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Kenyon, Andrew T --- "Defamation and Critique: Political Speech and New York Times v Sullivan in Australia and England (2001) 25" [2001] MelbULawRw 18; (2001) 25(2) Melbourne University Law Review 522


Review Essay

Defamation And Critique:
Political Speech And New York Times V Sullivan
In Australia And England

Freedom of Speech in Australian Law: A Delicate Plant by Michael Chesterman (Aldershot: Ashgate/Dartmouth, 2000) pages i–xiii, 1–360. Price £55.00 (hardcover). ISBN 1 84014 052 6.

Legal Intimidation: A SLAPP in the Face of Democracy by Fiona Donson (London: Free Association Books, 2000) pages 1–176. Price £16.95 (paperback). ISBN 1 85343 504 X.

Political Libels: A Comparative Study by Ian Loveland (Oxford: Hart Publishing, 2000) pages i–xviii, 1–190. Price £22.50 (hardcover). ISBN 1 84113 115 6.

INTRODUCTION

An unusual book about the US legal process, called The Biography of a Legal Dispute, was published by Marc Franklin in 1968.[1] As readers who are aware of Franklin’s later empirical defamation research may suspect,[2] the book concerns a defamation trial. The Biography of a Legal Dispute is distinctive in its progression from a potential plaintiff’s initial contact with a lawyer, through the trial and appeal stages, and in its recounting of the plaintiff’s success in obtaining the then-large sum of US$3500 in damages.[3] Franklin’s book is interesting in that it offers a detailed introduction to many common issues in defamation trials and appeals, such as pre-trial procedures,[4] the roles of judge and jury,[5] and jury directions.[6] A substantial part of the book reproduces transcripts of witness examination and cross-examination.[7] Interspersed within this material are extracts from civil procedure articles. Also, as the dispute predates developments in US defamation law under New York Times v Sullivan,[8] it broadly accords with the Anglo-Australian common law of defamation. The book’s focus on the minutiae of defamation litigation is interesting in allowing for quite nuanced readings of the trial process, and for the way in which Franklin uses this detail to introduce questions of comparative law and procedure. Much recent writing about defamation law shares Franklin’s interest in comparative law, and recognises that moving beyond doctrinal comparisons could enrich arguments for reform. Franklin’s book has only been mentioned in recent US writing in the context of civil procedure pedagogy,[9] but it is offered here to illustrate one theme of this review essay — that the practices of defamation litigation and media production deserve greater engagement in future research, at least in research with a traditional object of doctrinal analysis and law reform.[10] This issue will be reconsidered in Part VI of this review, after addressing my other main interest in this article, namely the concept of qualified privilege. The three books under review suggest that the scope of qualified privilege will be the subject of ongoing debate, and Part V considers two avenues for future research. Parts II to IV examine aspects of each of the books that are particularly relevant to defamation.

My argument about qualified privilege is that the range of material protected because it is ‘political’ could be reconceptualised, especially in Australia. A central issue for all three books is defamation law’s protection of political material. During the 1990s, democratic ideas about free speech supported the development of extended forms of qualified privilege in several countries.[11] In extending qualified privilege, Commonwealth cases usually have examined US law, and this engagement is of major interest to Ian Loveland in Political Libels[12] and Michael Chesterman in Freedom of Speech in Australian Law.[13] An allied, but more recent, development may be the importing of a North American acronym — SLAPP, or Strategic Lawsuits Against Public Participation.[14] Since the 1980s, SLAPP has become a label given to legal suits brought by corporate or public sector entities to silence criticism and debate. Defamation suits are a major type of SLAPP, and this is a concern of Fiona Donson in Legal Intimidation.[15]

All three books offer suggestions for a wider qualified privilege defence. Loveland argues that qualified privilege should apply to political speech, although he does show some concern that what the law recognises as being within the concept of ‘political’ could be narrow. In one way, his concern is ironic as the English form of qualified privilege that has developed through Reynolds v Times Newspapers Ltd[16] encompasses more than political speech. It appears to extend to all matters of public concern. Case law under the European Convention for the Protection of Human Rights and Fundamental Freedoms[17] also suggests that a general public interest defence is plausible.[18] Having that wider scope to qualified privilege is something argued for — indirectly, but strongly — by Donson. She explores the McLibel litigation[19] at length, and offers it as an example of speech that should be included within a broader qualified privilege. In terms of subject matter, the speech in McLibel[20] probably could come within the Reynolds form of qualified privilege. But, in terms of the activists’ research and inquiries, it would almost certainly fail to meet the 10 illustrative factors listed by Lord Nicholls.[21] Chesterman also considers a broad qualified privilege defence, drawn from the Australian constitutional protection for political communication, and he more directly engages with the possible scope of ‘political’ for defamation law. The three books, and perhaps Chesterman’s work in particular, can be used to suggest how the legal vision of politics could change.

II LOVELAND: A CASE LAW HISTORY OF QUALIFIED PRIVILEGE

Ian Loveland has produced a significant comparative analysis of defamation doctrine, and a large part of it concerns the defence of qualified privilege. Basically, Loveland argues for reforming English libel law by drawing on US cases, and specifically on the English common law decisions that can be seen to underlie some US law. Those English origins mean that the US approach need not be seen as depending solely on the First Amendment. That is, the Sullivan case[22] took an approach that various state courts had taken earlier. These courts drew heavily on the common law, not just on state constitutional law. English law could retrieve those origins. At the same time, Loveland suggests that developments in Commonwealth jurisdictions, particularly Australia and New Zealand,[23] show the need for English reform. As well as these antipodean developments, the Human Rights Act 1998 (UK) c 42 and the European Convention on Human Rights[24] support further change. Thus Loveland argues that reform is possible within the common law, and is needed, given developments within England, Europe and the Commonwealth.

Loveland covers many issues, generally via a chronological outline of cases in various countries. The approach is strengthened by considering remedies as well as defences — principally, the 1990s developments of a broader qualified privilege defence in various countries, and limitations on damages in England and Australia. In this review essay, I want to examine one aspect of Loveland’s work — the origins of a broad common law defence of qualified privilege. Loveland outlines how several elements of English defamation law originated before any contemporary understanding of democracy. They can be traced to the early and mid 19th century, and were ‘the product of a pre-democratic age.’[25] Loveland seeks to link changing concepts of democracy to changing defamation doctrine — the political and social context in which a decision occurred should be examined.

A significant case in his argument is Wason v Walter,[26] both for its method and its later export to the US. The case was decided in 1868, after the Representation of the People Act 1867 (UK) 30 & 31 Vict, c 102 widened the franchise significantly (although not to anything like its contemporary conception). Wason concerned whether privilege would protect a media report of a parliamentary debate. Cockburn CJ held that it would, by analogy with the legal protection already recognised for reports of statements made in court. While the scope of protection in Wason can be seen as narrow, Loveland argues that the judgment is radical in its support for an informed electorate, especially in the context of the electoral franchise and political system that then existed.[27] Loveland sees the judgment as having methodological significance, which has been overlooked in its subsequent use. He argues:

Rather than being construed as a methodological innovation which required the common law to follow changing political understandings of the nature of democratic governance, Wason seemed to be viewed as a mechanistic statement of a legal rule — a rule which applied only to reports of parliamentary proceedings.[28]

It is not hard to see this methodological element in Wason. For example, Cockburn CJ explicitly described the need for the common law to be adaptable:

Whatever disadvantages attach to a system of unwritten law, and of those we are fully sensible, it has at least this advantage: that its elasticity enables those who administer it to adapt it to the varying conditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and interests of the generations to which it is immediately applied.[29]

In this way, Loveland seeks to distinguish two broad approaches to common law development. One approach, continuing intermittently from Wason, suggests ‘the common law should develop in ways which reinforced emergent societal understandings of the type of political information which citizens had a legitimate interest in receiving.’[30] This could be seen in some defamation judgments in the 1970s and 1980s,[31] but remained a weaker strand in the cases. A more formalist approach was dominant, as seen in decisions like Bognor Regis UDC v Campion[32] and Blackshaw v Lord.[33] Loveland uses Wason to argue for the less formalist approach, so that the scope of defamation defences are adjusted to the political environment in which they operate.

Wason is also important for Loveland because of how it was developed in the US in 19th and early 20th century cases that drew on the common law as well as state constitutions. For example, the 1908 Kansas decision of Coleman v MacLennan[34] confirmed that a wide qualified privilege defence existed against defamation claims by political candidates.[35] The Court said that politicians, by seeking election, relinquished some legal protection of their reputations. It arrived at this result in part through reference to the above quote from Cockburn CJ.[36] It also enunciated a wide view of ‘political’, which extended beyond parliamentarians and candidates to

all officers and agents of government, municipal, state and national; to the management of all public institutions, educational, charitable and penal; to the conduct of all corporate enterprises affected with a public interest, transportation, banking, insurance; and to innumerable other subjects involving the public welfare.[37]

Although the Court in Coleman was concerned to interpret the effect of a state constitutional protection for the ‘liberty of the press’, its reasoning focused largely on common law approaches to qualified privilege. Similarly broad approaches to qualified privilege were developed in some other states.[38] By way of example, Loveland quotes from the 1888 Pennsylvania case of Press Co Ltd v Stewart.[39] Stewart ran a journalism school and sued a newspaper that doubted his competence. The story was protected by qualified privilege, the judgment stating:

If we are asked why this article is so privileged, I answer because it was proper for public information. The plaintiff was holding himself out to the world as a teacher and guide of youth ... This gave him a quasi public character. Whether he was a proper person to instruct the young, and whether his school was a proper place for them to receive instruction, were matters of importance to the public, and the Press was in the strict line of its duty when it sought such information, and gave it to the public.[40]

Loveland uses this historical review to consider the law developed under Sullivan.[41] Although the US Supreme Court did not acknowledge the English legal antecedents, Loveland argues fairly persuasively that the majority’s

substantial reliance on Coleman indicates that Sullivan’s knowing/reckless falsity test was not so much a principle inherent in the First Amendment itself, but rather a common law principle in respect of which the First Amendment served merely as a vehicle to give it supra-legislative and nationwide effect.[42]

