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Taming the ‘Chilling Effect’ of Defamation Law: English Experience and Implications for Australia

Published online by Cambridge University Press:  01 January 2025

Jelena Gligorijevic
Jelena Gligorijevic*
Affiliation:
ANU College of Law
*
The author may be contacted at jelena.gligorijevic@anu.edu.au.
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Abstract

The ‘chilling effect’ of defamation law has driven legislative action narrowing this tort’s scope and operation. As substantial reforms come into effect across Australia, this article provides a detailed analysis of how defamation law in the United Kingdom has developed since similarly narrowing reforms took effect there almost a decade ago, and the implications this will have for Australia. Two important aspects of reform in both jurisdictions are the serious harm threshold and the public interest defence. Both are targeted at narrowing the tort and taming its ‘chilling effect’. Although both of these two changes have definitively narrowed the tort in the United Kingdom, neither of them has revolutionised this tort nor abolished its core purpose to protect reputation against false imputations. Given the consistency in legislative purpose and framing of the new provisions as between the two jurisdictions, Australian courts should, consistently with their English counterparts, exercise caution when interpreting the new threshold and the new defence, to ensure they do not tread too far from the deeper principles underpinning the tort, even in its narrower, tamer form.

Type
In Focus: Defamation Law
Information
Federal Law Review , Volume 50 , Issue 2: Special Issue (Part 1): Constitutional Struggles in Asia , June 2022 , pp. 221 - 248
Copyright
Copyright © 2022 The Author(s)

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Footnotes

This paper was presented at the ANU Defamation Law Conference in July 2021. I am grateful to the participants and attendees for their illuminating comments, as well as to the two anonymous reviewers for their valuable comments and suggestions. Any errors remain my own.

References

1. All Australian States and Territories are signatories to the MDP Intergovernmental Agreement, which established the DWP to report to Attorneys-General on proposals to amend the MDPs.

2. Australasian Parliamentary Counsel Committee, Model Defamation Amendment Provisions 2020 (at 27 July 2020) (‘MDAPs’).

3. Council of Attorneys General, ‘Review of the Model Defamation Provisions – Stage 2’ (Discussion Paper, 31 March 2021) (‘Stage 2 Discussion Paper’). This tranche of reform concerns internet intermediary liability for third-party content and extending the absolute privilege defence in certain circumstances. Submissions closed on 19 May 2021, and can be viewed here: NSW Communities & Justice, ‘Submissions to the Review of Model Defamation Provisions – Stage 2’, Public Consultation (Web Page) https://www.justice.nsw.gov.au/justicepolicy/Pages/lpclrd/lpclrd_consultation/submissions-to-the-review-of-model-defamation-provisions-stage-2.aspx.

4. There is substantive consistency, though legislation is not necessarily identical, across the jurisdictions: Civil Law (Wrongs) Act 2002 (ACT); Defamation Act 2006 (NT); Defamation Act 2005 (NSW); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA).

5. Defamation Amendment Bill 2020 (NSW); Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic); Defamation (Miscellaneous) Amendment Act 2020 (SA); and Defamation (Model Provisions) and Other Legislation Amendment Act 2021 (Qld). Consultation on the draft Defamation Amendment Bill 2021 (Tas) closes 2 July 2021. The Australian Capital Territory, the Northern Territory, and Western Australia have not yet produced draft Bills covering the MDAPs.

6. Defamation Act 2013 (UK). Note the Defamation Act 2013 (UK) extends to England and Wales only, except for certain provisions which also extend to Scotland (but not Northern Ireland): s 17. This article will refer to the Defamation Act 2013 (UK), and related doctrine, interchangeably as ‘English law’ and ‘law of the United Kingdom’, and, for brevity, to the relevant courts as ‘English courts’. As to how the MDAPs draw upon the Defamation Act 2013 (UK), see the Explanatory note at 4, 9, 10.

7. Ministry of Justice, Government’s Response to the Report of the Joint Committee on the Draft Defamation Bill (House of Commons Paper 8295, Session 2012) [4], [74] (‘Government’s Response’) (albeit the Government elided concerns about the purported chilling effect of privacy law with concerns about the chilling effect of defamation law); Council of Attorneys Generals, ‘Review of Model Defamation Provisions’ (Discussion Paper, February 2019) [2.6].

