4.1 A plaintiff is entitled to succeed in a defamation action where he or she can prove that the defendant published matter which carries an imputation of and concerning the plaintiff which is defamatory of the plaintiff and where the defendant is unable to establish some recognised defence to the action (such as justification, privilege or comment).1 In this chapter, the Commission reviews two aspects of the cause of action in defamation. First, the grounding of the action on the imputation or imputations pleaded and alleged to flow from the publication of the defamatory matter. Secondly, the question whether or not the falsity of the imputation ought to be an essential ingredient of the plaintiff’s cause of action.
IMPUTATIONS
4.2 The “imputation” is the defamatory accusation or charge which the plaintiff alleges is conveyed by the matter published by the defendant of and concerning the plaintiff.2 Section 9(2) of the Defamation Act 1974 (NSW) makes each imputation a separate cause of action. Pursuant to s 9(4), rules of court prohibit the plaintiff from founding an action on more than one imputation arising from the publication of the same matter unless the imputations differ in substance.3 Section 9(3) provides that where a plaintiff has brought proceedings for defamation in respect of the publication of particular matter, no further proceedings can be brought in respect of the same or a similar publication without the leave of the court. Section 9 arose from recommendations by this Commission in 1971 as the solution most likely, in cases of multiple imputations, to promote just results and to overcome both areas of doubt and unserviceable distinctions in the common law.4 The fact that each imputation is a separate cause of action means that in New South Wales the defendant has to defend that imputation and no other.
4.3 The law of New South Wales differs from that in common law jurisdictions such as Victoria and the Australian Capital Territory.5 In those jurisdictions, if the meaning of the words is not clear, a plaintiff may plead the meanings which they are alleged to convey. However, the trier of fact is not restricted to those meanings and must decide for itself what meanings the words in fact convey. The defendant may allege that the words convey a different set of meanings from that pleaded by the plaintiff and may attempt to establish defences relevant to those meanings. The issues to be contested are thus not defined until after the trial has started. Indeed, at the conclusion of evidence a bargaining process often takes place between opposing counsel and the judge to decide which meanings can be left to the jury.
4.4 The Commission regards the uncertainties inherent in the common law system as productive of delays which unjustifiably increase the costs of litigation. The inefficiencies of the common law system include the delay in determining which imputations the judge should permit to go to the jury and in letting the defendant establish defences which are only relevant to the imputations for which it contends and which are never going to be accepted. In the latter case, the Commission also regards as unacceptable the fact that the defendant is able to put before the jury material which is wholly irrelevant to the plaintiff’s complaint.6
4.5 In contrast to the common law system, the New South Wales procedure emphasises precision and make the issues clearer at trial, saving valuable court time. Although one submission received by the Commission expressed concern about a trend towards “increased technicality concerning imputations”,7 there was general support for retaining imputations as the basis of the cause of action. The Commission acknowledges that the law of New South Wales places a premium on the careful pleading of imputations. However, the savings in costs and delay achieved by the precision of carefully pleaded imputations which clearly identify the issues at the commencement of the trial, far outweigh any appearance of technicality which the procedure may be thought to possess.
4.6 The Commission has, therefore, concluded that it is preferable to maintain existing practice and procedure in this instance, especially since this has the effect of simplifying the task of the jury whose function it is to resolve disputed issues of fact at the imputations stage of the trial.8 The procedure also has the practical effect that, once the plaintiff’s imputation has been accepted, there is usually no real defence to it (the plaintiff having selected the imputation for that purpose). Alternatively, if the plaintiff’s imputation has not been accepted, there is no time wasted on the defences pleaded to it.
FALSITY
The role of falsity in the law of defamation
4.7 The Commission has discussed the meaning of reputation in paras 2.3 and 2.4. We have pointed out that the law is generally concerned only with protecting the esteem, goodwill or confidence attaching to well-founded reputations.9 The law does not, however, require that the plaintiff prove the falsity of the publication before succeeding in an action for defamation. At common law this was explained by saying that once the plaintiff had proved the imputation to be defamatory, it was presumed to be false.10 Hence, although falsity is not a necessary ingredient in actionable defamation in the sense that it is necessary for proof of the cause of action, nevertheless a plaintiff can be said to succeed in a defamation action only for an imputation which is both defamatory and false. But in New South Wales there is no such presumption.11 Falsity is, therefore, irrelevant to liability.
