Welcome back. This is the second part of our little section on defamation law, and this time, we're going to look at the defences available to you. In part one, we looked at the elements of the action what the plaintiff had to prove in order to get an action for defamation off the ground. And in this part, we're going to look at the defences that are available to us, in the event that we get sued. And we're going to look at only the main ones, but these are the ones that really affect us day to day. The first of these is truth, of the meanings or imputations, not just of the facts. A couple of forms of qualified privilege, one called protected report and one concerning freedom of speech and the final of the big ones is comment or honest opinion. The last item there on that slide, apology or making amends, may not get you off the hook altogether. But the usefulness of an apology or the attempt to make amends is that if you do get sued, and if you do lose, then an apology or effort to make amends might be helpful in reducing the damages against you. But generally speaking, apology or making amends is not a defence that is complete. So let's now turn to the first of these, the defence of truth. The first thing to understand, is that the law presumes that defamatory material is false. Because it's you who's published the material, then the onus is on you to prove that what you said is true and to establish the truth, you need admissible evidence. And that usually takes the form of original documents, someone who can back you up, or witnesses who are prepared to go into the witness box and be sworn up, put on their oath and give evidence that what you said is true. So it's equivalent really to the sort of work that the police have to do when they are bringing a criminal matter against somebody. So if you're going to rely on the defence of truth, you need admissible evidence. What that usually means, in fact, is that if you've done your job properly and you've got the admissible evidence, then you probably won't get sued because the potential plaintiff will be advised that the admissible evidence will defeat the suit. So do that hard work if you are intending to rely on the defence of truth. Another important aspect of this is, that you must prove that the meanings are true. It's not sufficient to prove that the facts are true. You must prove the truth of the imputations. Let's see what that means. Let's look at this little selection of facts here. The first fact is that a warehouse was burnt down. Second fact is that the arson squad is investigating. The third fact is that the warehouse was owned by this particular plaintiff whom you've named and you say that he was in financial trouble. And the final fact is you state that it was insured for $7 million. Now all of those facts are easily proved, but look at the meaning. What meaning arises from this set of facts? Just have a think about that for a moment and then we'll come back. Okay, I wonder whether you managed to see that the meaning is that the named businessman who is in financial trouble burnt down the warehouse himself in order to claim the insurance money. That is the meaning that comes from that recitation of facts, and it's that meaning, it's the truth of that meaning that you have to prove if you are going to succeed with the defence of truth. That is a means of illustrating the difference between facts and meaning and it's the meanings you must prove the truth of. The next defence is the defence of protected report. Now, we touched a little bit upon this in the contempt segment. But it is a form of qualified privilege, and it exists to allow journalists to report on the proceedings of parliament, and courts, royal commissions of inquiry, meaning the public companies are sorts of places where there are public forums. Now very often, especially in courts, lots of defamatory material is flung about. I mean, an accusation against someone that committed a crime is clearly defamatory of that person. But we have to be able to report the proceedings of courts. And so if we do so in a way which is fair and accurate, then we will be protected from an action for defamation by the defensive protective report and this is a defence that the media rely upon everyday. Every time they publish a report of a court proceeding, then they are technically, liable for an action for defamation from the accused person, but in fact, that never happens, so long as the report is fair and accurate. The other little point here is that if the court finds you are actuated by malice, for example, by trying to run a campaign against somebody or take revenge on them, then you will lose this defence, but we won't dwell on that because mostly, of course, we act out of good faith. So protected reporting applies in all of these different situations. Basically public proceedings on a matter of public interest will generally be protected by this defence. More recently in Australia the idea of qualified privilege has been extended to a much more general consideration. That is the reporting of matters of government and politics, widely defined, and this based on a very ancient legal principle. And the legal principle says this, if there is a reciprocal duty and interest between the person publishing the material and the person receiving it, then that exchange will be protected, by law. And, the standard example is the character reference. The law recognises that if somebody is asked for a character reference, then they have the duty to tell