Beyond Rational Limits: the UK Government’s 2011 Defamation Bill and the Expansion of the Reportage Defence

April 21, 2011

By Jason Bosland

Introduction

Last year, Lord Lester responded to the call for libel reform in the UK by drafting a Defamation Bill (‘Lester’s Bill’). This was in response to popular unrest about the imbalance between freedom of expression and England’s ‘oppressive’ defamation laws. In a short review of Lester’s Bill, published in the Communications Law Bulletin last year, I noted that some of its proposals were to be welcomed, while others simply codified the existing common law or severely fell short of achieving their aims.

Last month, as promised in the run-up to the election, the coalition government publicly released its own draft bill (‘Government’s Bill’). The Government’s Bill is much more modest than the version proposed by Lord Lester. For example, unlike Lester’s Bill, it doesn’t contain a bar on the standing for corporations to sue for defamation, nor does it touch on reversing the onus of proof currently imposed on mere disseminators in showing that they were not at fault in the dissemination of defamatory material. It also doesn’t contain (thankfully) a provision that seeks to measure whether a local tort is actionable in England by reference to harm suffered outside of the jurisdiction. This was an attempt by Lord Lester to combat the perceived ‘problem’ of libel tourism. I wrote at the time that the provision:

…seeks to achieve its aim…by requiring the court to make a false or fabricated assessment of local harm – false in the sense that the court is put in the absurd position of having to look at ‘apples’ (extent of foreign publication) under the pretext of assessing ‘oranges’ (local harm)’.

Lord Hoffmann expressed as similar view a few months later (reported here).

Much like Lester’s Bill, however, the Government’s Bill has been criticised as largely codifying existing common law doctrines. In this post, I discuss one feature of the Government’s Bill that appears to have gone under the radar in the commentary to date: the application of the proposed statutory ‘responsible publication’ defence contained in clause 2 to the so-called ‘reportage’ cases. Clause 2 of the Bill provides a statutory defence for the responsible publication on matters of public interest. Like the equivalent provision contained in Lester’s Bill, it has been explained away by most commentators (and even in the Explanatory Notes) as a simple codification of Reynolds privilege – the common law public interest defence recognised by the House of Lords in Reynolds v Times Newspapers Pty Ltd [1999] UKHL 45 (and reaffirmed in Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44). In my view, however, the provision goes much further when applied to the reportage cases: it has the potential to expand the ‘doctrine of reportage’ (as it is now referred to) well beyond its proper limits in ways that I have previously argued against.

The Reportage Defence and the Government’s Proposal

The reportage defence, first recognised in Al-Fagih vHH Saudi Research Marketing (UK) [2001] EWCA Civ 1634, is a particular application of Reynolds privilege which provides a defence to the republication of defamatory allegations that are originally made by the participants to a dispute or controversy of public interest (see Roberts v Gable [2007] EWCA Civ 721 at [60]; although I’ve argued that it would be better to view it as a separate species of qualified privilege). Under the common law, a republisher will usually be liable for the repetition of defamatory allegations originally made by someone else. Under the doctrine of reportage, however, a republisher will avoid liability if he or she (1) does not adopt or endorse the defamatory material, (2) presents it in a neutral and disinterested manner and (3) attributes any allegation to its original source. In addition, and in my view most importantly, there must be established a public interest in the fact that allegations have been made as opposed to a public interest in the allegations themselves (and their truth or potential truth). That this is the core feature of reportage is, in my view, made clear in Roberts, where Ward LJ said (at [61]) that the ‘defining characteristic’ of a reportage case is that the article has the ‘effect of reporting, not the truth of the statements, but the fact that they were made.’  Similarly, Lord Hoffmann in Jameel said (at [62]): ‘…there are cases (“reportage”) in which the public interest lies in the fact that the statement was made…’ If this is the ‘defining feature’ of reportage, it follows that a defendant in a reportage case is not required to satisfy the usual markers of responsible journalism set out by Lord Nicholls in Reynolds – for example, he or she will not be required to take steps to verify the allegations, seek comment from the claimant or ensure the reliability of the source of the information.

The Proper Scope of the Reportage Defence

Clause 2(1) of the Government’s Bill provides that it is a defence to defamation if (a) the statement complained of is, or forms part of, a statement on a matter of public interest and (b) the defendant acted responsibly in publishing the statement.  Clause 2(2) sets out the matters to be taken into account in determining whether the publisher acted ‘responsibly’, the bulk of which repeat the existing Reynolds factors.

According to the Explanatory Memorandum (at [12]), cl 2(3) is ‘intended to encapsulate the core of the law in relation to the “reportage” doctrine’. It provides that:

[a] defendant is to be treated as having acted responsibly in publishing a statement if the statement was published as part of an accurate and impartial account of a dispute between the claimant and another person.

The Consultation Paper claims that this is a ‘developing area of the law and we believe that it is important to ensure that any provision is sufficiently flexible so that it focuses on the key elements which have been established in case law without unduly restricting the further development of the law in this area in the future.’

