Helvadjian, David J --- "A Saviour for the Media? The Genesis of the Public Interest Defence and Its Possible Future Treatment" [2023] PrecedentAULA 39; (2023) 177 Precedent 4

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A saviour for the media?

The genesis of the public interest defence and its possible future treatment

By David J Helvadjian

Ben Roberts-Smith, Geoffrey Rush, Christian Porter, Lachlan Murdoch – when high-profile plaintiffs sue for defamation, everyone sits up and takes notice. All these renowned individuals sued media corporations, which exist to publish news to as wide an audience as possible, making defamation suits an occupational hazard. However, could a new ‘public interest defence’, part of a raft of reforms of the uniform Defamation Acts, be a saviour for the media?

In the past, when faced with suits like the above, the media found that where they could not prove what they published was substantially true (which happens more than one would expect or hope) they were left with other defences such as common law qualified privilege and statutory qualified privilege (see, for example, s30 of the Defamation Act 2005 (NSW) (Defamation Act)). These qualified privilege defences were rarely successful because publication to large, disparate audiences hardly ever met the reciprocity of interest test between publisher and recipient required by qualified privilege.

It is not surprising, therefore, that the Australian media looked with envy to the UK, which had a defence peculiarly suited to mass media known as the ‘public interest defence’. Part of the common law since 1999,^[1] the public interest defence was added to the statute books in 2013 in s4 of the Defamation Act 2013 (UK)^[2] (UK Defamation Act).

Australia’s media lobbied for something similar and when the most recent reforms to the uniform Defamation Acts in Australia came into effect on 1 July 2021,^[3] they included s29A – ‘Defence of publication of matter concerning issue of public interest’ – a defence that is very similar to the UK Act’s s4 defence. Indeed, s29A was intended to be a ‘comparable defence’.^[4]

At the time of writing, there has been no final judicial determination of a s29A defence in Australia. However, we have come tantalisingly close and there have been some interesting judicial comments on this defence in two cases in the NSW jurisdiction.

The first was Barilaro v Google LLC^[5] (Barilaro). In this case, the then NSW Deputy Premier John Barilaro sued Jordan Shanks-Markovina (a journalist with a YouTube channel under the name ‘friendlyjordies’) for defamation over a number of videos produced by friendlyjordies and uploaded onto YouTube. Google was the second defendant, due to the fact it owned YouTube and therefore ‘published’ the friendlyjordies videos. The videos investigated claims against Mr Barilaro in relation to allegations of corruption and his record in office.

Mr Shanks-Markovina settled with Mr Barilaro prior to the hearing.^[6] Google did not settle prior to the hearing and so the matter progressed to a final hearing.

One of the defences Google pleaded was a s29A defence. Unfortunately, Google abandoned its s29A defence on the first day of the trial because, as Mr Barilaro was not making any claim for publication after 1 July 2021, the defence could not apply.^[7]

Nevertheless, on the question of aggravated damages, Rares J made several insightful findings as to the operation of the defence when considering whether Google’s conduct, inter alia, in pleading and pressing that defence until the first day of trial, should have sounded in aggravated damages.

In the second case, Murdoch v Private Media Pty Ltd^[8] (Murdoch), Lachlan Murdoch, a senior executive of US media conglomerate Fox Corporation, sued Crikey, an online news website and newsletter published by Private Media Pty Ltd, for defamation over an article that detailed evidence given at the congressional inquiry in the United States concerning Donald Trump’s role in inciting his supporters to storm the US Capitol building on 6 January 2021. In the article, Crikey called Mr Trump a traitor and ended by claiming that, by supporting Mr Trump, ‘The Murdochs’ and the commentators on Fox News were guilty of being the ‘unindicted co-conspirators’ (a reference to Richard Nixon and his role in the Watergate scandal).

Murdoch was a hard-fought interlocutory argument where Wigney J had to consider the nature and scope of the defence in deciding Mr Murdoch’s objections to Crikey’s public interest defence particulars.

