Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; 193 CLR 519; 154 ALR 294; 72 ALJR 1085

Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; 193 CLR 519; 154 ALR 294; 72 ALJR 1085 - HCA 1998 case summary — Zoe

[81]

" Mr Simmons said he told Mr Bannon on July 30, 1990, there was a 'question' of either criminal or civil misconduct to be looked at in relation to four Beneficial executives, including Mr Baker and Mr Reichert. > > He said he told Mr Bannon about loans to Beneficial executives and Mr Bannon reacted angrily. > > Mr Simmons confirmed he told Mr Bannon the question of criminal or civil misconduct was in reference to Mr Baker, Mr Reichert, Mr Garry Martin and Mr Manob Chakravarti. > > 'I had gone through the whole scenario and had told him (Bannon) all I knew at that stage,' Mr Simmons told the commission. > > Mr Bannon told Parliament on August 7, 1990, that Beneficial's managing director Mr Baker had retired after 'differences of opinion' with the board over the 'direction' of Beneficial. > > The Royal Commissioner, Mr Samuel Jacobs, QC, said yesterday the public explanation that there had been a difference of opinion over direction was not true. > > Mr Jacobs: 'The fact was, to put it in its blandest form, there had been a difference of opinion between the board and these officers as to their conduct.' > > Mr Simmons: 'Yes.' > > Mr Jacobs: 'The reason ... announced publicly - I am going to put it quite bluntly - it really just wasn't true, was it? It really wasn't the reason at all, was it?' > > Mr Simmons: 'Not really, but to give any other reason at that stage could have prejudiced any position that was being taken. > > 'The investigation wasn't completed at that stage and there was I believed, as I had said to the Premier, it may be criminal rather than civil.' > > Mr Jacobs: 'It would have been closer to the mark to have said something like there was a difference of opinion between these officers and the board as to what was appropriate conduct for officers of the company. > > 'That would be pretty bland and somewhere near the truth, wouldn't it?' > > Mr Simmons: 'Yes.' > > Mr Simmons said he was involved in the 'events' that led to the resignation of Mr Baker and Mr Reichert, but it was another executive, Mr Michael Hamilton, who sought their resignation. > > Mr Simmons was asked how Mr Bannon responded when told the conduct of those involved may be criminal rather than civil and what Beneficial had learnt they had been doing. > > 'I think he was very angry, particularly with the reference to the Melbourne joint venture,' Mr Simmons said. > > [No explanation of 'the Melbourne joint venture' was given in the commission.] > > Mr Simmons agreed the bank had been concerned that Beneficial may be sued for unfair dismissal. > > The Advertiser reported last year that Mr Martin left Beneficial in September, 1991, after his job was axed. > > Mr Chakravarti also left Beneficial late last year."

[114]

" In notes dated July 30, 1990, concerning a meeting with the Premier, Mr Simmons claims the group profit would be substantially down on the figure of $58 million to $60 million given earlier to Mr Bannon by the managing director, Mr Tim Marcus Clark. > > His notes reveal the likely profit as $33 million of which $30.6 million was a tax adjustment. > > Mr Simmons records details of loans to executives: 'Prior to last board meeting (then Beneficial chief John) Baker asked me to approve a loan of $2 million to several executives including himself. > > '(I) Said was not prepared to and should go to the board. > > 'Board said would approve of it provided that it had Audit sign off. The loan concerned me. > > 'In telling management of investigation of Beneficial, suggested we should see all loans. > > 'Preliminary audit reveals (John) Baker, (Erich) Reichert, (Manob) Chakravarti and (Garry) Martin (all Beneficial Finance executives) have all loans which were not approved and were not authorised and are in excess of agreed benefits. > > 'The loan I looked at was a joint venture and it appears that this joint venture with a Melbourne developer is in default and the account is in default at a level of $37 million rather than within the approved board $30 million. > > 'May be criminal rather than civic (civil misconduct). > > 'There also appears to be loans from a company called Pegasis (sic) which is a joint venture company between Beneficial and Alastair McGregor.' > > Mr Simmons writes that the effect of these loans was that Mr Baker could not exercise proven control over his deputy, Mr Reichert, who 'arranged structured finance which has proved to be a disaster'. > > He says board presentations were pulled and not accurate, that internal audit reports were screened, that the Beneficial board did not get the true picture, and there was a conspiracy of silence. > > Mr Simmons records that when a profit of $10 million was wanted, the accounts were adjusted. > > 'Believe that Baker, Reichert, Martin and Chakravarti will have to go - question, when?' he says."