4.8 The effect of the common law presumption is that the issue of truth must be raised by the defendant as a defence to the plaintiff’s claim (the defence of justification). This remains the case in South Wales, with the gloss that justification is only made out where the defendant proves that the publication is true and relates to a matter of public interest.12 Whether the defence of justification is raised or not, truth or falsity may otherwise be raised by either party as a factor relevant in the assessment of damages.13
4.9 The result of relegating the determination of the truth or falsity of the defamatory matter to a defence of justification is that the issue of truth or falsity may not be, and usually is not, litigated in defamation actions, save on the issue of damages. On the one hand, plaintiffs, who are not required to put falsity in issue, can, in theory, utilise defamation actions to protect a reputation which is undeserved. On the other hand, the defendant may in any case be unable to prove truth or may be unwilling to persist in a weak defence of justification for fear of aggravating damages. In the Commission’s view it is unsatisfactory, for a number of reasons, that the issue of truth or falsity should be relevant to liability in defamation actions primarily by way of the defence of justification, whether or not reliance is placed on a presumption of falsity.
4.10 First, we return to the point that “[a] libel action is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed”.14 But the public interest requires the protection of individual reputations only against the publication of false defamatory matter. Subject to what we have to say about privacy, speaking the truth ought not to give rise to civil liability simply because the truth is defamatory. The law of defamation ought not to protect individuals against injury to reputations which they neither have nor ought to possess.15 In saying this, we are not suggesting that there is never a public interest in protecting individuals against true statements (whether defamatory or not). We are simply saying that it is inappropriate that this protection should come, primarily, from the law of defamation.16
4.11 Secondly, vindication comes primarily from a finding that a defamatory publication is false. In Theophanous v Herald and Weekly Times Ltd,17 Chief Justice Mason and Justices Toohey and Gaudron were of the view that the determination of the truth or untruth of the defamatory imputation is “the gravamen of the plaintiff’s complaint in most cases”. We agree. We also believe that this ought to be so in all cases. Yet, as we have pointed out in para 4.9, in the current state of the law, the issue of truth or falsity is usually not litigated because the defendant is unable to establish truth. Our proposal forces the defendant either to litigate the issue or to concede it.
4.12 Thirdly, making falsity an ingredient of the tort of defamation facilitates freedom of speech because it removes the necessity of the defendant’s having to prove the truth of the defamatory imputation. In contrast, requiring the defendant to prove truth as a defence acts as an inhibition on freedom of speech. In Theophanous, Chief Justice Mason and Justices Toohey and Gaudron paraphrased the view of Justice Brennan in the Supreme Court of the United States in New York Times v Sullivan18 that “the necessity of proving truth as a defence may well deter a critic from voicing criticism, even if it be true, because of doubt whether it can be proved or fear of the expense of having to do so”.19 Their Honours pointed out that this view only loses force in Australia to the extent that the level of awards in defamation cases must bear an appropriate and rational relationship to awards in personal injury cases.20
4.13 Fourthly, the constitutional defence will have a more coherent and effective operation in its application to the law of defamation in New South Wales where the plaintiff bears the onus of proving falsity. The effect of the constitutional defence is that damages cannot be claimed in a defamation action where publication occurs in the course of political discussion and where the defendant establishes that (i) it was unaware of the falsity of the material, (ii) it did not publish the material recklessly (that is, not caring whether the material was true or false), and (iii) publication was reasonable in all the circumstances. This clearly means that the imputation must first be found to be false.21 Yet there is no general presumption of falsity in New South Wales, where falsity is simply irrelevant to the plaintiff’s case on liability.22 The position where the constitutional defence is raised is unclear and was not addressed by the High Court in Theophanous (which came on appeal from Victoria where the common law presumption does apply). Presumably, however, if the plaintiff does not have to prove falsity, it must either be conceded or presumed. This hardly promotes free speech.23 Whereas, as we have pointed out in para 4.12, making falsity an ingredient of the cause of action does.
4.14 A possible argument against making falsity an ingredient of the cause of action is that it will lead to an increased use of discovery procedures. Currently, if truth or falsity has not been put in issue between the parties, the defendant is not entitled to discovery of documents relating to that issue, and interrogatories directed to that issue can only be described as “fishing”.24 The Commission does not consider that increased usage of discovery procedures in itself argues against our proposal to make falsity a part of the cause of action in defamation. And a further argument, derived from American law, that where truth is in issue, defendants may conceivably seek to use discovery procedures to uncover damaging personal details of the plaintiff which could then be published under privilege and which would reduce the incentive to settle, is unsound. Material obtained through discovery under Australian law can only be used for the purposes of the action, unlike under United States law where it can be used for any legitimate purpose.25 The court thus retains control of the discovery process to ensure it is not used for an improper purpose.