Loveland, however, prefers a defence for political speech, rather than a wider public interest defence. The wider defence appears to be implicit in Coleman and more directly suggested by Press Co Ltd v Stewart.[43] A general public interest defence did appear to be open, at least temporarily, after Time Inc v Hill[44] in 1967. Hill was a case in which a statutory privacy claim was made subject to the Sullivan rule. Hill had been held hostage with his family, and years later a play was written about the incident without his consent. Life magazine published an article which misrepresented the hostage ordeal in discussing the play. Hill won his privacy claim at trial, but lost in the Supreme Court. The Court applied the First Amendment rules of Sullivan to ‘all newsworthy events’[45] so that liability would depend on the publisher having known the material was false (or recklessly disregarding its falsity). This goes too far for Loveland, who argues:

Sullivan was a readily defensible judgment in a liberal democratic polity ... [A]ny legal rules which outweigh that protection [of reputation] must be grounded in compelling policy arguments. Hill had no such basis. This might suggest that invoking the notion of ‘public interest’ as a moral justification for deviating from the original common law norm is a dangerous course for a court to adopt, as it may tend to obscure the intensely and intimately political nature of the controversies in issue in the litigation where the ‘political libel’ defences first appeared. Retaining the label of ‘political interest’ may be a more sensible strategy for a court to follow.[46]

Without necessarily disagreeing with his comments on Hill, I would suggest that the issue of public interest can be seen as a significant matter for defamation defences. And, irrespective of Hill, the US approach since Sullivan is not limited to political matters, which will be returned to below in Part V. If the courts use the label ‘political’, it may result in limited protection for the discussion of matters that some members of the public see as political. That is, it could strengthen an institutional approach to politics within defamation law, as Chesterman has suggested in Australia.[47] Given the constitutional basis of the Australian developments for political communication, the most valuable approach here may be to reinterpret and broaden the concept of ‘political’.

Loveland also draws on European cases in support of a political rather than a public interest version of qualified privilege.[48] He provides a useful review of cases under the European Convention on Human Rights,[49] especially criminal libel cases since the mid 1980s.[50] Loveland is aware of the cases that suggest European law would draw a distinction between matters of ‘private’ and ‘public’ concern, rather than ‘private’ and ‘political’. In Oberschlick v Austria (No 2), the European Court of Human Rights specifically dealt with political material and said that politicians must have less protection for their reputations than private individuals.[51] But in De Haes v Belgium the Court considered an article that had attacked a family law judge who then initiated a criminal libel action.[52] Loveland notes that the Court applied something like a negligence test to determine whether the published attacks on the judge were ‘unfounded’.[53] The journalists had investigated their story carefully, and the Court commented that the media had a duty to impart matters of public interest, which the public had a right to receive.[54] As Loveland notes, these European cases, which arguably apply to civil defamation, suggest that the law must take account both of political and public interest matters in its doctrinal rules.[55] But he emphasises the value in treating political material differently. Eric Barendt, in contrast, has recently emphasised how the European cases can be seen to be of great interest to media reports that deal with matters of public concern.[56] Barendt differs from Loveland in arguing that the Court has long rejected any clear division between political matters and other issues of public concern.

Loveland’s suggested reform for political material would apply qualified privilege to the activities of people with ‘substantial governmental responsibility’,[57] and he is concerned to extend this to at least some areas of corporate activity. Loveland notes that privatisation of formerly public services has ‘created a situation in which citizens can claim a legitimate interest in being informed of the integrity and competence’ of organisations dealing with power, water, rail and so forth.[58] Further, he suggests that political campaigns by people (or presumably corporations) who do not hold public office should also be covered. But his approach appears relatively narrow. The McLibel litigation,[59] for example, is entirely missing from Political Libels. In any event, it would seem that the English law under Reynolds[60] does not require this sort of political connection, nor does European or US law.

III DONSON: ACTIVISTS AS POLITICAL SPEAKERS

Fiona Donson’s work is very different from that of Loveland. Although other writers have considered the international development of SLAPP,[61] Donson has produced a book aimed at giving the concept currency within the UK. Donson is not a media lawyer, with her main interests being in human rights and the law’s interaction with environmental protest. In one sense, the book offers little about defamation law — that is, its doctrinal content is very small. But a significant type of SLAPP is the defamation suit and Donson’s work examines an important issue for defamation law, namely, its treatment of anti-corporate publications, debate and protest. The McLibel suit[62] (along with some of McDonald’s wider interests in defamation law) is a key part of Legal Intimidation.[63]

The concept of SLAPP derives from US work by George Pring and Penelope Canan,[64] who began a project about ‘political litigation’ in 1984 and combined legal research with qualitative and quantitative sociological methodologies. In the 1990s, they jointly wrote the book SLAPPs: Getting Sued for Speaking Out after investigating a range of behaviour that led to legal action against activists, including peaceful demonstrators, seeking signatures for petitions, and even reporting corporate breaches of environmental regulation. Pring and Canan characterised these actions as SLAPPs and distinguished them from commonplace lawsuits because they arose in response to participation in the political process by individuals, and sought to reduce future participation.[65] SLAPPs seek to transform the form of disputes from political into legal, which moves disputes from a public arena to the comparatively private legal forum. This shifts the disputes’ focus from the effect of contentious actions on people as citizens to the injuries suffered by corporations who sue.

Pring and Canan found most US SLAPPs concerned local disputes. Suits were brought by local entities against individuals, although some national groups had been targeted during environmental disputes. In the typical case, Pring and Canan found that there was no significant difference between plaintiffs and defendants as to income and experience with litigation.[66] And a common cause of action was libel. Even under the Sullivan rules,[67] defamation actions accounted for more than half of the cases they identified. Pring and Canan wanted to make these cases more visible through the label ‘SLAPP’, in part because visibility appeared to affect the case results. That is, where defendant protesters recognised a constitutional dimension to their case, they were likely to win instead of lose. Although the constitutional element might be seen to arise on free speech grounds, Pring and Canan focused on another aspect of the First Amendment. The Amendment’s petition clause confers a right to petition government for a redress of grievances, thus protecting public participation in government.[68]

From its origins in a concern for public participation in local government, the concept of SLAPP has widened — in its use in academic writing at least. It has become identified with the idea of corporations suing individual activists or environmental groups,[69] and has been used as an analogy for many instances of litigation where disparity in resources exists between the parties. So writers argue it is applicable to ‘relentless’ litigants like Scientologists,[70] and even to all cases raising matters of public concern.[71] The concept’s scope has also been widened by statute. For example, Californian anti-SLAPP legislation was expanded in 1997 to cover not just speech made to government authorities, but ‘any other conduct in furtherance of the exercise of the constitutional right of ... free speech in connection with a public issue or an issue of public interest.’[72] This statutory breadth, however, is unusual in the US.[73]

While the phenomenon of SLAPP has been recognised in North America through academic writing, court judgments and legislation,[74] Donson sees it as under-recognised in the UK. She suggests SLAPPs are being instigated more frequently in the UK to intimidate activists, often over environmental issues.[75] Her argument would appear to be applicable to Australia in terms of the concept’s lack of recognition — although empirical research into the use of SLAPP-like responses to protests could be useful.[76] Rather than any detailed research of this sort, the strength of Donson’s book lies in its fairly comprehensive overview of the machinations surrounding two instances of what could be called UK SLAPPs: the ‘McLibel case’[77] and litigation by Monsanto against campaigners protesting about genetically modified food.[78]

In this analysis, Donson takes a broad view of free speech and the political process to argue that corporate criticism should be seen as an important element of legally protected speech. But she recognises that the liberal division of public and private realms has worked against this approach.[79] Donson sees the political landscape changing with non-governmental organisations and a wide range of activist groups engaging in dialogue or protest over both government and corporate power.[80] She suggests that ‘the kind of political action people are turning to as private power and influence grows beyond the apparent control of government is one that demands their participation rather than their representation.’[81] Her work seeks to draw attention to the use of litigation to counter this activist, or participatory, version of democracy.

While some of Donson’s writing suffers from a lack of reflexivity — for example, in her approaches to globalisation, politics and power[82] — a particular strength of the book is how it examines threats of litigation. Donson usefully brings together a wide range of instances, mainly from the UK in the 1980s, when McDonald’s complained about criticism of its business practices.[83] McDonald’s threatened (or commenced) legal action before obtaining retractions or apologies from a number of publishers of critical material. For example, The Guardian apologised and donated money to charity after an article criticised McDonald’s employment practices, and the BBC apologised after a program in its Nature series suggested that McDonald’s contributed to rainforest destruction through its methods of beef-buying.[84] Donson’s main point is that, whatever the motivation and legitimacy of such actions, for a long time the strategy succeeded.[85]

This history provides a background to Donson’s consideration of the McLibel litigation, and her trenchant criticism of English law for allowing McDonald’s to bring the action. At the same time, she recognises that the two protesters’ refusal to apologise to McDonald’s was instrumental in creating a new type of activist campaign. That campaign has meant extensive material from the trial and about McDonald’s is available online through the McSpotlight site,[86] annual protest days are held internationally outside McDonald’s stores, and the original leaflet — What’s Wrong with McDonald’s? — has gained international notoriety and continues to be distributed in paper and digital forms.[87] Thus, Helen Steel and Dave Morris have achieved much of what one imagines they would have sought to do in criticising a company like McDonald’s. But that is only because they had the tenacity and ability to pursue the legal case. Donson criticises the UK legal response to litigation like McLibel for failing to distinguish cases that threaten public participation in the democratic process from other cases. She suggests this rests, in part at least, on the lack of a First Amendment style constitutional provision.[88] Her argument is for an approach to free speech that protects individual participation in public debate: ‘Speech can be seen as the most important political tool that is available to the normal person, in particular the person who has no other obvious source of power or influence’.[89] Donson argues that liberal free speech theory assumes that the relevant threats come from the state, but private power is also important.[90] She is not optimistic about domestic English reform: ‘Even in the context of libel law, for the courts effectively to respond to a claim for protection they will have to accept that a case such as the McLibel lawsuit is political in nature rather than the straightforward protection of reputation.’[91]

It is interesting that the McLibel litigation is not discussed in the other books under review,[92] given the example it offers of a different vision of politics for defamation law. Some ways in which that vision may be pursued are considered below in Part V.