[178]

1. The defamation issue: Were the matters complained of capable of bearing the defamatory imputations found[128]? > > 2. The imputation issue: If so, were the defamatory imputations so pleaded by the appellant or, alternatively, could the appellant rely upon them within his pleading[129]? > > 3. The fair report issue: If so, did the defence of fair and accurate reporting apply to afford a privilege to the respondent in respect of the publication of the matters complained of[130]? The respondent relied upon this defence both by statute[131] and by the common law. The appellant disputed the applicability of the statute but, if it applied, said that it completely excluded the common law from operation or limited the applicable common law to that "by law existing"[132] at the time of the enactment of the Law of Libel Amendment Act (SA)[133]. > > 4. The reasonable response issue: If, prima facie, the respondent was entitled to rely on the defence of fair and accurate reporting, was such defence in the circumstances not available to it because the respondent had been requested to publish the letters written to it by the appellant and had refused or neglected to do so[134]? > > 5. The economic loss issue: If the appellant was entitled to recover damages, did the Full Court err in its re-assessment of those damages and in particular in disturbing the component allowed by the primary judge with respect to economic loss or "special damages"[135]. > > 6. The general damages issue: In his cross-appeal to the Full Court, the appellant asserted that the assessment of his general damages at $75,000 was manifestly inadequate[136]. In the course which the Full Court took, this ground was not separately dealt with. The appellant urged this Court to return the matter to the Full Court for determination of this ground with instruction to correct the insufficiency of the general damages in order, as it was put, to bring awards in defamation judgments in South Australia into line with those made elsewhere in Australia[137]. The respondent, on the other hand, urged that no general damages were recoverable[138].

[180]

"The Premier, Mr Bannon, misled Parliament over the resignation of Beneficial Finance Corporation chief Mr John Baker in August, 1990, according to evidence before the State Bank Royal Commission. > > Former bank chairman Mr David Simmons admitted yesterday the public reason given for the resignation of Mr Baker and his deputy, Mr Erich Reichert, was not right and that Mr Bannon knew the real reason. > > Mr Simmons said he told Mr Bannon on July 30, 1990, there was a 'question' of either criminal or civil misconduct to be looked at in relation to four Beneficial executives, including Mr Baker and Mr Reichert. > > He said he told Mr Bannon about loans to Beneficial executives and Mr Bannon reacted angrily. > > Mr Simmons confirmed he told Mr Bannon the question of criminal or civil misconduct was in reference to Mr Baker, Mr Reichert, Mr Gary Martin and Mr Manob Chakravarti. > > 'I had gone through the whole scenario and had told him (Bannon) all I knew at that stage,' Mr Simmons told the commission. > > Mr Bannon told Parliament on August 7, 1990, that Beneficial's managing director Mr Baker had retired after 'differences of opinion' with the board over the 'direction' of Beneficial. > > The Royal Commissioner, Mr Samuel Jacobs, QC, said yesterday the public explanation that there had been a difference of opinion over direction was not true. > > Mr Jacobs: 'The fact was, to put it in its blandest form, there had been a difference of opinion between the board and these officers as to their conduct.' > > Mr Simmons: 'Yes.' > > Mr Jacobs: 'The reason ... announced publicly - I am going to put it quite bluntly - it really just wasn't true, was it? It really wasn't the reason at all, was it?' > > Mr Simmons: 'Not really, but to give any other reason at that stage could have prejudiced any position that was being taken. > > 'The investigation wasn't completed at that stage and there was I believed, as I had said to the Premier, it may be criminal rather than civil.' > > Mr Jacobs: 'It would have been closer to the mark to have said something like there was a difference of opinion between these officers and the board as to what was appropriate conduct for officers of the company.'"

