8.1 In Discussion Paper 32, the Commission proposed that defendants should be able to escape liability in damages by publishing a prompt and adequate correction.1 Voluntary corrections of this sort would constitute a complete defence to any claim for damages for non-economic loss. Reactions to the Commission’s proposals in DP 32, anecdotal evidence given to the Commission, and the Commission’s own experience, all demonstrate that corrections, or sometimes apologies, are indeed what most plaintiffs seek, at least initially.2 Further, a comprehensive empirical survey of plaintiffs in the United States has shown that immediately after the publication of the defamatory matter, most plaintiffs are primarily interested in the effective restoration of their reputations.3 It is only when their requests for a correction are rudely dismissed or litigation is commenced that money becomes more important - often to punish the defendant and cover the expense of the proceedings.
8.2 The Commission itself has lacked the resources to undertake a survey of defamation plaintiffs to assess whether a rapid correction would satisfy most or all of them. Defamation plaintiffs can, of course, only be identified after the fact; there is no identifiable body of plaintiffs, unlike media organisations who are institutional defendants. As a result, the Commission has decided, in conformity with our general approach of giving plaintiffs the option of selecting the remedy which they consider most appropriate in the circumstances,4 that plaintiffs who seek damages should not generally be denied them by being forced to accept a non-monetary remedy. The only exception to this should be where defendants are “innocent” and able to avail themselves of the offer of amends defence.5
8.3 Plaintiffs who feel that their injury can properly be redressed by non-monetary relief will, of course, have the option of suing for a declaration of falsity under the procedure outlined in Chapter 6. Plaintiffs who wish to avoid litigation altogether should be able to make a formal request for a prompt and adequate correction. Where that request is made pursuant to the legislation which gives effect to the recommendations in this chapter,6 defendants who comply with the request and pay the plaintiff’s reasonable costs will be able to raise the correction as a complete defence to any later claim for damages for non-economic loss. In addition, a prompt and adequate correction would usually be a powerful influence on a judge’s discretion in deciding whether to grant a declaration of falsity.7
8.4 Currently plaintiffs often seek a correction as an initial step while reserving their right to claim damages. Such requests are rarely complied with because there is little forensic advantage for defendants to publish one. A volunteered correction cannot bar damages but may mitigate them. Further, a published correction may result in the denial of certain defences to the defendant if it is too generous to the plaintiff and contains admissions against the defendant. There is, therefore, a risk that published corrections will be inadequate. Where, however, parties do settle their claims on the basis that a correction or apology be published by the defendant, that correction will bar a claim for damages for non-economic loss. This will follow from a term of the agreement or settlement between the parties.
8.5 The Commission recommends a formalised procedure to guide parties in achieving what is often now sought through negotiation.8 The aim of this proposal is to avoid litigation and provide for the correction of false and defamatory statements at a time when the reputation of the person defamed can be restored. Defendants will be able to avoid liability in damages for non-economic loss by acting quickly to correct any unintended or careless damage to a plaintiff’s reputation. This will also enhance their professional standards and image. Plaintiffs who seek only the speedy correction of the public record or the airing of their views will be able to achieve these aims more easily, as defendants will now have a real incentive to publish a correction. And the public will benefit through the provision of accurate information concerning the plaintiff.
8.6 Although this procedure may pose difficulties for some defendants, such as book and magazine publishers, there are a number of possibilities which will still remain open to them, such as placing advertisements in newspapers and sending correction notices to subscribers. This will make the defence more costly for such defendants to use than it would be for a newspaper or broadcaster, but much less expensive than defending a defamation action. The Commission believes that the requested correction defence should be expressly open to all defendants, not just media defendants. Unlike certain other jurisdictions where such remedies are available (for example, most Canadian provinces), defendants will not have to establish an additional requirement such as a reasonable belief that the matter complained of was published for the public benefit.9 This will narrow the issues to the promptness and adequacy of the published correction.
Recommendation 22
All defendants should be able to rely on a published correction as a defence to a claim for non-economic loss where the correction was requested by the plaintiff. A requested correction is one which complies in all respects with a request by the plaintiff for a correction or, alternatively, one which complies with Recommendations 23, 25, 26 and 27.