On 21 April 2023, Mr Murdoch discontinued his case against Crikey. A final judicial determination of s29A is still to come. However, to consider what that future determination may look like, it is useful to review the genesis of the public interest defence as well as the judicial treatment of both the s4 defence and the s29A defence thus far (cognisant, of course, of the need for caution when comparing two non-identical statutory provisions).^[9]

THE GENESIS OF THE PUBLIC INTEREST DEFENCE

The story of the public interest defence begins in Ireland. In November 1994, because of a political crisis, Albert Reynolds resigned as Taoiseach (Prime Minister) of Ireland. Mr Reynolds was well known in the UK as one of the chief architects of the Irish peace process. Almost immediately after he resigned, The Sunday Times published in its British edition an article entitled ‘Goodbye gombeen man’. ‘Gombeen man’ loosely translates to someone who is shady and a ‘wheeler-dealer’.

Mr Reynolds sued in England, claiming that the defamatory sting of the article was that he deliberately and dishonestly misled the Dáil (the Irish Parliament) by suppressing vital information.

By the time Reynolds v Times Newspapers Ltd (Reynolds) reached the House of Lords, the question was simply whether the defence of qualified privilege should be extended to cover a new category of ‘political information’.^[10]

Times Newspapers had argued that they should have a defence because the subject matter of ‘political information’ was so important to the public interest that publishing on such a topic outweighed any consideration of the individual defamatory ramifications.

At first instance and on appeal, the decisions went against Times Newspapers.

While the House of Lords declined to ‘extend’ qualified privilege based on ‘subject matter’, it did find that qualified privilege was always ‘elastic’ enough to encompass responsible reporting in the public interest if it is necessary in the circumstances of the case.^[11]

As usual, Lord Nicholls gave a pithy statement of the development: ‘When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged.’^[12]

Lord Nicholls than gave ten ‘illustrative’ factors to help determine whether the defence was established.^[13] Those factors, minus one, are essentially the factors found in s29A(3).

This gave the media a defence, not just limited to the topic of political information^[14] (compare our own limitations regarding the implied freedom of political communication),^[15] but when there was a ‘public interest’ in publishing, and the publishers acted reasonably.

Fast forward to 2013, and the UK Government codified the ‘Reynolds defence’ under s4, although they dropped Lord Nicholls’ ten factors.

SIMILARITIES BETWEEN S29A AND S4

In Australia, s29A(1) of the Defamation Act states:

‘(1) It is a defence to the publication of defamatory matter if the defendant proves that –

(a) the matter concerns an issue of public interest, and

(b) the defendant reasonably believed that the publication of the matter was in the public interest.’

In determining whether the defence is made out, sub-s (2) says all the circumstances of the case must be taken into account, but sub-s (3) says a court may take into account one or more of the nine factors listed if it considers any of them applicable. Subsection (4) stresses that sub-s (3) does not require each factor to be taken into account or limit the matters that may be taken into account.

Section 4(1) of the UK Defamation Act is very similar to Australia’s s29A(1):

‘(1) It is a defence to an action for defamation for the defendant to show that –

(a) the statement complained of was, or formed part of, a statement on a matter of public interest; and

(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.’

The UK Defamation Act’s sub-s (2) provides that, subject to sub-s (3) (impartial account of a dispute) and sub-s (4) (allowances for editorial judgment), in determining whether sub-s (1) is established, the court must have regard to all the circumstances of the case.

JUDICIAL TREATMENT OVERSEAS AND IN AUSTRALIA

As expected, since 2013, there have been many UK cases concerning s4. Thankfully, the most authoritative cases were recently reviewed by Nicklin J in the case of Lachaux v Independent Print Ltd^[16] (Lachaux). In Lachaux, the defendants published a few articles about the situation of Afsana Lachaux, the ex-wife of the plaintiff and a British national. In short, the couple lived in the United Arab Emirates (UAE). While there, the marriage broke down and Mr Lachaux was awarded custody of their young son. When Mrs Lachaux did not comply with that order, Mr Lachaux began a criminal prosecution against her for abduction. Then Mr Lachaux discovered his son’s whereabouts and took custody of him.

The articles published in the UK portrayed Mr Lachaux as someone who engaged in violent domestic abuse, kidnapped his son and used the courts, in a Muslim country, against his wife for improper purposes.

Justice Nicklin analysed the key authorities and said that s4 gives rise to three questions (which I have adjusted ever so slightly for our s29A(1) language):

1. Was the [matter] complained of a [matter] of public interest? If so –

2. Did the defendant believe that publishing the [matter] complained of was in the public interest? If so –

3. Was that belief reasonable?^[17]

(See also Serafin v Malkiewicz^[18] (Serafin)).

