Australia: Another unreasonable step for qualified privilege – David Rolph

The Finkelstein Review’s recommendation of the establishment of a News Media Council, an independent statutory body designed to oversee the enforcement of press standards, has elicited strong opposition on free speech grounds.

The successful Federal Court proceedings against Andrew Bolt (pic) for contravention of the Racial Discrimination Act 1975 (Cth) has led to calls for repeal or reform of the legislation, again on free speech grounds.

These are high-profile instances where concerns about freedom of speech have recently animated public debate in Australia.

But there are more subtle ways in which encroachments can be made upon freedom of speech.

Defamation law is the area of law which has the largest impact on freedom of speech.

It applies to everyday speech, regardless of medium or platform. It necessarily involves a balance between free speech and the protection of reputation.

Australian defamation law is perceived as being more protective of reputation than of free speech.

Developments in Australian defamation law which have the potential further to lessen the protection of free speech are worth noting.

The recent High Court decision in Harbour Radio Pty Ltd v Keysar Trad (2012) contains an incremental development in defamation law which arguably lessens the protection of free speech afforded by the common law defence of qualified privilege when a person exercises a right of reply to an attack.

The joint judgment of Justices Gummow, Hayne and Bell applied a test of whether the reply was “relevant and reasonable” to the attack.

Most of the defamatory imputations at issue in the case were in fact found to be “relevant and reasonable”.

But the seeming introduction of an additional requirement of reasonableness provides cause for concern.

In her separate reasons for judgment, Justice Susan Kiefel took issue with the majority judgment’s requirement that the reply be reasonable as well as relevant.

Her Honour acknowledged that the right of reply, on an occasion of qualified privilege, was “not unbounded”, but stated that:

“It is not necessary to confine the scope of the privilege by other considerations, such as whether the response goes too far, is unreasonable or is out of proportion to the attack.”

The problem Justice Kiefel (pic) identified with these additional limitations on the defence of qualified privilege in the context of a reply to an attack is that they are “essentially subjective and may create uncertainty”.

According to her Honour’s review of the authorities, relevance was the test; there was no additional element of reasonableness required.

The test of reasonableness is, at the level of principle, objective.

Her Honour’s point about the uncertainty generated by a requirement of reasonableness is well made.

Defamation defendants have not had the happiest experience with reasonableness, certainly not in NSW.

The statutory defence of qualified privilege under the Defamation Act 1974 (NSW) s 22 (repealed), which turned upon the defendant’s reasonableness in the circumstances of publication, was largely unsuccessful, because of the stringency with which the standard of reasonableness was applied.

It is not the first time that the High Court has introduced the concept of reasonableness into defamation defences where previously the prevailing view was that it was not required.

In Channel Seven Adelaide Pty Ltd v Dr Colin Manock (2007) the High Court arguably introduced a requirement of reasonableness into the defence of fair comment.

In replying to an attack, the common law defence of qualified privilege should allow people to speak freely, even if they make a mistake, so long as they are not acting maliciously.

In exercising their right to free speech on a privileged occasion, they need to be relevant but a further requirement of reasonableness has the potential undesirably to curtail their freedom of speech. Defamation defences are the most significant way in which defamation law protects free speech.

Developments which lessen protections for defamation defendants lessen the protection of free speech under Australian law.

Small but telling developments might be just as important as the developments which grab the headlines.

*Dr David Rolph lectures in media law at the University of Sydney Law School and is the editor of the Sydney Law Review. He is the author of Reputation, Celebrity and Defamation Law (Ashgate 2008).

This post originally appeared in the Gazette of Law and Journalism – Australia’s leading online media law journal.