The problem with cl 2(3) however, is that it does not do what the Explanatory Memorandum or Consultation Paper claim: it does not recognise that the defining feature of the reportage doctrine is the public interest in the fact that the allegations have been made. Rather, it focuses simply on the requirements that the account of a dispute be accurate and impartial. As I have argued, a reportage defence which does not focus specifically on the public interest in the fact that the allegations have been made is likely to lead to a defence that is ‘unsurpassed in terms of strength and scope’ and does not strike an appropriate balance between freedom of speech and the protection of reputation.

The Appropriate Limits of the Reportage Defence

In order to grasp the proper limits of the reportage defence, attention must be paid to the circumstances in which the public might be said to have an interest in the fact that allegations have been made, rather than any public interest in the allegations themselves.

I’ve argued that such a public interest can arise in two (sometimes overlapping) situations. First, where the very fact of the dispute itself is in the public interest – such as where there is a dispute between two political or community leaders. The public interest here is not based on the truth or falsity of the allegations being cast back and forth; rather it is based on the very fact that they are in dispute or that they have a dysfunctional relationship. The second situation is where the statement can be said to be in the public interest due to the status of the original speaker – for example, where the statement is made by a political leader. Some speakers are so important that it is in the public interest that anything they say should be reported freely. Indeed, there might be greater public interest in the fact that the speaker has made false allegations (even where the republisher knows that they are false) than there is in the fact that the speaker has made true or potentially true allegations. In other words, they might be valued more for what they say about the speaker than for what they say about the subject.

However, where the public interest is in the allegations themselves (and hence their truth or potential truth), reportage has no role to play: the usual Reynolds factors – which are focused on ensuring that journalists take adequate steps in relation to the truth of what they publish – should apply. Thus, in order to take advantage of the defence, journalists should take adequate steps to verify the truth of the allegations, ensure that the source of the allegations is reliable and seek comment from the claimant. Rather, as I suggested previously, allowing a reportage defence in such circumstance would, in effect, amount to a ‘general right to republish defamatory allegations’ that relate to matters of public concern. It would, apart from absolute qualified privilege, be the broadest defence to defamation recognised by the law.  It would also ‘discourage investigative inquiry and valuable fact checking encouraged under the responsible journalism standard.’ In other words, it would be a mandate for journalists to ‘hide-behind’ the reportage defence in order to publish the substance of allegations – even extremely damaging allegations – without responsibility and with impunity.

Unfortunately, by misconstruing the ‘core’ requirement of the reportage doctrine, this is precisely the type of defence envisaged by the government’s proposal.

Jason Bosland is a Senior Lecturer at the Melbourne Law School, University of Melbourne and Deputy Director of the Centre for Media and Communications Law.

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Posted by clarissaterry

“Where the Bloody Hell Are You?”: Lara Bingle in Search of a Cause of Action

March 12, 2010

by Jason Bosland and Vicki Huang

On March 1, 2010, Woman’s Day published a nude picture of Lara Bingle which was allegedly taken in 2006 while she had a “secret” affair with AFL star Brendon Fevola (who was and still is married to Alex Fevola).

The image shows Bingle in a shower trying to cover herself with her hands.  The expression on her face clearly depicts distress.  Apparently, the photo had been passed by Fevola to other people and had been “doing the rounds” for years.

The day after publication by Woman’s Day, Lara Bingle by way of her publicist Max Markson, announced she would take legal action against Fevola for 1) breach of privacy, 2) defamation and 3) misuse of her image.

Fiona Connolly said that Woman’s Day which has about 400,000 readers, published the photo because it was “going to come out anyway”.  She also said that Woman’s Day did not pay for the photo and would not disclose how they came to obtain the photo.

Lara Bingle’s publicist is reported to have said that Bingle had retained all her contracts and would move past the incident.

In an interesting turn of events, on March 8, Woman’s Day (the same magazine that printed the photo) published an exclusive interview with Bingle depicting “her side of the story”.  The fee for the interview was not disclosed but is rumoured to be around $200,000.  According to her publicist, Bingle has decided to give an “undisclosed amount” of money to the White Ribbon Foundation which is a charity that opposes domestic violence.

The controversy has sparked a myriad of comments.  The Fortnightly Review looks at the issue from a legal perspective.  We believe it is an important case given the rise of cyber-bullying and “sext-ing” in the community – something we will be commenting on in a future issue of the FR. We emphasise that Bingle’s statement of claim has not become available so we comment on the facts that are thus far publicly known.

Privacy and Misuse of Image

It is unclear just what causes of action is meant by the terms “breach of privacy” and “misuse of image”.  Is Bingle’s intention to argue that an Australian court should recognise a common law cause of action for breach of privacy (flagged as a possibility in ABC v Lenah Game Meats) – or will she be content to rely on the existing law of breach of confidence, as used for instance in the recent Victorian Court of Appeal decision in Giller v Procopets.  Unfortunately, she will have to traverse this tricky field of developing law very carefully. The picture is even more confused when it comes to the claim for misuse of image.  Is this again shorthand for privacy arguments considered above?  Or might she be considering actions for passing off and misleading or deceptive conduct under the Trade Practices Act 1974 (Cth), as celebrities have often done in the past (including Bingle herself).  The difficulty with a passing off or TPA claim is that Bingle will have to show that Fevola made some kind of misrepresentation in the course of trade – and we find it hard to see either a misrepresentation or conduct in the course of trade on facts currently known to us.