[187]

"Sensational allegations of a conspiracy within the State Bank group and multimillion-dollar unauthorised loans involving senior executives have been revealed in diary notes kept by former bank chairman Mr David Simmons. > > Mr Simmons says the circumstances surrounding the loans 'may be criminal'. > > The loans include unapproved loans to four senior Beneficial Finance Corporation executives and a $37 million joint venture arrangement with a Melbourne developer. > > Mr Simmons's diaries also refer to a 'Beneficial conspiracy', how board presentations had been 'pulled' and how internal audit reports were 'screened'. > > Several hundred edited pages of diary notes kept by Mr Simmons were released yesterday by the State Bank Royal Commission. > > ... > > In notes dated July 30, 1990, concerning a meeting with the Premier, Mr Simmons claims the group profit would be substantially down on the figure of $58 million to $60 million given earlier to Mr Bannon by the managing director, Mr Tim Marcus Clark. > > His notes reveal the likely profit as $33 million of which $30.6 million was a tax adjustment. > > Mr Simmons records details of loans to executives: 'Prior to last board meeting (then Beneficial chief John) Baker asked me to approve a loan of $2 million to several executives including himself. > > '(I) Said was not prepared to and should go to the board. > > 'Board said would approve of it provided that it had Audit sign off. The loan concerned me. > > 'In telling management of investigation of Beneficial, suggested we should see all loans. > > 'Preliminary audit reveals (John) Baker, (Erich) Reichert, (Manob) Chakravarti and (Garry) Martin (all Beneficial Finance executives) have all loans which were not approved and were not authorised and are in excess of agreed benefits. > > 'The loan I looked at was a joint venture and it appears that this joint venture with a Melbourne developer is in default and the account is in default at a level of $37 million rather than within the approved board $30 million. > > 'May be criminal rather than civic (civil misconduct).' > > ... > > Mr Simmons writes that the effect of these loans was that Mr Baker could not exercise proven control over his deputy, Mr Reichert, who 'arranged structured finance which has proved to be a disaster'. > > He says board presentations were pulled and not accurate, that internal audit reports were screened, that the Beneficial board did not get the true picture, and there was a conspiracy of silence. > > Mr Simmons records that when a profit of $10 million was wanted, the accounts were adjusted. > > 'Believe that Baker, Reichert, Martin and Chakravarti will have to go - question, when?' he says."

[197]

