Lange and Reynolds qualified privilege: Australian and English defamation law and practice.

• Jurisdiction: Australia
• Author: Kenyon, Andrew T.
• Date: 01 August 2004

[Australian and English case law has developed qualified privilege defences that are available to the media and appear to protect more political or public interest speech than traditional defamation law. This article draws on judicial decisions and qualitative research into defamation litigation to examine the defences' scope, strength and practicality in litigation. England's Reynolds privilege emerges as a well-supported, relatively strong, flexible and innovative defence, especially compared with Australia 's narrower and weaker privileges under Lange and New South Wales legislation. The research strongly supports the further development of Australian privilege defences, as well as more careful consideration of judge and jury roles in each country. A closer understanding of Reynolds offers important benefits for protecting the publication of public interest news and commentary, and it is particularly useful in light of recent, and proposed, Australian law reforms.]

CONTENTS I Introduction II Developing Qualified Privilege A The Traditional Defence B England--Reynolds v Times Newspapers Ltd C Australia--Lange v Australian Broadcasting Corporation D Doctrinally Comparing the English and Australian Defences III English and Australian Practice A Fieldwork B English Interviews C Australian Interviews IV Conclusion I INTRODUCTION

Defamation law is often said to deter speech. The existence of such a 'chilling effect' (1) has some research support. For example, the leading United Kingdom study, Libel and the Media: The Chilling Effect, (2) extensively investigated the practices of journalists, editors and their legal advisers. It argues that both direct and structural chilling effects exist under traditional defamation law. Media speech is chilled directly when lawyers recommend editing the content of publications, and is chilled structurally when journalists internalise the law's restrictive principles. (3) A separate Australian study, 'Defamation Law's Chilling Effect', involved a comparative content analysis of more than 1400 Australian and United States newspaper articles. (4) The study suggests that in the US--where defamation plaintiffs face much heavier burdens than under the Anglo-Australian law (5)--defamatory allegations against political and corporate actors are published more frequently than in Australia. (6) In the study's sample, the US articles contained defamatory allegations at nearly three times the rate of the Australian articles. In particular, the Australian media appeared to be less comfortable making allegations about corporate affairs than its US counterpart. Admittedly, the concept of a 'chilling effect' has obvious rhetorical appeal for participants in defamation practice or academic commentary. The concept, however, is also supported by existing empirical research which suggests that traditional Anglo-Australian defamation law may well chill media content. (7)

One important aspect of the apparent chilling effect is that defendants must generally prove the truth of the factual allegations they publish. (8) This follows in part from defamation law's unusual burden of proof for civil actions. Defamation plaintiffs need not prove that the publisher was at fault, nor that the publication was false. In addition, once published material about the plaintiff is shown to be defamatory, general damages are presumed. (9) Truth is central for defendant publishers because the primary defences of justification and fair comment require a publication's factual basis to be proven true. While truth need not be shown for the other major defences of absolute and qualified privilege, these defences have traditionally applied to few media publications, beyond fair reports of court proceedings or parliaments. Thus, defamation law has imposed liability on many media defendants who cannot prove their publications to be true. In this way, the law appears to focus more on protecting reputation than promoting wide debate about public interest issues.

The frequent need to prove truth is something that Australian and English developments in qualified privilege have sought to address. Since the mid-1990s, extended forms of qualified privilege have developed through Lange v Australian Broadcasting Corporation (10) and Reynolds v Times Newspapers Ltd. (11) The defences appear to protect more political or public interest speech than traditional law. Reynolds can be seen as 'conceptually, a different species of qualified privilege' from the general duty-interest defence, (12) or at least as a substantial expansion of the circumstances in which the defence can be satisfied. (13) Reynolds privilege seeks to protect defamatory material of public importance where defendants have published responsibly, irrespective of the material's truth or falsity. (14) Lange has also been described as making 'fundamental changes' to privilege's 'conceptual foundations'. (15) Under Lange, privilege has become a 'relatively egalitarian' defence that promotes '"free" discussion ... in which all citizens, so long as they act "reasonably", may participate on equal terms, rather than with some enjoying the status of "privileged publishers"'. (16)