Procedure
8.7 A plaintiff may choose to make a formal request for a correction in accordance with the procedure outlined in this chapter at any time before commencing proceedings for defamation. The Commission recommends that a plaintiff seeking a correction must do so in writing identifying the publication complained of; the false and defamatory imputations said to arise from it; the facts, if any, which demonstrate falsity; and any special facts which give rise to a defamatory meaning other than the express language of the publication. Plaintiffs may also suggest a proposed correction. These documentary requirements are designed to allow defendants to make a full and rapid assessment of whether to publish a correction. Defendants will not have to publish the precise correction (if any) submitted by the plaintiff, provided that the correction which is published meets the tests of promptness and adequacy. The requirements will also benefit plaintiffs by ensuring that the correction will properly address the plaintiff’s concerns. The requirements should not be onerous for plaintiffs.
Recommendation 23
A plaintiff seeking a correction must do so in writing prior to commencing proceedings and identify the publication complained of; the false and defamatory imputations said to arise from it; the facts, if any, which demonstrate falsity; and any special facts which give rise to a defamatory meaning other than the express language of the publication.
8.8 Should the parties be unable to agree on aspects of the publication of a correction, they should be able to apply to the court for a summary ruling. The court should be given express power to determine any question which may arise in respect thereof and which, by consent, the parties wish the court to determine. Such power would be similar to that which is given to the court under s 39 of the Defamation Act 1974 to determine any question as to the steps to be taken in performance of an agreement resulting from acceptance of an offer of amends. Rules of Court will be needed to regulate the procedure.10 The usual provisions as to costs should apply. Even if resort to the court proves necessary, settlement of matters between the parties which results in the publication of an agreed correction should preclude costly and drawn out litigation.
Promptness of the correction
8.9 The period selected as appropriate to allow a correction to qualify as “prompt” should ensure that defendants have time to establish whether a correction should be published, if necessary by investigating the process of publication and asking questions of sources and so on. Bearing this in mind, the Commission recommends that where a publication is published on at least five days in each week, a correction must be published within seven days of a fully documented request.11
8.10 Publications which are issued over a longer time period, such as monthly, quarterly or annual publications, should be required to publish the correction so far as is practicable in the next edition. Where the defamatory statements are published in single editions, or in other circumstances where such requirements are not applicable, defendants may have to purchase space for corrections in newspapers or other daily media. This makes the defence harder for them to use, but then they have more time to investigate and check stories before publication.12 In addition the defence will be much cheaper and easier to use than defending a defamation action. In all cases, if the parties cannot agree on what is prompt, they should be able to seek a determination from the court in accordance with the procedure envisaged in Recommendation 24.
Recommendation 25
The correction must be prompt. For publications which are published on at least five days of each week, the correction must be published within seven days of a fully documented request complying with Recommendation 23. In other cases, the correction should be published in the next edition so far as this is practicable, or at such other time as the parties agree.
Adequacy of the correction
Placement of the correction
8.11 The adequacy of any correction is always a matter of circumstance and degree. The key requirement in deciding the adequacy of the correction must be that its location and prominence make it reasonably likely to reach substantially the same audience as the original publication. This is “a functional standard aimed at effective vindication of reputation rather than one focusing mechanistically on particular location, identity of medium, specific size of audience, or the like”.13 It is meant to be applied flexibly and creatively rather than focusing on rigid criteria such as a minimum size typeface.14
8.12 Thus, in the case of a newspaper story published on an inside page, use of a regular corrections column at a fixed location, such as the front or back of the news section or opposite an editorial page, should suffice. Many newspapers in those US States where retraction statutes are available have established regular corrections columns. The perception held by a number of commentators is that these columns are often more widely read than most other sections of the paper.15 However, a defamatory story published on the front page or in a specialised section of the paper would usually require a correction in the same place, and the Commission proposes this as the primary rule, notwithstanding the reluctance of newspapers to publish apologies on the front page - an apparent policy which the Commission finds quite unacceptable. For broadcast defamation, a correction broadcast at the same time of day and with the same coverage would suffice.
