of Sydney Law School, and an academic member of Level 22 chambers.

He is the author of multiple books on all areas of media media law, including contempt. 2023, and very recently, and with warm congratulations.

Rolf, on defamation 2024.

He is one of the contributors to Gatley on libel and slander, and is the editor of Landmark Cases in Defamation law.

Professor Rolfe is one of the editors of the New South Wales Law Reports, and he's also a fellow of the Australian Academy of Law.

David, again. Thank you for joining us tonight, and after hours we really appreciate how busy you are, and taking the time to at least virtually visit the Uts Law students with us this evening, and, as you can see, it has been an immensely popular event and topic. So it's a real pleasure to hand over to you to present to the students.

Thanks so much, Anthea, and it's lovely to be here talking about a topic that has fascinated me for such a long time. Defamation law.

What I want to do over the course of the next half hour or so is to provide you with a sort of overview of the tort of defamation. And you know, I'll illustrate that through obviously reference to a number of cases, particularly sort of current cases as we go along. But, as Anthea said in her introduction. It will be really useful for me

if there are particular questions about particular cases or particular issues of defamation law. If you raise those. And I'm more than happy to sort of answer that in Q&A.

So what is defamation law? And what is defamation law concerned with so defamation law is in the Australian legal system overwhelmingly a form of civil liability. It's overwhelmingly experienced as a torch

for a lot of the history of defamation law. It was also a crime. There is still in New South Wales and most other jurisdictions in Australia, a form of criminal defamation in the criminal legislation. So in New South Wales you can find it in Section 529 of the Crimes Act of 1,900. But there have been

no prosecutions in New South Wales for decades, and so overwhelmingly. Defamation law is, as you would know, from your consumption of the media experienced as a form of civil liability. People are sued for damages for defaming people. And so we're really going to focus on the tort of defamation.

If we were talking about what the interests are that are protected by the tort of defamation. We would say that the central interest that's protected is reputation.

But that's not the only interest that's implicated in the tort of defamation. So it's really basic to the common law that the tort of defamation seeks to balance on the one hand, the protection of reputation against freedom of expression and freedom of the press.

Now, one of the things that I think is really interesting about defamation law is that different legal systems, even those that come from the sort of common law tradition can strike a very different balance between those 2 competing interests. So, for instance, a number of you would be aware that in the United States, as a result of a landmark decision of the Supreme Court of the United States in 1964, a case called New York Times and Sullivan.

The balance between freedom of expression and the protection of reputation in the United States is decisively different. The 1st amendment is given. The 1st amendment of the Constitution really protects freedom of speech

at the expense of the protection of reputation. So in the United States from 1964 onwards. If you're a public figure, and that concept is very broadly defined.

you have to prove that what has been published is false, and that what has been published was done so with the technical term is actual malice. So the publisher either knew that what was being published was false, or was recklessly indifferent as to whether it was true or false.

That then, means that it's very, very difficult for anyone with any sort of public profile to sue for defamation in the United States. By contrast, in Australia, as we'll come to see

to a lesser extent in places like the Uk and Canada and New Zealand. It's much easier for anybody to sue for defamation, including very high profile people so different jurisdictions, even from the same legal tradition, can strike a really different balance between the protection of reputation and freedom of speech and freedom of the press.

Now the concepts of freedom of speech, I think, and their justifications, I think, are fairly well known to people, and there are lots of

intellectual ways in which we can think about the importance of freedom of speech and the justifications for freedom of speech. But one of the things that I think is really interesting about defamation law and somewhat problematic is that the concept of reputation is not really very well defined.

And so one of the paradoxes about defamation law is that defamation law has been part of the common law. For 800 years it originated in the ecclesiastical jurisdiction the church courts eventually taken over by the royal courts. But there's a sort of 800 year history of protecting reputation in the common law.

But

there's never really been a very satisfactory definition of what reputation actually is. And as we'll come to see that becomes slightly problematic because defamation law is very well developed, very entrenched as a cause of action. But it's not very coherently or well defined as to what it's, in fact, protecting. So to the extent that the common law thinks about what reputation is, it thinks about reputation as essentially what other people think of you.

And so one of the things that I've always found really fascinating about defamation law is that it seeks to use the law to secure people to think well of you, which

law seems to be a rather imperfect instrument to actually achieve that.

