Adjudication No. 218 (March 1985) [1985] APC 10

ADJUDICATION No. 218 (March 1985)

The complainant is a landlord who was involved in an incident with a tenant. He called the police who charged the tenant with assaulting the complainant- The tenant pleaded guilty and the complainant was not asked to attend court. Counsel for the tenant, when addressing the court on penalty, gave a version of the events which was highly unfavourable to the complainant- The magistrate then made some comments which, as they were reported, appear to proceed on the assumption that the facts as stated by the tenant's counsel were true, and proceeded to convict the tenant but impose no penalty.

The statement by counsel and the comments of the magistrate were reported in The Mercury and The Examiner. When the complainant read them he asked the papers to publish his version of the actual facts of the alleged assault. He did not question the accuracy of the reporting of the court proceedings. Each paper declined his request, and reference was made to problems the newspapers might face in relation to the law of contempt and defamation.

The complainant wrote to the Law Reform Commission of Tasmania and the chairman replied that the situation had been a constant source of complaint for many years but the commission had no power to investigate the matter without a specific reference from the Attorney-General. However he advised the complainant to write to the Press Council, saying that it was obvious that the papers "should not have refused your request to renounce the allegations made against you".

The Press Council sympathises with the position of the complainant, but to a large extent it flows from the present state of the law. A version of events highly unfavourable to him was given under privilege in court and he had no opportunity to rebut it. He was not given notice of the proceedings and even had he been present he would not have had the right, and may not have had the opportunity, to say anything. A fair and accurate report of what was said in court is protected from defamation proceedings, but no such protection extends to a rebutting statement made outside the court proceeding.

While the result is most unfair to the complainant, the Press Council is unable to see that the newspapers acted wrongly. The council cannot see how the publication of the complainant's version of events, which he sought from each paper, would have exposed the papers to any liability for contempt, but it would have enjoyed no privilege under the law of defamation and would have exposed them to the risk of proceedings by the tenant. In these circumstances they were justified in refusing the complainant's request although, as we suggest later, another course might have been taken.

The Press Council will draw the problem to the attention of the Federal and State Attorneys-General, so that the appropriate authorities may consider whether the situation might be ameliorated by changes in the law, or possibly by alerting magistrates and members of the judiciary to the problem, so that they may bear it in mind in commenting on proceedings before them.

In the meantime we make the following observations for consideration by the Press. As the circumstances of particular cases may differ so much, we are not seeking to lay down inflexible rules, but are simply pointing to various courses of action which a journalist may wish to consider. If proceedings are reported, the report may have to refer to allegations made against a third party in order to be a fair report. In such circumstances it may be appropriate to note that the party against whom the allegations were made was not present or was not a party to the proceedings.

Where a person against whom allegations have been made and published complains to a newspaper, as in the present case, the paper is justified in refusing to publish a reply which may be defamatory of someone else. In such circumstances however it may be appropriate to publish a neutral statement such as: "Mr X has asked us to say that he was not present when the allegations were made (or was not a party to the proceedings in which the allegations were made) and that he disputes (or denies) the allegations".