Defamation Law in Australia

Description

Full Title Foreword Preface Table of Cases Table of Statutes Table of Contents Part One — History and Concepts Chapter 1 Introduction 1.1 Introduction Chapter 2 History of Defamation Law in England 2.1 Introduction 2.2 The Ancients 2.3 The Romans 2.4 Early England 2.5 The Church 2.6 The Manor 2.7 The Common Law 2.8 Slanderous Words 2.9 Censorship 2.10 Shakespeare 2.11 Stemming the Tide 2.12 The Star Chamber 2.13 War and Revolution 2.14 Duelling 2.15 The Torts of Libel and Slander 2.16 The Meaning of Defamation 2.17 The Emergence of the Defences 2.18 Pleading the Action 2.19 The Public Interest 2.20 The Victorian Age 2.21 The World at Large 2.22 The House of Windsor 2.23 The Social Network 2.24 Sources Chapter 3 History of Defamation Law in Australia 3.1 Introduction 3.2 Penal Colony 3.3 Regulation of the Press 3.4 Self-Government 3.5 Windeyer’s Libel Act 3.6 Changes to New South Wales Law 3.7 Other States and Territories 3.8 The Australian Constitution 3.9 The Common Law of Australia 3.10 International Covenant on Civil and Political Rights 3.11 Government or Political Matters 3.12 Development of the Common Law 3.13 Defamation Law Reform 3.14 A Defamation Code 3.15 National or Uniform Law 3.16 Common Law Principles and Statutory Modification 3.17 Purpose of the Defamation Act 3.18 Sources Chapter 4 Reputation 4.1 Introduction 4.2 Good Reputation 4.3 Fame 4.4 Bad Reputation 4.5 Scandal 4.6 Narcissism 4.7 Ostracism 4.8 Competing Interests Chapter 5 Freedom of Speech 5.1 Introduction 5.2 Seditious Libel/Words 5.3 Defamatory (Criminal) Libel 5.4 Obscene Libel 5.5 Blasphemous Libel 5.6 Civil Libel/Defamation 5.7 Striking the Balance Part Two — General Principles Chapter 6 The Cause of Action for Defamation 6.1 Cause of Action at Common Law 6.2 Statutory Cause of Action 6.3 Multiple Publication 6.4 Choice of Law 6.5 Multiple Causes of Action Chapter 7 Publication 7.1 Introduction 7.2 The Act of Publication 7.3 When Published and For How Long 7.4 Where Published 7.5 Internet Publication 7.6 To Whom Published and to How Many 7.7 About Whom Published (Identification) 7.8 By Whom Published 7.9 Form of the Publication — Libel and Slander 7.10 Proof of Publication Chapter 8 Identification 8.1 Introduction 8.2 The Understanding of the Ordinary Reasonable Recipient 8.3 Identified Expressly or Implicitly from the Publication 8.4 The Plaintiff as a Member of a Group 8.5 Inference: Extrinsic Facts not in the Publication 8.6 Extrinsic Facts: Prior or Subsequent Publications Chapter 9 Meaning 9.1 Introduction 9.2 Interpretation 9.3 Natural and Ordinary Meaning 9.4 Reasonableness 9.5 The Form of the Publication 9.6 Inferences 9.7 Context 9.8 General Community Standards 9.9 Particular Defamatory Meanings 9.10 The Common Law — Pleading the Meaning 9.11 New South Wales — The Pleaded Imputation 9.12 The Form of the Imputation 9.13 Uniform Approach to Pleading Meaning 9.14 Separate and Distinct Meanings 9.15 Extrinsic Meaning — True Innuendo 9.16 Determination of Defamatory Meaning by Tribunal of Fact Chapter 10 Defamation 10.1 Introduction 10.2 The Leading Cases 10.3 Guidance 10.4 Free Form 10.5 Community Standards 10.6 Common Defamatory Accusations 10.7 Reputation Chapter 11 Particular Defamatory Meanings 11.1 Suspicion and Guilt 11.2 Allegations and Rumours 11.3 Contradictions — ‘Bane and Antidote’ 11.4 Photographs and Juxtaposition 11.5 Questions, Denials and Comparisons 11.6 Abuse 11.7 Humour and Ridicule 11.8 Fiction 11.9 Business Reputation Chapter 12 Capacity to Sue — Plaintiffs 12.1 Introduction 12.2 Bankrupts 12.3 Companies 12.4 Deceaseds 12.5 Elected Institutions and Politicians 12.6 Foreign Persons 12.7 Groups 12.8 Partnerships 12.9 Strangers 12.10 Unincorporated Associations Chapter 13 Capacity to be Sued — Defendants 13.1 Introduction 13.2 Agents and Employees 13.3 Anonymous Bloggers 13.4 Bankrupts 13.5 The Crown 13.6 Deceaseds 13.7 Foreign