But the important point there about reputation being. What other people think of you is that it's not what you intrinsically are. And so there's a distinction between reputation. What other people think of you which is the subject, or the object of defamation law, and your character, or your essence, or your persona, who you are, sort of privately, reputation is really

the public self. And that's really what defamation law is concerned with. And so, as we'll come to see that basic feature of defamation law that there has to be some sort of damage to what other people think of you

informs a number of basic propositions about defamation law which makes defamation law rather weird. One of the things when you start to look at defamation cases is that

you'll see judges talk about the complexity, the technicality, the artificiality of defamation law, all of those are fairly well based charges. Non-specialist judges often don't like dealing with defamation because it's complex and technical and artificial, and they think that they'll get something wrong, and from time to time they do because of the complexity, the artificiality, the technicality of this area of law.

and one of the things that, I think, is really problematic about those sorts of things. It's nice for someone like me to sort of have this as an intellectual enterprise and sort of master, a difficult area of law. There's a sort of satisfaction that you get about those sorts of things. But actually, if you think about it.

everyone has an interest in their reputation. What other people think of them? Everybody has an interest in freedom of speech.

These are really fundamental sort of interests that everybody in our society has an interest in.

And if the law is complex and artificial and technical, that's a real problem, because the law is then inaccessible. And of course, one of the things that we might talk about is that that's then compounded because the complexity, the technicality, the artificiality of the underlying law means that you have to get a specialist lawyer means that there are more likely to be disputes. And so you will have heard. And again, it's a justifiable aspect of defamation. Law's reputation.

That defamation law really serves the interests of the rich and powerful quite well, and is much less accessible for ordinary people. And that's a real problem, because, as we've already mentioned, everybody has an interest in their reputation. Everybody has an interest in freedom of speech.

so defamation law is concerned with reputation, rather sort of defined in a fairly woolly, rough, and ready sort of way

and freedom of speech and freedom of the press, and seeks to balance those sorts of interests, and for a long period of time, and I think even still, it's fair to characterise Australian defamation law as being fairly plaintiff, friendly and less friendly to defendants, as we'll come to see. There have been some recent reforms that even things up a little bit, but some of those are still really being tested.

So just so that we're all on the same page. Where does defamation law come from? So we've already talked about defamation law being a tort, so the source of law for defamation law is the common law, so it arises at common law, but there has been very substantial modification of common law principles by State and Territory legislation.

and in

New South continuously since 1847. In other jurisdictions that's been more recent. So what we're really dealing with here is a common law taught substantially sort of affected by State and Territory law.

One of the things that we should also talk about in Australian defamation law, which is important, and a sort of very current issue is the uniformity of defamation law in Australia.

So

Until 2,005. In Australia there were 8 different State and Territory defamation laws.

and they were substantively different. So in New South Wales you had the common law, substantially modified by statute

in Queensland and Tasmania, and some other jurisdictions. From time to time Sir Samuel Griffith, the former Chief Justice of the High court when he was a Queensland State politician, he had proposed and enacted a code for defamation.

and that had been adopted in Queensland and Tasmania. So there were certain jurisdictions that had codified their defamation laws. Then there are other jurisdictions like South Australia, Victoria, and Western Australia that just allowed the common law basically unaffected by any statute to sort of evolve. And so he had this weird thing

where by the middle of the 20th century, when national newspapers, national radio and then national television began to emerge. In Australia you had 8 substantively different defamation laws for a jurisdiction that only had, you know, 15 million odd people at the time.

and of course, that just meant that the costs of media, the cost of litigation, were really increased by that sort of legislative diversity, or the legal diversity amongst those sort of jurisdictions. There really was no sort of rational reason why you should have an outcome in one jurisdiction being different to an outcome in another jurisdiction in a country like Australia, where you had

national media, and of course, by the last quarter, or certainly the last decade of the 20th century, when Internet publications came about which are sort of notoriously not respectful of territorial boundaries, this problem became even more acute.

And so from the late 19 sixties, early 19 seventies onwards there was about 40 years of agitation to try and get

uniform laws introduced into Australia, because that just would seem to be a sort of rational thing to do. And you know, in that process Michael Kirby, when he was at the Australian Law Reform Commission, attempted this Bob Hawke, when he was Prime Minister in the 19 eighties, held a Constitutional commission which

proposed the suggestion that the Commonwealth Constitution be amended to include for the Commonwealth Parliament, the legislative power to legislate with respect to defamation that suffered the same fate as most other referendums in its Federation.

There were then attempts, among sort of attorneys, general between various sorts of states, to try and enact this and that sort of happened sort of over a number of decades. But the way in which

we got in 2,005 and 2,006. The basis for the current laws that we've got the national uniform defamation laws was a quirk of politics. So we're in the last term of the Howard Government and the Howard Government becomes the only Liberal National party government in Australia. All the States and Territories are Labor party governments.

And so Philip Braddock, who is the Attorney General in the last Howard Government, decides that he's going to do defamation law reform. And so what he does is he produces this particular proposal.

which he gets. Advice from his department will cover about 88% of defamation cases in Australia, and says the Commonwealth's going to legislate this defamation law. And if you don't like it, then you need to get together and come up with something else, and so nothing clarifies the mind like a thresh.

