Elder, Taleesha; Tharby, Alex --- "Politicians, Qualified Privilege and the Right of Reply" [2023] PrecedentAULA 42; (2023) 177 Precedent 18

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Politicians, qualified privilege and the right of reply

By Taleesha Elder and Alex Tharby

The media often decries the severity of Australia’s defamation laws and the difficulties that media defendants face, particularly in conducting ‘public interest journalism’ and criticising figures in power. Yet quite often it is the journalist’s own conduct in chasing a scoop that leads to defamation proceedings. The case of Papua New Guinean politician William Duma provides a stark example of this conduct and the efficacy of our defamation laws. In response to the judgment of Katzmann J in Duma v Fairfax Media Publications Pty Limited (No 3)^[1] (Duma), Michael Stutchbury, editor-in-chief of The Australian Financial Review, publicly stated:

‘This case yet again highlights how Australia’s defamation laws pose a significant threat to public interest journalism, and The Australian Financial Review stands by its journalists. We will not be deterred from pursuing challenging journalism that informs the community and holds power to account.’^[2]

Mr Stutchbury made this statement notwithstanding ‘the journalists testified that they did not believe that what they had written in the matters complained of was true’.^[3] Her Honour found that ‘the articles were replete with errors, misrepresentations and omissions. In many cases, the journalists admitted that that [sic] what they reported was false, misleading and/or unreasonable’.^[4] Significantly, the journalists ‘failed to give Mr Duma fair notice of the most serious allegations they published about him and therefore denied him the opportunity to respond to them ... they also failed to fairly report the responses he did give to the questions they asked’.^[5]

In a world with a 24-hour news cycle, where some politicians garner support by expressing strong views and media organisations race for stories, it is little wonder that politicians seek the assistance of the courts when another politician or the media oversteps the mark. This does not mean that our defamation laws are broken. Indeed, our defamation laws provide additional defences to those dealing with political discourse.

POLITICIANS – A UNIQUE CATEGORY

Defamation cases involving politicians have some unique aspects – most notably, in respect of the nature of the criticism politicians are expected to put up with and the defences available to publishers.

As Fox J noted in Gorton v Australian Broadcasting Commission:^[6]

‘A person in public office expects to be, and is, frequently the subject of comment and criticism, and not a little of that comment or criticism is of a personal nature. Sometimes a slur is cast on his honesty, or integrity. The television viewer recognizes these things. The result is that criticism and comments made of public figures are apt to have less impact than similar remarks made of others.’

More recently, in Palmer v McGowan (No 5)^[7] (Palmer), Lee J quoted Enoch Powell – ‘for a politician to complain about the press is like a ship’s captain complaining about the sea’ – and remarked that ‘a politician litigating about the barbs of a political adversary might be considered a similarly futile exercise’.^[8] Later in that judgment, Lee J returned to this theme: ‘at a time when public resources devoted to courts are under strain, and judicial resources are stretched, one might think that only a significant interference or attack causing real reputational damage and significant hurt to feelings should be subject of an action for defamation by a political figure’.^[9]

The publications in Palmer were made by politicians in the midst of the ‘rough and tumble’^[10] of political life. So much is plain from the circumstances: Clive Palmer publicly criticised the WA Premier for his tough stance on closing the WA border during the COVID-19 pandemic and Mark McGowan returned fire in respect of Mr Palmer’s claims about hydroxychloroquine as a cure. The Federal Court was not persuaded by Mr Palmer’s evidence of the hurt he allegedly suffered.^[11] The reputation of each man was relatively unaffected by the defamation – Mr McGowan’s popularity may have even increased – and although each was found to have overstepped the mark and have defamed the other, Mr Palmer and Mr McGowan were awarded relatively modest damages ($5,000 and $20,000 respectively).^[12] Put simply, ‘the game was not worth the candle’.^[13]

In Hanson-Young v Leyonhjelm (No 4)^[14] (Hanson-Young), White J observed:

‘[W]hether desirable or not, it is commonplace in political discourse for denigratory remarks to be made by one politician about another. The political give and take can be less than civil. Ordinary reasonable people may be taken to be aware that that is so and, at least to an extent, are likely to attach less significance to castigations by politicians of political opponents. Perhaps for this reason, the instances of one politician suing another for defamation tend to be infrequent.’