IV CHESTERMAN: TRANSPLANTING US LESSONS[93]

In Freedom of Speech in Australian Law, Michael Chesterman examines developing free speech concepts in Australian law. Several chapters update published articles,[94] but the book is a coherent and substantial monograph. Most of the book considers defamation law, which is fitting given defamation law’s prominence in 1990s Australian free speech cases.[95] And, in relation to defamation, the book stands out in two aspects — in its careful use of US law and secondary writing, and in its overview of Australian developments.

Chesterman considers what conceptual shifts may underlie recent constitutional free speech cases.[96] After Lange, the basis for the constitutional implication is clearly the Constitution’s text and structure.[97] But the form of democracy envisioned through the constitutional implication may have changed. Chesterman draws a distinction between ideas of participatory democracy and a more institutional democratic model. The first could result in a ‘virtually unregulated public forum’,[98] with people having a great degree of input into what matters enter into public and political debate. The second could require only diverse public debate to be maintained by courts and parliaments on matters needed to create informed electors. Although Chesterman notes that the High Court did not deal with the matter explicitly, he argues persuasively that a trend can be seen in the 1990s cases. Ideas about democracy within the judgments have moved from something close to participatory democracy to an institutional model.[99] However, as Chesterman notes, participatory ideas appear to return in Levy,[100] with all members of the High Court suggesting that expressive conduct could constitute speech; that is, protests and demonstrations could be speech, even where the messages conveyed were ‘false, unreasoned and emotional’.[101] Levy aside, the scope of protected communication appears to have been narrowed along with the apparent shift in its rationale from participation by citizens to information for voters. Early judgments effectively linked discussion of political and government matters to public affairs — for example, in quoting Eric Barendt that the protection relates to ‘all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about’.[102] Lange suggested a narrower view of the protected area of speech, namely communications tending to affect voting choices.[103] But, as Chesterman notes, the broader view apparently retained two adherents after Lange, in Kruger v Commonwealth.[104] Thus the issue remains open in terms of doctrine, and it is very likely that future constitutional free speech decisions will be examined by at least some commentators along this axis of differing visions of democracy.

Chesterman also examines the reception of the cases by lower courts,[105] and suggests that the freedom for political communication appears ‘docile’.[106] He argues that, if only the most egregious statutory provisions and common law doctrines are subject to successful challenge under the implied protection, ‘the potential of the concept [of] “freedom of political communication” to continue to generate new ways of thinking about representative self-government would be gravely under-exploited.’[107] The freedom would have only a ‘residual’ role in future Australian law.[108] Against this, Chesterman argues for the freedom to be nurtured and made broader in scope.

This development of a wide defence would further move qualified privilege from its historical position. Chesterman recognises that the defences ‘originated and were developed against very different political, social and constitutional backgrounds to that of present-day Australia.’[109] Extending the work of Slaughter,[110] Chesterman argues that the privilege defences, as they developed historically, are best seen as supporting powerful interests within society. Slaughter had commented that the general rationale that judges offered for privilege defences — such as the common convenience and welfare of society — were based on a laisser faire economic theory. Chesterman continues:

There is, however, an important inference which Slaughter fails to draw. Just as Adam Smith’s account of laisser faire economics concealed the fact that it was not ‘all’ within society who actually attained ‘betterment’ from ‘self-interested transactions’, but those who achieved success within individualist, competitive market systems, the judicial ideology that privilege exists ‘for the general interest of society’ conceals that fact that it primarily operated to protect the rich and/or powerful.[111]

And the privilege still operates largely in the same manner. The beneficiary of the privilege is an actual or potential superior, creditor or organisation exercising control over the plaintiff.[112] Lange, however, has ‘made fundamental changes to the conceptual foundations of qualified privilege.’[113] It has been transformed from something that gives greater protection to some speakers into a ‘relatively egalitarian’ defence that ‘promotes a form of “free” discussion ... in which all citizens, so long as they act “reasonably”, may participate on equal terms, rather than with some enjoying the status of “privileged publishers”.’[114] That is, the new area of operation for qualified privilege makes it more a freedom than a privilege.[115] Although Chesterman does not expand on the point, there seems to be no reason why this transformation could not be applied to existing areas of privilege. It is true that the Court in Lange was at pains to say that existing categories of qualified privilege continue to operate, but maintaining two divergent theoretical bases may prove unappealing for the law.

Chesterman goes on to examine fair comment, remedies and the question of who benefits from the Lange reforms. First, in relation to defences, Chesterman canvasses a wide range of issues about privilege and fair comment and considers whether the constitutional protection for political communication could lead to doctrinal changes in these areas. His arguments for reforming fair comment, in particular, are valuable. He suggests that the law could change in two ways to conform more closely to the implied freedom. The need to establish the truth of the facts underlying the comment could be changed by applying a test of reasonableness for comment, at least within the scope of political communication.[116] Courts could also be more ready to characterise defamatory material as comment rather than fact, for example, when considering political satire. US legal approaches, in particular, would be valuable here.[117]

Secondly, there is a substantial body of criticism of US defamation law, as it has developed since Sullivan.[118] Chesterman provides a very useful overview of this material as an introduction to his argument for developing non-monetary remedies in defamation.[119] Remedies are an important question, and remain unreformed in Australia with the non-rejection (but also non-implementation) of the NSW Law Reform Commission’s 1995 report into defamation.[120] Chesterman considers the constitutional validity of alternative remedies after Lange.[121] It is a debatable question, and seems certain to require judicial pronouncement if reforms are implemented. But Chesterman persuasively sets out the argument for the validity of such alternative remedies.[122]

Thirdly, Chesterman addresses the question of who benefits from these Australian free speech developments.[123] He considers US debates about the political incidence of the First Amendment[124] and suggests that it is commonly accepted that there has been a shift to the political right in regard to who benefits. ‘Twenty-five years ago, it was ... dissenters, radicals, outspoken critics of government action’ and similar speakers who appeared to benefit from free speech arguments.[125] But since then ‘wealthy corporations and conservative causes have been well served by First Amendment arguments’.[126] Corporate interests were able to advance broader libertarian arguments under the guise of the First Amendment.[127] Chesterman’s point is simply to establish that free speech should not be taken to benefit progressive or oppositional political positions:[128] ‘The conjunction of public and private power in the modern post-industrial state is far too complex to permit such a straightforward answer.’[129] Extensive recent US writing, which at times is known as First Amendment legal realism, could also be drawn on to underline this point.[130] Chesterman’s review of the few Australian judgments that currently exist — he considers 29 decisions[131] — will be a valuable starting point for future writers who want to consider the political weight of Australia’s free speech regime. He identifies 12 cases where at least some judges saw the implied freedom as relevant to the result. He notes that media organisations relied successfully on the freedom in nine of these cases, and that eight of them were defamation claims. Thus he concludes:

Overall, it is beyond question that (a) the principal immediate beneficiaries of the emergence of the implied constitutional freedom have been media organisations and (b) they have benefited principally in the role — one regularly thrust upon them in the course of their day-to-day activities — of defendant in a defamation action.[132]

As to whether dissenting or critical views benefit, Chesterman rightly says that the number of decisions is too small to offer any meaningful information. In addition, there would be a need to get beyond decided cases to investigate both litigation and publishing practices.[133] While Chesterman suggests media defendants benefit from the constitutional protection, he notes that since Lange defamation claims appear to have been less successful. In any event, more empirical work is needed in investigations of Australian free speech and media law.

V THE SCOPE OF POLITICS FOR QUALIFIED PRIVILEGE

What about the scope of qualified privilege? Two possible developments are considered in this section for reconceptualising politics as it relates to the defence. These involve recourse to debates within international law and re-examining the Sullivan rules in the US.

The first approach can be developed from Chesterman’s work and Lange.[134] For Australia, in particular, qualified privilege seems tied to a narrow vision of politics, while Loveland appears to argue for a relatively narrow vision in England. Chesterman criticises this narrow scope to political communication, which appears to have been endorsed in Lange.[135] He examines the status of commercial speech, which was offered as an example of what would fall outside the concept of political discussion in Theophanous.[136] That is, ‘speech which is simply aimed at selling goods and services and enhancing profit-making activities’ would not be political.[137] Chesterman is concerned that this could leave some publicly valuable speech unprotected, but the example from Theophanous may form the basis of a more expansive protection. Perhaps a different distinction can be drawn — namely, one between commercial speech that aims at selling services to increase profits, and speech that scrutinises corporate activity. These two types of speech need not be seen as merely opposite sides of some single concept. There is no necessary reason to equate what could be called corporate scrutiny with a corporation’s own advertising. Thus, the following example that Chesterman gives may be open to reinterpretation. He considers a corporation that closes a factory on commercial grounds and raises no political matters when announcing the closure.[138] As Chesterman suggests, there could well be significant public debate about the closure. And, while he suggests the debate would be of public but not political value, that may not be so. The media, for example, would surely interpret the events within a political frame, as would political actors.[139] This is not to say that the law need follow these interpretations, but rather, that there appears to be a choice in applying a legal frame to the events — politics need not be denied.

I agree with Chesterman’s concern that limiting free speech cases to the political sector may maintain an archaic divide between public and private power. He argues that the limitation ‘pays insufficient attention to the fact that there are deeper dimensions to the governance of modern democratic societies than the operations of Parliaments and the public sector.’[140] And Chesterman’s example could be taken further: if I criticise McDonald’s for the effect of its advertising on children, why is that not political speech within law?[141] Although he does not examine the McDonald’s situation, Chesterman sets out a possible avenue for developing this type of argument. The High Court suggested in Lange that the extended qualified privilege may be broader in scope than the constitutional protection for political communication.[142] Thus the Lange form of qualified privilege may be nearer to the idea of public affairs canvassed in Theophanous.[143] In Lange, the Court stated:

It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government.
Similarly, discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level.[144]

This allows Chesterman to suggest that ‘the activities of large companies, at least when they directly affect a large section of the public, might be held to be a topic of “political communication” for the purposes of defamation law, but not constitutional law.’[145] He notes that cases since Lange have not been ‘sympathetic’ to this view,[146] but it remains an important one that may be developed in future decisions.