8. Joint Committee on the Draft Defamation Bill, Draft Defamation Bill (Report, Session 2010-2012, 19 October 2011) [4]–[5], [18]; Council of Attorneys-General, Model Defamation Amendment Provisions 2020 (Consultation Draft) (Background Paper, December 2019) (‘CAG Background Paper’) 3, 22, 26.

9. Stage 2 Discussion Paper (n 3) 6, 18, 83, 88, 93. See also media commentary reflecting these concerns: Richard Ackland, ‘Your Right to Know: How Australia's Defamation Law Stifles Public-Interest Journalism’, The Guardian (online, 30 November 2018) https://www.theguardian.com/media/2018/nov/30/your-right-to-know-how-australias-defamation-law-stifles-public-interest-journalism; David Rolph, ‘Australia’s Defamation Laws are Ripe for Overhaul’, The Sydney Morning Herald (online, 9 December 2018) https://www.smh.com.au/national/australia-s-defamation-laws-are-ripe-for-overhaul-20181207-p50kwk.html; Louisa Lim, ‘How Australia Became the Defamation Capital of the World’ The New York Times (online, 5 March 2019) https://www.nytimes.com/2019/03/05/opinion/australia-defamation-laws.html.

10. This was put into significant doubt in a comprehensive empirical study of the nature and effect of New Zealand’s defamation law at a time when the same ‘chilling effect’ concern was raised in that country: Ursula Cheer, 'Reality and Myth: The New Zealand Media and the Chilling Effect of Defamation Law' (PhD Thesis, University of Canterbury, 2008). An earlier study in the United Kingdom led to the conclusion that, though defamation laws did have a chilling effect on media, it was more complex than generally presented, and had much to do with high costs and risks to media, rather than simply with the inherent nature or elements of the tort itself: Eric Barendt et al, Libel and the Media: The Chilling Effect (Oxford University Press, 1997).

11. MDAPs (n 2) sch 1(6), s 10A.

12. MDAPs (n 2) sch 1(32).

13. Both the MDAPs and section 1 also provide that for-profit corporations with standing must prove serious financial loss: MDAPs (n 2) s 10A(2); Defamation Act 2013 (UK) s 1(2).

14. Lachaux v Independent Print Ltd [2020] AC 612 (‘Lachaux SC’).

15. Thornton v Telegraph Media Group Ltd (2011) 1 WLR 1985, [94]–[95] (‘Thornton’).

16. Ibid [85], [88]–[89](i).

17. Sim v Stretch [1936] 52 TLR 669, 671 (‘Sim’).

18. Ibid 672.

19. David Rolph, ‘Triviality, Proportionality and the Minimum Threshold of Seriousness in Defamation Law’ (2019) 23(3) Media and Arts Law Review 280, 299.

20. Thornton (n 15) [62], [89](ii), [94].

21. Jameel v Dow Jones & Co [2005] 2 WLR 1614 (‘Jameel’).

22. Rolph (n 19) 296; Kim Gould, ‘Locating a “Threshold of Seriousness” in the Australian Tests of Defamation’ (2017) 39(3) Sydney Law Review 333, 335.

23. Ames v Spamhaus Project Ltd [2015]1 WLR 3409 (‘Ames’). This is also explicitly codified in the MDAPs (n 2) sch 1[6], s10A(8).

24. Rolph (n 19) 302.

25. The Supreme Court has subsequently confirmed Thornton did not entail a requirement to account for all the circumstances, beyond the sting or the meaning, including the breadth and effect of the publication: Lachaux SC (n 14) [16]. This has been acknowledged in Australia: Armstrong v McIntosh (No 4) [2020] WASC 31, [108]–[109] (‘Armstrong’).

26. Ministry of Justice, Draft Defamation Bill Consultation (Consultation Paper, CP3/11, March 2011) [1]–[4] (‘Draft Bill Consultation UK’).

27. Armstrong (n 25) [83], [107]–[113].

28. Lesses v Maras (2017) 128 SASR 292, [125] (‘Lesses’). For a criticism that this interpretation of Tugendhat J’s reasoning in Thornton insufficiently recognised the threshold as a mechanism to exclude trivial claims rather than merely determine defamatory capacity, see: Rolph (n 19) 302.

29. Confirmed by the High Court of Australia as constituting the general test for defamation: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, [36]–[38] (‘Chesterton’).