Persons 13.8 Sources 13.9 Strangers 13.10 Unincorporated Associations Chapter 14 Privacy 14.1 Introduction 14.2 Technological Change — Wireless 14.3 Right to Privacy 14.4 Recognised Causes of Action 14.5 Freedom of Observation 14.6 Misuse of Private Information 14.7 Lenah Game Meats 14.8 Invasion of Privacy 14.9 A Common Law Tort 14.10 A Statutory Tort 14.11 Rights of Royal Confidence Chapter 15 Other Causes of Action 15.1 Introduction 15.2 Injurious Falsehood 15.3 Misleading or Deceptive Conduct 15.4 Negligence 15.5 Contempt of Court 15.6 Copyright 15.7 Anti-Discrimination Part Three — Resolution of Civil Disputes without Litigation Chapter 16 Alternative Solutions 16.1 Introduction 16.2 Offer to Make Amends 16.3 Content of the Offer 16.4 Form of the Offer to Pay Compensation 16.5 Time of the Offer 16.6 Reasonableness of the Offer 16.7 Acceptance of the Offer 16.8 A Defence for the Plaintiff’s Failure to Accept the Offer 16.9 Inadmissible Statements and Admissions 16.10 Apologies 16.11 Mediation 16.12 Arbitration Part Four — Litigation of Civil Disputes — Including Defences in Civil Proceedings and Remedies Chapter 17 Role of Judge and Jury 17.1 Use of Juries in Defamation Trials 17.2 Section 7A Trials (NSW) 17.3 Review of the Jury’s Determination by a Court of Appeal Chapter 18 The Defences 18.1 Common Law Defences 18.2 Statutory Modification of Defences 18.3 Consent 18.4 Illegality 18.5 Release 18.6 Time Limitation Chapter 19 Truth 19.1 Common Law Defence of Truth 19.2 Statutory Defence of Justification 19.3 Presumed Falsity of Defamatory Imputation 19.4 Multiplicity of Imputations 19.5 Truth of Defendant’s Imputations 19.6 Truth of the Common Sting 19.7 Different in Kind or Different in Substance 19.8 Uniformity and Reform 19.9 Public Interest Chapter 20 Contextual Truth 20.1 Truth of Defamatory Matter 20.2 Partial Truth 20.3 Statutory Contextual Truth Defence 20.4 Capacity of Contextual Imputations 20.5 ‘In Addition’ 20.6 Generality 20.7 Adoption of the Contextual Imputations 20.8 Historical Foundation 20.9 Further Harm 20.10 Split Result Chapter 21 Absolute Privilege 21.1 Common Law Defence of Absolute Privilege 21.2 Statutory Defence of Absolute Privilege 21.3 Other Statutory Defences of Absolute Privilege Chapter 22 The Privileged Occasion 22.1 Introduction 22.2 Common Law Defence of Qualified Privilege 22.3 Relationship of Publisher and Recipient 22.4 Connection to the Occasion of Privilege 22.5 Statements in Answer to Attacks or Requests for Information 22.6 Volunteering Information 22.7 Publication by the Media 22.8 Protected Report Chapter 23 Malice 23.1 Introduction 23.2 Foreign Motive 23.3 Political Motive 23.4 Profit Motive 23.5 Motive of Others Chapter 24 Statements to the World at Large 24.1 Public Interest 24.2 Election Statements 24.3 The Lange Defence 24.4 Government or Political Matters 24.5 Reasonable Conduct 24.6 All the Circumstances 24.7 Publication on a Matter of Public Interest Chapter 25 Statutory Defence of Qualified Privilege 25.1 Defence for Provision of Certain Information 25.2 Interest 25.3 Reasonableness 25.4 Strict Liability 25.5 Circumstances of Publication 25.6 Pre-Publication Conduct 25.7 Necessity 25.8 Previous Statutory Defences 25.9 Qualified Protection 25.10 Negligent Publication Chapter 26 Protected Reports 26.1 Common Law Defence of Fair and Accurate Report 26.2 Statutory Defence of Fair Report of Proceedings of Public Concern 26.3 Previous Statutory Defence of Protected Report 26.4 Parliament 26.5 Courts and Inquiries 26.6 Council Meetings 26.7 Public Meetings 26.8 Statutory Authorities 26.9 Proceedings of Particular Associations or Bodies 26.10 International Bodies 26.11 Statutory Defence of Public Documents 26.12 Preservation of the Common Law 26.13 Lack of Good Faith/Malice 26.14 Fair and Accurate Reports on Matters of Public Interest Chapter 27 Fair Comment 27.1 Common Law Defence of Fair Comment 27.2 Comment 27.3 Context 