the truth about someone, even if the truth is defamatory of them, and the law equally recognises that the person asking for the character reference has an interest in being told the truth. So the principle is that the law will privilege an exchange which is in the interests of truth telling. And in a democracy, where the citizenry are depended upon the media for information about government and politics, then the law will actually protect that exchange of material between the media and the public. So that's the basis for the free speech qualified privilege, but it's not open-ended. If you are going to reveal yourself of this defence than you need to be able to pass the reasonableness test which isn't very demanding actually and just reflects good journalistic practice. Is it a matter of public interest? Have you made a distinction between mere gossip and proven facts? Did you give the person a right of reply? Did you take reasonable steps to verify that what you wrote was true? And did you have reasonable grounds for believing that the meanings you were publishing were true or didn't you care? That's the sort of test of recklessness. So it's really just good journalistic practice but if you fail the reasonableness test, then that defence will fail also. And finally this very important defence of comment. Now the important thing here is that you make sure that if you're going to defend something that's comment, that it is a comment, and not a statement of fact. And it's not always easy to draw the line between the two, but broadly speaking, if the material contains a value judgement, then it will be a comment. If it doesn't contain a value judgement, the chances are that the courts will treat it as a statement of fact. If that's the case, you'll have to be able to prove the truth of the statement. So what's the difference? Well, a value judgement says that you like or dislike something, you would agree or disagree with it, that something was right or wrong. You might describe something as an ugly spectacle, that's clearly a statement of opinion. Whereas a statement of fact, is that you said that someone did or didn't do a particular thing, you might say that a meal was overcooked. Well if it was, you need to produce the evidence. Or you say a person is dishonest, or lacks morals, well they are statements of fact. And you can see that the line isn't entirely clearly drawn, but if you follow those broad guidelines you'll, generally speaking, stay out of trouble. You don't have to prove that your opinions are right or wrong of course, opinions are by definition subjective and they can be extreme or unreasonable. But generally speaking you must base your comment on facts that are true. You must prove of the comments that you're expressing are your own honestly held opinion, and that's not as easy as it sounds sometimes. You must not be speaking out of malice, because malice defeats this defence, just as it defeats the qualified privilege defence. And you must be commenting on a matter what the law calls proper public interest. Now that isn't the same as the sort of public interest that we've spoken about earlier in the course. In this context, public interest means anything that, in a sense, the public are invited to spend money on or make assessments about. So it's the sort of defence that allows us to write book reviews, restaurant reviews, reviews of artistic or sporting performances. And we can say that we thought the book was a good or a bad book without being sued, but there's a really good rule of thumb here too, and the rule of thumb is review the work and not the worker. Don't say that an author wrote a bad book because he was dishonest. Don't make moral judgments or judgments about the character of the author, you can make a judgement about the character of the book if you wish. Don't say that a singer can't sing. You might say that the singer had a bad performance last night because she didn't strike the high middle C or whatever it might be on a couple of occasions. Don't say that a footballer can't play football, say that he had a poor game, and say why. But always remember to comment on the performance or their work and don't go so far as to make judgments about the character of the performer or the worker. Now remedies in defamation basically are monetary damages. It's not necessary for the plaintiff to prove monetary loss unless he's also claiming that his business was affected, and if he succeeds in that, then of course, the damages will be increased. But generally speaking, the monetary damages are compensation for non-economic loss. They are, in a sense, vindicatory. They say to the world this person has got money in order to demonstrate that his reputation was wrongfully harmed. That's the purpose of monetary damages. You can be forced to make amends, of course, it can be court orders. The other form of remedy is an injunction. Usually this occurs before publication, and prevents publication but also, there can be injunctions that require the publisher to publish some kind of remedial material. So the remedies, particularly the monetary damages, can be very considerable. And you really don't want to find yourself subject to monetary damages because for example in Australia, they are capped but they're capped at amount of $250,000 indexed tonight to 2006 values. So you can be talking very serious sums of money and of course on top of that, you've got legal expenses. And if you lose, you have to pay the plaintiff's cost as well as your own.