And there were some weird quirks in the Commonwealth proposal from Philip Ruddock. So one of the basic things in defamation law is that you can't defame the dead. So, as you might know from your study of torts, the common law rule is that the cause of action dies with the person.

and that's been overcome by legislation, which allows for survival of causes of action in tort defamation is an exception to that, and so you can't defame the dead. So once someone dies, all bets are off. You can say what you like, you're only constrained by good taste.

and one of the things that Philip proposed in his version of defamation law was that deceased estate should have 3 years to bring claims for defamation. The living were only going to be allowed one year under the limitation period, but the dead were going to be allowed 3 years. So you went from a position of the dead, couldn't sue to the dead, had a reputation that was 3 times as important as the living.

All this did was that in 2,005, and into in 2,005, the States and Territories got together and very hastily put together model defamation provisions which they enacted, and they came into effect on the 1st of January, 2,006 in all of the States, and slightly later in the Territories.

But of course, one of the problems in legislating, in haste. And it's a sort of textbook case for how not to do law reform is that you don't actually sort of reflect on the sort of substance of the legislation, and whether you're getting things right. So the focus there was very much on getting uniformity.

So that then gave what was substantially uniform defamation laws to Australia.

There were a number of problems with that legislation. So the legislation was passed. A year after Facebook came into existence, and the year before Twitter came into existence. And so, as you can imagine, in the intervening sort of 2 decades, we've had significant technological developments. And so one of the real problems. And we might want to talk about this is in drafting sort of legislation for technology that's developing really rapidly.

How do you actually draft that in a way where you might be overtaken by technology? So eventually there were moves to have reforms, and the reform process was commenced by New South Wales in 2019, and has not really, in fact, concluded

there were 2 stages of the reforms to the national uniform defamation law. So most of the reforms took effect. In 2021.

The second wave of the reforms took effect last year in most jurisdictions, but one of the things that has occurred is that not everybody, not every jurisdiction, has got on board with all of the reforms, and indeed, not every jurisdiction. There is at least one jurisdiction, western Australia, which has not enacted any of the reforms.

And so what we've now got is a position where defamation law in Australia is less uniform than it's been before. So we've sort of started to go back to a Pre. 2,005 position.

So that's the sources of law.

So because we're dealing with a torch

what you've really got here in terms of structure is, what does the plaintiff have to establish in terms of liability. What are the defences that the defendant

we'll be able to use to avoid liability? And then what remedies? If the plaintiff establishes liability and the defendant can't establish a defence. What are the remedies that might flow from that?

And so I might sort of just give you a sort of bird's eye sort of overview of these. So at common law, if you were a plaintiff, you had to establish 3 elements of the tort.

so you had to establish that there was something that was defamatory of view

that identified you, and that was published. And so publication. There is a technical term which means that it has to be communicated in a comprehensible form to at least one person other than the plaintiff.

and one person was sufficient, because at that point your reputation, which, remember, we've defined as what other people think of you can be affected.

So one of the things about publication at common law is, it's no defamation if you tell someone to their face what you think of them.

So if you say if you think that someone is a funder of terrorism, or a paedophile, or a murderer, and you tell that person to their face that that's what you think of them, and no one else hears that will be distressing that will upset them that might offend them. But it won't affect what other people think of them. It won't affect their reputation, and therefore publication to the plaintiff themselves is no publication for the tort of defamation.

Again, one of those sort of weird quirks of the common law approach to defamation.

so there needs to be publication in that sense. And so, of course, as you should already sort of tweak publication in most defamation cases, is not really a problem if something's put on the front page of the Sydney Morning Herald website. Clearly, there's been publication that's fairly easy to establish.

Identification in most instances is also not a problem, because if someone names you directly, if they actually publish your name, then you're identified, there's no problem. You can be indirectly identified, and people might have questions about that. The requirement is just that the ordinary reasonable reader needs to be able to identify you reasonably from what's been published.

So in most defamation cases the major sort of issue is whether or not something has been defamatory has been published about you.

and so that involves 2 things. What do the words mean, and what do they say about the person's reputation? And so this is where defamation law starts to get its reputation for complexity and artificiality, because defamation law proceeds in determining defamatory meaning on the basis

of the ordinary reasonable reader. So, just as in negligence you construct the ordinary person in defamation law. You construct the ordinary reasonable reader who's got all these sorts of characteristics. They have some general knowledge about how the world works. They have some knowledge of worldly affairs, but they're not sort of overly suspicious. They're not overly sort of

naive. It's a sort of halfway point between the 2 of them. But the ordinary, reasonable reader, we're told in the case. Law does 2 things. They adopt a uniform view of language, so a defamation law thinks that there is a single meaning to be ascribed to the words, which is, that the defendant has published.

And this idea of the single meaning rule is the basis of defamatory meaning and defamation law, and in respect of any sort of imputation, the ordinary reasonable reader also adopts a uniform moral or social standard.