And, as observed by Lander J in Rann v Olsen,^[15] ‘[t]here is sometimes a reluctance on the part of politicians to bring defamation actions against the media, especially in circumstances where the real argument is between politicians themselves’. Politicians’ reluctance to sue for defamation may also arise from the fact that defamation actions involving politicians (and other high-profile people) can and generally do attract significant media attention. By the commencement of proceedings, a plaintiff risks the ‘Streisand effect’ of drawing more attention to the defamation than it would have otherwise received.

Bazzi v Dutton^[16] provides a useful example of the blur between legitimate, albeit somewhat distasteful, political comment and defamation. Shane Bazzi, a human rights activist, posted the tweet, ‘Peter Dutton is a rape apologist’, with a link to an article which concerned Mr Dutton’s remarks about some women making false allegations of rape to obtain a migration outcome. The message Mr Bazzi was making was clear, and no doubt could have been expressed differently, but whether it conveyed that Mr Dutton condones or excuses rape was far from certain.

Mr Dutton, then Minister for Home Affairs, successfully sued in the Federal Court, obtaining damages of $35,000. This success was short lived. The Full Court found that the tweet did not convey the alleged meanings.^[17] Mr Dutton did succeed, however, in drawing national attention to a deleted tweet that had only received 1,221 impressions.^[18]

THE EXTENDED QUALIFIED PRIVILEGE DEFENCE

Ordinarily, to succeed in a defence of qualified privilege, a publication must be confined to a limited audience, as widespread publication is unlikely to meet the requirement of a reciprocal duty to publish and interest in receiving the information.

However, the High Court has recognised that Australia’s democratic system of government implies freedom of political speech. After a series of cases in which the High Court had cause to consider the implied freedom of communication in relation to political and governmental matters enshrined in the Constitution, in Lange v Australian Broadcasting Corporation^[19] (Lange) the High Court extended common law qualified privilege to communications relating to political and governmental matters even when widely published, so as not to infringe the implied freedom. The trade-off, however, was the introduction of a requirement that the publisher’s conduct be reasonable in the circumstances.^[20] The High Court further noted that to establish reasonableness, a defendant would generally need to have reasonable grounds that the defamatory imputation was true, take steps to verify the accuracy of the material relied upon and seek and publish the substance of any response from the defamed person.^[21]

The Lange defence is somewhat reflected in the statutory defence of qualified privilege found in Australia’s various Defamation Acts, which does not require reciprocity of interest but introduces a requirement that the publication be ‘reasonable in the circumstances’. This may include whether the matter contained the person’s side of the story and, if not, whether a reasonable attempt was made to obtain it.^[22]

The Lange defence theoretically provides protection to publishers who publish defamatory matter to a large audience in the course of commenting on government and political matters.^[23] Our esteemed colleague Dr Michael Douglas has previously written that ‘[t]he Lange qualified privilege defence has not lived up to its promise.’^[24] We respectfully disagree.^[25] In cases that proceed to trial, publishers often fail because they fail to meet the requirement of reasonableness.

THE RIGHT OF REPLY

The following cases demonstrate that the failure to afford a politician a proper opportunity to reply may be fatal to a successful qualified privilege defence, and that it is not defamation laws that ‘pose a significant threat to public interest journalism’.

Hockey v Fairfax Media Publications Pty Ltd^[26] (Hockey)

In Hockey, the Federal Court considered the publication of articles in the Sydney Morning Herald (SMH) in respect of Australia’s then-Treasurer, Joe Hockey, and the North Sydney Forum (NSF). Although the Court found that the articles themselves were not defamatory, the SMH also published posters and tweets publicising the articles using the words ‘Treasurer for Sale’, which were defamatory.

Justice White was not satisfied that the defendant’s conduct was reasonable in the circumstances, partly because Mr Hockey was not given an adequate opportunity to respond.^[27] In particular, White J considered that although Mr Hockey was asked to respond to particular questions, the slant of the story was not obvious. ‘It was one thing for Ms Daley and Mr Hockey to have appreciated that the SMH was planning a story about Mr Hockey and the NSF: it was another thing for them to be forewarned of the SMH's characterisation of Mr Hockey's involvement in the NSF and thereby given an opportunity to give his account of that involvement.’^[28]

Jensen v Nationwide News Pty Ltd [No 13]^[29] (Jensen)