30. Armstrong (n 25) [112]; Lesses (28) [125]; Gould (n 22). See also Terence K Tobin and Michael Sexton, Australian Defamation Law and Practice (Butterworths, 1990) [3010].

31. MDAPs (n 2) 4.

32. Armstrong (n 25) [117], [121]; Smith v Lucht [2017] 2 Qd R 489(CA), [34]–[35], [37] (‘Smith’).

33. Armstrong (n 25) [120]; Barrow v Bolt [2015] VSCA 107, [38] (‘Barrow’).

34. Armstrong (n 25) [121]; Smith (n 32) [37].

35. Armstrong (n 25) [119].

36. See, eg Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981, [68] (‘Hanson-Young’).

37. Armstrong (n 25) [291].

38. MDAPs (n 2) 4.

39. For a summary and comment on the Supreme Court’s decision and approach in Lachaux, see David Erdos,’Serious Harm to Reputation Rights? Defamation in the Supreme Court’ (2019) 78(3) The Cambridge Law Journal 510.

40. Lachaux SC (n 14) [12].

41. Cooke v MGN Ltd [2015] 1 WLR 895, [30]–[39], [43] (‘Cooke’).

42. Ibid [43]: ‘a national newspaper with a large circulation wrongly accuses someone of being a terrorist or a paedophile’.

43. David Erdos, ‘Data Protection and the Right to Reputation: Filling the “Gaps” After the Defamation Act 2013’ (2014) 73(3) Cambridge Law Journal 536.

44. Cooke (n 41) [37].

45. Cooke (n 41) [30].

46. Cooke (n 41) [31]–[32].

47. Eric Descheemaeker, ‘Three Errors in the Defamation Act 2013’ (2015) 6(1) Journal of European Tort Law 24, 32.

48. Lachaux v Independent Print Ltd [2016] 2 WLR 437, [68] (‘Lachaux HC’).

49. Sobrinho v Impresa Publishing SA [2016] EMLR 12, [97] (‘Sobrinho’).

50. Ames (n 23) [55], [107].

51. Ibid [49].

52. Alastair Mullis and Andrew Scott, ‘Tilting at Windmills: the Defamation Act 2013’ (2014) 77(1) Modern Law Review 87, 106.

53. Lachaux HC (n 48) [50], [51], [60], [65].

54. Ibid [144], [148], [150], [153].

55. See, eg, Sobrinho (n 49); Monroe v Hopkins [2017] 4 WLR 68 (‘Monroe’).

56. Sobrinho (n 49) [46], [47], [50].

57. Lachaux HC (n 48) [56].

58. Monroe (n 55) [74], [79].

59. Ibid [56]–[62].

60. Lachaux v Independent Print Ltd [2018] 2 WLR 387, [44], [73], [75], [82] (‘Lachaux CA’). The Court found on the facts that serious harm had been established in respect of the publications. For a critical comment on the Court’s reasoning in this respect, see Thomas DC Bennett, ‘Why so serious? Lachaux and the Threshold of ‘Serious Harm’ in Section 1 of the Defamation Act 2013’ (2018) 10(1) Journal of Media Law 1.

61. As had been held in Ames (n 23) [54].

62. Lachaux CA (n 60) [82].

63. Ibid [73], [75], [79], [80].

64. Draft Bill Consultation UK (n 26) 1–9.

65. See, eg, Alexander-Theodotou v Kounis [2019] EWHC 956 (QB), [59]–[60] (‘Alexander-Theodotou’).

66. For example, in Sube v News Group Newspapers Ltd [2018] 1 EWHC 1234 (QB) (‘Sube’), the threshold had not been met on facts involving press coverage of an immigrant family’s decision to turn down an offer of a five-bedroom local authority house, as too cramped for eight children, and articles that were highly critical of their welfare benefits. In Doyle v Smith [2019] EMLR 15 (‘Doyle’), it had also not been met in respect of a publication imputing there were reasonable grounds to suspect the plaintiff engaged in malicious communications and blackmail. In Alexander-Theodotou (n 65), the threshold had not been met in respect of online posts alleging a solicitor had ‘fed on the plight’ of those who suffer investment losses: at [22]. In Tinkler v Ferguson [2019] EWCA Civ 819 (‘Tinkler’), the Court of Appeal upheld the first-instance decision that an announcement made on the London Stock Exchange's Regulatory News Service carried defamatory meaning but did not meet the serious harm threshold. In Morgan v Associated Newspapers [2018] EMLR 25 (‘Morgan 2018’), the threshold had been met regarding publications alleging the plaintiff was corrupt and had acted in a greedy, unethical and morally unacceptable way. And in Morgan v Times Newspapers [2019] EWHC 1525 (QB) (‘Morgan 2019’), the threshold had also been met in respect of a front-page article imputing a lawyer had been professionally negligent in regard to her decisions as to who should be prosecuted and for what offences.