Others have made similar arguments against the comparatively narrow qualified privilege defences that exist in Australia and New Zealand.[147] Within legal judgments, the comments of Lord Cooke in Reynolds offer a relevant example:

It is doubtful whether the suggested new defence [of qualified privilege] could sensibly be confined to political discussion. There are other public figures who exercise great practical power over the lives of people or great influence in the formation of public opinion or as role models. Such power or influence may indeed exceed that of most politicians. The rights and interests of citizens in democracies are not restricted to the casting of votes. Matters other than those pertaining to government and politics may be just as important in the community; and they may have as strong a claim to be free of restraints on freedom of speech.[148]

As the High Court alluded to in Lange, the ‘government and political matters that affect the people of Australia’[149] are not purely domestic.[150] Perhaps the Court’s references in Lange to international bodies can be seen as an implicit reference to the ideas of transnational civil society, or at least as raising issues about the impact of globalising economic, cultural and environmental forces on democratic governance. This could be an avenue for future research. And it could be seen to echo calls for legal writers to consider economic globalisation alongside the spread of constitutionalism,[151] particularly given the constitutional influence on many countries’ defamation laws. Recourse to concepts like transnational civil society call for a reflexive awareness of the Western biases that often lie within the writing.[152] Challenges to a narrow vision of the political, however, are well developed in international law. Many writers are considering international law’s engagement with the effects and discourses of globalisation.[153]

Communications technologies are central to changes in late-modernity, just as their influence can be seen as significant in the rise of modernity.[154] Media and communications, along with global financial markets and international mechanisms for trade and development, can be seen as key aspects of globalisation. Technologies of speed underlie the shift in power towards extra-state capital, and seem indispensable to a globalising world. Legal writing about defamation, however, has remained comparatively domestic — even the consideration of free speech under the European Convention on Human Rights[155] or the International Covenant on Civil and Political Rights[156] has not extended far into questions about the globalising world, nor into the roles of media law in contemporary processes of ‘world-wide restratification’.[157] Writers such as Donson engage with some of the domestic effects that may be traced to globalisation, but her analysis suffers from an unreflexive and simplistic view of power in the globalising world.

Many resources exist for applying some currents in international law writing to defamation. To illustrate the potential here, four points stand out in relation to the concept of political communication — the changing role of the state; the role of non-government actors; international environmental and human rights concerns; and ideas that question any discrete existence for national law separate to the global. First, in relation to the state, arguments being made in the international legal field about new conceptions of the public–private divide[158] and of domestic and international boundaries[159] could be translated into discourse about defamation law. The state need no longer be seen as the principal threat to, nor principal source of, economic, social and cultural rights.[160] So arguments about defamation law need not consider politics merely in relation to the institutions of the state. That would be to ignore concerns about ‘choiceless democracy’ that writers like Richard Falk and Andrew Strauss see as following from economic globalisation’s constraint on democratic government.[161] As Julie Mertus suggests:

To some extent, states have reallocated elements of sovereignty to other actors, in particular to international regulatory and supervisory organizations, financial institutions, and other “money managers.” States now operate within an increasingly dense matrix of transnational interactions involving other states, inter-governmental institutions, multinational corporations, and a whole range of cross-border groups.[162]

Mertus’ is just one example of arguments for a democracy from below that would increasingly draw on norms of ‘inclusion, transparency and accountability.’[163] And it is seen to hold ‘the potential to create a space in which agendas for progressive change can be worked out, tested, and applied’.[164] Speech involved in such a project may be ‘as important in the community’ and have ‘as strong a claim to be free’[165] of restrictions as that subject to decision by Lord Cooke in Reynolds.

Second, non-government actors have attracted attention in terms of the effects on individual lives of multinational corporations and international organisations such as the International Monetary Fund, and in terms of the potential for individual or collective responses to globalisation.[166] Anne Orford, for example, argues that women bear the effects of globalisation:

As a result, many women remain skeptical about the claims that the sacrifice and suffering inflicted by economic restructuring are a consequence of an inevitable and irresistible process of globalization somehow outside the control of human intervention. Feminists and other critical scholars remind us that the global markets driving globalization are after all social institutions, giving effect to the wishes and desires of the most privileged people in the world.[167]

Beyond displaying an awareness of the contested effects of globalisation, the existing literature also examines the possibilities for non-government actors to resist globalisation, for example, through activist responses to the proposed multilateral agreement on investment.[168]

And a third theme relevant to defamation is the suggestion to expand international trade regulation to include human rights,[169] or environmental standards.[170] Thus, some argue for a recognition of the political content of existing international trade law. It is not enough to suggest that politics ‘is elsewhere’ to trade law.[171] Finally, this approach to defamation law could also take account of the everyday enactment of law within and beyond legal institutional settings,[172] and of writing that uses this focus to argue against the categorisation of national and transnational law as discrete fields.[173]

This sort of approach involves challenges, particularly because the theoretical bases of the various discourses would need explicit consideration. As Anne Orford has argued in relation to international law, some writers undermine their attempts to enter conversations with other disciplines by not considering the theoretical content of their own work.[174] And the unreflective reliance on positivist assumptions that she criticises — which also applies to most defamation law writing — may limit the hope of any observation of wider literature from legal or other fields. The approach also could fall into an unwarranted dependence on the concept of globalisation, as if it is some ‘magic incantation, a pass-key meant to unlock the gates to all present and future mysteries.’[175]

In any event, there clearly is a growing field of writing that considers the political content of the state, multinational corporations, international organisations, and activist (and other) responses to globalisation. In so far as defamation law intersects with these fields, its vision of the political could be reconsidered. So, while multinational corporations appear to be gaining more powerful roles than transnational activists in this transforming world, the debates between the various groups can be analogised to the ‘political communication’ of an earlier world — that is, the earlier world evoked by the High Court in Lange when it suggested this vision of politics:

[E]ach member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion — the giving and receiving of information — about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege.[176]

My argument to reconceptualise the scope of qualified privilege also suggests another avenue for future research, namely, a return to the US Sullivan rules and the way they largely protect corporate critics. Even writers strongly in favour of freedoms for profit-seeking corporations recognise the importance of corporate criticism. Martin Redish and Howard Wasserman, for example, suggest that corporations’ role in democratic societies and their potential political influence entail First Amendment protections.[177] Thus, corporate plaintiffs generally are public figures under the Sullivan rules. They note:

The standard’s original premise was the need to insulate speakers from libel damages to insure that ‘debate on public issues should be uninhibited, robust, and wide-open.’ The public law conception of the corporation is fully consistent with that underlying premise.[178]

It remains possible for a corporate entity to be a private plaintiff,[179] or a limited-purpose public figure, for example, in relation to products advertised by the corporation.[180] But corporations of any size or public notoriety will be public figures.[181] And they will be public figures for all purposes.[182] So a corporation must establish that a defamatory publication was made with actual malice — that is, subjective knowledge of a false fact the publication conveys, or reckless disregard of its truth or falsity.[183] And this is required to be proven to a higher standard than the usual civil requirement. It must be established with convincing clarity, which means that appellate courts have much greater scope to overturn trial decisions.[184] In these ways, a corporate critic is well protected to criticise major corporate entities — in terms of defamation doctrine at least[185] — as long as the critic does not publish known falsities.

Some commentary goes further to suggest that corporations should be treated as per se public figures,[186] which would remove any reduction in speech about corporations which are not clearly public figures under the current rules. In part, that argument rests on the public power exercised by corporations:

Underlying New York Times [v Sullivan] is the rationale that speech directed at public actors deserves greater protection ... [T]hose in the public arena, entrusted with power, require greater accountability ... The corporation’s inherent public character and power dictate that corporations be subject to a higher level of scrutiny as defamation plaintiffs.[187]

The suggestion is analogous to ideas that England’s absolute bar on local elected bodies suing in defamation[188] should be extended.[189] But the existing US approach is enough to note here. It illustrates a significant issue about the scope of protection that Australian and English defamation law could address. The Sullivan rules also suggest important issues about the strength of protection, which could also be considered. That is, the burden of proving falsity could be placed on the plaintiff, as the NSW Law Reform Commission has considered at length.[190]

VI A NEW BIOGRAPHY OF DEFAMATION LAW?

As Alison Young has noted, legal judgments customarily begin with biography.[191] My suggestion here is that academic legal arguments for reform should return to biography, after Franklin’s introductory text[192] and empirical research.[193] Loveland makes an explicit argument for doctrinal reform and suggests adopting a negligence standard to protect defamatory publications. He sees the US tests as weighted too heavily against plaintiffs, but he would allow a defence of lack of negligence in investigating defamatory allegations.[194] Loveland is aware that his own balance point rests on little empirical evidence, which also can be said of existing Anglo-Australian defamation law. He comments: ‘There is little empirical evidence as to the precise impact of the “chilling effect” on political journalism, whether in the USA, the United Kingdom, Western Europe, Australia or New Zealand.’[195] This is true, but there is more empirical material than Loveland notes — and it offers a basis for future work. In relation to empirical research, Loveland mentions only the UK work in Libel and the Media: The Chilling Effect[196] and one US article.[197] He makes no reference to Franklin’s work,[198] nor to the most substantial US research, the Iowa Libel Research Project.[199] As well, at least two substantial empirical research projects into defamation law are underway in Australia and England.[200] This research will significantly update and expand earlier Australian work.[201] Still, it remains an area that deserves greater attention from researchers, and from their funders. All this does suggest, however, that soon it will no longer be enough to argue as Loveland does that ‘theoretical surmises’ on the value of protecting a politician’s reputation are the best basis for envisaging defamation law and its reform.[202]

As Stone and Williams have noted, common law courts have taken varied paths in developing qualified privilege during the 1990s,[203] and, as the House of Lords has suggested, one of the reasons for divergence is cultural:

There are at stake powerful competing arguments of policy. They pull in different directions ... And in considering the decisions in other jurisdictions it is right to take into account that cultural differences have played an important role.[204]

Similar comments have been made by New Zealand writers, notably Geoff McLay.[205] These demonstrate the value of comparative empirical research for legal doctrinal development. If judicial discourse now recognises these varied aspects of legal and media practices, legal researchers may wish to provide some material about these practices for law’s consideration.