4.15 Subject to two exceptions (which arise where the plaintiff can establish that (i) the imputation does not relate to a matter of public interest,26 and (ii) the imputation is not capable of being proved true or false),27 the Commission therefore recommends that the falsity of the defamatory imputation should form an essential ingredient of the tort of defamation.28 The effect of this proposal is that justification will be eliminated as a defence in defamation actions. The implementation of this recommendation will require that section 9 of the Defamation Act 1974 (NSW) be revised to provide that falsity will be an ingredient of the cause of action and that section 15 be removed from Part 3 of the Act as justification will no longer be a defence. This applies to both variants of the defence in s 15(2)(b), namely, truth and public interest, and truth on an occasion of qualified privilege. With regard to contextual truth, section 16(2)(a) should be deleted, to accommodate the variation of the cause of action and effective elimination of the defence of justification.29
Privacy protection
4.16 As an alternative to proving falsity, a plaintiff who seeks general damages should have the option of proving that the published imputation did not relate to a matter of public interest. As we have explained in paras 2.32-2.36, the “public interest” requirement of the current defence of justification is designed to protect privacy. Giving plaintiffs this option will retain the current level of privacy protection, pending the creation of specialised remedies for invasion of privacy.
4.17 This option will not be available where the plaintiff seeks a declaration of falsity, a remedy which we recommend in Chapter 6. The primary issue in that case is the truth or falsity of the imputation, to which “public interest” is simply irrelevant. In addition, a publicised declaration is hardly an appropriate remedy for an invasion of privacy.
Recommendation 6
In an action for damages, the plaintiff, instead of proving that the defamatory imputations are false, may prove that they do not relate to a matter of public interest.
The incidence of the burden of proof
4.18 If the Commission’s recommendation that falsity should be an essential ingredient of the cause of action (and, therefore, an essential part of the plaintiff’s case) is accepted, it follows, on general principles, that the onus of proof on the issue of falsity must rest on the plaintiff, and, to avoid any doubt, the Commission makes this a separate recommendation. The Commission is, however, aware that arguments have been raised in opposition to the proposition that the plaintiff should bear the onus of proving falsity in defamation cases.30
4.19 First, there is the argument that it is too onerous to put the burden of falsity on the plaintiff. The argument tends to take one of two forms. First, the plaintiff, it is said, ought not to be asked to prove a negative. But there are many instances in which plaintiffs are asked to prove negatives.31 Indeed, there are even instances in which plaintiffs are asked to prove falsity, as in the tort of injurious falsehood32 and in the law of misrepresentation (where the plaintiff has to prove that the representation is false).33 Another objection is that the plaintiff may be asked to disprove a vague defamatory statement whose meaning is difficult to determine.34 An example is the statement: “The plaintiff is a corrupt businessman”. This statement implies the existence of undisclosed defamatory facts. But the answer to this objection is that the plaintiff’s task is assisted and simplified in New South Wales by the requirement that the plaintiff identify the imputation(s) on which the cause of action is founded, thus facilitating proof of falsity.35 In the example given, the plaintiff could frame the imputation as “The plaintiff is a corrupt businessman (in the sense of being open to bribery)”.36
4.20 In contrast to the arguments in para 4.19, the Commission believes that, as a practical matter, it makes sense to put the burden of proof of falsity on the plaintiff simply because the plaintiff, who”knows the truth”, is more likely to be in a position to prove falsity than the defendant to prove truth. The result is likely to be that litigation and trials should not be overly protracted as they currently are in the rare cases where justification is relied on as a defence.37 Further, the Commission notes that commentators have not identified any serious problems associated with placing the onus of proving falsity on the plaintiff in United States law; yet there is a good deal of commentary on the difficult problems caused to plaintiffs (and defendants) by the onus of proving actual malice.38
4.21 Secondly, a minority of the Irish Law Commission was of the view that placing the onus of proof of falsity on the plaintiff is a purely cosmetic change in the law which is hardly worth making.39 The Commission does not accept this argument. We do accept that, in many cases, the plaintiff will discharge the burden of proving falsity simply by giving evidence denying the veracity of the imputation. If the defendant then fails to produce any evidence in answer, the plaintiff may succeed.40
The onus in particular contexts
Imputations which are not statements of fact
4.22 When plaintiff seeks damages. Sometimes an imputation is a mere “statement of opinion”. An example is the statement: “The plaintiff has written a bad play”. Such a form of words is inherently incapable of being proved true or false as it is purely a value judgment which depends on matters of personal impression. In such cases, the Commission recommends that a plaintiff seeking damages who cannot prove the falsity of the pleaded imputation relied on should plead that it is not capable of being proved true or false. If the plaintiff succeeds in showing that the imputation is inherently not capable of being proved false, then comment will be available as an affirmative defence which the defendant may choose to establish. Of course, the plaintiff will always put forward an imputation which is inherently capable of being proved true or false in order to prevent the defendant’s having the advantage of pleading comment.41
4.23 If the defendant raises comment, the defendant will bear the onus of showing that the defendant or, as the case may be, the defendant’s servant or agent is the author of the comment. This accords with the existing law.42
4.24 Under the existing law, the plaintiff then bears the onus of showing that the comment is not an honest expression of the defendant’s opinion or that of the defendant’s servant or agent.43 The defendant is, however, in a better position to establish this issue than the plaintiff is to refute it, just as the plaintiff is in a better position to prove falsity than the defendant is to prove truth. Accordingly, the Commission specifically recommends that this onus be reversed so that the defendant must establish this aspect of the defence. Sections 32(2) and 33(2) of the Defamation Act 1974 should be amended to make this clear.
