The recent decision of McCallum J in Ray Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 982 highlights some interesting issues concerning the nature and extent of reply to attack privilege and provides an insight into libel litigation in New South Wales and the thickness of the skins of local journalists.

Sports journalist Ray Chesterton had brought libel proceedings against the radio station in respect of remarks made by radio journalist John Laws during the “John Laws Morning Show”.

The words complained of were as follows:

“Well, that bombastic, beer-bellied buffoon, Ray Chesterton, writes a column in the Telegraph called ‘The Final Word’. Well, it’s not the final word today. What’s the matter with you Ray? I mean, you know, I always thought you were a bit of a creep, but can’t you get over it?

He was fired by 2UE and he blames me for it. He’s never got over it, and he talks about the Joey Johns saga and says, “Meanwhile, the Johns saga is starting to run out of motivation. You know that when 70-year-old disc jockeys are drawn into the fray to support the argument.”

I talked to Joey Johns because I wanted to, because he’s a friend of mine, a word you probably wouldn’t understand because I doubt you’d have any, and those that you do have call you ‘Ankles’, and for very good reason.

I don’t know. Why can’t you get over it Ray? I mean, you used to enjoy going to my farm and I used to give you the house and you used to take your family and your children up there. I was very happy that all that took place. But why can’t you get over it?

Well, I suppose you have some kind of inferiority complex. Well, I have to tell you, I never met a man who deserved one more”

It might be thought that this was simply good natured abuse.  However, the jury found that the words conveyed no less than 8 imputations defamatory of Mr Chesterton, including the meaning that he was “a despicable person” on the basis that some listeners would have understood the word “Ankles” in context as a colloquial term meaning “a despicable person (lower than a cunt)”. This left the Judge with the perhaps less entertaining, but no less thorny, issues of defences and damages. As noted above, this comment focuses on the claim to reply to attack privilege.

The radio station (Mr Laws was not sued) contended that the words complained of were broadcast in response to an article written by Mr Chesterton in his weekly column in the Australian Daily Telegraph. The article concerned a Mr Andrew Johns, an Australian Rugby League player who had expressed a desire to play a game for an English football club, thereby generating a public debate about the propriety of doing so and about his commitment to his own team, the Kangaroos. It concluded:

“Meanwhile, the Johns saga is starting to run out of motivation. You know that when 70-year-old disc jockeys are drawn into the fray to support the argument resources are short and the end, thankfully, is near.” (“the Original Words”)

In the context of the radio station’s reply to attack defence, the Judge had to decide:

(1)  Whether it was necessary, in order to establish an occasion of privilege, for the person attacked to have been identifiable to at least some of the readers of that attack (Mr Laws was not referred to by name in the Original Words);

(2)  What constitutes an “attack”, and whether it was necessary, in order to establish an occasion of privilege, for the attack to be defamatory; and

(3)  Whether the concept of “proportionality” had any role to play as between the attack and the response.

There appears to have been no argument on the issue of whether words published during a radio station broadcast were, for the purposes of the privilege, published in the same forum as the article alleged to constitute the attack.

In relation to issue (1), the Judge noted (at [63]) that she had not been addressed on the issue but concluded that “it seems to be that it must first be established (as a premise of the defence) that Mr Chesterton’s article in fact identified Mr Laws as the object of any relevant remark”. This must be correct, since the point of the privilege is essentially one of self-defence – to protect the response by or on behalf of a person who reputation has been unfairly traduced. If in fact that person’s reputation has not been impugned (because he or she was not identifiable) then there is no occasion of privilege. Whether the occasion of publication was privileged has always been determined objectively.

In relation to issue (2), the Judge first determined that the test of whether there was an “attack” such as to give rise to a privileged occasion for response in the same forum is a purely objective one ([67]). The intentions of the publisher of the attack, and the way in which it was perceived by the subject, are both irrelevant ([68]). She further (rightly) concluded that the attack should be “an attack upon the reputation of a person such as to warrant the court’s being satisfied as to the existence of a right and interest in the person attacked in repelling or refuting the attack” ([75]). As a result, it was necessary to determine whether the Original Words constituted an attack upon the reputation of Mr Laws.

However, not only did the Judge conclude that the Original Words were not defamatory, she also came to the somewhat more surprising conclusion that rather than being an attack on Mr Laws that belittled and derided, the original words amounted to an acknowledgment of his popular standing and authority ([76]-[81]). At worst, the Original Words contained a quip, taunt or jibe that he is the champion of dying causes.

In relation to issue (3), the answer depended upon what is meant by “proportionality”. As the Judge pointed out at [38], the term is one of indeterminate content and reference which could apply as much to tone and choice of words on the one hand as to notions of reasonableness, relevance, and the distinctions between defence, counter-attack and offence on the other. The Judge’s consideration of the case law highlights what she described as an “unsettling” dichotomy in the form of authoritative statements both in favour of and against the notion that tone and language may be taken into account in determining whether privilege arises at all (as opposed to being evidence of malice which destroys it). McCallum J, however, agreed with the analysis of Simpson J in Megna v Marshall [2010] NSWSC 686 that excessive language and intemperance of tone should not ordinarily be brought to bear in determining whether in light of the content of the particular communication the words complained of are prima facie protected by privilege ([57]). In the event, the Judge concluded in the alternative that if she was wrong in concluding that the reference to Mr Laws in Mr Chesterton’s column was not such as to recognise the existence of a privileged occasion for a defamatory response by Mr Laws, the words broadcast were not relevant or germane to the so-called “attack”. Accordingly, the defence of reply to attack qualified privilege failed on that basis also.

When considering damages the Judge noted Mr Chesterton had identified the “Ankles” aspect as the cause “of hurt to feelings and harm to reputation” and had denied he had ever been called the term before the broadcast.  She rejected this evidence, accepting that he had acquired the nickname well before the broadcast (although the evidence tended to suggest that he had been called this because of his low rugby tackling technique rather than because of any perceived character flaw) .  However, she said it did not necessarily follow that his feelings were not hurt by what Mr Laws said.

“It is one thing to have been called a derogatory nickname at the football.  It is another to hear it embraced epithetically on talkback radio.” [106]

As a result, the fact that Mr Chesterton had (contrary to his evidence) been called “Ankles” to his face before was not fatal to his case on hurt feelings.  She awarded him Aus$90,000 (£53,000).

Lorna Skinner is a barrister at Matrix Chambers, specialising in media law.