1. The matter complained of should be considered in the way that a reasonable person, receiving it for the first time, would understand it according to its natural and ordinary meaning[143]. The recipient has been variously described as a "reasonable reader"[144], a "right-thinking [member] of society"[145], or an "ordinary man, not avid for scandal"[146]. Sometimes qualities of understanding have been attributed, such as the "reader of average intelligence"[147]. The point of these attempts to describe the notional recipient is to conjure up an idea of the kind of person who will receive the communication in question and in whose opinion the reputation of the person affected is said to be lowered. Special knowledge is excluded. So are extremes of suspicion and cynicism (on the one hand) or naivety and disbelief (on the other). The basic question which is posed is whether the matter complained of, understood in its natural and ordinary meaning, would tend to lower the subject in the estimate of such an evocation of the ordinary, reasonable, member of society[148]. In practice, the tribunal of fact, judge or jury, will ask itself about its own response to the matter complained of. To a very large extent that response will be impressionistic, subjective and individual to the decision-maker. The point of the invocation of the hypothetical reasonable person is to remind decision-makers that they may, or may not, reflect the response of the average recipient of the communication and should make allowance for that possibility. > > 2. In the nature of a defamation action, the matter complained of will be analysed most closely during the trial. It will be studied and taken apart by lawyers, line by line, in a way that the average reader or viewer would never do. This fact presents significant dangers, especially for publishers. It is therefore necessary to remember that relatively few readers will be lawyers reading the matter in question with the attention appropriate to a large, complex and expensive defamation case[149]. The ordinary person is a layman, not a lawyer. He or she approaches perception of the matter complained of in an undisciplined way and with a greater willingness to draw inferences and to read between the lines than a lawyer might do, used to precision[150]. Where words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject[151]. That is the price which publishers must pay for the use of loose language. > > 3. Different views have been expressed concerning the care and attention that will be attributed to the ordinary person and the way in which that person considers the matter complained of. Long ago, it was suggested that the ordinary person, being reasonable, would read the entirety of the matter complained of. Such a person would refrain from drawing inferences adverse to the reputation of another simply because part of the publication included matters discreditable to the subject[152]. This reasoning has lately been endorsed by the House of Lords in Charleston v News Group Newspapers Ltd[153]. In that case, photographs of the faces of the plaintiffs, well-known television actors, were superimposed upon near-naked bodies of models engaged in pornographic poses. The headline read "Porn shocker for Neighbours stars". When the text of the publication was closely examined it contained expressions of purported outrage about a pornographic computer game which could superimpose the faces of individuals without their knowledge or consent upon the bodies of others. Their Lordships upheld the decisions of the primary judge and of the English Court of Appeal, sustaining the publisher's objection that the publications were incapable of being defamatory. They rejected the proposition that "the prominent headline, or as here the headlines plus photographs, may found a claim in libel in isolation from its related text, because some readers only read headlines"[154]. They declared that such reasoning was "unacceptable"[155]. Respectfully, I cannot agree with their Lordships' opinion. In my view it ignores the realities of the way in which ordinary people receive, and are intended to receive, communications of this kind. It ignores changes in media technology and presentation. It removes remedies from people whose reputation may be greatly damaged by casual or superficial perception of such publications. And it overlooks the purpose of defamation law which is to provide redress when reputations are damaged in fact, not to reserve remedies to those cases only where detailed and thorough analysis of the matter complained of has been undertaken. I agree with the criticisms which have been voiced about Charleston[156]. Many people, including not a few judges and jurors, do not look beyond headlines and photographs. If this is the environment in which reputations may be harmed, it would be contrary to the purposes of the law of defamation to withhold redress from cases where harm was held to be done. To the extent that dicta in Charleston or other cases suggest that the courts should attribute to the recipients of matter published in the mass media a close and careful attention to the entirety of the item published, I would not follow that opinion. I would not adopt its reasoning as part of the common law of Australia. To do so would be to defy common experience and, if I may say so, commonsense[157]. > > 4. The ordinary reader will draw conclusions from general impressions. He or she will not re-read or review the matter complained of[158]. Such a reader will tend to be specially influenced by headlines, bylines, graphics and the other techniques by which the mass media seek to communicate their principal messages to a mass audience[159]. In a society increasingly used to the immediacy of "channel surfing" with remote controls and accessing the Internet with computers, publishers must take special care with prominently published matter. This obligation clearly applies to headlines, captions, photographs, pictures and their digital equivalents[160] - where such material may diminish the reputations of those affected. The protection of an individual's reputation is a fundamental human right, recognised by international human rights law[161], including that to which Australia has subscribed and for the assurance of which, it has submitted itself to international scrutiny[162]. > > 5. Nevertheless, in considering whether, as claimed, the matter complained of actually harms the reputation of the plaintiff, it is appropriate for the decision-maker to keep in mind the importance attached to freedom of communication. This too is a fundamental human right[163]. Reconciling the attainment of freedom of communication in circumstances where the individual's reputation is also protected is a function of the law of defamation. Allegedly defamatory matter must be read in a way appropriate to a society such as Australia which, by its Constitution and otherwise, enjoys a high measure of freedom of expression. Although reporting that a person has been arrested and charged undoubtedly occasions damage to some degree to the reputation of that person, this must be tolerated on the basis of the legitimate public interest in the reporting of such facts[164]. Only if the publisher goes on to "say or suggest that the charge was well founded"[165] will such a report carry an imputation of guilt and sustain a remedy in defamation. In a relatively open society, it could not be disputed that the ordinary person would have had an interest to receive fair and accurate reports of proceedings of an important Royal Commission. A mass circulation daily newspaper would have been failing to fulfil its function if it had not reported on the proceedings of such a Royal Commission. Nevertheless, the potential damage to the reputation of those affected made it essential that its reports be fair and accurate. Otherwise, suspicion or accusation might be elevated in the public's mind to guilt in fact. That could leave a stain on the reputations of those affected which would do them serious and unjustifiable harm.

[203]