In this way, we are brought back to Franklin’s 1968 text about defamation law[206] and its enactment in the civil litigation process. Comparative research examining these issues would be one obvious avenue to pursue in developing a new biography of defamation law.[207] But an additional avenue is suggested by developments in qualified privilege that have been considered by writers like Loveland and Chesterman. Questions about the reasonableness of publication under Lange[208] and the illustrative factors listed by Lord Nicholls in Reynolds[209] suggest that English and Australian defamation law will develop standards of appropriate journalistic practice. Especially given Anglo-Australian courts’ recent recognition of regional variations in media practice, empirical research seems warranted into the production practices existing in media organisations in Australia, England and elsewhere. Journalistic standards have also been debated under the Sullivan rules,[210] and comparative research into US media practices could be especially important in any such project. Not only is the existing US empirical research substantially out of date,[211] it has not examined media production practices even in the relatively limited way they have been considered in the UK.[212] Thus, examining US and Australian pre-publication activity by media professionals and their lawyers would be likely to highlight the particular cultures of media production existing in each country and offer useful material for understanding how the legal requirements in each country interact with story production and content. That would offer new information about local conditions for future legal determinations about the scope and strength of any qualified privilege defence.

Thus, the contemporaneous developments in England, Australia and New Zealand that Loveland examines, and the review of US and Australian developments by Chesterman, offer an excellent basis for future empirical research into the effects of defences and remedies within the media production and litigation practices of the jurisdictions involved. And Donson’s examples illustrate one theme to be taken up in future work — namely, globalisation in the way it now stands as shorthand for a host of changes in social, technological and subjective fields. Without undercutting the historical analysis offered by Loveland, it may be that empirically investigating contemporary media practices and normatively arguing about values to be drawn on by law is a more plausible way to seek substantial legal change. As McLay suggests, there is ‘a danger in a methodology that starts with the desirability of a drastic change in the common law and then seeks to find the seeds of that change in old dicta’.[213] Old common law may rely on different values from contemporary understandings of human rights.[214] But, also, Loveland’s early US cases could support a broader public interest conception of political communication than he appears to want. In particular, a case like Press Co Ltd v Stewart[215] would extend the defence to publications of a ‘quasi-public character’, such as criticism of a journalism teacher in 1888 Pennsylvania.[216]

VII CONCLUSION

A particular focus that emerges from these three recent books concerns the scope of qualified privilege in defamation. The High Court of Australia has recognised that common law qualified privilege need not be confined to the scope of the constitutional protection for political communication.[217] That offers a point of entry for arguing about a broader form of political discussion under the defamation defence. And, usefully for such an argument, the High Court’s examples in Lange included international organisations.[218] As well as recognising the broader approach taken in England under Reynolds,[219] academic writing could draw on existing scholarship addressing concepts like transnational civil society, globalisation and human rights to further such a project. This sort of argument — for a broader vision of politics within defamation law — could also return to US defamation law, and consider the full scope of the Sullivan rules. Sullivan created a different set of hurdles for plaintiffs who were political figures, which has been extended to public figure plaintiffs.[220] Thus, the Sullivan rules include the most criticism of corporate activities.

Other changes to defamation law are possible. There is no reason to limit considerations of reform to a broad public interest defence. But the scope of qualified privilege is one thread for future research suggested by the books under review. Other obvious issues are standing to sue, burdens of proof, damages and remedies. Loveland and Chesterman address the question of damages, with Chesterman in particular considering alternative remedies.[221] The burden of proof for elements of the cause of action could also be reconsidered. Drawing on his earlier work with the NSW Law Reform Commission,[222] Chesterman examines how the NSW proposal for making a plaintiff prove falsity would seem likely to reduce the chilling effect of defamation.[223] As well, damage can no longer be presumed in defamation cases, as Eric Barendt has recently argued.[224] But why should any such changes be considered for defamation? This returns us again to Franklin’s narrative of defamation procedure,[225] and the value that further empirical work would have for legal writing about defamation. Most 1990s Commonwealth cases on qualified privilege suggest that courts will be more ready to hear such sociologically-inspired arguments, if lawyers are prepared to advance them.[226]

ANDREW T KENYON[*]


[1] Marc Franklin, The Biography of a Legal Dispute: An Introduction to American Civil Procedure (1968). A similar work in another area of civil litigation is offered by Peter Simon, The Anatomy of a Lawsuit (1984). There are many books reporting on defamation trials, but not in the integrated style of Franklin. Of these works, many offer short reports of several trials: eg, David Hooper, Reputations under Fire: Winners and Losers in the Libel Business (2000). Others focus in depth on one case without providing so much primary material as Franklin: eg, Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (1991).

[2] See Marc Franklin, ‘A Declaratory Judgment Alternative to Current Libel Law’ (1986) 74 California Law Review 809; Marc Franklin, ‘Suing Media for Libel: A Litigation Study’ [1981] American Bar Foundation Research Journal 795; Marc Franklin, ‘Winners and Losers and Why: A Study of Defamation Litigation’ [1980] American Bar Foundation Research Journal 455.

[3] The trial occurred in 1959.

[4] Franklin, The Biography of a Legal Dispute, above n 1, 26–31, 34–45.

[5] Ibid 152–3.

[6] Ibid 127–33.

[7] Ibid 53–75, 81–121.

[8] [1964] USSC 40; 376 US 254 (1964) (‘Sullivan’).

[9] Eg, Cynthia Ford surveyed US civil procedure teachers in 1995, and only one of the 183 respondents mentioned Franklin’s text as a book they used in teaching: see Cynthia Ford, ‘Integrating Indian Law into a Traditional Civil Procedure Course’ (1996) 46 Syracuse Law Review 1243, 1284–5. Franklin’s book is given greater consideration by Jamison Wilcox when arguing for adding to casebook-style teaching by using writing that reflects upon lawyers’ work: see Jamison Wilcox, ‘Borrowing Experience: Using Reflective Lawyer Narratives in Teaching’ (2000) 50 Journal of Legal Education 213, 219. A very brief mention is made in Paul Wangerin, ‘The Political and Economic Roots of the “Adversary System” of Justice and “Alternative Dispute Resolution”’ (1994) 9 Ohio State Journal on Dispute Resolution 203, 209.

[10] This is not to suggest in any way that such utilitarian aims should exhaust the scope of legal writing about defamation.

[11] In this review essay, Australia and the UK will be noted. One could also examine New Zealand, India and, it appears, South Africa. For a useful overview, see Adrienne Stone and George Williams, ‘Freedom of Speech and Defamation: Developments in the Common Law World’ [2000] MonashULawRw 15; (2000) 26 Monash University Law Review 362. Canada has refused to make similar changes: Hill v Church of Scientology of Toronto [1995] 2 SCR 1130; 126 DLR (4th) 129. However, that was a case not involving a politician, and the decision can also be criticised for its conservative approach to questions of damages: see, eg, Andrew Kenyon, ‘Problems with Defamation Damages?’ [1998] MonashULawRw 4; (1998) 24 Monash University Law Review 70.

[12] Ian Loveland, Political Libels: A Comparative Study (2000).

[13] Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000).

[14] Eg, SLAPPs did not feature in a recent edited collection examining the US First Amendment and UK law: Ian Loveland (ed), Importing the First Amendment: Freedom of Expression in Britain, Europe and the USA (1998).

[15] Fiona Donson, Legal Intimidation: A SLAPP in the Face of Democracy (2000).

[16] [1999] UKHL 45; [1999] 4 All ER 609 (‘Reynolds’).

[17] Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952) (‘European Convention on Human Rights’).

[18] A recent review along these lines is provided by Eric Barendt, ‘Human Rights Act 1998 and Libel Law: Brave New World?’ (2001) 6 Media and Arts Law Review 1.

[19] See generally Steel v McDonald’s Corporation [1999] EWCA 1397 (Unreported, Pill and May LJJ, Keene J, 31 March 1999); Douglas Vick and Kevin Campbell, ‘Public Protests, Private Lawsuits, and the Market: The Investor Response to the McLibel Case’ (2001) 28 Journal of Law and Society 204. At the time of writing, the European Court of Human Rights was expected to rule on admitting a complaint from Steel and Morris against the UK government, arguing that English defamation law breaches the European Convention on Human Rights, eg, by placing the burden of proving truth on the defendant: see McLibel Support Campaign, McLibel Crisis As Defendant and Office Fight Eviction Threat, Press Release (17 May 2001) <

http://www.mcspotlight.org/media/press/releases/msc170501.html> at 16 July 2001 (copy on file with author). In contrast to the McLibel saga, McDonald’s in the US and India apologised to customers and admitted it had not released ‘complete’ information earlier about the use of beef fat in producing its chips: see, eg, Luke Harding, ‘Hindus Angered by Burger Chain’s Beef Lie’, The Guardian (Manchester, UK), 25 May 2001.

[20] See What’s Wrong with McDonald’s? (1986) <

http://www.mcspotlight.org/case/pretrial/factsheet.html> at 16 July 2001 (copy on file with author). This leaflet accused McDonald’s of: being responsible for starvation in the Third World; poor environmental and labour standards; endangering public health; deceptive advertising and marketing; and cruelty to animals.

[21] Lord Nicholls suggested the following matters would be relevant to whether an occasion of qualified privilege existed for a media publication: the allegations’ seriousness; the nature of the information (and whether it was of public concern); the information source; steps taken to verify the information; the status of the information (eg, what investigations had been completed); the urgency of publication; whether comment was sought from the plaintiff (which would not always be necessary); whether the plaintiff’s side of events was conveyed in the publication; the overall tone of the publication; and the circumstances and timing of the publication: Reynolds [1999] UKHL 45; [1999] 4 All ER 609, 626. The recent litigation in Loutchansky v Times Newspapers Ltd (Unreported, English High Court of Justice, Gray J, 27 April 2001) is just one illustration of how the defence will not be easy to establish.

[22] [1964] USSC 40; 376 US 254 (1964).

[23] See especially Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 (‘Lange’); Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385.

[24] Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952).

[25] Loveland, above n 12, 17.

[26] (1868) LR 4 QB 73 (‘Wason’).

[27] Loveland, above n 12, 173.

[28] Ibid 32.

[29] Wason (1868) LR 4 QB 73, 93.

[30] Loveland, above n 12, 92–3.

[31] See, eg, Cook v Alexander [1973] 3 All ER 1037, especially Lawton LJ at 1043. See also ibid.