8.13 The correction should appear in the same publication as the original defamation, unless this cannot be done within the time limit of seven days (where it applies) or at all (such as where defamatory statements are made at a rally or printed in a book or pamphlet). In those situations, publication in any medium likely to reach a reasonably equivalent audience, such as the largest circulating newspaper in the region, or in such form as the parties agree, will suffice.16 Where the parties cannot agree on what is adequate, a determination should be sought from the court in accordance with the procedure envisaged in Recommendation 24.
8.14 Some examples will indicate what the Commission would consider adequate. Correction of a defamatory reference may require only contacting those persons or firms to whom the reference was sent. More extensive steps may be necessary where the defamation has been communicated to a broader audience or held in a permanent file. An oral defamation to friends or colleagues may be adequately corrected by a letter to the same persons. A defamatory statement posted on an electronic bulletin board would require a correction to be published in the same place, or at least e-mailed to those who were the targets of the original defamatory posting.
Content of the correction
8.15 In some cases the correction may not be held adequate unless the facts are stated, such as where the plaintiff quickly points out a clear mistake by the defendant and outlines the true facts. In other cases it may be enough to state only that the original imputation was false.
8.16 Where the imputation arises from the defendant’s report of a statement by someone else, the defendant will have to disclaim its truth if the ordinary reasonable reader would consider the defendant to have endorsed its truth in the original publication. The correction will not be adequate where it simply attributes the imputation to an identified person and disclaims any intention to assert the truth. If the defendant could escape liability in such cases, this would be a disincentive to the defendant to conduct its own investigations of the truth of information supplied to it.
Recommendation 26
The correction must be adequate: it must be published in the same place and manner as the original defamatory statement, or else calculated to reach substantially the same audience. It must either correct the imputation, preferably by stating the facts rather than simply stating that the original imputation was false; or disclaim any intention to convey a secondary meaning or assert its truth.
Using requested corrections as a defence
8.17 If the plaintiff proceeds with the claim after the publication of a correction, then the defendant will simply raise the correction as a defence and will bear the onus of establishing its promptness and adequacy.
Costs issues
8.18 A defendant who accepts that an error has occurred will have a complete defence to any claim for damages for non-economic loss if a prompt and adequate correction is published. In such circumstances the defendant should also be required to pay the plaintiff’s reasonable costs.17 If there is any dispute over the amount which should be paid as a reasonable sum for seeking and recovering the correction, this issue should be resolved by the court.
8.19 In most cases the court will simply order that the matter be referred to a costs assessor, who will decide, within a short period of time,18 whether the amount claimed by the plaintiff is fair and reasonable.19 If so, that sum will have to be paid by the defendant in order to avoid liability in general damages. The assessor will have all usual powers to decide by whom and to what extent the costs of assessment should be paid.20
Recovery of damages for economic loss
8.20 Corrections are designed to restore the plaintiff’s reputation by providing for prompt and adequate vindication. However, in this as in other contexts,21 the Commission sees no reason to prevent a plaintiff who seeks a correction from also claiming damages for economic loss.
OFFER OF AMENDS
8.21 Division 8 of Part 3 of the Defamation Act 1974 (NSW) provides a defence to damages for a defendant who makes an offer of amends to the plaintiff (which must include an offer to publish, or to join in publishing, a reasonable correction and apology). The defence is only available where the publication is “innocent”, that is where the publisher and its servants and agents concerned with the matter in question or its publication:
- did not intend the matter to be defamatory of the plaintiff;
- did not know of circumstances by reason of which the matter is or may be defamatory of the plaintiff; and
- exercised reasonable care in relation to the matter in question and its publication.