67. Lachaux SC (n 14) 619 [1].

68. Ibid 623 [12].

69. Ibid 623 [14].

70. Ibid 624 [16].

71. Ibid 624–5 [17].

72. Ibid 623 [14].

73. Ibid 627 [21]. For a discussion of the sundry relevant contextual matters, see: Charlie Sewell, ‘More Serious Harm than Good? An Empirical Observation and Analysis of the Serious Harm Requirement in Section 1(1) of the Defamation Act 2013’ (2020) 12(1) Journal of Media Law 47.

74. Lachaux SC (n 14) [21].

75. One High Court Justice has, since the Supreme Court’s decision, applied Lord Sumption’s reference to inherent probabilities to hold that in the absence of positive evidence of reputational harm, inferences could be drawn as to the inherent probabilities of the publication: Sadik v Sadik [2019] EWHC 2717 (QB) (‘Sadik’). There, the inherent probabilities of the way in which the statements where published were that that there will have been some publishees of the defendant’s words who would have concluded that the defendant would not have made such widespread and serious accusations against the plaintiff unless there was some substance to them, and that could demonstrate serious harm: at [101].

76. Lachaux SC (n 14) 623 [14], 624 [16].

77. Ibid 626 [20].

78. Lachaux HC (n 48) [66].

79. Lachaux CA (n 60) [77].

80. See above (n 66).

81. This is not to say that a principled and consistent approach to applying the new threshold element cannot or should not be developed across cases involving similar pleadings and similar findings (as opposed to similar facts), for example, where the defence of contextual truth is pleaded. As O’Hara has convincingly argued, contrary to current trends in English first-instance decisions, true contextual imputations should be accounted for in the serious harm threshold inquiry, so that publication of truths should exclude any prospect of a finding of serious harm, and a finding of serious harm should exclude any prospect of proving the contextual truth defence: James O’Hara, ‘Defamation: Serious Harm and Contextual Truth’ (2021) 95(5) Australian Law Journal 348.

82. Lachaux SC (n 14) 627 [21].

83. Sadik (n 75).

84. Summerfield Browne Ltd v Waymouth [2021] EWHC 85 (QB) (‘Summerfield’).

85. Coker v Nwakanma [2021] EWHC 1011 (QB), [33] (‘Coker’).

86. Ibid.

87. Defamation Act 2013 (UK) s 10A(4)(a). Note that, as discussed in part III(b)(iv) above, determining this procedural matter either way has not affected English judicial interpretation of section 1 as requiring actual proof of serious harm of the impact of the publication. Australian courts should not, therefore, interpret the opportunity for pre-trial determination as an opportunity to set aside the requirement to prove this threshold, as a new element in the tort of defamation.

88. Indeed, the New South Wales Supreme Court has already had the opportunity, for the first time, to apply the new section 10A serious harm threshold: Newman v Whittington [2022] NSWSC 249. The Court reasoned that the standards set in England and Wales in Lachaux should be applied in Australia, given the material similarities between the provisions in the respective jurisdictions.

89. MDAPs (n 2) 4.

90. The Court in Armstrong (n 25) expressly adopted Lord Sumption’s interpretation of Thornton seriousness before the enactment of section 1, rather than adopting the interpretation of section 1 itself, precisely because there was no equivalent of section 1 in Australian defamation law at the time: at [108].

91. It has already been confirmed in New South Wales that the serious harm threshold is a new element: Newman v Whittington [2022] NSWSC 249.

92. As discussed in parts II and III(b), above.

93. Rolph (n 19) 305.

94. As is the current, pre-reform, general test for defamation: Chesterton (n 29) [36]–[38].

95. See, eg, Sadik (n 76); Summerfield (n 84); Coker (n 85).

96. See Cooke (n 41), discussed in part III(b) above.

97. See discussion in part III(b) above.

98. MDAPs (n 2) sch 1(27), s 29A, 8–9.

99. Even though the original intention was to model the new public interest test on the New Zealand common law defence, which pairs public interest publication with responsible publication, the final MDAPs pair public interest publication with reasonable belief in public interest, which is the approach taken by the United Kingdom Parliament: Durie v Gardiner [2018] NZCA 278; CAG Background Paper (n 8) 22.