[32] [1972] 2 QB 169.

[33] [1984] 1 QB 1.

[34] 98 Pac 281 (Kan Sup Ct, 1908) (‘Coleman’).

[35] Earlier Kansas decisions providing a broad form of qualified privilege include Kirkpatrick v Eagle Lodge, 26 Kan 384 (1881); Redgate v Roush, 59 Pac 1050 (Kan Sup Ct, 1900). These cases concerned publications to members of an association or church, rather than the general public. A substantial number of cases involving publications about political candidates to electors is listed in Coleman, 98 Pac 281, 287 (Kan Sup Ct, 1908).

[36] Coleman, 98 Pac 281, 284 (Kan Sup Ct, 1908), and further consideration of the Wason decision at 285–6. For the quote, see the text accompanying above n 29.

[37] Coleman, 98 Pac 281, 289 (Kan Sup Ct, 1908), also quoted in Loveland, above n 12, 40–1.

[38] Loveland, above n 12, 41–8 considers Illinois, Pennsylvania and Iowa, as well as listing some other states.

[39] 199 Pa 584 (1888).

[40] Ibid 603, quoted in Loveland, above n 12, 44–5.

[41] Loveland, above n 12, 64–85.

[42] Ibid 71–2. But Loveland does note how later US developments appear to have relied on the First Amendment more directly.

[43] 199 Pa 584 (1888).

[44] [1967] USSC 11; 385 US 374 (1967) (‘Hill’).

[45] Loveland, above n 12, 75.

[46] Ibid 84.

[47] See below nn 96104 and accompanying text.

[48] Loveland, above n 12, 101–14, 153–6.

[49] Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952).

[50] Eg, Lingens v Austria [1986] ECHR 7; (1986) 8 EHRR 407; Barfod v Denmark (1989) 11 EHRR 493; Oberschlick v Austria (1991) 19 EHRR 389; Castells v Spain [1992] ECHR 48; (1992) 14 EHRR 445; Thorgeirson v Iceland [1992] ECHR 51; (1992) 14 EHRR 843.

[51] [1997] ECHR 38; (1997) 25 EHRR 357, 367.

[52] [1997] ECHR 7; (1997) 25 EHRR 1.

[53] Loveland, above n 12, 154.

[54] De Haes v Belgium [1997] ECHR 7; (1997) 25 EHRR 1, 52–3.

[55] Loveland, above n 12, 156.

[56] Barendt, ‘Brave New World?’, above n 18, which includes an initial analysis of two recent decisions: Bladet Tromso v Norway [1999] ECHR 29; (2000) 29 EHRR 125 and Bergens Tidende v Norway [2000] ECHR 190; (2001) 31 EHRR 16.

[57] Loveland, above n 12, 179.

[58] Ibid.

[59] See generally Steel v McDonald’s Corporation [1999] EWCA 1397 (Unreported, Pill and May LJJ, Keene J, 31 March 1999); above n 19.

[60] [1999] UKHL 45; [1999] 4 All ER 609. See below n 148 and accompanying text, and, eg, Loutchansky v Times Newspapers Ltd (Unreported, English High Court of Justice, Gray J, 27 April 2001) where a publication about foreign organised crime was not held to be outside the scope of the Reynolds defence.

[61] See, eg, Chris Tollefson, ‘Strategic Lawsuits against Public Participation: Developing a Canadian Response’ (1994) 73 Canadian Bar Review 200; James Wells, ‘Exporting SLAPPS: International Use of the US “SLAPP” to Suppress Dissent and Critical Speech’ (1998) 12 Temple International and Comparative Law Journal 457.

[62] Steel v McDonald’s Corporation [1999] EWCA 1397 (Unreported, Pill and May LJJ, Keene J, 31 March 1999).

[63] Donson, above n 15.

[64] Donson gives a general overview: ibid 16–34. See generally Penelope Canan and George Pring, ‘Studying Strategic Lawsuits against Public Participation: Mixing Quantitative and Qualitative Approaches’ (1988) 22 Law and Society Review 385; Penelope Canan and George Pring, ‘Strategic Lawsuits against Public Participation’ (1988) 35 Social Problems 506; George Pring, ‘SLAPPs: Strategic Lawsuits against Public Participation’ (1989) 7 Pace Environmental Law Review 3; George Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out (1996).

[65] Pring and Canan, Getting Sued for Speaking Out, above n 64, 8.

[66] The typical plaintiff (and defendant) was ‘a male college graduate in his forties with an annual household income of $40,000–$60,000’: ibid 220.

[67] I follow Chesterman’s useful terminology here. He uses the label the ‘Sullivan rule’ to underscore how the US approach is not a defence for public figures, but changes the burden and standard of proof for public figure (and other) plaintiffs: Chesterman, above n 13, 155.

[68] The relevant parts of the First Amendment read: ‘Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.’

[69] Eg, Wells, above n 61, takes a broad view, suggesting that the concept should cover criticism of actions by government or commercial entities.

[70] J P Kumar, ‘“Fair Game”: Leveling the Playing Field in Scientology Litigation’ (1997) 16 Review of Litigation 747, 749–52.

[71] Victor Cosentino, ‘Strategic Lawsuit against Public Participation: An Analysis of the Solutions’ (1993) 27 California Western Law Review 399.

[72] CAL CIV PROC CODE s 425.16 (West 1997). The section also states it ‘shall be construed broadly’. For a detailed review of the provisions, see Kathryn Tate, ‘California’s Anti-SLAPP Legislation: A Summary of and Commentary on Its Operation and Scope’ (2000) 33 Loyola of Los Angeles Law Review 801.

[73] Tate, above n 72, 812–13.

[74] See the references in above n 72 and Briggs v Eden Council for Hope and Opportunity, 19 Cal 4th 1106 (Cal Ct App, 1999), which interpreted the Californian legislation. There has also been a report on that legislation: Judicial Council of California, Special Motions to Strike Strategic Lawsuits against Public Participation (‘SLAPP Suits’) (1999).

[75] Donson, above n 15, 144–9 details a number of illustrative cases involving the oil industry, roads and hunting.

[76] One example of a SLAPP would appear to be Ballina Shire Council v Ringland (1994) 33 NSWLR 680 (as Wells, above n 61, 474–5 has noted). See also the discussion of local planning disputes and defamation law in Damien Carrick, ‘Do Australia’s Defamation Laws Stifle Freedom of Expression?’, ABC Radio National, The Law Report, 6 March 2001 <

http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s255552.htm> at 16 July 2001 (copy on file with author).

[77] Steel v McDonald’s Corporation [1999] EWCA 1397 (Unreported, Pill and May LJJ, Keene J, 31 March 1999).

[78] The Monsanto litigation is detailed in Donson, above n 15, 125–42.

[79] Ibid 1–2.

[80] Ibid 143.

[81] Ibid.

[82] One example can illustrate this aspect of Donson’s writing. When considering non-litigious responses that businesses may adopt against activists, Donson suggests businesses can threaten democracy in several ways:

[They] can create a situation in which political interests are not represented equally ... restrict alternatives that can be considered for debate ... undermine the effectiveness of democratic action as undertaken by citizens ... and [they] can create and ensure the adoption of substantive policies that are ultimately in opposition to the real needs and interests of the majority ...

Ibid 5. One need not differ from her assessment of neo-liberal capitalism to suggest Donson’s argument does not need to rely explicitly on this political viewpoint. The point could be made with language that has more plausibility within legal discourse (which appears to be at least one of her aims), and it could take account of the rich discourses engaging with contemporary complex societies.

[83] Ibid 67–79.

[84] Ibid 68–9 (many more examples are provided through to 79).

[85] Ibid 79.

[86] See <http://www.mcspotlight.org> at 16 July 2001.

[87] See What’s Wrong with McDonald’s?, above n 20.

[88] This argument, like much SLAPP literature, could be considered something of an opportunistic First Amendment approach. On the divergent rhetorical uses of the First Amendment in US political and legal debates, see Frederick Schauer, ‘First Amendment Opportunism’ (Working Paper RWP00-011, John F Kennedy School of Government, Harvard University, 2000).

[89] Donson, above n 15, 153.

[90] In making this argument, Donson draws on writers such as Richard Abel, Speech and Respect (1994). On Abel’s work in this book, and similarly in Richard Abel, Speaking Respect, Respecting Speech (1998), see Fiona Macmillan, ‘Solving the Speech Conundrum’ (1999) 4 Media and Arts Law Review 217.

[91] Donson, above n 15, 156.

[92] While Chesterman, like Loveland, does not discuss McLibel, he does allude to the political aspects of some participatory forms of protest: eg, Chesterman, above n 13, 36–7.

[93] Chesterman’s title appears to allude to the literature on legal transplants, although he does not explicitly refer to it. See, eg, Alan Watson, Legal Transplants: An Approach to Comparative Law (revised ed, 1993).

[94] See Michael Chesterman, ‘The Money or the Truth: Defamation Reform in Australia and the USA’ [1995] UNSWLawJl 16; (1995) 18 University of New South Wales Law Journal 300; Michael Chesterman, ‘OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury Is Dealt with in Australia and America’ (1997) 45 American Journal of Comparative Law 109; Michael Chesterman, ‘Privileges and Freedoms for Defamatory Political Speech’ [1997] AdelLawRw 8; (1997) 19 Adelaide Law Review 155.

[95] Chesterman considers a wide range of issues, and the material on racist speech and contempt of court are not considered here in any detail: see Chesterman, above n 13, 193–248, 249–99. The writing on racist speech, in particular, is innovative.

[96] Especially the principal cases of Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Pty Ltd [1994] HCA 46; (1994) 182 CLR 104 (‘Theophanous’); Stephens v Western Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211; Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272; Lange [1997] HCA 25; (1997) 189 CLR 520; Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 (‘Levy’).

[97] Lange [1997] HCA 25; (1997) 189 CLR 520, 566–7.

[98] Chesterman, above n 13, 29.

[99] Ibid 31–7.

[100] [1997] HCA 31; (1997) 189 CLR 579.

[101] Ibid 623 (McHugh J). For a consideration of the interaction of the Constitution, political protest and other law, particularly criminal law, see Simon Bronitt and George Williams, ‘Political Freedom as an Outlaw: Republican Theory and Political Protest’ [1996] AdelLawRw 10; (1996) 18 Adelaide Law Review 289, 307–23.