Dr Dennis Jensen sued the proprietor of The Australian and its journalist, Andrew Burrell, in respect of two articles: the first falsely conveyed that Dr Jensen had ‘improperly exploited his position as a federal Member of Parliament by using his parliamentary letterhead to seek to obtain a personal financial benefit, namely, a publishing deal for his book’;^[30] the second falsely conveyed that he had left his family home to live with his new girlfriend in another electorate, and that he thereby was devoid of the family values and high moral standards expected of a Member of Parliament and failed to act in the best interests of his constituents.^[31]

Chief Justice Quinlan found the defendants’ conduct in publishing the articles was not reasonable, and even went so far as to state that he was ‘firmly of the view that their conduct was unreasonable’ despite Mr Burrell having contacted Dr Jensen prior to publication.^[32] In respect of the first article, there was ‘nothing in the conversation between Mr Burrell and Dr Jensen to put Dr Jensen on notice that the use of a parliamentary letterhead would feature as part of the potential publications. Dr Jensen, therefore, had no meaningful opportunity to respond to that issue’.^[33]

In dealing with the second article, his Honour noted that ‘none of the matters giving rise to these imputations concerning his living arrangements was ever put to Dr Jensen for his response’;^[34] the allegations were based on a brief conversation between Mr Burrell and an advisor to Dr Jensen which, his Honour found, ‘did not provide a reasonable basis for publications conveying the family values imputation and the moral standards imputation’.^[35] Moreover, the falsity of the allegations ‘would have been made clear [to Mr Burrell] if the substance of the [imputations] had been put to Dr Jensen’.^[36]

Barilaro v Google LLC^[37] (Barilaro)

John Barilaro (former Deputy Premier of NSW) sued Jordan Shanks (administrator of the friendlyjordies YouTube channel) as well as Google (the owner of YouTube) for the publication of defamatory videos that included allegations of corruption. Mr Barilaro and Mr Shanks settled out of court but Mr Barilaro proceeded to trial against Google.

Although Google withdrew its qualified privilege defences, Rares J considered that ‘[s]ince Mr Shanks’ reporting of those matters made no reference to Mr Barilaro’s published responses or any part of his side responding to the accusations, no defence of qualified privilege under s30 of the Defamation Act or under the implied freedom’ was available to Google. Google’s conduct ‘could not be reasonable in the circumstances since it omitted any reference to Mr Barilaro’s known responses and it made no enquiry of him as to his response’.^[38]

Mirabella v Price^[39] (Mirabella)

In the lead up to the 2016 Federal election, the Benalla Ensign published an article alleging that the Liberal Party candidate for the electorate of Indi, Sophie Mirabella, pushed her incumbent Independent opponent, Cathy McGowan, out of the way of a photograph with a Liberal Party Minister. Neither the journalist nor an editor nor anyone else at the Benalla Ensign contacted Mrs Mirabella or her office before the article was published. Instead, ‘the defendants presumed that Mrs Mirabella would deny the matter, but did not bother asking her’ and published the article notwithstanding that Ms McGowan had not distinctly alleged the push. Although the Lange qualified privilege defence was not relied upon, such that no assessment of reasonableness was required, MacNamara J found this conduct exhibited ‘a degree of recklessness’ that aggravated the harm suffered by Mrs Mirabella. ^[40]

Hanson-Young v Leyonhjelm (No 4)^[41] (Hanson-Young)

Outside of Parliament David Leyonhjelm, based on a mistaken belief as to what Sarah Hanson-Young had said during a parliamentary sitting, doubled-down on protected comments he made in Parliament. ‘Like many a politician before him, he discovered that this was not a wise thing to do when speaking ill of the living.’^[42]

When making the four media statements the subject of the proceedings, Mr Leyonhjelm could not recall what Ms Hanson-Young had said in Parliament. However, he proceeded based on what he believed she had said, having made no attempt to check with Ms Hanson-Young whether he was correct. Mr Leyonhjelm had in the interim asked two other senators what she said but they could not assist. Notably, even after being informed that Ms Hanson-Young disputed his account, Mr Leyonhjelm took no steps to verify the information prior to making the third and fourth statements. Justice White held that by reason of these matters, Mr Leyonhjelm did not act reasonably in publishing the defamations for the purposes of the statutory qualified privilege defence.^[43]

On appeal, the Full Court (Wigney and Abraham JJ, Rares J dissenting) upheld this finding. Because Mr Leyonhjelm could not at any point give a consistent or cogent account of what Ms Hanson-Young had said, he had no sound or reasonable belief in the substance of the defamation, and therefore ‘it was plainly unreasonable for him to launch a blistering personal attack on Senator Hanson-Young based on his belief without making any real or genuine attempt to check that it was accurate or at least soundly based’.^[44]

CONCLUSION

It is plain from these cases that, although the courts have pointed to the need for a politician to be thicker-skinned than the average person, a politician’s reputation is just as important as anyone else’s (if not more). The reputation of a politician is intrinsically important not only to their ability to obtain pre-selection and election, but also to their ability to maintain a position in Cabinet or even the party room.