27.4 Statement of Fact not Comment 27.5 Material for Comment 27.6 Factual Material 27.7 Privileged Material 27.8 Public Interest 27.9 Fairness 27.10 Malice Chapter 28 Honest Opinion 28.1 Statutory Defence of Honest Opinion 28.2 Statutory Defence of Comment 28.3 Whose Comment 28.4 Comment in the Pleaded Imputations 28.5 Comment of Servant or Agent 28.6 Comment of a Stranger 28.7 Partial Material 28.8 Material Imputing Dishonest Motive 28.9 Limitation of Statutory Defence of Comment 28.10 Code Defence of Comment Chapter 29 Innocent Dissemination 29.1 Common Law Defence of Innocent Dissemination 29.2 Statutory Defence of Innocent Dissemination 29.3 Statutory Defence for ISPs Chapter 30 Circumstances of Publication 30.1 Statutory Defence of Triviality Chapter 31 Damages at Common Law 31.1 General Principles 31.2 Defamation 31.3 Personal Injury 31.4 Irreparable Harm 31.5 Uniform Approach Chapter 32 General Damages 32.1 Purpose 32.2 Consolation — Injury to Feelings 32.3 Reparation/Vindication — Harm to Reputation Chapter 33 Award of Damages 33.1 Value of Money 33.2 Cap on Damages 33.3 Calculation of Damages 33.4 Personal Injury Awards Chapter 34 Increasing Damages — Aggravation 34.1 Introduction 34.2 Falsity of the Defamatory Imputations 34.3 Manner and Extent of Publication 34.4 Malice of the Defendant Towards the Plaintiff 34.5 Failure or Refusal to Apologise 34.6 Defendant’s Conduct of the Litigation Chapter 35 Exemplary Damages 35.1 Punishing the Defendant Chapter 36 Reducing Damages — Mitigation 36.1 Introduction 36.2 Conduct of the Plaintiff 36.3 Plaintiff’s Bad Reputation 36.4 Previous Publications 36.5 Other Recoveries 36.6 Defendant’s Lack of Malice 36.7 Truth of the Plaintiff’s Imputations 36.8 Apology 36.9 Circumstances of Publication Chapter 37 Special Damages 37.1 Economic Loss Chapter 38 Other Aspects of Damages 38.1 Taxation on Damages 38.2 Interest on Damages Chapter 39 Alternative Remedies 39.1 Introduction 39.2 Interlocutory and Final Injunctions 39.3 Account of Profits 39.4 Declarations 39.5 Counter-Publicity/Crisis Management Chapter 40 Non-Monetary Remedies 40.1 Introduction 40.2 Right of Reply 40.3 Correction Order 40.4 Striking Out Proceedings 40.5 Summary Judgment Chapter 41 Costs 41.1 General Principles 41.2 Conduct of Proceedings 41.3 Offers of Compromise 41.4 Nominal Damages Part Five — Miscellaneous Chapter 42 Evidence/Transitional 42.1 Evidence of Publication 42.2 Evidence of Criminal Convictions 42.3 Incriminating Evidence 42.4 Giving of Notices and Other Documents 42.5 Regulations for Defamation 42.6 Repeal of Existing Legislation/Transitional Provisions Chapter 43 Reform 43.1 Review of the Act 43.2 Uniformity 43.3 Defences 43.4 Remedies 43.5 Alternative Dispute Resolution Chapter 44 Criminal Law 44.1 Common Law 44.2 Criminal Defamation 44.3 Jury’s Role 44.4 Defence of Lawful Excuse 44.5 Other Jurisdictions 44.6 Truth and Other Defences Appendix I — Defamation Act 2005 (NSW version) Defamation Act 2005 (NSW) Part 1 — Preliminary 1 Name of Act 2 Commencement 3 Objects of Act 4 Definitions 5 Act to bind Crown Part 2 — General principles Division 1 — Defamation and the general law 6 Tort of defamation 7 Distinction between slander and libel abolished Division 2 — Causes of action for defamation 8 Single cause of action for multiple defamatory imputations in same matter 9 Certain corporations do not have cause of action for defamation 10 No cause of action for defamation of, or against, deceased persons Division 3 — Choice of law 11 Choice of law for defamation proceedings Part 3 — Resolution of civil disputes without litigation Division 1 — offers to make amends 12 Application of Division 13 Publisher may make offer to make amends 14 When offer to make amends may be made 15 Content of offer to make amends 16 Withdrawal of offer to make amends 17 Effect of acceptance of offer to make amends 18 Effect of failure to accept reasonable offer to make