[102] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 124 (Mason CJ, Toohey and Gaudron JJ), quoting Eric Barendt, Freedom of Speech (1985) 152.

[103] Chesterman, above n 13, 50.

[104] [1997] HCA 27; (1997) 190 CLR 1, 73 (Toohey J), 98 (Gaudron J). See ibid 49.

[105] Chesterman, above n 13, 55–60.

[106] Ibid 73.

[107] Ibid 76.

[108] Ibid 74.

[109] Ibid 81.

[110] M Slaughter, ‘The Development of Common Law Defamation Privileges: From Communitarian Society to Market Society’ (1992) 14 Cardozo Law Review 351.

[111] Chesterman, above n 13, 90.

[112] Ibid 91.

[113] Ibid 106.

[114] Ibid 109.

[115] Ibid 110.

[116] Ibid 148.

[117] Eg, consider the case of Hustler Magazine v Falwell, [1988] USSC 24; 485 US 46 (1988). Recent Australian examples include the Hanson litigation and Brander v Ryan & Messenger Press Pty Ltd [2000] SASC 446 (Unreported, Prior, Lander and Bleby JJ, 21 December 2000). On Hanson, see Australian Broadcasting Corporation v Hanson (Unreported, Supreme Court of Queensland, Court of Appeal, de Jersey CJ, McMurdo P and McPherson JA, 28 September 1998), and note that the High Court later refused special leave and the opportunity to explore the treatment of political satire: Transcript of Proceedings, Australian Broadcasting Corporation v Hanson (High Court of Australia, Gleeson CJ and McHugh J, 24 June 1999).

[118] See, eg, John Soloski and Randall Bezanson (eds), Reforming Libel Law (1992).

[119] Chesterman, above n 13, 153–68.

[120] Apart from earlier reforms to damages: see, eg, Kenyon, ‘Problems with Defamation Damages?’, above n 11. See NSW Law Reform Commission, Defamation, Report No 75 (1995).

[121] [1997] HCA 25; (1997) 189 CLR 520.

[122] Chesterman, above n 13, 186–91.

[123] Ibid 301–17.

[124] See, eg, Frederick Schauer, ‘The Political Incidence of the Free Speech Principle’ (1993) 64 University of Colorado Law Review 935, and papers responding to Schauer in that special journal issue, which Chesterman, above n 13, 303–8 examines.

[125] Chesterman, above n 13, 304.

[126] Ibid 305, drawing on Steven Winter, ‘Fast Food and False Friends in the Shopping Mall of Ideas’ (1993) 64 University of Colorado Law Review 965.

[127] See, eg, Schauer, ‘First Amendment Opportunism’, above n 88, 3–7.

[128] In contrast, much of the US SLAPP literature assumes the political motives of the parties. In that way, it echoes the free speech arguments of liberals during the 1960s.

[129] Chesterman, above n 13, 308.

[130] See, eg, Richard Delgado, ‘Toward a Legal Realist View of the First Amendment’ (2000) 113 Harvard Law Review 778; Richard Delgado and Jean Stefancic, Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment (1997); Richard Abel, Speech and Respect (1994); Jack Balkin, ‘Some Realism about Pluralism: Legal Realist Approaches to the First Amendment’ (1990) 40 Duke Law Journal 375.

[131] But Chesterman notes that more judgments may exist, particularly in defamation: Chesterman, above n 13, 310.

[132] Ibid 311.

[133] See below Part VI.

[134] [1997] HCA 25; (1997) 189 CLR 520.

[135] Chesterman, above n 13, 46–8.

[136] [1994] HCA 46; (1994) 182 CLR 104.

[137] Ibid 124 (Mason CJ, Toohey and Gaudron JJ).

[138] Chesterman, above n 13, 48.

[139] One need not have recourse to the theoretical apparatus of someone like Luhmann to suggest the media will present events in a particular style: see Niklas Luhmann, The Reality of the Mass Media (Kathleen Cross trans, 2000).

[140] Chesterman, above n 13, 48.

[141] Children and advertising were one of the issues in the McLibel case: see Steel v McDonald’s Corporation [1999] EWCA 1397 (Unreported, Pill and May LJJ, Keene J, 31 March 1999) [28] where the judgment of the Court of Appeal (delivered by Pill LJ) quotes the trial judge’s finding that ‘[i]t was true to say that the Plaintiffs exploit children by using them as more susceptible subjects of advertising, to pressurise their parents into going to McDonald’s.’

[142] [1997] HCA 25; (1997) 189 CLR 520, 571.

[143] [1994] HCA 46; (1994) 182 CLR 104. See Chesterman, above n 13, 52.

[144] [1997] HCA 25; (1997) 189 CLR 520, 571.

[145] Chesterman, above n 13, 99.

[146] Ibid 100.

[147] See generally Neil Campbell and Grant Huscroft (eds), ‘A Symposium on Defamation and Political Expression’ [2000] New Zealand Law Review 385.

[148] [1999] UKHL 45; [1999] 4 All ER 609, 640. This quote has some currency in New Zealand at least: see, eg, Geoff McLay, ‘Lange v Atkinson: Not a Case for Dancing in the Streets’ [2000] New Zealand Law Review 427, 435–6; John Burrows, ‘Lange v Atkinson 2000: Analysis’ [2000] New Zealand Law Review 389, 392.

[149] [1997] HCA 25; (1997) 189 CLR 520, 571.

[150] See text accompanying above n 144.

[151] See, eg, Gavin Anderson, ‘Corporations, Democracy and the Implied Freedom of Political Communication: Towards a Pluralistic Analysis of Constitutional Law’ [1998] MelbULawRw 1; (1998) 22 Melbourne University Law Review 1.

[152] See, eg, Eve Darian-Smith, ‘Structural Inequalities in the Global Legal System’ (2000) 34 Law and Society Review 809, 817.

[153] On the discourses of globalisation, see Susan Silbey, ‘“Let Them Eat Cake”: Globalization, Postmodern Colonialism, and the Possibilities of Justice’ in Nicholas Blomley, David Delaney and Richard Ford (eds), The Legal Geographies Reader: Law, Power and Space (2001) 256; Sundhya Pahuja, ‘Technologies of Empire: IMF Conditionality and the Reinscription of the North/South Divide’ (2000) 13 Leiden Journal of International Law 749; David Held and Anthony McGrew, The Global Transformations Reader: An Introduction to the Globalization Debate (2000).

[154] See, eg, John Thompson, The Media and Modernity: A Social Theory of the Media (1995).

[155] Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952). See, eg, Barendt, ‘Brave New World?’, above n 18.

[156] Opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976). Eg, cf Civil Aviation Authority v Australian Broadcasting Corporation (1995) 126 FLR 26, 42–3 (Kirby P) and Macquarie Bank Ltd v Berg [1999] NSWSC 526 (Unreported, Simpson J, 2 June 1999). In Civil Aviation Authority v Australian Broadcasting Corporation, which involved domestic and traditional forms of media broadcast, Kirby P refers to the International Covenant on Civil and Political Rights in light of uncertainty in the Australian common law of sub judice contempt, while in Macquarie Bank Ltd v Berg, which involved foreign Internet publication, Simpson J did not draw on international conventions.

[157] Zygmunt Bauman, Globalization: The Human Consequences (1998) 70 (emphasis in original). The primary exception concerns writing about defamation and the Internet. For an Anglo-Australian doctrinal introduction, see Matthew Collins, The Law of Defamation and the Internet (forthcoming, 2001).

[158] See, eg, Dianne Otto, ‘Everything Is Dangerous: Some Poststructural Tools for Rethinking the Universal Knowledge Claims of Human Rights Law’ [1999] AUJlHRights 1; (1998) 5 Australian Journal of Human Rights 17; Dianne Otto, ‘Rethinking the “Universality” of Human Rights Law’ (1997) 29 Columbia Human Rights Law Review 1.

[159] See, eg, Anne Orford, ‘Contesting Globalization: A Feminist Perspective on the Future of Human Rights’ (1998) 8 Transnational Law and Contemporary Problems 171, 177, fn 21; Nicholas Blomley, David Delaney and Richard Ford (eds), The Legal Geographies Reader: Law, Power and Space (2001).

[160] See, eg, Orford, ‘Contesting Globalization’, above n 159.

[161] Richard Falk and Andrew Strauss, ‘On the Creation of a Global People’s Assembly: Legitimacy and the Power of Popular Sovereignty’ (2000) 36 Stanford Journal of International Law 191, 192. See also Richard Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (1998); David Held, ‘Democracy and Globalization’ in Daniele Archibugi, David Held and Martin Köhler (eds), Re-Imagining Political Community: Studies in Cosmopolitan Democracy (1998) 11.

[162] Julie Mertus, ‘Considering Nonstate Actors in the New Millenium: Toward Expanded Participation in Norm Generation and Norm Application’ (2000) 32 New York University Journal of International Law and Politics 537, 552–3 (citations omitted). See also Julie Mertus, ‘From Legal Transplants to Transformative Justice: Human Rights and the Promise of Transnational Civil Society’ (1999) 14 American University International Law Review 1335.

[163] Mertus, ‘Considering Nonstate Actors in the New Millenium’, above n 162, 555.

[164] Ibid 555–6 (citations omitted).

[165] Reynolds [1999] UKHL 45; [1999] 4 All ER 609, 640 (Lord Cooke).

[166] For an overview of the treatment of social activism within the literature, see generally Neil Stammers, ‘Social Movements and the Challenge to Power’ in Martin Shaw (ed), Politics and Globalisation: Knowledge, Ethics and Agency (1999) 73, 73–8. For a detailed examination of social movements and international organisations such as the IMF, see Robert O’Bren et al, Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements (2000).

[167] Orford, ‘Contesting Globalization’, above n 159, 173.

[168] See, eg, Pahuja, ‘Technologies of Empire’, above n 153, 810–11.

[169] Eg, Balakrishnan Rajagopal, ‘Crossing the Rubicon: Synthesizing the Soft International Law of the IMF and Human Rights’ (1993) 11 Boston University International Law Journal 81; Sorcha MacLeod, ‘Maria Aguinda v Texaco Inc: Defining the Limits of Liability for Human Rights Violations Resulting from Environmental Degradation’ (1999) 4 Contemporary Issues in Law 188.