The civil remedies we believe she may be seeking are uncertain here.  Perhaps the criminal law as suggested by other bloggers may give her some satisfaction.  Nevertheless, her arguments as to defamation do target a well developed area of law, however it is unclear as to whether she can satisfy the legal elements.

Defamation

From the facts known, it appears that Bingle is claiming that the distribution by Fevola of the photograph between various members of the AFL and the Australian Cricket Team amounts to defamation.

In order to make out the defamation cause of action, she is required to show that the publication of the photograph, assessed as a whole, conveyed one or more defamatory imputations about her.  There are three non-exhaustive ‘tests’ for determining whether an imputation carries a defamatory meaning.  At a very basic level, it must, in the eyes of the ordinary, reasonable reader or viewer:

  1. lower the plaintiff in the estimation of others;
  2. cause the plaintiff to be shunned or avoided; or
  3. expose the plaintiff to hatred, contempt or ridicule.

And, herein lies the main obstacle for Bingle’s claim. It is difficult to see how the first two tests – the ‘lowering estimation’ and ‘shun and avoid’ tests – could be satisfied merely on the basis that Bingle was naked in the shower and had an unwanted photograph taken of her.  Indeed, we have all been naked in the shower, and it is unlikely that the ordinary, reasonable person would think less of Bingle or shun and avoid her simply on that basis.  Certainly, as required under the ‘lowering estimation’ test, it is hard to see how a reasonable, ordinary viewer of the photograph could ascribe any blame to Bingle for the taking of the photograph.

A conclusion about this, of course, depends on any additional material that may have accompanied the distribution of the photograph and which may modify the imputations carried by its publication – ie, it may, depending on the circumstances of the publication, carry an imputation of promiscuity or that she acquiesced in the taking and distribution of the photograph (see, in particular, Shepherd v Walsh & Ors ).  There is also the possibility, of course, that Bingle might plead defamatory meaning based on ‘true innuendo’ (ie by relying on extrinsic facts that were, in fact, known to its recipients).

Under the third test, however, there is authority to suggest that Bingle might have, at the very least, an arguable case on the basis of the publication of the photograph itself.  Thus, it was held in the well-known case of Ettinghausen v Australian Consolidated Press that the publication in a magazine (called ‘HQ’) of a photograph of the plaintiff, a famous Rugby League footballer, naked in the shower with his penis exposed, had the capacity to defame the plaintiff by exposing him to a more than trivial degree of ridicule.  The imputation pled by the plaintiff in that case was simply that ‘[t]he plaintiff is a person whose genitals have been exposed to the readers of the defendant’s magazine ‘HQ’, a publication with a wide readership.’  The ease with which the judge, Hunt J, arrived at his conclusion is astounding (although this can be, at least partly, explained on the basis that this imputation was pled in the alternative).  There was absolutely no analysis whatsoever as to how this imputation had the capacity to expose the plaintiff to ridicule, which has been held to mean ‘deserving to be laughed at’ or ‘absurd’ (see Boyd v Mirror Newspapers Ltd [1980] NSWLR 449 at 453). Significantly, there was no suggestion that there was anything unusual about the way the plaintiff was depicted. There was nothing ‘grotesque, monstrous or obscene’ about the photograph and it did not seem to make a ‘preposterously ridiculous spectacle’ of the plaintiff.  It was simply a photograph of a naked man in a communal shower, as is the usual practice following any football match.

In light of this yardstick, it is difficult to see how the photograph of Bingle – which also involves mere nudity – should be decided any differently, at least in relation to the judge’s question as to whether or not the photograph has the capacity to defame.  This leaves, of course, the further question of whether the photograph in fact bears the defamatory meaning – a question of fact not answered by the jury in Ettinghausen.

One potential problem for Bingle, however, is that even if defamatory meaning is established on the basis that a reasonable reader would view the plaintiff in a ridiculous light, it would be particularly easy for Fevola to rely on the defence of justification.  Thus, it is likely that Fevola could defend the publication on that basis that the imputation – the nudity – is, in fact, true.  In NSW, the scope of the truth defence in this context underwent particularly significant change following the introduction of the uniform defamation laws across Australia.  In particular, it removed the requirement under the justification defence (as it had previously operated in that state) that the publication must also serve the public interest. Indeed, one of the issues raised when the Defamation Act 2005 (NSW) was passed was that the removal of the public interest requirement under the justification defence would put a stop to defamation acting as de facto privacy protection. Defendants would escape liability for invasions of privacy by simply proving that the defamatory imputations concerning the plaintiff’s private life were true. This case brings such concerns to the fore, but also highlights the inherent problem of protecting what are essentially privacy interests under a cause of action for which it is not designed.

We look forward to reading Bingle’s statement of claim.  We also look forward to your comments.

9 Comments | Bingle, breach of confidence, defamation, Media law, passing off, privacy, TPA, Uncategorized | Tagged: , , , , , , , , | Permalink
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