Bellino v Australian Broadcasting Corporation

Bellino v Australian Broadcasting Corporation - [1996] HCA 47 - HCA 1996 case summary — Zoe

Parties

Applicant/Plaintiff:

Bellino

Respondent/Defendant:

Australian Broadcasting Corporation

Cases Cited (23)

High Court of Australia Brennan CJ Dawson, Gaudron, McHugh and Gummow JJ Bellino v Australian Broadcasting Corporation [1996] HCA 47

the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals. This passage was cited with approval by Lord Shaw of Dunfermline in Adam v Ward [4] and by Walsh JA in cases [5] arising under s 17 of the Defamation Act 1958 NSW which corresponded with s 377 of the Code. In Justin v Associated Newspapers Ltd [6] , Walsh JA said: The broad principle underlying qualified privilege at common law is that occasions exist in which it is desirable from the point of view of public policy that communications should be made freely. This freedom should be given priority over the right of an individual to be protected against the loss of his reputation. In cases in which s 377(8) is raised as a defence, the subject of public interest is a critical factor in determining whether the defendant was free to publish the defamatory matter complained of. For that reason, the "subject of public interest" must be determined "with some exactness", as Windeyer J pointed out in Australian Consolidated Press Ltd v Uren [7] . That subject furnishes the reference point for determining the availability of the excuse for the publication of defamatory matter allowed by s 377(8). 1. (1872) LR 7 CP 606 at 622. 2. [1917] AC 309 at 349. 3. Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17 at 32 and Bridges v Australian Consolidated Press Ltd (1967) 86 WN (Pt 2) (NSW) 392 at 399; followed in Thompson v Australian Consolidated Press Ltd (1968) 89 WN (Pt 1) (NSW) 121 at 125-126; [1968] 3 NSWR 642 at 645. 4. (1966) 86 WN (Pt 1) (NSW) 17 at 32. 5. (1966) 117 CLR 185 at 209.

It would be abolishing the law of privileged discussion, and deserting the duty of the Court to decide upon this as upon any other question of law, if we were to hand over the decision of privilege or no privilege to the jury. A jury, according to their individual views of religion or policy, might hold the church, the army, the navy, parliament itself, to be of no national or general importance, or the liberty of the press to be of less consequence than the feelings of a thin-skinned disputant. It is not for the jury to diminish by an idiosyncratic approach the subjects of public interest which might attract qualified privilege. The common law's protection of freedom of speech is exemplified by a conservative approach to the evaluation of evidence of malice the existence of which would destroy the protection that would otherwise be available when defamatory matter is published on a privileged occasion. In Laughton v Bishop of Sodor and Man [9] , Collier LJ said: Some expressions here used undoubtedly go beyond what was necessary for self-defence, but it does not, therefore, follow that they afford evidence of malice for a jury. To submit the language of privileged communications to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications. This approach was followed by Mason J in Calwell v Ipec Australia Ltd [10] , a case governed by s 17 of the Defamation Act 1958 NSW: At common law it has been repeatedly said that a court should not be quick to find evidence of malice in the terms of defamatory material published on a privileged occasion because so to do would restrict considerably, if not defeat, the protection which the law confers on privileged communications (see Laughton v Bishop of Sodor and Man; Adam v Ward). It has been said that where the words are utterly disproportionate to the facts this amounts to evidence of malice (Spill v Maule [11] ), presumably on the footing that the extremity and exaggeration of the language is explicable only by reference to the existence of ill will in the defendant, but it does not suggest that a defendant is confined to saying what is strictly necessary to the occasion. The same comments may be made about the statutory concept of good faith to the extent to which it rests on ill will or other improper motive. 1. (1872) LR 7 CP 606 at 628; approved Sutherland v Stopes [1925] AC 47 at 63. 2. (1872) LR 4 PC 495 at 508. 3. (1975) 135 CLR 321 at 332. 4. (1869) LR 4 Ex 232.

I think that it related to so large a number of people, of such a kind, to a district of such an extent, and to matters of such importance as to render it a matter of public interest that the conduct of the employers should be criticised. The approach of the common law and, in my opinion, the approach of s 377(8) is to ascertain first whether the publication is dealing with a subject of public interest and then to identify the involvement or relationship of the plaintiff's conduct or affairs (being the conduct or affairs on which the defamatory comment is made) to that subject. 1. Knupffer v London Express Newspaper Ltd [1944] AC 116; Halsbury's Laws of England, 3rd ed (1958), vol 24, p 71. 2. [1894] 1 QB 133 at 140.