[170] For a brief review of similar concerns at the Seattle Ministerial Conference of the World Trade Organization, see Sundhya Pahuja, ‘Trading Spaces: Locating Sites for Challenge within International Trade Law’ (2000) 14 Australian Feminist Law Journal 38, 39–40.

[171] Ibid 39.

[172] Darian-Smith, above n 152, 812–13. See generally Silbey, above n 153.

[173] See, eg, Saskia Sassen, Globalization and Its Discontents (1998).

[174] Anne Orford, ‘Positivism and the Power of International Law’ [2000] MelbULawRw 19; (2000) 24 Melbourne University Law Review 502.

[175] Bauman, above n 157, 1.

[176] [1997] HCA 25; (1997) 189 CLR 520, 571.

[177] Martin Redish and Howard Wasserman, ‘What’s Good for General Motors: Corporate Speech and the Theory of Free Expression’ (1998) 66 George Washington Law Review 235, 249–50.

[178] Ibid 249.

[179] See Dun & Bradstreet Inc v Greenmoss Builders Inc, [1985] USSC 173; 472 US 749, 753 (1985).

[180] Bose Corporation v Consumers Union of United States Inc, [1984] USSC 87; 466 US 485 (1984).

[181] Ie, they will meet the test set out in Snead v Redland Aggregates, [1993] USCA5 2318; 998 F 2d 1325, 1329 (5th Cir, 1993); cert dismissed 511 US 1050 (1994). The test considers the notoriety of the corporation, the way its business interacts with the public, and any history of media scrutiny of the corporation.

[182] Eg, Norman Redlich, ‘The Publicly Held Corporation as Defamation Plaintiff’ (1995) 39 Saint Louis University Law Journal 1167, 1172. Redlich provides a useful review of the varying US judicial approaches to corporate defamation plaintiffs: see especially at 1171–3.

[183] Sullivan, [1964] USSC 40; 376 US 254, 279–80, 283 (1964).

[184] See, eg, Bose Corporation v Consumers Union of United States Inc, [1984] USSC 87; 466 US 485 (1984).

[185] Questions of media and litigation practices are also relevant: see below Part VI. The complexity of US defamation law in practice, and the general cost implications of US civil litigation, still can be seen to chill corporate criticism, which underlies much of the SLAPP literature.

[186] Eg, D Mark Jackson, ‘The Corporate Defamation Plaintiff in the Era of SLAPPs: Revisiting New York Times v Sullivan(2001) 9 William and Mary Bill of Rights Journal 491.

[187] Ibid 516–17.

[188] Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534. In Australia, see Ballina Shire Council v Ringland (1994) 33 NSWLR 680. It has been extended to political parties: Goldsmith v Bhoyrul [1997] 4 All ER 268. Loveland, above n 12, 117–25 examines the developments.

[189] Eg, Alastair Mullis and Donal Nolan, ‘Tort’ [1997] All England Reports Annual Review 490, 518.

[190] NSW Law Reform Commission, above n 120. See also Chesterman, above n 13, 153–91.

[191] Alison Young, Imagining Crime: Textual Outlaws and Criminal Conversations (1996) 61.

[192] Franklin, The Biography of a Legal Dispute, above n 1.

[193] See generally Franklin, ‘A Declaratory Judgment Alternative to Current Libel Law’, above n 2; Franklin, ‘Suing Media for Libel’, above n 2; Franklin, ‘Winners and Losers and Why’, above n 2. See also the references to other empirical works on defamation in below nn 196201 and accompanying text.

[194] Loveland, above n 12, 181–3. See also the review of similar proposals in the ACT by Matthew Collins, ‘Reform in the ACT’ (2000) 5 Media and Arts Law Review 97.

[195] Loveland, above n 12, 183.

[196] Eric Barendt et al, Libel and the Media: The Chilling Effect (1997).

[197] Russell Weaver and Geoffrey Bennett, ‘Is the New York Times “Actual Malice” Standard Really Necessary? A Comparative Perspective’ (1993) 53 Louisiana Law Review 1153.

[198] See generally Franklin, ‘A Declaratory Judgment Alternative to Current Libel Law’, above n 2; Franklin, ‘Suing Media for Libel’, above n 2; Franklin, ‘Winners and Losers and Why’, above n 2.

[199] There is an extensive literature detailing the Iowa Libel Research Project. See especially Randall Bezanson, Gilbert Cranberg and John Soloski, Libel Law and the Press: Myth and Reality (1987) 235–47. See also Soloski and Bezanson, above n 118, 188; John Soloski and Roselle Wissler, ‘The Libel Dispute Resolution Program: A Way to Resolve Disputes out of Court’ in Richard Kaplar (ed), Beyond the Courtroom: Alternatives for Resolving Press Disputes (1991) 83; Randall Bezanson, ‘The Libel Tort Today’ (1988) 45 Washington and Lee Law Review 535; Randall Bezanson, ‘The Libel Suit in Retrospect: What Plaintiffs Want and What Plaintiffs Get’ (1986) 74 California Law Review 789; Randall Bezanson, ‘Libel Law and the Realities of Litigation: Setting the Record Straight’ (1985) 71 Iowa Law Review 226; Gilbert Cranberg, ‘Fanning the Fire: The Media’s Role in Libel Litigation’ (1985) 71 Iowa Law Review 221; John Soloski, ‘The Study and the Libel Plaintiff: Who Sues for Libel?’ (1985) 71 Iowa Law Review 217. See below n 211.

[200] See Andrew Kenyon, ‘A “Fairly Mindless Effort at Cheap Denigration” — Meaning in Defamation in Australia and England’ (Paper presented at the Canadian Law and Society Conference, Lake Louise, Canada, 2 June 2000) (copy on file with author). The Communications Law Centre, an independent Australian organisation working in the area of media law and policy, began a three-year project in 2001. Its research, which involves various media industry partners, broadly draws on the Iowa Libel Research Project and related work: see references in above n 199. They will join the recently released Australian empirical work on contempt and the media: see Michael Chesterman, Janet Chan and Shelley Hampton, ‘Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales’ (Justice Research Centre, Law and Justice Foundation of NSW, 2001).

[201] See Brendan Edgeworth and Michael Newcity, ‘Politicians, Defamation Law and the “Public Figure” Defence’ (1992) 10 Law in Context 39; Michael Newcity, ‘The Sociology of Defamation in Australia and the United States’ (1991) 26 Texas International Law Journal 1; Tania Sourdin, A Study of Defamation Proceedings Commenced in the New South Wales Supreme Court for the Period 1 January 1987 to 31 December 1988 (Unpublished, University of New South Wales, 1990) (copy on file with author). The Sourdin research is noted by the NSW Law Reform Commission, above n 120, 11.

[202] Loveland, above n 12, 183.

[203] Stone and Williams, above n 11.

[204] Reynolds [1999] UKHL 45; [1999] 4 All ER 609, 630 (Lord Steyn). For a discussion on this point, see ibid 372–4.

[205] See, eg, McLay, above n 148. McLay reviews the parallel development of a broader qualified privilege defence in New Zealand through Lange v Atkinson [1998] 3 NZLR 424 (NZ CA); [2000] NZCA 95; [2000] 1 NZLR 257 (PC); [2000] 3 NZLR 385 (NZ CA).

[206] Franklin, The Biography of a Legal Dispute, above n 1.

[207] Eg, Kenyon, ‘Meaning in Defamation’, above n 200.

[208] [1997] HCA 25; (1997) 189 CLR 520.

[209] [1999] UKHL 45; [1999] 4 All ER 609, 626. See also above n 21.

[210] See, eg, Randall Bezanson, ‘The Developing Law of Editorial Judgment’ (1999) 78 Nebraska Law Review 754.

[211] The Iowa Libel Research Project (see references in above n 199) considered defamation litigation from the 1970s to early 1980s — eg, reported defamation cases between 1974 and 1984, surveys of and/or interviews with plaintiffs and defendants, people at media organisations and lawyers, and an examination of more than 1300 files at a defamation insurer. See generally the discussion of their methodology in Bezanson, Cranberg and Soloski, above n 199, 235–47.

[212] See, eg, Barendt et al, above n 196.

[213] McLay, above n 148, 434.

[214] Ibid. Chesterman has noted the same issue in relation to the emergence of the qualified privilege defence: see the text accompanying above nn 109115.

[215] 199 Pa 584 (1888).

[216] See text accompanying above nn 3940.

[217] Lange [1997] HCA 25; (1997) 189 CLR 520, 571. See text accompanying above n 144.

[218] See the text accompanying above nn 142145.

[219] [1999] UKHL 45; [1999] 4 All ER 609.

[220] See especially Sullivan, [1964] USSC 40; 376 US 254 (1964); Curtis Publishing Co v Butts, [1967] USSC 200; 388 US 130 (1967); Gertz v Robert Welch, [1974] USSC 144; 418 US 323 (1974); Dun & Bradstreet Inc v Greenmoss Builders Inc, [1985] USSC 173; 472 US 749 (1985); Philadelphia Newspapers Inc v Hepps, [1986] USSC 73; 475 US 767 (1986).

[221] Chesterman, above n 13, 176–91. See also Loveland, above n 12, 87–92, 115–17, 125–32.

[222] NSW Law Reform Commission, above n 120.

[223] Chesterman, above n 13, 182–91.

[224] Eric Barendt, ‘What Is the Point of Libel Law?’ (1999) 52 Current Legal Problems 110.

[225] Franklin, The Biography of a Legal Dispute, above n 1.

[226] The history of defamation reform, particularly in Australia, suggests that courts may be a more likely source of change than parliaments. A review of Australian efforts is provided by Sally Walker, ‘The New South Wales Law Reform Commission’s Discussion Paper on Defamation’ (1994) 2 Torts Law Journal 69. For more recent efforts in the ACT, see Collins, ‘Reform in the ACT’, above n 194.

[*] LLB (Hons) (Melb), LLM (London); Lecturer, Faculty of Law, The University of Melbourne; Editor, Media and Arts Law Review; a.kenyon@unimelb.edu.au.


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