So.

even though the reality is that quite reasonable people can read exactly the same set of words and reasonably interpret them to mean different things. Defamation law says, for the purposes of imposing liability, there is a single meaning

that the ordinary reasonable reader would ascribe to the words, and even more so in a plural society that we live in. Reasonable people can have different views about whether or not something is disparaging of someone's reputation. But again, defamation law says, there is only one uniform moral or social standard.

You don't judge by sort of sections of the community. There is a uniform moral or social standard that is embodied by the ordinary reasonable reader or listener or viewer, or now, social media user.

And that's the standard that we apply.

And so you can see immediately that that involves a high degree of artificiality, because it doesn't actually bear out what happens in the way in which people actually experience reputation about the way in which they think about others, which is far more nuanced and far more complex.

So one of the reasons that defamation law, I think, is so flexible

is that there are multiple different ways in which, or multiple different tests for what is defamatory. So there's no sort of single test for what is defamatory.

So the usual sort of test, the one that has sort of historically commanded support is that you publish something that tends to expose the plaintiff to hatred, contempt or ridicule.

The problem with that sort of formulation is that those are sort of fairly extreme emotions.

One of the things that I think is important to note about this formulation is that

I pointed out that it's the tendency of the publication to expose the plaintiff to those sorts of emotions. A plaintiff doesn't have to prove, or at least at common law didn't have to prove, that it actually caused people to hate them or to view them contemptuously, or to be ridiculed by other people. It was sufficient that what was published had the objective tendency to do that

which makes it even easier for a plaintiff to establish that they've been defamed

so that tended to be superseded by a sort of general test, that what is defamatory is something that tends to lower the plaintiff in the estimation of right thinking members of society, or ordinary decent folk in the community taken in general.

Now, the idea there, which I think, is really important and fundamental to defamation is that

it involves not just saying something false about someone. It actually has to be disparaging about someone's reputation and the disparagement of reputation is ordinarily the sort of essential feature of what is defamatory.

So, for example, if you say that a person is dead, and that happens to be false. They're quite alive. There may be sort of consequences that flow from that, but no one would think less of you because you are dead. So defamation is not just a false statement about someone. It has to be false and disparaging of their reputation.

What other people think of them. And that's usually the essential requirement of defamation. And that's certainly a characteristic of those sort of primary tests that I've touched upon. There. There's another test which is basically anything that tends to be a false statement to a person's discredit

is a good working test for what is defamatory. And it's a test that really hasn't commanded as much of support as it ought to have.

But I point out that they are the sort of primary test, because then there are 2 other tests which don't require disparagement of reputation. So if you publish something that tends to lead the ordinary reasonable reader to shun and avoid the plaintiff, even if it doesn't disparage their reputation.

then that can be defamatory. So there's a controversial case from 1934, called Yusupov and Metro Goldwyn-mayer pictures in which a Russian princess, living in exile in Paris, claimed that she'd been defamed by a picture

released by Mgm.

Which had a fictionalized version of her. She was the wife of the prince who owned the estate where Raspution was eventually killed.

and the case suggested that she had been raped by Raspution, and in that particular case the court held that even though the ordinary reasonable reader, as at 1934 wouldn't think less of a person for that allegation being made about them. The ordinary reasonable reader might shun and tend to shun and avoid that person.

That particular imputation has been rejected in New South Wales in 1998.

But other sorts of cases over the history of defamation law, where shunning and avoiding have been used allegations of mental illness, or contagious or infectious disease. So there are a number of sort of imputations that have historically and still there was a case of mental illness in a case called warns and forgers back in 2020 in the Uk, where the High Court of Justice affirmed that that could still be defamatory of someone on the basis of shunning and avoiding.

So that's another test for what is defamatory.

even if you don't disparage someone's reputation.

And then the other test is exposing a plaintiff to more than a trivial degree of ridicule. So if you make someone look stupid,

even if it doesn't disparage their reputation, then that can be defamatory, and that's been part of defamation law since at least the sort of 17th century. So defamation law doesn't really have the greatest sense of humour. It can be somewhat po first, st about those sorts of things.

So

at common law, you simply had to demonstrate as a plaintiff that something defamatory had been published about you that identified you, and that would be sufficient.

And at common law. Once you'd done that, there were presumptions that arose, it was presumed to be false. So the defendant had to prove that it was true, and it was presumed that there was damage to your reputation. So the plaintiff didn't have to demonstrate that they actually suffered any damage to their reputation. The burden was really on the defendant.

From 2021 across most of Australia, except still in the Northern Territory and Western Australia. There's now a requirement that a plaintiff demonstrates serious harm to reputation.

and so the effect of that is that the presumption of damage to reputation has now been abrogated, and so a plaintiff now up front has to demonstrate

that there's evidence that people have changed their views about the plaintiff. And so that's actually making things

much more difficult for plaintiffs. And so that's sort of evening up the playing field. We sort of talked about how the reputation of Australian defamation law was that it was very plaintiff friendly. Over the last few years. Things have started to even up a bit, and we'll see how that sort of continues to evolve, because we're starting to get more cases about what serious harm means.