4.25 However, if the defendant relies on section 34 of the Defamation Act by showing that the comment is the comment of a stranger, the onus should remain on the plaintiff to defeat the defence by showing that the publication of it was not in good faith for public information or the advancement of education.44 This will facilitate freedom of speech by providing some protection to newspapers which publish letters to the editor and to others who provide a public forum for the expression of opinions.
Recommendation 9
Where the defendant relies on the defence of comment under section 32 of the Defamation Act 1974, the defendant should bear the onus of showing that the comment is the honest expression of the defendant’s opinion. Where the defendant relies on the defence of comment under section 33, the defendant should bear the onus of showing that the comment is the honest expression of the opinion of the defendant’s servant or agent.
4.26 When plaintiff seeks a declaration. Where the plaintiff seeks a declaration of falsity, the defamatory imputation must be capable of being proved false. Otherwise it cannot be declared to be false. The plaintiff always bears the onus of showing that it is appropriate for the declaration of falsity to be granted.
Contextual truth
4.27 This defence is currently not needed where the defendant can prove the truth of the plaintiff’s pleaded imputation. Under the Commission’s recommendations the plaintiff must prove its falsity and so contextual truth may assume greater significance. The Commission proposes that the onus of showing that the contextual imputations are substantially true will remain on the defendant, as this is an affirmative defence which the defendant must establish. The defendant will also have to show that the contextual imputations either relate to a matter of public interest or are published on an occasion of qualified privilege.
FOOTNOTES
1. For the ingredients of a defamation action, see J G Fleming, The Law of Torts (8th ed, Law Book Co, Sydney, 1992) at Ch 25.
2. See Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 189 per Samuels JA.
3. Supreme Court Rules 1970 Pt 67 r 11(1)(3); District Court Rules 1973 Pt 49 r 10(3).
4. NSW Law Reform Commission, Report of the Law Reform Commission on Defamation (LRC 11, 1971) at paras 36-56.
5. See P T George, “Congruency: Unravelling the Defamation Action” (1990) 6 Aust Bar Rev 124 at 126-127; L W Maher, “Defamatory Meaning and the Defence of Truth: Polly Peck in Australia” (1993) 1 Torts Law Journal 215 at 215-220.
6. The decision of the English Court of Appeal in Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 is illustrative of many of these difficulties and stands as an eloquent indictment of the common law system. For an attempted summary of its effect, see Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 23-24 per Miles CJ.
7. Young Lawyers, Submission (29 October 1993) at 13.
8. See Chapter 3.
9. See G Spencer Bower, A Code of the Law of Actionable Defamation (2nd ed, Butterworth & Co, London, 1923) at 243.
10. Gatley on Libel and Slander (8th ed, Sweet & Maxwell, London, 1981) at para 351.
11. Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 205 per Windeyer J; Singleton v Ffrench (1986) 5 NSWLR 425 at 443-444 per McHugh JA.
12. Defamation Act 1974 s 15.
13. Defamation Act 1974 s 47. See also paras 7.16-7.18.
14. Associated Newspapers Ltd v Dingle [1964] AC 371 at 396 per Lord Radcliffe. See para 2.1.
15. Consider M’Pherson v Daniels (1829) 10 B & C 263 at 272; 109 ER 448 at 451 per Littledale J (though the reference to “character” is misleading).