This article considers whether the developments, in practice, do offer accessible defences for media publications. It combines case law analysis with qualitative investigation of defamation litigation in each country. (17) The research suggests that Reynolds is far more likely to reduce any chilling effect than Lange, but difficult issues of litigation practice remain for both defences. Part II briefly outlines the traditionally limited protection for media publications, before examining recent case law. It explains how the two new defences differ doctrinally, both in scope and in strength. Reynolds privilege is broad and flexible, and the judges who apply it appear sensitive to the free speech concerns underlying its development. It seems to offer the media meaningful benefits, at least for non-tabloid investigative reporting, and it may also develop to support wider commentary and public debate. Lange privilege is comparatively narrow, with its focus on political communication. More significantly, however, Lange privilege is weak. As with the longstanding statutory privilege under s 22 of the Defamation Act 1974 (NSW), publishers appear likely to have trouble demonstrating to courts' satisfaction that they acted reasonably. Doctrinal analysis also suggests that judge and jury roles are problematic under the English and Australian defences. (18)

Part III examines defamation lawyers' perspectives on the defences, obtained in interviews with 50 leading practitioners in London, Melbourne and Sydney. The interviews suggest that Reynolds privilege is quite supported in England, despite some uncertainties about its future development and litigation practicality. Reynolds also appears to be affecting the media's pre-publication conduct and encouraging what may be seen as more balanced reporting. In Australia, Lange privilege appears to be a barely useable defence, primarily due to the reasonableness requirement. Practitioners suggest revising the defence, with preferable models offered by Reynolds or an expanded duty-interest privilege in the style of the earlier Australian approach under Theophanous v Herald & Weekly Times Ltd. (19) The fieldwork also suggests that privilege defences need to allocate judge and jury roles carefully. Otherwise, the greater protection of at least some types of speech, which appears to have been sought by developments in qualified privilege, will be substantially undercut.

As a final introductory matter, it is worth noting that this article's interview-based research takes a traditional sociolegal approach that is focused on legal practice. A longstanding interest of legal fieldwork has been legal actors, whether lawyers in courts, (20) or regulators outside courts. (21) Empirical research did display early concern with non-legal actors, (22) which has resurfaced since the late 1980s in qualitative investigations of the experiences and attitudes of laypeople who interact with the law. (23) The present research, however, may differ slightly in focus from some lawyer-centred sociolegal work. It starts from the expectation that doctrinal analysis can benefit from empirical research into litigation practice, at least for analysing laws that are commonly litigated. As a result, the social in this research is quite confined: it is defamation law and practice. (24)

II DEVELOPING QUALIFIED PRIVILEGE

A The Traditional Defence

Defamation law has long recognised various categories of qualified privilege, said to exist for the 'common convenience and welfare of society'. (25) Qualified privilege was available where publishers were under a legal, social or moral duty, or acted to protect an interest, and recipients had a corresponding duty or interest. (26) Shared duties or interests could exist for material published to small audiences, (27) but widespread publications were likely to see the defence fail. (28) Thus, while qualified privilege is longstanding for fair reports of parliamentary and court proceedings, (29) the defence has not generally protected media publications of political or public interest. (30) Established occasions of privilege can be criticised in many ways, not least for their historical class bases. (31) Qualified privilege did not protect media publications about suspected corruption. Instead, alleged malfeasance had to be reported to what courts regarded as proper authorities. Nor did privilege protect publications reasonably believed to be true. While the defence was narrow, it was strong because only malice would defeat publications made on, and relevant to, a privileged occasion. In both England and Australia, however, qualified privilege developed during the 1990s.

B England--Reynolds v Times Newspapers Ltd

Reynolds arose after The Sunday Times...