Were The Defamatory Imputations Ms. Potts' Response?
86 A person who has been publicly attacked is entitled to defend himself or herself before the same forum and to do so under qualified privilege: Bass v TCN Channel Nine [2003] NSWCA 118; (2003) 60 NSWLR 251 at [58] per Handley JA (Spigelman CJ and Wood CJ at CL relevantly agreeing). In this case, Mrs Potts was the person who had been attacked. The privilege Echo seeks to invoke is derived from, or ancillary to, Mrs Potts privilege; its purpose is "to provide a neutral forum for a reply so that the audience to which the person who now complains had addressed the original attack may hear the actual rely, being a reply that has the requisite connection with the attack": see Bass (at [15], [37]-[41]) per Spigelman CJ; (at 60] per Handley JA; (at [151] per Wood CJ at CL.
87 Because Echo's privilege was derived from Mrs Potts' privilege, it was necessary that the matter complained of was her response and not that of either Echo or Fast Buck$. The privilege would be lost if either took a position of their own; whether either did so was a question of fact: see Bass (at [78]-[81]) per Handley JA. If Fast Buck$ endorsed Mrs Potts' response so that the defamatory statements were made by him, not (or as well as) Mrs Potts, Echo will be liable for the defamatory imputations thereby conveyed and cannot rely upon the reply to an attack head of qualified privilege: see generally John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485 at [87]-[121].
88 The question whether defamatory imputations were Ms. Potts' responses involves three sub-questions:
1. Did the material conveying the defamatory imputations correctly reproduce something Ms. Potts gave as her response to the attack on her?
2. Did this material purport to be her response?
3. Did this material in its context amount to substantially more than a presentation of Ms. Potts' response, in that it was endorsed as to be believed in preference to the attack on her?
89 In my opinion, unless the first two sub-questions are answered yes and the third no, the material conveying the defamatory imputations is not protected by the qualified privilege that would attach to a response by Ms. Potts to the attack on her, because the material would not qualify as Ms. Potts' response.
90 In my opinion, this follows from the rationale of the privilege; and it has some confirmation by what was said by Clarke JA in the leading judgment in Radio 2UE Sydney Pty. Limited v. Parker (1992) 29 NSWLR 448, to which Handley JA referred with approval in Bass at [78]. That case concerned a radio broadcast responding to attacks on a Mr. Millner, involving an interview of Mr. Millner by the second appellant; and the jury found that defamatory statements were made in the course of this interview by the second appellant. At 461, Clarke JA said this:
The privilege of the newspaper arises out of, and depends upon, that of the party who has been attacked and who is entitled to reply and extends to cover all that is relevantly said by that person in reply to the attack. The fact that in this case the radio station may have been protected by privilege in respect of the statements made by Millner during the interview is, as it seems to me, of little moment when the jury has found that the defamatory statements were made not by Millner but by the second appellant himself.
91 In my opinion, the same reasoning would apply to a case where a newspaper or broadcaster published defamatory statements by a person in response to an attack, and in so doing conveyed that those statements were to be believed in preference to the attack on the person. That is, the privilege would be lost if the material conveyed an endorsement of the attacked person's response: cf. Collins v. Ryan (1991) 6 BR 229 at 235; Horrocks v. Lowe [1975] AC 135 at 149-150; Barbaro v. Amalgamated Television Services Pty. Ltd. (1985) 1 NSWLR 30 at 50.
92 Mr. McClintock for Echo Publications submitted that any published reply to an attack conveys, at least inferentially, the message that the person replying is right and the original attacker is wrong, and he submitted that in Loveday v. Sun Newspapers Limited (1938) 59 CLR 503, the Sun article clearly sided with the Canterbury town clerk against the plaintiff and endorsed the town clerk's reply.
93 The first point to note is that it was not argued in Loveday that the newspaper had endorsed the Council's response to what was found to have been a communication authorised by the plaintiff. It could possibly be inferred from the circumstance that the Sun published the response in the same issue of the newspaper as the attack, and said that the town clerk had "refuted" the complaints, that the Sun was siding with the town clerk; but in my opinion, the article in question could not be read as conveying that the complainant was to be disbelieved and the town clerk was to be believed. In that case, as in most cases, it was the actual words of the attacked person that were published. I am not aware of any case in which the publisher or author of a published article has expressly or impliedly endorsed the attacked person's response as to be believed in preference to the attack.
94 Although I have some doubt as to the first two sub-questions, I consider each of them should be answered yes, in favour of Echo Publications, for the following reasons.
95 The evidence shows that Fast Buck$ approached Ms. Potts for her response to the Star article, and that she gave him information with the intention that he publish her version of events. In so far as her information was published, and purported to be from her, it was in my opinion her response.
96 However, at least some of the Echo article does not purport to be Ms. Potts' response, but rather to be comments and views of Fast Buck$ himself: see for example the paragraphs numbered 1-5, 11, 15, 17-21. Of the others, paragraph 6, 12-14 and 16 (apart from the parenthesis) purport to be based on information from Ms. Potts; while paragraphs 7-10 seem to be an amalgam of her information and his comments.
97 Imputation (e) was conveyed by paragraph 16, in the context of the whole article; and imputation (g) was conveyed by paragraph 6, again in the context of the article. I do not think the context provided by Fast Buck$' views and comments had a substantial effect on the meaning conveyed by paragraphs 16 and 6, and in my opinion the defamatory imputations do form part of Ms. Potts' response. Mr. Hale submitted that the two paragraphs do not reflect information provided by Ms. Potts as described in her evidence. However, Ms. Potts gave evidence to the effect of what is in those paragraphs, and to the effect that she told Fast Buck$ what she told the Court, and also that Fast Buck$ read parts of the article to her. She was not cross-examined to the effect that she was not the source of these two paragraphs, and it does not seem to have been submitted below that she was not the source of these two paragraphs. In those circumstances, I would infer that these paragraphs were not invented by Fast Buck$ but reflected what Ms. Potts had told him.
98 Mr McClintock also argued that no part of the matter complained of can be read as an endorsement by Echo of Mrs Potts' response. As I have already said, the privilege was lost if either Echo or Fast Buck$ took a position of its or his own. Once it is concluded that Fast Buck$ endorsed Mrs Potts' response, he was the publisher of the defamatory imputations and Echo no longer had the benefit of the derivative privilege.
99 However, in relation to the third sub-question, in my opinion the article as a whole conveyed the message that Ms. Potts was to be believed in preference to Mr. Tucker: see in particular par.18 and also (for example) pars.11 and 19. In my opinion it does not matter that there was no defamatory imputation found in those paragraphs: the effect of the whole article, including those paragraphs, was that pars.16 and 6 were not just Ms. Potts' allegations, but were assertions that should be believed in preference to the attack on her made by Mr. Tucker. In my opinion, Echo Publications did have a privilege to publish Ms. Potts' response, but not to publish Fast Buck$ vigorous endorsement of it.
100 For that reason, I do not think the defamatory imputations are protected as being Ms. Potts' response to the attack on her; and Echo Publications does not have the benefit of qualified privilege on this basis.