Under s4, then, the first question was held to be an objective question for the Court and dependent on what the ‘public interest’ is.

It is a concept that is not new to UK or Australian courts.^[19] However, the ‘public interest’ can never be fully defined, given it has varied over the ages. That said, it is important to heed the words of Baroness Hale in Jameel v Wall Street Journal (heard prior to s4 being introduced):

‘There must be a real public interest in communicating and receiving the information ... the most vapid tittle-tattle about the activities of footballers’ wives and girlfriends interests large sections of the public but no one could claim any real public interest in our being told all about it.’^[20]

In Murdoch, Wigney J held, citing Lachaux, that indeed the first question was an objective question for the Court to determine.^[21]

Helpfully his Honour then proceeded, at a later part in the reasons, to discuss how the Court would objectively determine whether the matter ‘concerns an issue of public interest’.

There was a dispute as to how the defendant could prove whether the matter concerned an issue of public interest. His Honour found that while in many cases that question will be uncontroversial, where it is controversial the defendant can plead and seek to prove facts said to establish that the matter is in the public interest. They are not limited to establishing that the matter is in the public interest solely by reference to the matter complained of and facts known by judicial notice.^[22]

Justice Wigney also addressed the possible situation where the publication as a whole might be in the public interest but, in that publication, defamatory allegations are published that are only tenuously linked or incongruous to the whole publication.

Justice Wigney found that:

‘[A] publication is less likely to be found to concern an issue of public interest, and a publisher’s belief that the publication of the matter was in the public interest is less likely to be considered reasonable [see third question below], if the publication “drag[s] in damaging allegations” against a person in circumstances where those allegations do not serve the broader public interest.’^[23]

While this of course raises further questions as to where that line is, it does put defendants on notice that the new defence cannot be used as a vehicle to air any old allegations under the cloak of the public interest.

Justice Nicklin’s first question did not need to be considered by Rares J in Barilaro but his Honour cited with approval Serafin, which sets out the same three questions as Lachaux quoted above.

As to the second question, in Lachaux it was held that the defendant has to establish that, at the time of publishing, they had a subjective belief that publishing the matter was in the public interest.

The critical point here is ‘at the time of publishing’. Therefore, the defendant, via editors or the journalist, say, if it is a corporate defendant, has to ensure their evidence establishes what they subjectively believed at the time of publishing.

In Lachaux,^[24] the first defendant was not successful on this limb (and so the defence failed) because there was no contemporaneous evidence and ‘zero recollection’ from Christopher Green, the Deputy News Editor at the time of publication, to support the necessary subjective belief.

The additional issue in Lachaux, though, and what makes the situation of Mr Green somewhat understandable, was that the final hearing took place seven years after publication. Therefore, the lesson here is that it is very important that publishers use appropriate methods to capture their belief at the time of publishing, not only to satisfy this limb but also to ensure, in the event they are sued many years down the road, that they are not relying on ‘recollection’.

In Australia, Rares J in Barilaro endorsed the requirement that the publisher has to have a subjective belief at the time of publishing. Justice Rares found that Google ‘would have had to establish that it reasonably believed that the publication of the bruz video was in the public interest’.^[25] Further, Rares J found again that ‘it is impossible to discern how ... Google could have believed that (continued) publication of the bruz video was reasonably in the public interest.’^[26]

In Murdoch, Wigney J also agreed that the second question ‘concerns the defendant’s actual state of mind.’^[27]

As to the third question – was that belief reasonable? – in Lachaux Nicklin J held that this will be the ‘major point of contention whenever reliance is placed upon [the] defence’.^[28]

As evidenced by the cases in England and even by our own s29A(3) list of factors, the question whether, in all the circumstances of the case, the subjective belief that led to the publishing was reasonable will rest on whether the publisher’s actions at the time were reasonable and responsible. This was probably best summed up by Warby J in Economou v de Freitas:

‘It seems hard to describe a belief as reasonable if it has been arrived at without care, in the absence of any examination of relevant factors, and without engaging in appropriate enquiries’.^[29]

Justice Warby went on to say that a belief is reasonable ‘only if it is one arrived at after conducting such inquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case’.^[30]

This was cited with approval in Lachaux;^[31] by Sharp LJ in the Court of Appeal in Economou v de Freitas;^[32] and in Serafin.^[33]

In Australia, Barilaro and Murdoch concur with the approach taken in England but with some additional consideration, not least because in Australia we have the s29A(3) factors to guide a court in determining whether the defence is established.