100. Although it does prohibit the court from taking into account defendant’s omission to verify the truth of the matter, in particular circumstances: Defamation Act 2013 (UK) s 4(3).

101. Ibid s 4(6); Reynolds v Times Newspapers [2000] EMLR 1 (‘Reynolds’).

102. MDAPs (n 2) sch 1(27), s 29A(3): seriousness of imputation; distinction between suspicions, allegations and proven facts; extent to which it relates to public functions or activities of person; public interest to publish expeditiously; compliance with any professional codes or standards; sources of information used, including their integrity; if a source’s identity is being kept confidential, whether there is good reason for this to occur; whether the substance of the person’s side of the story was published, or if a response from the person has been obtained; other steps taken to verify information from sources.

103. MDAPs (n 2) sch 1(27), s 29A(4).

104. See Lingens v Austria (1986) 8 EHRR 407, [41]-[42] (‘Lingens’); AG v Guardian Newspapers (No 2) (1990) 1 AC 109, 283-4 (‘Spycatcher’); both cited in Derbyshire CC v Times Newspapers [1993] AC 534 (‘Derbyshire CC’).

105. Reynolds (n 99). Indeed, Lord Nicholls’s ‘starting point [was] freedom of expression’: at 17.

106. Ibid 11, citing Cox v Feeney (1863) 4 F&F 13,19.

107. Ibid 19.

108. Ibid 22–3.

109. Ibid 23.

110. Ibid.

111. As to the latter, see New York Times v Sullivan (1964) 376 US 254, 725; in obiter the Lords considered Sullivan unsuitable for English law: Reynolds (n 99) 15–17.

112. Grobbelaar v News Groups Newspapers Ltd [2001] 2 All ER 437 (‘Grobbelaar’), not disturbed on appeal [2002] 4 All ER 732.

113. Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 (‘Jameel v WSJ’); Flood v Times Newspapers [2012] 2 AC 273 (‘Flood’).

114. Flood (n 111) [158].

115. Acknowledged by Lord McNally in parliamentary debates: United Kingdom, Parliamentary Debates, House of Lords, 5 February 2013, vol 743, col 198.

116. Draft Bill Consultation UK (n 26) [9].

117. Ibid [9]–[10].

118. Ibid [8], [11].

119. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, [1165]–[1170] (‘ATS v Marsden’).

120. Roberts v Bass (2002) 212 CLR 1 (‘Roberts’); Papaconstuntinos v Holmes A Court (2012) 249 CLR 534.

121. Lange v ABC (1997) 189 CLR 520 (‘Lange’); Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104.

122. The Lange approach to qualified privilege was rejected in Reynolds (n 103) 15–17: see AT Kenyon, ‘Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice’ [2004] Melbourne University Law Review 13.

123. See, eg, Defamation Act 2005 (NSW) s 30.

124. There will be an apparent interest if the defendant believes on reasonable grounds at the time of publication that the recipient had such an interest: MDAPS (n 2) s 30(2).

125. Roberts (n 118) 30–33. It is noteworthy that, even before the reforms in Australia and the United Kingdom, it was only in Australia that any such lists of relevant factors had been codified in statute: Westminster never sought to enact a list of factors in statute. The codified list in section 30 of the MDPs (as well as in new section 29A), compared with the lack of any codified lists in English law, might mean Australian courts are more ready to consider these particular criteria than are their English counterparts.

126. CAG Background Paper (n 8) 20; MDAPs (n 2) 8–9.

127. Chau v Fairfax [2019] FCA 185, [312], [324]–[325] (‘Chau’).

128. Ibid. In a separate Federal Court judgement, following a subsequent lawsuit brought by Dr Chau against the Australian Broadcasting Corporation (and other media companies), in respect of further defamatory publications by those media companies, Justice Rares accepted the plaintiff, Dr Chau’s, testimony that the reportage in Australia of the earlier (2019) Federal Court judgement awarding damages in defamation ‘had not undone the damage of the Four Corners programme’, which was in issue in those subsequent proceedings: Chau v ABC (No 3) [2021] FCA 44, [101]–[102].

