Law Reform Commission REPORT 11 (1971) – DEFAMATION Table of Contents Table of Contents....................................................................................................... 1 Preface....................................................................................................................... 2 REPORT .................................................................................................................... 3 Appendix A - Defamation Act 1958 .......................................................................... 11 Appendix B - Proposed Defamation Bill ................................................................... 28 Appendix C - Proposed Rules of Court .................................................................... 46 Appendix D - Notes on Proposed Bill and Rules ...................................................... 51 Table of Cases ......................................................................................................... 93 Table of Statutes ...................................................................................................... 97 Index ...................................................................................................................... 101 REPORT 11 (1971) - DEFAMATION Preface The Law Reform Commission is constituted by the Law Reform Commission Act, 1967. The Commissioners are The Honourable Mr Justice Reynolds, Chairman. Mr R. D. Conacher, Deputy Chairman. Mr C. R. Allen. Professor D. G. Benjafield. Mr D. Gressier. Mr T. W. Waddell, Q.C. The Honourable Mr Justice Manning was Chairman of the Com-mission, and Professor W. L. Morison and Mr J. O. Stevenson were Commissioners, during part of the period of the Commission's work on the subject matter of this report. The offices of the Commission are in the Goodsell Building, 812 Chifley Square, Sydney. The Secretary of the Commission is Mr R. J. Watt. Letters should be addressed to him. This is the eleventh report of the Commission on a reference from the AttorneyGeneral. Its short citation is L.R.C. 11. REPORT 11 (1971) - DEFAMATION REPORT Report on Defamation To The Honourable K. M. McCaw, M.L.A., Attomey General for New South Wales. 1. You have made a reference to this Commission in the following terms “To review the law and practices of the Courts in relation to Ebel and slander; and without limiting the generality of the foregoing, to enquire into the extent to which the Law and the practices of the Courts as at )resent existing in respect of Contempt, Libel, and similar legislation hamper the Press in publishing facts of public interest and in editorially commenting thereon within the limit of what is necessary for the protection of the liberty of the subject and the security of the State.” 2. This report deals only with the law and practice of the courts in relation to libel and slander. We leave for future consideration the remainder of the matters covered by the terms of reference. 3. We do not read our terms of reference as including blasphemous, seditious or obscene libels. Since, however, the Defamation Act, 1958, s. 42 (2), deals with a point of procedure relating to the offences of obscene and blasphemous libels, and since we propose the repeal of the Act of 1958, we propose, as an incidental matter, an amendment to the Crimes Act, 1900, inserting a new section 574A, to an effect similar to that of section 42 (2) of the Act of 1958. 4. Further, we do not read our terms of reference as including slander of title, slander of goods, and other cases of malicious falsehood. These are common law wrongs committed by the publication of a malicious falsehood whereby actual damage is caused to the person suffering the wrong. Save that these wrongs involve the publication of an imputation, they have no resemblance to the wrong of defamation. 5. Finally, so far as concerns the scope of this report, we are not concerned here with the protection of privacy nor with the protection of confidential information. Infringements of privacy, or disclosures of confidences, may also be defamatory, but the law of defamation was never intended to protect thesis interests and it is not a fit instrument for that task. 6. We therefore address ourselves in this report to the law of libel and slander, or defamation. One man defames another when he pub-lishes to a third person an imputation harmful to the reputation of that other. The defamer may be liable in damages civilly at the suit of the person defamed and he may be liable to fine or imprisonment or both in a criminal prosecution. This report is concerned with the conditions of these liabilities, the defences oden to the defamer, the procedures in civil actions and in criminal prosecutions, and the remedies and sanctions available. 7. The law of defamation is a matter of peculiar difficulty because it must take account of the conflict between the interest of freedom of speech on the one hand and the right to protection from attacks on reputation on the other hand. It is a subject on which much has been written and spoken and on which strong views are held. We have thus been led to make special efforts to get informed views from people interested, or experienced, in this field of the law, both in New South Wales and elsewhere. 8. Amongst published material, we note particularly the help we have had from the Report of the Committee on the Law of Defamation (the Porter Committee) published in 1948 (Cmd. 7536), the Report on The Law and the Press by the joint working party of the British Section of the International Commission of Jurists and the British Committee of the International Press Institute (the Shawcross Report) published in 1965. We gained further valuable help from papers presented under the auspices of the Council for Advanced Legal Studies of the New South Wales Bar Association. 9. We conferred with lawyers experienced in the law of defamaction. We published notices in the press inviting assistance. There was a wide response to these notices, from lawyers, from the press, from civil liberties bodies, and from other people. 10. We published a working paper on the law of defamation in October, 1968. We sent the working paper to Members of Parliament and to lawyers and others who had indicated their interest or who we thought might be interested. The working paper led to further submissions being made to us and led to public discussion in the press and elsewhere. A symposium on the working paper was held by the Sydney University Law Graduates Association. 11. In the course of our work we were given help generously by many people. We do not list them by name, but we express our gratitude to all of them. 12. One difficulty about consulting people about the law of defamation is that prospective defamers are better organized and more articulate than prospective plaintiffs. A newspaper company knows where the shoe pinches and has the experience and resources to put its views persuasively. No one has put anything to us which is intentionally unfair to plaintiffs, but it is natural that the plight of a defendant should be seen in strong colours by people who have many times been defendants. Those that put to us the side of the plaintiff included lawers with experience in defamation cases and those lawyers of course have no want of articulation or persuasiveness. Others, however, who put the case of the person defamed spoke from general feelincs of justice and fairness or, sometimes, from feelings of outrage, rather than from their own experience of assaults on reputation. They have, given us little Help on the central problem of drawing a line between protection of reputation and freedom of speech. In weighing the views which have been put to us, therefore, we have had to make allowance for the f act that these views give but an imperfect picture of those defects of the law which bear hardly on a defamed person. 13. The present law in New South Wales largely depends on the Defamation Act, 1958 (set out in Appendix A). That Act is “an Act to state and amend the law relating to defamation ….” it is in many respects a code of the law of defamation. In this the Act of 1958 departs from what was formerly the legislative policy in New South Wales and what was and still is the legislative policy in England and in most other common law countries. 14. The Act of 1958 has not been a satisfactory attempt at codification. In the minds of lawyers, the Act is held to be the source of formidable difficulties, both in substantive law and in procedure. Examples of difficulties in substantive law occur in relation to defences of privilege. We give particular mention to section 17 (c), concerning publications “made in good faith . for the public good”, and section 17 (h), concerning publications “made in good faith . in the course of . the discussion of some subject of public interest, the public discussion of which is for the public benefit. Both these provisions raise problems of everyday importance problems which are as yet unresolved. The provisions have been the concern of the press and civil liberties bodies as well as lawyers. 15. Another consequence of the pqrtial codification has, we believe, been a tendency to inhibit historical writing. Section 5 states the characteristics of a defamatory imputation, and states them in a way which is unexceptionable to a lawyer. But its words “any imputation concerning any person, or any member of his family, whether livina or dead” have led to an apparently ineradicable misconception amongst historical writers. The misconception is that the Act may make the historian liable in damaoes simply because he has published an imputation disparaging the reputation of a dead person. 16. We could give further instances where the 1958 Act has not worked well, but there is no need to do so. One reason for the troubles with the Act is that, based as it is ultimately on the Indian Penal Code of 1860, it did not take into account nearly a hundred years of social change and judicial experience. 17. We think that the law of New South Wales ought not to persist in the kind of codification attempted by the 1958 Act. Accordingly we recommend that it should berepealed.