There is no principle of law, and certainly no case that we know of which may be invoked in support of the contention that a newspaper can claim privilege if it publishes a defamatory statement of fact about an individual merely because the general topic developed in the article is a matter of public interest. Protection for such a statement, however, is not determined by negating Lord Dunedin's test of "unconnected with and irrelevant to the main statement". It is determined by the positive criterion of relationship to or nexus with the relevant subject of public interest. That criterion is not satisfied unless the publication of the defamatory matter makes a contribution [62] to the discussion of the subject of public interest. In the present case, the question is whether those passages of the programme which contained the imputations found by the jury contributed to the discussion of the subjects of public interest specified in the defendant's particulars. Before answering that question, it is convenient to refer to the issues (other than the publication of defamatory matter) on which the plaintiff bore the onus of proof and the judge's function in considering the evidence on those issues. 1. [1960] NZLR 69 at 83 [affirmed [1960] 1 WLR 997]. 2. (1966) 117 CLR 185 at 209. 3. Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 213: no distinction in respect of the test of "purpose" can be drawn between s 377(5) and s 377(8) in this respect.

None of the post-1889 cases has departed from this basic understanding of a subject of public interest. In South Hetton Coal Co Ltd v North Eastern News Association Ltd [1894] 1 QB 133, for example, the Court of Appeal held that the conduct of a colliery company was a subject of public interest because the company was the owner or tenant of the bulk of houses in a colliery village which were occupied by colliers employed by the company and were alleged to be in a highly unsanitary state. Plainly, the conduct of the plaintiff invited public criticism because, as Lord Esher MR pointed out (at 140), "it related to so large a number of people, of such a kind, to a district of such an extent, and to matters of such importance as to render it a matter of public interest that the conduct of the employers should be criticised " (our emphasis). South Hetton Coal Co was applied by the Court of Appeal in London Artists Ltd v Littler [1969] 2 QB 375 where the Court held that the alleged conduct of the plaintiffs in conspiring to stop a successful stage play was a subject of public interest. Lord Denning MR said (at 391): "Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment." Lord Denning said that South Hetton Coal Co was a good example of a subject of public interest and cited Lord Esher's statement in that case that it was "a matter of public interest that the conduct of the employers should be criticised". Lord Denning said (at 391): "When three top stars and a satellite all give notice to leave at the same time - thus putting a successful play in peril - it is to my mind a matter of public interest in which everyone, Press and all, are entitled to comment freely." 2. [1891] AC 107 at 144-145. 3. Bank of England v Vagliano Bros [1891] AC 107 at 145. 4. Thus in the first edition of his work on The Law of Torts (1887), Sir Frederick Pollock, after saying (at p 219) that "[n]othing is a libel which is fair comment on a subject fairly open to public discussion", said (at pp 221-222): "What acts and conduct are open to public comment is a question for the Court, but one of judicial common sense rather than of technical definition. Subject matter of this kind may be broadly classed under two types. The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs, of those in authority, whether imperial or local, in the administration of the law, of the managers of public institutions in the affairs of those institutions, and the like. Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale, the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and all who appear as performers therein, the propounder of an invention or discovery publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism; which criticism, being itself a public act, is in like manner open to reply within commensurate limits." This passage, although doubting that "subject of public interest" had a technical definition, makes it clear that it is the "acts and conduct" of particular persons that constitute the subjects of public interest. 5. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236 at 244-245; Vagliano [1891] AC 107 at 145.

(1906) 3 CLR 1134

(1994) 182 CLR 211

(1966) 117 CLR 185

(1975) 135 CLR 321

(1934) 50 CLR 632

(1932) 47 CLR 279

(1938) 59 CLR 503

(1947) 74 CLR 102

(1993) 178 CLR 309

(1987) 163 CLR 236

(1960) 103 CLR 547

(1962) 107 CLR 353

(1964) 112 CLR 30

(1972) 126 CLR 146

(1937) 57 CLR 514

(1975) 134 CLR 1

(1994) 182 CLR 104

At a glance

Court

Decision date

Before

Source

Judgment (101 paragraphs)

Parties

Cases Cited (23)