Balancing Reputation Rights and Freedom of Speech in the 21st Century: Part 1 – Judith Gibson

Should internet publications be subject to pre-suit resolution? What about a US-style Federal Appeals Court to review all freedom of speech of decisions? New South Wales District Court Judge Judith Gibson argues the case for reform in a paper she delivered on 29 November 2010 to the Intellectual Property, Media and Communications Law Roundtable held at UTS.  The paper originally published by the Gazette of Law and Journalism  Part 2 of the paper will be published later in the week.

Introduction

2010 has been a significant year for discussion of defamation law reform in common law countries and in the European Union. In England, discussion has been dominated by the House of Commons report [1] and Lord Lester’s law reform bill [2]. In the United States, legislation has been introduced to combat ‘libel tourism’ and there are reports of use of the first amendment by credit agencies in “GFC (global financial crisis)” litigation. In Australia, legislation for the protection of journalists’ sources will go before the Commonwealth parliament[3]. In Iceland, following GFC-related litigation, legislation has been introduced which, it is claimed, will make Iceland the home for free speech in the world [4]. An underlying theme in all these reform discussions has been the fundamental changes to the law resulting from the global network of electronic information upon which actions are increasingly based.

Traditional proposals for reform in Australia, such as constitutional protection or a public figure test, are still being considered, but increasingly commentators are coming to focus on what can be identified as the two main causes of the rise in the number and complexity of defamation actions – the changing nature of publication, especially electronic publication, and the explosive growth of legal costs for defamation actions. Google’s problems in China, the controversy surrounding the award of the Nobel Peace Prize to Liu Xiao Bo and concerns about the use (or misuse) of defamation proceedings in some countries to silence political rivals or journalists show that freedom of speech issues are not bound by national borders.

Is there balance between freedom of speech and reputation rights in Australia?  This seems unlikely, as the New South Wales Supreme Court was named, in September 2010 as being the reason why Sydney the defamation capital of the common law world[5], because it was hearing more defamation cases than the courts of England and Wales combined. Nor are developing countries likely to model their legal system on countries with first amendment protection, such as the United States, if the verdicts are 15 times higher than in the United Kingdom[6]. Huge verdicts and legal costs may not be much of an alternative to a spell in Jinzhou Prison.

Issues for discussion

Where should the balance between reputation and freedom of speech be, in Australian law as well as internationally? Should Australian law reform studies continue to look at first amendment-style remedies or start again from a new standpoint, taking into account the fundamental changes to publication caused by the internet? I have looked at the following issues:

1.      Is freedom of speech an international issue, rather than a national issue? Can the chilling effect of freedom of speech in one country have ramifications for other countries?

2.   Can concepts such as firstamendment freedom of speech be transferred from Western democracies such as the United States to developing countries such as China, or are there better ways to enact reform (“legal culture” and “legal transplant” issues[7]). What impact is the internet having on the balance between freedom of speech and reputation? Should internet and electronic publications be subject to the same regimes as traditional print publications?

3.   How are courts coping with “tidal wave” of defamation litigation? Should Australia have a specialist “freedom of speech” appellate court at Federal level, as is the case the United States?

The enactment of the 2005 uniform defamation legislation in Australia has not checked the tidal wave of defamation and privacy litigation (particularly in relation to internet publications) currently engulfing our courts. The same significant increase in libel cases seen in England has been seen here, suggesting that the balance has not been achieved by present legislative reform.

1. CAN FIRST AMENDMENT FREEDOM OF SPEECH AND CONSTITUTIONAL DEFENCES STILL KEEP THE BALANCE?

To give a thumbnail sketch of the legislative framework, Australia was a patchwork of State and Territory defamation laws until uniform legislation was enacted in 2005. These reforms were largely modeled on the Defamation Act 1974 (NSW) and defences of qualified privilege and comment for media publications show only very limited change. Gillooly[8] notes that Amendments 1 – 10 of the United States Constitution, commonly referred to as the Bill of Rights, stand at one end of the scale, while Australia stands at the other end (the United Kingdom, New Zealand and Canada being somewhere in the middle), and that the question is how human rights can be protected from what he calls “the tyranny of the majority”.

Why, then, do I say that that such reforms, if introduced now, would not work? The first area of difficulty is territorial and structural:

• Rights of this kind are limited to individual countries, where publication (especially on the internet) is international, which has led to American legislation to overcome the “libel tourism” problem;
• None of the Australian commentators who support this proposal have appreciated that in the United States, where first amendment constitutional issues are raised, a heightened standard of review is employed, and an independent, de novo procedure of appeal by referral to a federal court, set up under federal constitutional law. This federal court must ensure that the entire court record is independently reviewed to make sure that the judgment of the lower court does not constitute a forbidden intrusion into the field of free expression. This procedural step is in my view an essential prerequisite for specialist judicial consideration of freedom of speech issues.