In Barilaro, in finding that it was impossible to discern how Google could have believed the publication of the bruz video was reasonably in the public interest, Rares J focused on the fact that the imputations were very serious, that Google had made no examination of the video’s contents, had not done a search of the documents used in the video to ascertain the difference between allegations, suspicions or proven facts, and that no attempt had been made to put the substance of Mr Barilaro’s side of the story in the video.^[34]

In Murdoch, Wigney J articulated the third question as ‘whether a reasonable person standing in the defendant’s “shoes” – that is, in particular, possessing the information that the defendant possessed at the time – would have held that belief [that publishing was in the public interest]’.^[35]

Justice Wigney then went on to apply that question and found that ‘the question will essentially be whether Crikey, given what it knew (or did not know) and given what it did (or did not do) to guard, as best it could, against the publication of untrue defamatory imputations, would reasonably have considered the publication of the article to be in the public interest.’

Helpfully, his Honour appeared to distil the considerations required in answering the third question into two elements:

1. What did the defendant know or not know at the time of publishing?

2. What did the defendant do or not do to guard against publishing untrue defamatory imputations?

Both of these elements are represented in the various factors listed in s29A(3), but a court does not need to express its consideration of all the circumstances of the case through the sub-s (3) factors.

Justice Wigney then found that ‘much of the inquiry in respect of the third element is generally likely to be on the nature and content of the publication, the seriousness of the defamatory imputations found to have been conveyed by the publication, the information possessed by the defendant and its sources, and the steps taken by the defendant to check or verify that information.’^[36]

A UNIQUELY AUSTRALIAN ‘MATTER’

In Murdoch, Wigney J went on to consider the use of the word ‘matter’ in s29A.

In contrast to England, where the sting is distilled into a defamatory statement and the defence applies to that statement, in Australia, it is not as clear as to what ‘matter’ refers to.

The Defamation Act says: ‘It is a defence to the publication of defamatory matter if the defendant proves that ...’ [emphasis added.]

First, there is the publication that gives rise to the cause of action, which is often referred to as the ‘matter complained of’. Additionally, though, the plaintiff pleads imputations that are said to be defamatory and conveyed by the matter complained of.

This uncertainty might seem strange, given the definition of ‘matter’ in the Act (see our s4) is defined in such a way as to appear to refer to the whole publication.

However, in prior judicial consideration of the statutory defence of qualified privilege (s30 of the Act) and honest opinion (s31 of the Act), the use of the word ‘matter’ in those defences has quite frequently been taken to mean the defamatory imputations only, and not the whole matter complained of.

Before Wigney J, the parties were at odds over the use of the word ‘matter’ in the s29A defence. Mr Murdoch advocated for ‘matter’ to refer to the imputations, Crikey for the whole publication.

Why is this distinction important? Well, it is of course better for the plaintiff to say that the defence requires that the defamatory imputations are published in the public interest because it will be far harder for a defendant to prove that publishing just a few defamatory sentences is in the public interest versus establishing that a whole program or article about a broader topic was in the public interest. So, the question as to what ‘matter’ refers to determines how easy it is for defendants to meet the first hurdle of the defence.

While avoiding reaching a ‘definitive conclusion’, Wigney J:

‘strongly incline[d] to the view that, despite what may have been said in authorities concerning other defences in the Defamation Act, including the defences in ss 30 and 31, the reference to “defamatory matter” and “matter” in s 29A is a reference to the article, report or program which conveyed the defamatory imputation or imputations. It is not a reference to the alleged defamatory imputation or imputations, or the defamatory sting, found to have been conveyed by the relevant article, report or program’.^[37]

His Honour found support for this approach in:

• the definition of the word ‘matter’ in the Act;

• the fact that there is a single cause of action in defamation based on one article, program or report, even when such matter can convey multiple defamatory imputations; and

• the fact that in s29(3) one of the factors that can be taken into consideration is ‘the seriousness of any defamatory imputation carried by the matter published’.^[38]

This finding, if supported in further judicial determinations, has the potential to provide the broadest possible defence to media corporations.