But the whole purpose of serious harm's reputation is to actually put a barrier in place to make it harder for plaintiffs to be able to sue for defamation.

All right. So what do defendants have to prove by way of defenses. If you've seen the document, I've listed there a range of defenses, but broadly. If we think about defamation defenses, there are 3 major sort of categories of defence, so the best defense ever is the defence of truth. Truth is a complete defence to defamation.

The technical term for that in defamation is justification.

So when someone talks about justifying a publication, what they're saying is that they're proving it to be substantially true. So it doesn't have to be strict or complete accuracy. Substantial truth

is sufficient. So there's a great 19th century case called Alexandra and Northeastern Railway, where a man. This was when private railway companies would publish in their timetables tables of fine defaulters. So Mr. Alexander didn't pay for a ticket and was picked up, and it was had in the timetable

the fine that he was going to have to pay, and in lieu of which it said that he would have to go to prison for 3 weeks if he didn't pay the fine. In fact, it was 2 weeks. That was the term of imprisonment in lieu, and he sued for defamation on the basis that this was defamatory of him, and the court understandably said, What's the difference? One week, 2 weeks, 3 weeks in prison.

That's the default. If you don't pay your fine, that's substantially true. Go away.

So justification is a complete defense. The truth is a complete defense, and the underpinning theory of that

is that you are entitled to protect only the reputation that you deserve. So if you tell the truth about someone, and they have had a good reputation for a long period of time.

You don't injure that person's reputation. You simply recalibrate it down to the level that they ought to have enjoyed. And so we've had some very high profile examples. So Ben Robert Smith is an example of this. Bruce Lehriman is another example of this, where the truth defense has succeeded.

it's actually very difficult, as you might appreciate, to prove that something's true. So particularly if you've got confidential sources

also. And this was a live issue in both Leriman and Robert Smith. You've got the Brick and Shaw section 140 issue. The more serious the allegation is the more cogent the proof and the state of satisfaction. You'll need to have to establish serious allegations. But truth is a complete defence, and practitioners will always tell you that if you can prove that something is true, that is the best offence that you can have.

the other category of defence is fair comment, or, as it's known under statute, honest opinion. So one of the things that defamation law does is draw a distinction between statements of fact which can be proven to be true, and statements of comment which can be protected by defences of comment or opinion. So the defence of fair comment, I think, is important at the level of principle, because

the theory underpinning fair comment is, you're allowed to express whatever view you honestly hold about matters of public interest, and you can express them publicly, and so long as you get your facts right, you're entitled to whatever view you like, so you have to honestly hold it, and you have to be able to base that on facts that are truly stated.

But once you've satisfied that that you honestly hold the view, and you've got your facts right. It doesn't matter how prejudiced or willful, you know, seemingly irrational your view is, you're entitled to your view. So Justice Diploch, when he was a trial judge in the High Court of Justice, very famously said that this is a defence to protect the crank and the enthusiast.

The problem, of course, is. When you translate this into application, the defense becomes very technical.

and there are often sort of snares and the snare, I think, for most people in a defence of fair comment or honest opinion, is the factual basis of their opinion, proving that what they have published is, or the underlying facts are substantially true.

So defences of fair comment often fail because of the technicality of the defence, but at the level of principle it's supposed to be an important defence to protect people's expressions of views on matters of public interest.

The intermediate category is defences in the nature of privilege, and so the defences in the nature of privilege, say, well, look.

you obviously have a right, as the plaintiff, to protect your reputation, but there are certain occasions where there are public interests which should prevail over the right of an individual to protect their reputation.

And so, even though you've been defamed, there's a higher public interest, and so broadly. There are 2 categories of privilege, absolute privilege, and qualified privilege

and absolute. The adjectives here do their work, so absolute privilege is absolut because it doesn't matter what the defendant's motive is, the privilege can't be lost.

So the sort of common examples of absolute privilege that you'd be familiar with are people making statements during the course of parliamentary proceedings, or people making statements during the course of judicial proceedings. So obviously the arrival of the administration of justice and parliamentary democracy are the justifications for those occasions being privileged.

But outside of that there are other examples where, even though they're not absolutely privileged, the law recognizes a form of qualified privilege that attaches to the occasion of publication.

And so you have a number of different varieties which I've sort of listed there, some that occur via statute as well.

but the essence of all of those is that

the occasion is privileged for a purpose, but it can be lost if it's either exceeded or abused. So the most common way to sort of think about the abuse of the occasion is the common law concept of malice. So if someone has a dominant improper motive.

then they can lose the benefit of these forms of qualified privilege. So just to give you an example of a really common example of common law qualified privilege in particular.