amends 19 Inadmissibility of evidence of certain statements and admissions Division 2 — Apologies 20 Effect of apology on liability for defamation Part 4 — Litigation of civil disputes Division 1 — General 21 Election for defamation proceedings to be tried by jury 22 Roles of judicial officers and juries in defamation proceedings 23 Leave required for further proceedings in relation to publication of same defamatory matter Division 2 — Defences 24 Scope of defences under general law and other law not limited 25 Defence of justification 26 Defence of contextual truth 27 Defence of absolute privilege 28 Defence for publication of public documents 29 Defences of fair report of proceedings of public concern 30 Defence of qualified privilege for provision of certain information 31 Defences of honest opinion 32 Defence of innocent dissemination 33 Defence of triviality Division 3 — Remedies 34 Damages to bear rational relationship to harm 35 Damage for non-economic loss limited 36 State of mind of defendant generally not relevant to awarding damages 37 Exemplary or punitive damages cannot be awarded 38 Factors in mitigation of damages 39 Damages for multiple causes of action may be assessed as single sum Division 4 — Costs 40 Costs in defamation proceedings Part 5 — Miscellaneous 41 Proof of publication 42 Proof of convictions for offences 43 Incriminating answers, documents or things 44 Giving of notices and other documents 45 Regulations 46 Repeal of Defamation Act 1974 No 18 47 Savings, transitional and other provisions 48 Amendment of other Acts 49 Review of Act Schedule 1 Additional publications to which absolute privilege applies Schedule 2 Additional kinds of public documents Schedule 3 Additional proceedings of public concern Schedule 4 Savings, transitional and other provisions Schedule 5 Amendment of other Acts concerning criminal defamation and limitation periods Schedule 6 Consequential amendment of other Acts Comparable Table of States and Territories Acts Appendix II — Comparative Tables Australian Defamation Acts (repealed) Limitation Acts Criminal Law Acts Appendix III — Uniform Civil Procedure Rules 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Table of Provisions Part 14 — Pleadings Division 6 — Pleadings Concerning Defamation 14.30 Allegations in Statements of Claim Generally 14.31 Defamation Defences Generally 14.32 Defence of Justification Generally 14.33 Defence of Contextual Truth 14.34 Defence of Absolute Privilege 14.35 Defences for Publication of Public and Official Documents 14.36 Defences of Fair Report of Proceedings of Public Concern 14.37 Defence of Qualified Privilege 14.38 Defences of Comment or Honest Opinion 14.39 Defence of Innocent Dissemination 14.40 Defence of Triviality Part 15 — Particulars Division 1 — General 15.1 Pleadings must give all necessary particulars Division 4 — Defamation 15.19 Particulars in Relation to Statements of Claim for Defamation 15.20 Particulars in Relation to Statements of Claim by Corporations 15.21 Particulars of Defamation Defences Generally 15.22 Particulars in Relation to Defence of Justification 15.23 Particulars in Relation to the Defence of Contextual Truth 15.24 Particulars in Relation to Defence of Absolute Privilege 15.25 Particulars in Relation to Defences for Publication of Public and Official Documents 15.26 Particulars in Relation to Defences of Fair Report of Proceedings of Public Concern 15.27 Particulars in Relation to Defence of Qualified Privilege 15.28 Particulars in Relation to Defences of Comment and Honest Opinion 15.29 Particulars in Relation to Defence of Innocent Dissemination 15.30 Particulars in Relation to Defence of Triviality 15.31 Particulars Concerning Grounds That Defeat Defamation Defences 15.32 Particulars Concerning Damages Appendix IV — Defamation Practice Notes (NSW) NSW Supreme Court Common Law Division — Defamation List NSW District Court — Defamation List Index