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The Federal Court has ordered the owners of The Daily Telegraph, News Corp, to pay Academy-award winning actor Geoffrey Rush $850,000 in damages plus a yet to be determined sum for economic losses, resulting from the publication of unproven allegations of sexual impropriety. The total award is expected to be in the vicinity of $1.8 million.
Justice Michael Wigney made the orders today after finding the tabloid failed to establish the truth of its claims, which included allegations Mr Rush touched female actor, Eryn Norvill, “up to the line of her jeans”, “very softly and lightly” tracing the skin above the waistband while they were offstage, during a 2015-16 Sydney Theatre Company production of King Lear.
It has been reported that the host of the ABC’s Media Watch, Paul Barry, likened the verdict to being “smashed out of the park”, describing the tabloid’s approach to the reporting of sexual misconduct allegations as “absolutely staggering”.
The verdict sends a strong message to publishers, from those who comment on social media to mainstream media outlets, that they face severe consequences for publishing material which contains derogatory imputations they are unable to prove.
Defamation is generally considered to be conduct which attracts civil liability.
That legislation, the Defamation Act 2005 (NSW), is substantially replicated in legislation across Australia.
However, acts of defamatory can attract both civil and criminal liability, depending on their nature and seriousness.
The Defamation Act requires three distinct components to be proved on the balance of probabilities in order for defamation to be established:
Material must be published (which includes orally communicated) to at least one person other than the party who was allegedly defamed.
The publication can occur orally or in writing, whether in print, by way of digital communication or otherwise, but it must be comprehensible.
The material must identify the allegedly defamed person either directly or indirectly, or be capable of doing so.
3. Defamatory meaning
The material must be ‘defamatory’ to the ‘ordinary, reasonable’ person, which means it must be likely to:
Part 4, Division 2 of the Defamation Act lists the statutory defences, which section 24 makes clear are additional to any others available under the law.
The statutory defences are:
Section 25 of the Act states that ‘[i]t is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
2. Contextual truth
Section 26 provides a defence where the defendant proves that:
3. Absolute privilege
Section 27 sets out the defence of absolute privilege, which relates to material published in the course of the proceedings of a parliamentary body, including (but not limited to):
The defence also extends material published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):
The defence further extends to material which would attract absolute privilege in another Australian jurisdiction.
4. Public documents
Section 28 provides a defence to publishing:
A public document is defined as:
The section states that a defence of publishing a public document can only be defeated if the plaintiff proves the defamatory material was not published honestly for the information of the public or the advancement of education.
5. Fair reporting of proceedings of public concern
Section 29 makes it a defence where the defendant establishes that the defamatory material:
Proceedings of public concern is defined any proceedings:
– a member or members of the society, or
– a person subject by contract or otherwise by law to control by the society, or
6. Qualified privilege
Section 30 makes it a defence where the defendant proves that:
In determining whether the defendant’s conduct is reasonable, the court is to consider:
The section provides that a recipient only has an apparent interest in the information on some subject if at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
7. Honest opinion
Section 31 provides a defence where the defendant, or an employee or agent of the defendant, or commentator, establishes that:
Proper material is that which:
The section further states that an opinion does not cease to be based on proper material only because some of the material on which it is based is such if the opinion might reasonably be based on such of the material as is proper material.
A defence of honest opinion is only defeated if the plaintiff proves that: the opinion was not honestly held by the defendant, or any employee or agent or the commentators as the case may be, at the time the defamatory matter was published,
8. Innocent dissemination
Section 32 makes it a defence where it is proved the defendant:
A subordinate distributor is someone who:
The section provides that a person is not the first or primary distributor merely because he or she was involved in the capacity of a:
Or the provider of services consisting of the:
Or an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, over whom the operator or provider has no effective control, or
Or a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.
And finally, section 33 provides a defence where the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
Section 14B of the Limitation Act 1969 (NSW) provides that ‘an action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.’
However, section 56A(2) allows a court to extend that period to up to 3 years from the date of publication, ‘if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication’.
Under section 9 of the Defamation Act, companies with 10 employees or more employees or which are formed for something other than financial gain cannot sue for defamation.
Section 10 precludes anyone from asserting, continuing or enforcing a cause of action for defamation in respect of a deceased person, or from suing the estate of a deceased person.
Part 3, Division 1 of the Act sets out a range of rules for resolving civil defamation disputes without litigation.
The part provides mechanisms for offering to make amends without resorting to legal proceedings, and makes clear that any such offers, or admissions made therein, are not admissible in any ensuing litigation.
Section 529 of the Crimes Act 1900 (NSW) sets out the offence of ‘criminal defamation’.
Section 529(3) prescribes a maximum penalty of 3 years’ imprisonment for anyone who, without lawful excuse, publishes a matter defamatory of another living person:
(a) knowing the matter to be false, and
(b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused
Section 529(4) provides that a defendant has a lawful excuse lawful excuse if, and only if, he or she would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation.
Section 529(5) makes clear that the prosecution bears the onus of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the defendant.
Section 529(7) requires the consent of the DPP before proceedings can be instituted under the section, and subsection (9) states that a prosecution under the section does not a bar civil defamation proceedings.
If you have been charged with criminal defamation and are going to court, call us anytime on (02) 9261 8881 to book a free first appointment.