From the 18th century onwards the common law has protected the giving of a reference. So it's in the interest of the prospective employer to have the candid view of a former employer about the suitability of a prospective employee.

The former employer is not going to give a candid reference about the prospective employee if they're going to expose themselves to liability for

defamation. So from the 18th century onwards, the law has said.

you can give a candid view about your former employee.

and unless you've got a dominant and proper motive, unless you've got a motive that you want to injure that employee, and that's your dominant motive.

and the plaintiff would have to prove that that was your dominant motive.

Then you have a complaint defence, so

you have privilege, then, which operates to provide a defence in circumstances where there is a greater sort of societal interest that's been identified. And so this informs things that grow out of privilege.

common law qualified privilege. So a really important one which I've referred to. There are fair reports of proceedings of public concern, so media outlets are able to report on proceedings of public concern.

So what occurs in Parliament, what occurs in court?

The media reporting of that is not absolutely privileged in the way that the proceeding itself is but.

It's got a form of qualified privilege that can attach to us until we're at quarter 2.

Yeah, very mindful of time. So I'll just say something briefly about remedies. So, notwithstanding the fact that

for a very long period of time. Law reformers have tried to move away from damages as the principal remedy. Damages are still the principal remedy for defamation before the national uniform defamation laws were introduced in 2,005 damages for defamation were at large.

so there was no cap on damages.

One of the things that was introduced in 2,005 is that there's now a cap on damages for non economic loss. So in most defamation cases, the only head of damages usually sought and awarded are damages for non-economic loss, and that comprises damage to reputation and injury to feelings. But you can also get aggravated damages and defamation, and that can exceed the cap.

You can't get exemplary damages for defamation, but you may have heard about cases involving people like Rebel Wilson or Jeffrey Rush, where they get multi-million dollar payouts. The largest component of their defamation damages were damages for economic loss. And so, if you suffer an actual pecuniary loss as a result of something being published about you.

You can plead and prove that, and recover that.

and importantly, damages for economic loss are not capped

in terms of the other remedy that we might touch on injunctions. You can get a permanent injunction as part of final relief now. And that's become really, really important

in online defamation publications so often, you'll have private individuals now being sued for defamation for online publications, and you know you can order them to pay $300,000. But they will say I don't have $300,000. I will never be able to pay that, even if you bankrupt me, I'll never be able to satisfy that.

And so and I'm not intending on stopping. So I'll get back online and just keep saying what I've been saying before. And so permanent injunctions have become important as a result of that, because the consequence of that is that if someone breaches the permanent injunction, you can then deal with them for contempt

the other aspect of injunctions. And this is the last, the point that I'll end on

one of the ways in which defamation law is actually respectful of freedom of speech is that it's very difficult to get an injunction to restrain someone before publication.

And so this has been the case since 1891. There's a case from the Court of Appeal in England and Wales, called Bonnard and Perryman. And basically you can't get an injunction to stop someone publishing. And so the Duke of Wellington sort of dictum that you publish and be damned is really a reflection of the way that the Commonwealth has approached these sorts of things. So

you basically have to wait for the matter to be published, and then you can sue for defamation. You may or may not win. But one of the reasons that the common law has taken that view is that there's been a sort of historical aversion to what's called previous or prior restraint. If the law stops you from publishing something, it may be that what you are proposing to publish is not defamatory, in which case

the law has intervened very grossly to interfere with your freedom of expression. All right. I've banged on for far too long.

Hopefully, people have questions very bird's eye view.

 

Maayan Granot: For everyone. If you'd like to ask a question, you're welcome to put your hand up in the chat or ask something in the chat, if not happy to start us off with a question that I have, if no one else has something.

 

Maayan Granot: Okay. Well, put your hand up. Yes. So the person who has the hand up welcome to ask your question. You can just unmute yourself or turn on your camera whatever you're comfortable with.

Oh, sorry I had.

I had difficulty hearing that.

I did, too. Who, too? Maybe you could put your question in the chat because we're having a little bit of trouble with your audio. If that's okay.

 

Maayan Granot: Otherwise I'll ask Emma for that question.

 

Emma McGlinn: Hi, David, thanks for your talk. That was really, really interesting. I'm actually doing defamation law tomorrow. So I've got a nice head start.

 

Emma McGlinn: Yeah, I was just wondering what case interests you the most. Probably in the last decade with media law. I feel like the Ben Robert Smith case has been

 

Emma McGlinn: very interesting. But there's also been like a number of other cases like the Christian Porter case, the Lerman case. What was most interesting for you as an academic.

Well, for me. The Ben Robert Smith case, I think, was interesting.

Because the strategy there was a really

really interesting one. So in Ben Roberts, in the Bruce Lehriman case you have truth, and then a fallback defence of statutory qualified privilege.

and, as you may know the truth, defence gets up. So Justice Lee finds that Leriman has raped Brittany Higgins, but he also finds in relation to statutory qualified privilege that Channel 10 didn't act reasonably in the circumstances of publication. And so those are the issues that are going to be teased out in the appeal come, August.