To satisfy the defence, the defendant must comply with all the technical requirements specified in the Act.22 It appears that the defence is rarely used in practice.23 Two major criticisms are levelled at the defence.24
8.22 First, the restriction of the defence to “innocent” publication as described in para 8.21. Pursuant to a recommendation of this Commission, the offer of amends defence is restricted to cases of innocent publication because it makes inroads into the strict liability at common law for defamation.25 The Commission continues to believe that where a defendant’s actions can unilaterally prevent a plaintiff from recovering damages for harm to his or her reputation - even when the defendant’s role has been a subordinate one26 - then the circumstances in which this can occur should be limited. In particular, the Commission continues to favour limiting the availability of the defence to defendants whose behaviour is reasonable in relation to the matter in question and its publication, rather than to make it more generally available to defendants who have published unreasonably but unintentionally and without reckless indifference (especially where this is coupled with a presumption that the defendant published unintentionally).27
8.23 Secondly, it is argued that the offer of amends defence is overly cumbersome and technical.28 Subject to two qualifications, the Commission is not generally persuaded of this. The first qualification is that the requirement that the “offeror made the offer as soon as practicable after becoming aware that the matter in question is or may be defamatory of the offeree”29 should be interpreted reasonably in the light of all the circumstances of the case - including making such allowance for the period that it takes the defendant to investigate the complaint and take advice as is appropriate in all of the circumstances.30 The second qualification is that, like the Faulks Committee,31 we can find no justification for the requirement in s 43(1)(d) of the Defamation Act 1974 (NSW) that an offeror who is not the author of the matter in question must prove that the author was not actuated by ill will to the offeree. Not only is this requirement unsound in failing to focus on the innocence or otherwise of the offeror, but requires the offeror to prove a fact which he or she will generally be unable to prove. We therefore recommend that this subsection be repealed.
8.24 The Commission has carefully considered whether or not we should recommend the adoption of that version of the offer of amends defence devised by the 1991 Neill Report in Great Britain32 and incorporated in the draft Defamation Bill recently circulated by the Lord Chancellor.33 We have decided that we should not. First, we do not believe that the defence should only be available to defendants who offer to pay damages. In our view, “innocent” defendants are usually the very persons who ought to escape liability in damages. Secondly, we do not believe that the mere offer of amends should result in a defence as the English proposals envisage. We prefer the New South Wales position that acceptance and performance are generally crucial ingredients of the defence.34 Thirdly, we are not convinced that, if amended as we have suggested in para 8.23 and if interpreted reasonably, the offer of amends defence in the 1974 Act has necessarily outlived its usefulness. Fourthly, we are hopeful that the recommendations which we make in this chapter will help plaintiffs achieve settlements without litigation, by giving a formal structure to the current informal negotation process and by providing incentives to defendants to publish requested corrections.
FOOTNOTES
1. New South Wales Law Reform Commission, Defamation (DP 32, 1993) at paras 2.18-2.56.
2. Voluntary corrections as a defence were supported, though with some differences in detail, in Law Society of NSW, Australian Broadcasting Corporation, Nine Network Australia, Consolidated Press Holdings, Young Lawyers, Australian Press Council, Australian Book Publishers Association, Australian Society of Authors, and Law Institute of Victoria: Submissions. They were not specifically opposed in any submissions, although those of Young Lawyers and the Law Institute were generally critical of any attempt to move away from damages as the primary remedy in defamation actions.
3. R P Bezanson, G Cranberg and J Soloski, Libel Law and the Press: Myth and Reality (New York, Free Press, 1987) at 171-183. See DP 32 at para 45 note 5.
4. See especially para 2.16.
5. See para 8.21-8.24.
6. See Part 3A of Schedule 1 to the draft Bill in Appendix 1.
7. See para 6.14.
8. Retraction statutes have existed for some time in several States in the USA, and recently procedures similar to the Commission’s recommendations have been devised in a Uniform Correction or Clarification of Defamation Act. See D M Cendali, “Of Things to Come - The Actual Impact of Herbert v Lando and a Proposed National Correction Statute” (1985) 22 Harvard Journal of Legislation 441 at 490-491; “Current Retraction Practice - An LDRC Survey”, Libel Defense Resource Center Bulletin (Vol 1992-93 Issue 3) at 8-11; Prefatory Note to the Uniform Correction or Clarification of Defamation Act, drafted by the National Conference of Commissioners on Uniform State Laws in the United States. The Act was approved by the American Bar Association at its annual conference in Missouri on 7 February 1994. It has been passed in North Dakota and is expected to be adopted in a number of States in early 1996 in order to test its effectiveness.