1. In some jurisdictions (eg New South Wales) each imputation upon which a plaintiff relies in a defamation action is no longer a particular of what is to be put forward at the trial[168]. It is a separate cause of action to which the publisher must separately plead[169]. In such a statutory context, the need for exact precision in the statement of each cause of action is obvious and essential[170]. This statutory approach has certain advantages. However, it also has disadvantages. It has led to many pre-trial applications, complex interlocutory proceedings and a potential for injustice, depending upon the ingenuity and skill of the pleader of the imputations. It enlarges judicial control over the consideration of the matter complained of by the tribunal of fact. It may also lead to double-dipping in the calculation of the damages for the wrong done by the publication, looked at as a whole. Because readers and viewers are not favoured with pleaded imputations when they receive the matter complained of, there is a risk that the attention at the trial will be deflected from the item actually said to have harmed the plaintiff's reputation to an evaluation of pleaded imputations and a debate about whether they truly arise[171]. Without the clear authority of statute, this approach should not be extended to jurisdictions which have not so far embraced it. South Australia has not done so. That State has no legislation equivalent to the New South Wales Act. Its requirements as to the pleading of imputations must therefore be ascertained from general rules governing particularity in the pleading of civil claims as elaborated by principles of the common law generally accepted in defamation pleadings. > > 2. For some time, courts in common law countries, including Australia, have made it clear that they favour a practice by which a plaintiff in a defamation action pleads or particularises the meanings which will be attributed at the trial to the matter complained of[172]. This is not a rigid rule. Sometimes it will be sufficient for a plaintiff to plead the offending publication and nothing more because of the clear defamatory meaning appearing on its face[173]. However, where the meaning of the words sued upon may have overtones outside ordinary understanding and dictionary definitions, it has commonly been considered to be desirable (and sometimes necessary) that the plaintiff give particulars of the meanings which will be alleged at the trial. Doing so may assist the defendant to know whether to plead justification or fair comment, whether to apologise and what issues may be expected at the trial[174]. The practice described has commonly led (as it did in this trial) to the pleading of so-called false innuendos[175]. The purpose of such practice is, and is only, to facilitate the fair determination of the dispute which the parties bring to court[176]. > > 3. In jurisdictions where this matter is not regulated by statute, courts have commonly exercised a measure of discretion and flexibility where the essence of the sting of the defamation complained of at the end of the trial does not exactly, or entirely, coincide with the imputations which were pleaded. In part, this approach reflects the modern attitude to pleading of civil causes by which overly pedantic or rigidly technical rules tend to be avoided where they would inhibit the attainment of justice. In part, it arises from the recognition by courts of the way in which pleading is commonly done. In part, it arises from a recognition of the ample power of the trial judge to protect a defendant from injustice by ordering further particulars before the trial or by adjourning or terminating the hearing if that course is needed to prevent surprise or injustice. In part, the judicial approach arises from the entitlement of the tribunal of fact always to examine the entire publication[177] to see the matter complained of in its context. An overly rigid rule, strictly confining a plaintiff to the pleaded imputations, would run the risk that the alleged wrong was forgotten or overlooked[178]. Instead of measuring the damage done by the publication itself, the trial might be diverted to a different document, namely the pleading containing the imputations formulated by lawyers. I agree, in this regard, with the comments of the Full Court of the Supreme Court of Victoria in National Mutual Life v GTV[179]. Speaking with approval of the now common practice of pleading "false innuendos", that Court said: > > "But the practice did not, and in our opinion could not, alter the position at law that the meaning of the words was ultimately a question for the jury, and that the jury must be at large in finding the true meaning amongst such possible meanings as were left to them by the judge, and that the judge was not bound to confine the jury to the false innuendos asserted by the plaintiff." > > Where, as in South Australia, there is no jury trial, the entitlement of the judge to consider the meaning of the entire matter complained of, notwithstanding the pleaded imputations, is even more clear. > > 4. In an attempt to reconcile the desirable encouragement of particularisation of claims, the avoidance of "trial by ambush"[180] and the consideration of the entirety of the publication in question[181], courts will uphold the discretion of the trial judge, including a discretion to confine parties to the imputations pleaded where that is required by considerations of fairness[182]. However, a more serious allegation will generally be taken to include a less serious one unless the latter is of a substantially different kind[183]. It is true that dicta appear in decisions of this Court[184], other Australian courts[185] and courts overseas[186] which favour a strict approach: binding a plaintiff at the trial to the precise imputations pleaded. However, I do not consider that these dicta represent the law. The better view is that the rules of pleading must, in those jurisdictions governed by the common law, adapt to the fair evaluation by the tribunal of fact of the matter complained of. If the publisher claims surprise, prejudice or other disadvantage, the trial judge may protect it. No complaint can arise where additional imputations found represent nothing more than nuances or shades of meaning of those pleaded. The position will be otherwise in jurisdictions which, by statute, provide that each imputation is a cause of action upon which the plaintiff may sue. But South Australia is not one of these.