The second area of difficulty is that common law countries cannot even agree amongst themselves about the desirability of first amendment rights, which have been rejected by Australia, South Africa and Canada. In Canada, in Hill v Church of Scientology of Toronto[9], the Supreme Court rejected the public figure test on the basis that:

• The “actual malice” test had been severely criticized by American judges and academic writers;
• The number of cases, and the size of awards of damages, had increased rather than decreased;
• The test added a complicated fact-finding process to an already complex trial;
• It lengthened the pre-trial and discovery process, adding to the legal costs and placing impecunious plaintiffs at a serious disadvantage;
• It had not been adopted in countries such as England and Australia and, most importantly
• It shifts the focus away from the fact-finding process.

In Canada, the enactment of the Charter of Rights and Freedoms[10] has, rather than placing it in the vanguard of freedom of speech protection, “held the law of defamation in this country back”[11], because the Supreme Court put reputation ahead of expressive freedom in Hill v Church of Scientology of Toronto [1995] 2 SCR 1130. Even when modernizing the law of comment (WIC Radio & Mair v Simpson [2008] 2 SCR 420) and creating a new “public interest responsible communication” defence (Grant v Torstar Corp [2009] SCC 61) the court failed to take the step of importing Charter analysis or standards into the common law[12]

As to the English solution of Reynolds, Eady J comments sadly that the Reynolds defence “seems hardly ever to be used in litigation. It rarely comes before the courts for consideration, despite the fact that last October it passed its tenth anniversary”[13]. In Lange v Atkinson [2000] 3 NZLR 385 the Court of Appeal criticized and declined to follow Reynolds, for the reason that they had altered “the structure of the law of qualified privilege in a way which adds to the uncertainty and chilling effect almost inevitably present in this area of the law”. (Professor Brown notes the English Court of Appeal admitted this in Loutchansky v Times Newspapers Ltd (Nos 2 – 5) [2002] 2 WLR 640 at 653.) In addition, the Court noted the significant differences between the constitutional and political contexts of the two countries, societal differences, the different position of the media and the degree to which the courts had left matters for judicial interpretation (at 399). No such constraints appear to have operated in other areas of New Zealand law, and the case had in fact been sent back to New Zealand by the Privy Council to reconsider the proceedings in light of the Reynolds principles (Lange v Atkinson [2000] 1 NZLR 257), so I view these perceived differences with some suspicion.

The third area is the NSW Court of Appeal’s interpretation of qualified privilege and malice, resulting in a playing field tipped heavily against defendants. I will illustrate this with a few examples:

• Narrow interpretation of the defence as a whole: In Bennette v Cohen [2009] HCATrans 291 the High Court rejected an application for leave in which it was claimed that as a result of this decision, the defence of qualified privilege was so strict that the defence “ceases virtually to exist”[14]. The publication was a speech by a Greens politician at meeting to raise money for legal costs for an old friend who had been sued by a developer for defamation. The Court of Appeal held ([2009] NSWCA 60) the politician was officiously interfering, and his speech had no bearing on the welfare of society, nor was it in the interest of the recipients. The Court held that the defence of qualified privilege was “confined to strict limits” and that “dissatisfaction” with this “relatively narrow” defence required the statutory amendment of s 30 ([2009] NSWCA 60 at [10]). I agree with the appellant’s contention that this conflates principles for mass media publications with occasions such as a fundraising rally, and that these principles do not apply if there is a reciprocity of interest. The Court also held that every recipient had to have the same interest, an impossible burden for a defendant[15]. (There is also the question of the findings concerning whether imputations that the plaintiff is a thug and a bully are fact or comment, but the longstanding problems for the defence of comment under the 2005 Act or its NSW predecessor are too complex a topic for this paper).

This statement in Cohen that the defence of qualified privilege must be confined to strict limits has followed in Mundine v Brown (No 6) [2010] NSWSC 1285 at [32]. No other court has previously described the defence as “narrow” or having “strict limits”; for example, the Privy Council in Austin v Mirror Newspapers Ltd [1985] 3 NSWLR 354 at 358 said “interest” should be defined broadly (I note that in Griffiths v ABC [2010] the NSW Court of Appeal disapproved other portions of Austin concerning malice); see also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570 – 1. However, in Megna v Marshall [2010] NSWSC at [155] – [161] Simpson J, “with considerable trepidation” was unable to accept this view (at [159]), but fortunately (at [160] – [161]) her Honour was able to distinguish it on the facts. Inconsistencies of interpretation of the law of this kind would be suitable for resolution by a specialist appeals court at Federal level, because courts around Australia must have regard to Bennette v Cohen, and it will not always be possible to distinguish it on the facts.

• Problems with the role of falsity: In Megna v Marshall [2010] NSWSC 686 at [66]) Simpson J states that the defence of qualified privilege “protects false defamatory communications as well as those that are true”. However, the defence of qualified privilege applies to statements which are not protected by a defence of justification, and even if the person making the statement knows of the falsity, that mere knowledge may not be sufficient (Roberts v Bass (2002) 194 ALR 161 at [76], but then restricts this to persons with a “legal duty” to provide the information; this disqualifies the media, which owes no legal duties to its listeners or readers).