129. CAG Background Paper (n 8) 20; MDAPs (n 2) 8–9.

130. CAG Background Paper (n 8) 23.

131. Draft Bill Consultation UK (n 26) [11]; CAG Background Paper (n 8) 20–23; MDAPs (n 2) 8–9.

132. The defence in the United Kingdom is also now clearly intended to be available to non-media defendants, and even the provision relating to editorial judgement is not limited to editors in the media context: Explanatory Notes, Defamation Act 2013 (UK) [33].

133. Serafin v Malkiewicz [2020] 1 WLR 2455 (‘Serafin SC’).

134. Ibid [68].

135. Explanatory Notes, Defamation Act 2013 (UK) [29].

136. Subsequently confirmed in Serafin SC (n 133) [53].

137. Defamation Act 2013 (UK) s 4(1)(b). Confirmed in Economou v De Freitas [2016] EWHC 1853 (QB) (‘Economou HC’), not disturbed on appeal: [2018] EWCA Civ 2591, [86] (‘Economou CA’). Also approved in Serafin SC (n 131) [62], citing Lord McNally’s comments that this ‘brings out more clearly the subjective element in the test — what the defendant believed at the time rather than what a judge believes some weeks or months later — while retaining the objective element of whether the belief was a reasonable one for the defendant to hold’: United Kingdom, Parliamentary Debates, House of Lords, 19 December 2012, vol 741, col 534.

138. Draft Bill Consultation UK (n 26) [13]; Explanatory Notes, Defamation Act 2013 (UK) [30].

139. Explanatory Notes, Defamation Act 2013 (UK) [30].

140. Defamation Act 2013 (UK) s 4(2).

141. Defamation Act 2013 (UK) s 4(6).

142. Lord McNally in parliamentary debates: United Kingdom, Parliamentary Debates, House of Lords, 5 February 2013, vol 743, col 198.

143. Mullis and Scott (n 52) 89–91; Descheemaeker (n 47) 40.

144. Serafin SC (n 131) [69], affirming Economou CA (n 135).

145. Serafin SC (n 131) [69].

146. Ibid [53].

147. Ibid [69], [77], quoting the Court of Appeal’s approach, which was held to be wrong.

148. Ibid [69].

149. Economou CA (n 135) [110].

150. Ibid.

151. Ibid.

152. Ibid [86], [110], approved and restated in Serafin SC (n 130) [68], and subsequently followed in Onwude v Dyer [2020] EWHC 3577 (QB) [143] (‘Onwude’).

153. Economou HC (n 135) [239].

154. Serafin SC (n 131) [67].

155. Economou HC (n 135) [240].

156. Ibid [241].

157. Ibid [246].

158. Doyle (n 66) [74], [99]−[100].

159. Burgon MP v News Group Newspapers [2019] EWHC 195 (QB).

160. Economou HC (n 135) [155].

161. Economou CA (n 135) [89], [93], [102].

162. Onwude (n 150) [139]−[144].

163. Onwude, (n 150) [156].

164. Ibid [155], citing Jameel v WSJ (n 111) and Flood (n 111).

165. Ibid [139].

166. Economou CA (n 135) [109].

167. Ibid.

168. Ibid.

169. Lachaux v Independent Print [2021] EWHC 1797 (QB) (‘Lachaux HC 2’).

170. Defamation Act 2013 (UK) s 4(4); Explanatory Notes, Defamation Act 2013 (UK) [33]; echoing Flood (n 111) and Jameel v WSJ (n 111) in respect of the need to defer to editorial judgement and to maximise flexibility in determining public interest.

171. There is an exception in cases of neutral reportage: s 4(3) carries over the principle in Flood that where the plaintiff is engaging in neutral reportage, the court must not enquire into whether the plaintiff tried to verify the story. However, that exception applies only in cases of neutral reportage: Lachaux HC 2 (n 167) [137].

172. Lachaux HC 2 (n 167) [137]. Recall that s 4(3) preserves the Flood principle that in neutral reportage the courts should not question whether the defendant sought to verify the information.

173. Note that the public interest defence, and even the need to take into account editorial judgement, is not limited to media or journalist defendants: the Court of Appeal has recently held that it could apply in respect of online blogs alleging a television personality was a serious abuser on social media: Sivier v Riley [2021] EWCA Civ 713.