Some may view as distasteful a politician seeking to vindicate their reputation by commencing defamation proceedings. While the optics of proceedings are a valid consideration, defamatory publications can have a damaging effect. It is concerning that defendants have been unable to demonstrate reasonableness in so many cases involving politicians. It is possible that this is simply a reflection of the types of cases that proceed to trial rather than settle. Alternatively, it may reflect the state of public discourse.

The new ‘public interest’ defence is yet to be tested. But given it also has an element of reasonableness, defendants may find that, like the Lange defence, unless defendants act reasonably, it too may not live up to its ‘promise’.

Taleesha Elder and Alex Tharby are senior associates at Bennett Litigation and Commercial Law. Both have acted for political figures in defamation proceedings. EMAIL [e-mail] or [e-mail].

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^[1] [2023] FCA 47 (Duma).

^[2] M Mason, ‘Financial Review loses Duma defamation case’, Australian Financial Review, (7 February 2023) <https://www.afr.com/policy/foreign-affairs/financial-review-loses-duma-defamation-case-20230207-p5ciii>.

^[3] Duma, above note 1, [311].

^[4] Ibid [384].

^[5] Ibid [413].

^[6] (1973) 22 FLR 181 (Gorton), 189.

^[7] [2022] FCA 893; (2022) 404 ALR 621 (Palmer).

^[8] Ibid [1].

^[9] Ibid [525].

^[10] Ibid [186].

^[11] Ibid [465].

^[12] Ibid [515]–[516].

^[13] Ibid [522].

^[14] [2019] FCA 1981 (Hanson-Young) [74].

^[15] [2000] SASC 83; (2000) 76 SASR 450 (Rann), [359].

^[16] [2022] FCAFC 84; (2022) 289 FCR 1 (Bazzi).

^[17] Ibid [50], [53] and [78].

^[18] Dutton v Bazzi [2021] FCA 1474, [187].

^[19] [1997] HCA 25; (1997) 189 CLR 520 (Lange).

^[20] Ibid, 572–573.

^[21] Ibid, 574.

^[22] See Defamation Act 2005 (NT) s27(3)(h) and (WA) s30(3)(h). The other states allow consideration of ‘any other steps taken to verify the information in the matter published’; see Defamation Act 2005 (NSW), (Qld), (Vic) and (Tas) s30(3)(e); Defamation Act 2005 (SA) s28(3)(e); and Civil Law (Wrongs) Act 2002 (ACT) s139A(3)(e).

^[23] Lange, above note 19, 572.

^[24] M Douglas, ‘Defamation Actions and Australian Politics’ UNSW Law Journal, No. 5, 2021, 12.

^[25] No friendships were harmed in the publication of this article.

^[26] [2015] FCA 652; (2015) 237 FCR 33 (Hockey).

^[27] Ibid [374].

^[28] Ibid [368].

^[29] [2019] WASC 451 (Jensen).

^[30] This was at its heart a charge of corruption. Although the jury found the imputation was conveyed, the jury also found it was not defamatory.

^[31] Jensen, above note 29, [17].

^[32] Ibid [415].

^[33] Ibid [401].

^[34] Ibid [418].

^[35] Ibid [432].

^[36] Ibid [426].

^[37] [2022] FCA 650 (Barilaro).

^[38] Ibid [50].

^[39] [2018] VCC 650 (Mirabella).

^[40] Ibid [95].

^[41] Hanson-Young, above note 14.

^[42] Leyonhjelm v Hanson-Young [2021] FCAFC 22; 282 FCR 341 (Rares J) [9].

^[43] Hanson-Young, above note 14, [197]–[203]; Mr Leyonhjelm abandoned his common law and Lange qualified privilege defences at trial.

^[44] Ibid, [269]–[271] (Wigney J); [408]–[415].