Statements by judges that cases where protection is given to persons with duties to pass on information known to be false are “rare and confined” have a chilling effect on publications of a “reportage” kind, where there is a need for people to know information notwithstanding its falsity.

• Problems with the test for malice: In McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 at 43 Mahoney JA held that courts should be slow to infer malice (a finding repeated by the High Court in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183), and that evidence to the Briginshaw standard was required. The NSW Court of Appeal has consistently failed to refer to McKenzie or Briginshaw. A search of the NSW Court of Appeal website reveals only one reference to McKenzie: Liquor Marketing Group v Sadler [2000] NSWCA 161 at [24]. However, the passage (at [24]) referring to it is not a statement of law by the Court of Appeal. It is a statement by the trial judge, the late Judge Goldring, who correctly applied McKenzie v Mergen Holdings Pty Ltd (wrongly spelled as “Morgan Holdings” in the Court of Appeal’s judgment. (Although Mergen Holdings has been cited as authority on other issues, it is strangely always misspelled as “Mervyn Holdings”: [2009] NSWSC 632, [2010] NSWSC 516 and [2010] NSWSC 711). The need for evidence to the Briginshaw standard, and what that means, has not been addressed in any of these judgments.

While Sheller JA specifically noted that courts should be slow to come to a finding of malice (referring to McKenzie but not to Bellino) in Howell v Haines (NSW Court of Appeal, 15 November 1996, unreported), the Court went ahead to endorse the finding of malice by the trial judge as open on the evidence without explaining what factors were necessary for malice to be established to this standard. This was the only case I could find discussing the issue.

One of the strengths of the first amendment defence is the high standard of malice required; a stricter interpretation of the requirement, particularly where the subject matter related to elections, investigations of corruption or other issues of public importance, would go a long way to strengthening the defence.

The NSW Court of Appeal in Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 has now rewritten the law on malice for the statutory defence (for the 1974 Act), and put the onus on the defendant, dismissing statements to the contrary in Austin (supra), and the many decisions following it, which are now “disapproved”. In something of an understatement, Hodgson JA notes at [110]: “This view has consequences that are not necessarily favourable to defendants” – presumably a warning that the 2005 Act will be interpreted in the same fashion.

• Timidity concerning freedom of speech issues: The courts have circumscribed the nature and extent of speech which will be covered by the right of freedom of speech implied in the Constitution, and defendants either raise their arguments faintly or not at all. An example is Fraser v Holmes [2009] NSWCA 36, where the matter complained of was an election flyer, there is no reference to freedom of speech, and references to cases on parliamentary elections are discussed in the context of qualified privilege only (at [87] – [92]). The Court of Appeal was critical of the defendant for adopting, uncritically, a draft letter from another member of parliament.  The Court set aside Simpson J’s findings on malice, although her Honour’s careful analysis of the facts and law on this topic were, in my view, hard to find fault with.

Although some of the elements of s 30 Defamation Act seem to hint at “public figure” elements, the limitations to earlier and wider interpretations of the right of freedom of speech implied in the Constitution means that this defence comes before the court very rarely.

The Australian High Court has also rejected doctrines such as the margin of appreciation, derived from provisions of the European Convention of Human Rights (notably articles 7 – 11 and 15) which allow the court to take into account what is necessary for the good order of society (e.g. Ireland v United Kingdom (1978) 2 EHRR 25). In Roach v Electoral Commissioner (2007) 239 ALR 1 Gleeson CJ uncritical translation of the concept of proportionality from Canadian or American authorities could lead to “the application in this country of a constitutionally inappropriate standard of judicial review of legislative action” (at [17]). Heydon J, at [181], went further:

“ …our law does not permit recourse to [material from international conventions]. The proposition that the legislative power of the Commonwealth is affected or limited by developments in international law since 1900 is denied by most, though not all, of the relevant authorities — that is, denied by 21 of the justices of this court who have considered the matter, and affirmed by only one.”

Perhaps unsurprisingly, Professor Brown, while noting the optimistic approach taken by some researchers such as Andrew Kenyon, recommends that England and Australia discard Reynolds and Lange and start all over again.[16]

Whether or not we start all over again, this is an opportunity to reconsider the best way to approach publications which are international rather than national, require careful analysis of the balance by a specialist court, and where the possibility of retraction, because of the unique ability of electronic publication to be changed, is a remedy of greater substance than the traditional defamation “apology”. This brings me to my first proposal for defamation law reform, namely a separate regime for electronic and internet publications.

Judge Judith Gibson was, until July 2010, the Defamation List Judge in the District Court in Sydney.

The Gazette of Law and Journalism is Australia’s leading online media law journal.  It has, since 1986, been covering court cases, legislation and policy issues that affect the media.  It has a comprehensive database of materials on defamation, contempt, suppression, protection of sources, freedom of information and privacy.