But what I thought was really interesting about the Ben Robert Smith case, apart from the obvious, is that as part of the sort of media strategy there, they only relied on truth, there was no fallback defense. And what was really interesting about that to me is that the focus? What that meant then, forensically, was that the focus was entirely on Ben Robert Smith.

and whether it was true or not about him.

and the difficulty, of course, is, whenever the media rely on a defence like the public interest, defence, or statutory, qualified privilege, because that turns upon the reasonableness of their belief or their conduct.

their conduct. Their belief is under the microscope, whereas the forensic decision of just pleading truth, which is really high stakes.

you know, decision on the part of what was then Fairfax Media meant that for weeks. For all of the 140 odd days of the trial the whole focus was on, whether it was true or not that Ben Robert Smith was a war criminal and a murderer, and committed domestic violence, and I think that that was a really I mean it was a high risk strategy, and it clearly paid off. But it was sort of very interesting to see a media outlet

do that. And I think that that's why I think that was

that for me was a sort of fascinating case.

I hope you enjoyed affirmation all this semester, too.

 

Emma McGlinn: Oh, thank you so much that was so interesting. Hopefully, we can get you as a guest speaker again.

 

Maayan Granot: Thank you, Emma, for that question. Tracy, when you're ready.

 

Tracey Booth: Thanks so much, David. I found that absolutely fascinating.

 

Tracey Booth: I want to give you some power.

 

Tracey Booth: and I want you to assume that you can change the law tomorrow. One aspect of defamation. So what would that be? Why and how would you do it?

Well, after a decision that was handed down late this afternoon.

 

Tracey Booth: Wow!

I think I would go back and reform the limitation period to actually make us, you know, much more effective. So the limitation period is one year for defamation, but

because of a quirk of defamation law which we didn't go into. Every communication of a defamatory matter to a new person is a fresh cause of action. And so in the sort of online world, that's a huge problem, because every time there's a new recipient, there's new publication.

So there was an introduction a few years ago of what was called a single publication rule, which said that the cause of action should accrue from 1st publication, and would then just be a year. But there's a sort of now a sort of long stop of 3 years. If the judge thinks that it's just unreasonable to extend it.

And that just and reasonable sort of test, I think, is actually watering down the one year Limitation period, which I think is a bit of a problem, and I would think that we should actually reintroduce a higher threshold, or just have a simple one year, because, I mean, there's just so much material out there that you know if

the most damage done to someone's reputation is, as at the time of 1st publication.

and it shouldn't be the case that people many years down the track should be able to sort of say, well, you know, this popped up on the Internet.

even though it was sort of 1st published, you know, many, many years ago, and then still be able to sue.

and I think that that is the most that would be something that I would think would be the most sort of sensible reform, because, you know, reputation is a fundamentally dynamic interest. It's a sort of weird thing to try and get the law to secure someone's good view of someone. But also.

you know, as you go through life, you can change your own reputation as you do different things, your reputation changes and shifts. So the idea that your reputation will be forever static because of what people say about you, I think, is a sort of weird one. So I think a sort of hard one year limitation period

to keep liability within sort of sensible bounds would be, you know, sensible, prior to the sort of national uniform defamation laws. Back in 2,005 it used to be the general Tort Law limitation period of 6 years. So people

and 64 days after publication, they'd commenced the proceedings. And so, you know, we can't go back to that sort of.

You know that sort of position. That's just silly. So I think that would be what I would do.

 

Tracey Booth: All right. Thank you.

 

Maayan Granot: I'll ask some of the questions that are in the chat now. But Anak asks, are there any Australian cases involving cross-border defamation similar to the current of Bridget, Macron and Candace Owen cases. And then how do the courts determine jurisdiction in matters involving online publications or conduct spanning multiple jurisdictions?

Right? So we have a sort of bifurcated approach to that. So under the national uniform defamation laws, if something is published within Australia.

Section 11 of the Defamation Act of 2,005 says that a court has to identify the jurisdictional area within Australia that has the closest connection to the matter, and then just apply that law. So if you've got publication across different States and Territories, then you have to identify which State or territory is the closest connection to the matter.

and apply that. So that's quite useful, because then you only have one sort of system of law.

But if you've got a sort of truly international torch, then the common law rule

that the High Court identified back in 2,002 2,003 in Renault and Zhang you have to apply the law of the place of the wrong.

And so, if there are multiple jurisdictions where the matter has been published overseas, then the law of each of those places is the law of the place of the wrong. And so there could be multiple, different jurisdictions.

So there have been some instances of that, but of cross-border defamation cases being litigated in Australia, but not a huge number of them. So you might be aware, from 2,002. There was the High Court decision in Dow Jones and Gutnik, which was the 1st case by a final court of appeal anywhere in the world about jurisdiction over Internet defamation.