[222]

1. It is not enough that the challenged report be generally fair. It must also be accurate. It must be a report of the proceedings described. To the extent that it goes beyond a report, and the reporter engages in comment, description and elaboration of the reporter's own, the privilege provided for a "report" will be inapplicable and may be entirely lost. The tendency for journalists to intersperse descriptive reports with adjectives and comments of their own is not new. It was remarked upon soon after the statutory provision was first introduced[217]. The practice of adding commentary to reports has not diminished since that time. It appears in the subject articles[218]. Excessive commentary or misleading headlines which amount to commentary run the risk of depriving the text of the quality of fairness essential to attract the privilege[219]. > > 2. It has never been necessary that the report should be a verbatim record of the proceedings reported[220]. A report will ordinarily be abridged or condensed. However, it must not be biased or garbled. In considering whether a publication was a fair report it is proper to take into account any omission from the discussion[221]. A summary of the proceeding is acceptable as long as it retains "substantial accuracy in all material aspects"[222]. The emphasis upon "substantial" is important. The reason for affording the privilege is the public benefit to be derived from reports of the privileged kind. Some recognition may be given of the conditions of urgency in which reports are often compiled and then published[223]. Nit-picking over trivial inaccuracies will not take a report outside the privilege of the section[224]. But because the statute extends its protection to matters said about an individual, which may be untrue and highly damaging when republished by the mass media, the obligations of fairness and accuracy are substantial ones upon which the law insists[225]. > > 3. Where there is a dispute as to whether a report is fair and accurate, that dispute must be resolved as a factual question by comparing the relevant record of the proceedings with the matter complained of. The test has been expressed in terms of whether the report substantially alters the impression which its recipient would have gained had he or she been present during the proceedings[226]. The issue is not what a trained lawyer would make of the comparison[227]. Nor is it what a particular person with particular knowledge would think[228]. > > 4. Although in judging the accuracy of the report, its entirety should be examined, in judging its fairness particular attention may be given to headlines and graphics which, by definition, have the object of capturing maximum public attention. The report must retain substantial accuracy in all material respects. If it contains untrue statements of a material fact, which have the potential to damage the reputation of the person referred to, the report will be unfair and hence outside the section[229]. Rarely will a report be wholly inaccurate. Typically, a report otherwise correct will contain particular mistakes, distortions or misunderstandings of the proceedings reported. Because the defence is claimed with respect to the entire report, including therefore each matter complained of, it is necessary to consider all of the complaints together and then to decide whether the publication as a whole is fair and accurate. However, reflecting the way in which the ordinary reader or viewer will often perceive the report, it will not be assumed that every recipient of it would read it carefully and in its entirety. Whereas a scholarly book might be approached in such a manner, it would be a fiction to suggest that it was so in the case of the mass media[230]. That is why headlines and graphics are so important. For many readers, such eye-catching material will constitute the entirety of what is perceived or, at least, of what is likely to be remembered relevant to a person's reputation. > > 5. That purpose of examining suggested mistakes and inaccuracies in a report is to determine whether the publisher is entitled to the fair report defence. It is not, as such, to determine, for example, whether the plaintiff is entitled to recover damages for such mistakes and inaccuracies found. The plaintiff's action is not one for negligence. It is one for defamation. The mistakes and inaccuracies may deprive the defendant of the defence of fair report. Of their nature, they may also contribute to the damage done to the plaintiff's reputation. They may therefore warrant consideration in the context to identify what it is about the matter complained of that is defamatory of the plaintiff.

[237]