However, his Honour went on to emphasise, as indeed is clear from the sub-s (3) factors, that the defamatory imputations cannot be ignored when considering whether the defence is established. Indeed, as his Honour said, the seriousness of the imputations will be very important to establishing whether it was reasonable to hold the subjective belief that publishing was in the public interest.^[39]

CONCLUSION

Considering the genesis of the public interest defence, it is not unexpected, given our legislature’s desire for s29A to be ‘comparable’ with s4 of the UK Defamation Act, that the public interest defence here has thus far travelled a similar path to that in the UK.

In so doing, and with a ‘preliminary’ view as to ‘matter’ in s29A, media defendants should have cause for hope, not least because of the clarity of the three questions they must be aware of before publishing.

However, given these are often corporations acting through employees, it will ultimately be the beliefs and actions those employees take, at the time of publishing, that will determine if this defence can be deployed successfully, something we are still waiting to see here in Australia.

David J Helvadjian is a barrister at 153 Phillip Barristers. Since being called to the bar, his practice has encompassed a wide spectrum of areas, including defamation, public law, criminal law, migration law and commercial law. EMAIL [e-mail].

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^[1] Reynolds v Times Newspapers Ltd [1999] UKHL 45; [2001] 2 AC 127 (Reynolds).

^[2] The Act is referred to as the UK Defamation Act, however, it only applies to England and Wales; Scotland and Northern Ireland have their own.

^[3] As of 10 May 2023 the public interest defence is in force in the following jurisdictions, and introduced by the following amending Acts: Defamation Amendment Act 2020 (NSW); Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld); Defamation (Miscellaneous) Amendment Act 2020 (SA); Defamation Amendment Act 2021 (Tas); Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 (Vic).

^[4] Defamation Amendment Bill 2020 (NSW), Explanatory Note, 9; see also Barilaro v Google LLC [2022] FCA 650 (Barilaro) [387] and Murdoch v Private Media Pty Ltd [2022] FCA 1275 (Murdoch) [57].

^[5] Barilaro, above note 4.

^[6] Led by M Collins AM KC and C Parkin; the author appeared as counsel for Mr Shanks-Markovina.

^[7] Barilaro, see above note 4 [252] and [381].

^[8] Murdoch, above note 4.

^[9] Ibid [58].

^[10] Reynolds, above note 1.

^[11] See eg Reynolds, above note 1, 204H (Lord Nicholls) and 213D (Lord Steyn); and also Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300 [23] (Lord Nicholls).

^[12] Ibid, 194.

^[13] Ibid, 205A–C.

^[14] See the clarification in Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44; [2007] 1 AC 359, where the House of Lords held that the Reynolds defence was not limited to matters of political importance; see eg [146] (Baroness Hale).

^[15] Theophanous v The Herald [1994] HCA 46; (1994) 182 CLR 104; Lange v ABC (1997) 189 CLR 530.

^[16] [2021] EWHC 1797 (QB) (Lachaux).

^[17] Ibid, from [128].

^[18] [2020] UKSC 23; [2020] 1 WLR 2455 (Serafin) [74] (Lord Wilson, with whom Lord Reed PSC, Lord Briggs, Lady Arden and Lord Kitchin JJSC agreed).

^[19] See eg London Artists v Littler [1968] EWCA Civ 3; [1969] 2 QB 375, 391 and Bellino v ABC [1996] HCA 47; (1996) 185 CLR 183, 221–225.

^[20] [2006] UKHL 44; [2007] 1 AC 359, 408.

^[21] Murdoch, above note 4, [65].

^[22] Ibid [76]–[86].

^[23] Ibid [75].

^[24] Lachaux, above note 16, [165]–[168].

^[25] Barilaro, above note 4, [389].

^[26] Ibid [390].

^[27] Murdoch, above note 4, [66].

^[28] Lachaux, above note 16, [132].

^[29] [2016] EWHC 1853 [239].

^[30] Ibid [241].

^[31] Lachaux, above note 16, [136].

^[32] [2018] EWCA Civ 2591; [2019] EMLR 7 [101].

^[33] Serafin, above note 18, [67].

^[34] Barilaro, above note 4, [388] and [390].

^[35] Murdoch, above note 4, [67].

^[36] Ibid [68].

^[37] Ibid [70].

^[38] Ibid [71].

^[39] Ibid [68].