And I think people thought at the time because the High Court found that the Supreme Court of Victoria had jurisdiction in that particular case that that was going to open the floodgates. But

it's been sort of barely a trickle, because litigating for defamation is expensive even in your own jurisdiction. So the sort of concept of libel tourism that people sort of talk about from time to time is something that's, I think, more of a spectre than real. Yep.

but yes, there are. There are cases involving cross-border defamation in Australia.

 

Maayan Granot: Thank you for that. I'll ask Hiroji's question as well. Now, which is that? She was wondering about what current cases in the it and AI field there currently are, and sort of what

 

Maayan Granot: one should be looking out for, and how AI and defamation are sort of interlinked in that.

Well, look, this is this is really interesting and also difficult, because

one of the things that I didn't go into was that the second part of the reforms to the national uniform defamation laws which came in into place in 2024 were dealing with digital intermediaries. So things like sort of search engines and cloud computing and things like that.

But of course they were all sort of settled in 2022 before. Of course, Chatgpt went mainstream, and so, of course, none of the thing. None of the you know. I was the academic expert on the panel advising the New South Wales Attorney General about these reforms, and

AI was not really on the radar, and so, of course, one of the sort of features of Defamation law as with other sort of areas of law is that

it's always, you know, behind changes in society and technology and things like that.

you may have heard about. There's been at least one instance in Australia where there was a threat of defamation by AI, involving Brian Hood, who is the whistleblower in the secure currency.

bribery, scandal, and he was informed that if you put his name into Chat gpt, and asked who he was, apparently he went to jail for bribery, which was not what Justice Hollingworth said in her judgment at all. In fact, she was sort of praised.

I think we're going to see more of these sorts of cases. But there are some real difficulties with mapping AI and defamation. So the dynamism of a lot of AI platforms and applications means that actually, it's going to be difficult to capture the defamatory imputation. The defamatory imputation can also change. So, proving publication, proving what in fact has been published is going to be a what has, in fact, been said about the plaintiff is going to be a problem.

But also, as we talked about now, an element of the cause of action is a plaintiff has to demonstrate serious harm to reputation, not just any harm, but serious harm, and they'll need to demonstrate that the publication caused other people to affect the way in which they think about them.

and I think the dynamism of a lot of

artificial intelligence platforms might make it very difficult for a lot of plaintiffs to be able to demonstrate that.

So it's an important issue.

but I think that, you know, given the relative novelty of the sort of technology that we're dealing with, and the rapid evolution of it.

I think, you know, we'll have to have a sort of reform process again to sort of look at those sorts of issues. Yes, at the moment they're, you know, in the too hard basket, I think I mean the Productivity Commission Report. I did a sort of, you know.

control F through that. And there's no they use copyright

as their sort of example. But there's no mention of defamation law. But yes, certainly that that will pose pose problems, I think, into the future.

 

Maayan Granot: Unfortunately, that's all the time that we have for questions today. But on behalf of the Uts faculty of law and the Uts Law student society. I'd like to extend our deepest gratitude to Professor David Rolfe

 

Maayan Granot: for generously taking the time to share his expertise and insight into defamation law today we've been so fortunate to have your insights and to hear you speak, and I know I speak on behalf of all attendees tonight. When I say that today's presentation has definitely prompted a deeper consideration and interest into defamation law and its continuing relevance. We are grateful for your time and for all of your contributions to defamation law as well.

 

Maayan Granot: I'd also like to thank Nalisha, Anthea, Sivan, Beck, and Monica, together with the entirety of the Brennan and Social Justice team for helping the administration of tonight's talk to our attendees. Your participation is invaluable, and we hope that tonight's discussion will serve as a catalyst for further engagement and reflection in social justice and within the Brennan program as a reminder to all students. As Anthea said in the beginning.

 

Maayan Granot: you've accumulated 5 roj points towards the Brennan justice and leadership program this evening, and this will be awarded internally by the faculty to your career. Hub. Make sure you get in touch

 

Maayan Granot: with Beck. If there are issues with that also, if you have enjoyed tonight's justice talk, we have our next justice talk on the 8th of September again over zoom from 6 to 7 pm. About AI. Legal services

 

Maayan Granot: questioning is our regulation ready to support the use of AI to improve access to justice? You can sign up for this via Career Hub, and we hope to see many of you there. We also have our Brennan program yarning circle with Shelley, Murphy Oates, on the 11th of August, at lunchtime. So from 12 to 1 30 pm. Here at Uts in person. So once again, thank you so much to Professor David Rolfe for taking the time to speaking to us all tonight, and thank you everyone for your attendance this evening. We hope you found this engaging.

Take care!

Well done. Thank you, Mayan, and thank you, David, as everyone streams out into their.

what day are we on.