9. See R Brown, The Law of Defamation in Canada (Carswell, Toronto, 1987) Vol 2 at 1059-1061. And see DP 32 at 2.24.
10. The Commission notes that Supreme Court Rules 1970 (NSW) Pt 67 r 11B(b) authorise the Court to exercise its powers under Pt 3 Div 8 of Defamation Act 1974 (NSW) where the plaintiff has moved for a directions hearing. This rule does not extend to allow the Court to determine issues under s 39 where there are no proceedings between the parties. For the avoidance of doubt, the Commission makes it clear that Recommendation 24 is intended to apply even where there are no proceedings between the parties and that Rules of Court which may be devised ought expressly to extend to such situations (as, in our view, they should in relation to the offer of amends defence). The Commission further believes that the provision in Supreme Court Rules 1970 Pt 67 r 22 and District Court Rules 1973 Pt 49 r 20 (which allows for the determination of issues under s 39 in the absence of the public) ought to be extended to determinations which the court may be called upon to make in relation to requested corrections.
11. A time limit of one week is applied in eleven of the 33 US States which have retraction statutes. A further seven apply a limit of ten days. Nine of these eighteen have a longer time limit for nondaily publications (usually the next issue). Current Retraction Practice, note 8 above, at 5-6.
12. G D Schwarzbach, “Shouldn’t California’s Retraction Statute Protect Magazines Too?” (1989) 18 Southwestern University Law Review 197 at 204-5, 209-210. Cf Cendali at 496.
13. Uniform Correction or Clarification of Defamation Act at 6-8.
14. H R Kaufman, “Special Report: The Potential Reform of State Defamation Law under the Uniform Correction or Clarification of Defamation Act” (Libel Defense Resource Center, New York City, 1993) at xxiv-xxv.
15. Current Retraction Practice, note 8 above, at 28-38.
16. Kaufman (1993) at xxv-xxvi.
17. This proposal is similar to the current offer of amends defence, where the court may order that the defendant pay the costs of the plaintiff arising from the acceptance of the offer (including costs on an indemnity basis), and the expenses of the plaintiff incurred in consequence of the publication of the matter complained of: Defamation Act 1974 (NSW) s 41.
18. The Commission is advised that, except in very contentious cases, matters of this nature should generally be capable of resolution within a period of one month. Very contentious matters should be resolved within a period of two months.
19. Legal Profession Act 1987 (NSW), s 202(2), s 208F.
20. Legal Profession Act 1987 (NSW), s 208F(4).
21. See para 2.21.
22. See Defamation Act 1974 (NSW) ss 37-45.
23. Parliament of New South Wales, Report of the Legislation Committee on the Defamation Bill 1992 (October 1992) at 114 (evidence of Mr Peter Bartlett). For the position in England, see Supreme Court Procedure Committee, Report on Practice and Procedure in Defamation (July 1991) at 69.
24. See DP 32 paras 11.3-11.14.
25. See NSW Law Reform Commission, Report of the Law Reform Commission on Defamation (LRC 11, 1971) Appendix D at para 214.
26. Innocent dissemination generally is considered in Chapter 9.
27. As proposed in England and Wales, Supreme Court Procedure Committee, Report on Practice and Procedure in Defamation (July 1991) (“Neill Report”) at 67-69. These proposals for the reform of the offer of amends defence are now incorporated in the draft Defamation Act 1995 circulated by the Lord Chancellor in July 1995: see Lord Chancellor’s Department, Reforming Defamation Law and Procedure: Consultation on Draft Bill (July 1995) (“Lord Chancellor’s Consultation on Draft Bill”) at Chapter 3 and Draft Bill cl 2. It is intended that the Act should apply principally to England and Wales: see cl 17.
28. See DP 32 paras 11.20-11.34.
29. Defamation Act 1974 (NSW) s 43(1)(b).
30. Consider para 8.9. Compare Neill Report at 65, 69.
31. United Kingdom, Report of the Committee on Defamation (Cmnd 5909, 1975) para 284.
32. Neill Report at 62-80.
33. Lord Chancellor Consultation on Draft Bill at Chapter 3 and Draft Bill cls 2-4.
34. Defamation Act 1974 (NSW) s 40 and s 43.