1. The statute envisages that a letter or statement will be provided to the defendant by someone (not necessarily the ultimate plaintiff) making the request that it be published. The provision would not be enlivened by a bald request, with nothing more, for an opportunity to put a different point of view[247]. A mere request for retraction is also not within such provisions[248]. Still less is a mere letter of protest or insult. It is the person who wishes to contradict or explain matters published in the report complained of who must prepare the "letter or statement" and to send it to the publisher. > > 2. The objects of providing this facility emerge clearly enough from a consideration of the section. The point of affording a special privilege to publishers of newspaper, radio or television reports concerning proceedings of public meetings of the specified kind is to recognise their particular role in a society which enjoys a high measure of freedom of communication. That role extends today to providing reports to the public, although the matters reported might later turn out to be inaccurate, unfair or defamatory of the persons mentioned. It is the public or official character of the specified meetings which, it has been considered, will ensure, at least in most cases, appropriate restraint against the reporting of irresponsible or groundless accusations. This purpose is made doubly clear by the closing words of proviso (c). Those words withdraw the protection otherwise applicable if the matter is "not of public concern and the publication ... is not for the public benefit". The emphasis upon the public character of the meetings and the criterion of public concern and public benefit help to explain the true purpose of proviso (b). It is to enhance the information given to the public on a particular matter. It is also to recognise that, in the nature of the particular meetings specified, inaccurate, unfair or defamatory statements may be made which can then be published under qualified privilege. Fairness requires the balancing of that right with a provision, to those complaining about its exercise, of the opportunity to place a contradictory statement or explanation before the public. The request would have to be reasonably contemporaneous with the publication. It would not ordinarily be reasonable to expect publication of a letter or statement years or perhaps even months later. The criterion of the public's interest must be kept in mind in giving meaning to the section, including proviso (b). > > 3. By the terms of the proviso, any such letter or statement must be "reasonable". It was urged that this meant reasonable from the point of view of the person complaining or tendering the statement. However, in my view, "reasonable", in this context, means objectively reasonable for the purpose for which the statutory facility has been provided. This is to allow already published facts to be contradicted or explained by those claiming to be hurt by the report of them. The reference to "reasonable" is intended to control such matters as the length of the letter or statement, the terms in which it is expressed and the avoidance of gratuitous defamation of third parties. I do not regard the word "reasonable" as affording an editorial veto to the publication of a letter which is strongly expressed or contains disputable propositions or arguable inaccuracies. After all, it is always open to the publisher to have the last word. It is not uncommon, where letters of complaint are published, for an editorial note to be added expressing the publisher's reply. The sting of defamation often causes emotion and anger. That is the context in which Parliament has made provision for a letter or statement in reply to be given its statutory status. Publishers of newspapers who have considerable power to harm reputations should not be overly tender about complaints and expressions of anger when appearing in a letter or statement to which proviso (b) applies. > > 4. The proviso makes no express mention of editorial amendment, abbreviation or alteration. But neither does it expressly state that the letter or statement must be "accurate". In the real world, if some aspect of a letter or statement were thought to take it outside the bounds of reasonableness, it would be sensible for there to be negotiation between the publisher and the person complaining. A failure or refusal to enter into such negotiation might, in a particular case, confirm an opinion that, on the whole, the letter or statement tendered was "reasonable". Otherwise, all of the cards are stacked in favour of the publisher and against the person complaining. The purpose of the proviso is to afford the complainant a statutory means to secure the publication of a relevant contradiction or explanation. The purpose of the publication envisaged by the proviso is not to afford the complainant, or anyone else, the opportunity to insult the publisher, to extract an apology or to defame others. The ultimate purpose is to contribute to equalising the power to communicate with the audience which has already heard or seen matter considered to be defamatory where it is desired by the person affected to offer to the public other material in contradiction or explanation. > > 5. It was suggested during argument that proviso (b) would only apply where a determination had already been made that the report in question was "fair and accurate"; for only then would the protection otherwise be applicable. This is true as far as it goes. However, the language of the proviso recognises, in a very practical way, that disputes concerning the fairness and accuracy of a report will often be highly contentious. If they go to trial, they may not be resolved for a very long time. By the time of their resolution the public may have forgotten the defamation. The possibility of retrieving the reputation of the complainant may have been wholly lost. That is why the proviso talks of "the protection intended to be afforded by this section"[249]. That language makes it plain that the proviso is to work in circumstances where the issue of the fairness and accuracy of the report has not been (and in the nature of things could not have been) authoritatively decided. In that context, it is the will of Parliament that a reasonable letter or statement should be published. Because the publication advances freedom of expression and enhances the public's entitlement to make its own judgments on reputation, courts (and therefore editors) should err on the side of upholding publication of such letters. It can rarely be in the public interest or for the public benefit to deny a person claiming to have been defamed an opportunity to put his or her contradictory or explanatory statement before the same public as has heard the matter complained of. In some circumstances such a denial would evidence an arrogance of power, deprive the publisher of the privilege otherwise applicable and perhaps even illustrate actual malice.

At a glance

Court

Decision date

Before

Source

Judgment (486 paragraphs)

Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; 193 CLR 519; 154 ALR 294; 72 ALJR 1085 (20 May 1998)

Parties

Legislation Cited (12)

Cases Cited (40)