174. In a case not involving the public interest defence, but where public interest arguments were unsuccessfully raised by the defendant in regard to the nature of the publication, the Judge similarly reasoned that, even though political journalism on public interest matters is important, on the facts the journalist had gone beyond merely expressing opinions and had breached well-known duties of public broadcaster impartiality, by selectively presenting only one side of the story; that erring from journalistic standards defeated any arguments about public interest journalism: Ware v French [2021] EWHC 384 (QB) [35].

175. ATS v Marsden (n 117).

176. Serafin SC (n 131) [69]; Economou CA (n 135) [110].

177. MDAPs (n 2) 9. Section 29A(3), which lists the relevant factors, provides those factors are listed ‘[w]ithout limiting subsection (2)’; s 29A(2) confirms the courts ‘must take into account all of the circumstances of the case’. There is even a separate s 29A(4), which stipulates that the list in s 29A(3) does not require each factor to be taken into account, and does not limit the matters which courts may take into account.

178. Economou HC (n 135) [241].

179. MDAPs (n 2) s 29A(3)(g)–(h).

180. MDAPs (n 2) 9, s 29A(2)−(4).

181. Reynolds (n 103) 22, factors 4 and 7.

182. Economou HC (n 135) [241].

183. Including sources of the information, and steps taken to verify the information.

184. Some of the s 29A(3) factors did not appear in Reynolds, including the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and the extent to which the matter published relates to the performance of the public functions or activities of the plaintiff.

185. Serafin SC (n 131); Economou HC (n 135); Economou CA (n 135); Barron MP v Vines [2015] EWHC 1161 (QB).

186. Reynolds (n 103) 22−23; Draft Bill Consultation UK (n 26) [13]; Economou CA (n 135) [110]; Serafin SC (n 131) [69].

187. For a critical analysis of the inherent uncertainties in the ‘public interest’ defence as applied by the English courts in another media law tort, the tort of misuse of private information, see Rebecca Moosavian, ‘Deconstructing “Public Interest” in the Article 8 vs Article 10 Balancing Exercise’ (2014) 6(2) Journal of Media Law 234. It is important to recognise that any residual and inescapable risk of ‘chill’ may not only inhibit expression; it may also inhibit individuals defending their reputation in the public sphere, out of fear that this might simply lead to a repetition of the attack, and a failure of vindication in court.

188. The Australian courts may, of course, look to existing Australian jurisprudence on public interest in defamation law under a different, established defence: the statutory honest opinion defence, which requires the matter to be of public interest: Defamation Act 2005 (NSW) s 31(1)(b). The Federal Court recently found that Instagram posts viewable to 600 people (who could also share those posts) were not a private communication by virtue of the emotional content, and, therefore, were not precluded from containing matters of public interest, especially as their author was a former director of a failed public company: Stead v Fairfax Media Publications [2021] FCA 15 [142]−[147].

189. Section 29A has no equivalent of the requirement in s 4(4).

190. Lachaux HC (n 48) 2.

191. Reynolds (n 103) 23.

192. MDAPs (n 2) 29A(3)(i).

193. Economou CA (n 135) [108]−[109].

194. Ursula Cheer, ‘Divining the Dignity Torts: A Possible Future for Defamation and Privacy’ in Andrew T Kenyon (ed), Comparative Defamation and Privacy Law (Cambridge University Press, 2016).

195. For example, media coverage of actors Geoffrey Rush and Craig McLachlan, who had been accused of having committed sexual offences. While Rush successfully sued a broadcaster in defamation for its coverage of him and the allegations (the truth defence was not made out: Rush v Nationwide News (No 7) [2019] FCA 496), the criminal proceedings filed against McLachlan failed (DPP v McLachlan, Magistrates Court of Victoria, 51 December 2020). Rush was awarded damages, including aggravated damages, in the sum of $850,000. McLachlan has spoken publicly about how the allegations and the publicity drove him to ‘self-exile’ and even attempt suicide: Sam Hussey, ‘Craig McLachlan Admitted to Mental Health Facility and Self-Exiled to a Shipping Container’, 7 News (online, 13 May 2021) https://7news.com.au/spotlight/craig-mclachlan-admitted-to-mental-health-facility-and-self-exiled-to-a-shipping-container-c-2828451.