16. See S Walker, “Regulating the Media: Reputation, Truth and Privacy” (1994) 19 Melb U L Rev 729 at 735.
17. (1994) 182 CLR 104 at 138. For an American perspective, see Dun & Bradstreet Inc v Greenmoss Builders Inc (1985) 472 US 749 at 771 per White J.
18. (1964) 376 US 254.
19. Theophanous at 132.
20. See paras 7.4-7.10.
21. See Theophanous at 137 per Mason CJ, Toohey and Gaudron JJ (defence may be established “if a defendant publishes false and defamatory matter about a plaintiff ...”).
22. See para 4.7.
23. In Theophanous at 137 Mason CJ, Toohey and Gaudron JJ said that they were not persuaded that “the constitutional character of the justification should make any difference to the onus of proof”, but their Honours were there considering which party should bear the onus of establishing or denying reasonableness. The Court does not seem to have addressed (because it was not argued or open to argument) whether the onus of proving falsity alone should be passed to the plaintiff as an effective way of promoting freedom of communication.
24. Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 549-551; Gatley at para 1234, notes 18 and 19.
25. Gatley at para 1210; B C Cairns, The Law of Discovery in Australia (Law Book Company, Sydney, 1984) at 3-8.
26. See paras 4.16-4.17.
27. See para 4.22-4.27.
28. A recommendation to like effect has been made by a majority of the Irish Law Reform Commission: see Ireland, The Law Reform Commission, Report on the Civil Law of Defamation (LRC 38 - 1991) paras 7.28 - 7.35. The Defamation Bill 1995, a Private Members’ Bill which seeks to implement the recommendations in the Report of the Irish Law Reform Commission was introduced into the Irish Dáil on 9 February 1995. Cl 9 of the Bill, read with the definition of “defamatory matter” in cl 6, places the burden of proof of falsity on the plaintiff. Surprisingly, the defence of truth, with the burden on the defendant, is retained in cl 24. See Report on the Civil Law of Defamation at para 7.3. We are grateful to the Irish Law Reform Commission for providing us with information on the Bill.
29. See further 4.27.
30. Eg England and Wales, Supreme Court Procedure Committee, Report on Practice and Procedure in Defamation (July 1991) (“Neill Report”) at 72-73.
31. Phipson on Evidence (14th ed, Sweet & Maxwell, London ,1990) para 4-05.
32. Gatley at paras 308 and 318.
33. Spencer Bower and Turner, The Law of Actionable Misrepresentation (3rd ed, Butterworths, London, 1974) para 68.
34. S P Anthony, “Vague Defamatory Statements and the Libel Plaintiff’s Burden of Proving Falsity” (1987) 87 Columbia Law Review 623 at 629-631; S Walker, “Regulating the Media: Reputation, Truth and Privacy” (1994) 19 Melbourne Univeristy Law Review 729 at 737.
35. See paras 4.2-4.6.
36. In any case, an imputation that “the plaintiff is corrupt” is usually too imprecise to enable the defendant to know the case it must meet: see Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 152-158 per Hunt J.
37. G C Cook, “Reconciling the First Amendment with the Individual’s Reputation: The Declaratory Judgment as an Option for Libel Suits” (1989) 93 Dickinson L Rev 265 at 282-283.
38. See para 5.13. See also D A Anderson, “Is Libel Law Worth Reforming?” in J Soloski and R P Bezanson (eds) Reforming Libel Law (Guildford Press, New York, 1992) at 21-23; D A Barrett “Declaratory Judgments for Libel; a Better Alternative” (1986) 74 California Law Review 847 at 855-856, 861-863; G C Cook, “Reconciling the First Amendment with the Individual’s Reputation: the Declaratory Judgment as an Option for Libel Suits” (1989) 93 Dickinson Law Review 265 at 266. One result of the public figure test is that falsity is rarely contested: see paras 5.19-5.21. Some critics in the United States have suggested abandoning the actual malice privilege and returning to the common law, but with the onus of proving falsity on the plaintiff: B C Murchison, J Soloski, R P Bezanson, G Cranberg, and R L Wissler, “Sullivan’s Paradox: The Emergence of Judicial Standards of Journalism” (1994) 73 North Carolina Law Review 7 at 102-104.
39. Ireland, The Law Reform Commission, Report on the Civil Law of Defamation (LRC 38 - 1991) at para 7.35.
40. Technically, because an evidential onus has shifted to the defendant.
41. See, for example, O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166.
42. Defamation Act 1974 (NSW) ss 32 and 33.
43. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 471 at 491.
44. Defamation Act 1974 (NSW) s 34(2).
