F.2 The New Defence of Public Interest: Conceptual Roots and Antecedents
272 The right to publish defamatory statements concerning matters of "common convenience and welfare of a modern plural democracy" has long been recognised, borne out primarily through common law and statutory formulations of the defence of qualified privilege: Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044 (at 1049-50 per Parke B). At common law, the defence requires a respondent to establish three matters: first, the communication was published on a privileged occasion; secondly, the communication was related to the occasion; and thirdly, there was no malice in the publication: Palmer v McGowan (No 5) [2022] FCA 893; (2022) 404 ALR 621 (at 658 [165] per Lee J), citing Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79 (at 96-97 [55] per Heydon J).
273 The "welfare of society" and the "public interest" are closely allied (Bennette v Cohen [2009] NSWCA 60; (2009) Aust Torts Reports 82-002 (at 62,818 per Ipp JA)) but they are not the same. As Griffith CJ clarified in Howe & McClough v Lees (1919) 11 CLR 361 (at 368-369) (see also Bashford v Information Australia (at 386 [54] per McHugh J)), references to the welfare of society in foundational cases concerning qualified privilege should not be taken to mean the person who made the communication was under an obligation to the public and was justified in publishing it to the public at large. Rather, the common convenience and welfare of society should be understood as meaning the interests of society in general require that a communication made to a particular person in particular circumstances should be protected.
274 It is this requirement of reciprocity which generally precludes the applicability of the defence to large audiences, such as are reached by mass media publications: see Palmer v McGowan (at 658 [164]). Indeed, as explained by Gillard AJA in Herald & Weekly Times v Popovic (2003) 9 VR 1 (at 22 [73]), the problem for the media is "at least twofold":
namely, it has never been the duty of any part of the media to publish for profit untrue facts about a person to the public … and secondly, because the media publishes to so many persons, it is nearly impossible to conclude that every publishee, or the great majority of them, had an interest in receiving the particular information …
275 One can, however, detect signs the defence of qualified privilege might have matured differently, which go some way to explaining the intuition that matters published in the public interest deserve the protection of the law.
276 In his comprehensive history of the defence of qualified privilege, The Making of the Modern Law of Defamation (Hart Publishing, Oxford, 2005), Professor Paul Mitchell traces the notion of "duty" back to the first edition of jurist Thomas Starkie's Law of Slander, Libel, Scandalum Magnatum and False Rumours, published in 1812. Professor Mitchell also explains Scots writer John Borthwick introduced the concept of "interest" a short time later in his Treatise on the Law of Libel and Slander (Edinburgh, 1826), outlining a new category of privileged communications, being those made to someone "who has an interest in the matter or for whose material benefit it is that the fact should be made known" (at 236).
277 As Professor Mitchell outlines (at 153), these concepts took flight in Starkie's second edition, A Treatise on the Law of Slander and Libel and incidentally of Malicious Prosecutions (London, 2nd edn, 1830), where Starkie explained (at 292):
The extensive principle which governs this class of cases, where the existence of express malice is a test of civil responsibility, comprehends all where the author of the alleged mischief acted in the discharge of any public or private duty, whether legal or moral, which the ordinary exigencies of society, or his own private interest, or even that of another called upon him to perform.
278 Baron Parke recorded this passage into his commonplace book and, in Toogood v Spyring (at 1049-50), in a famous passage regarded as the source of the modern defence of qualified privilege, reasoned:
In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.
279 The reification of the defence was a watershed; as Erle CJ remarked in Whiteley v Adams (1863) 15 CB (NS) 392; 143 ER 838 (at 848), "[t]he privilege of criticising and discussing the words and acts of public man has in modern times been very widely extended … with very good reason". But Parke B's formulation differs from what was contemplated by Starkie, giving greater weight to the need for a community of duty and interest between publisher and reader. Indeed, as Professor Mitchell writes (at 135):
when Parke B introduced Starkie's formulation as the test for qualified privilege, he went further than Starkie himself had gone. Starkie recognised that there were some earlier cases that could not be explained using the duty and interest test. For those cases he had developed the further category of communications made in confidence or by way of admonition or advice. The criteria were interpreted broadly: Starkie included within it a case where the defamatory publication was an advertisement to the public. In essence, it was a miscellaneous category. Parke B made no reference to this category at all, so it seemed as if the authorities contained in it were no longer authoritative.
(Emphasis added).
280 Interest in Starkie's "miscellaneous category" lingered in a line of cases springing from Toogood v Spyring which took as the basis of the defence the welfare and convenience of society and flirted with something closer to the "public interest". In Coxhead v Richards (1846) 2 CB 569 (at 607-608), Erle J remarked that among "protected communications, there are some in which the protection is derived from the subject-matter alone, without regard to any relation in which the author may stand, such as criticism and public comments". In a similar vein, Blackburn J reasoned in Davies v Snead (1870) 5 LR QB 608 (at 611) that "where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he bona fide and without malice does tell them it is a privileged communication": see also Brett LJ in Waller v Loch (1881) 7 QBD 619 (CA) (at 622), as well as Allbutt v General Council of Medical Education (1889) 23 QBD 400 (CA); Perera v Peiris [1949] AC 1.
281 There were also identified in principle "exceptional cases" where a person could have an interest or duty to publish defamatory matter to the world at large, or "the urgency of communicating a warning is so great, or the source of the information so reliable, that publication of suspicion or speculation is justified": Blackshaw v Lord [1984] 1 QB 1 (at 27 per Stephenson LJ); Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 (at 261 per McHugh J) and the cases there cited, including Chapman v Ellesmere [1932] 2 KB 431 and Lang v Willis (1934) 52 CLR 637.
282 The position was complicated further when the law of defamation was put on statutory footing in Australia.
283 The common law of defamation in New South Wales was first modified by statute proposed by the remarkable Richard Windeyer, shortly before his premature death in 1847 (the Slander & Libel Act or Injuries to Character Act 1847 (Windeyer's Libel Act)). In 1901, Windeyer's Libel Act was consolidated in the Defamation Act 1901 (NSW) and, subsequently, following further amendments, the Defamation Act 1912 (NSW) (1912 Act). The 1912 Act was amended on three occasions before 1958, when the law in New South Wales was codified under the Defamation Act 1958 (NSW) (1958 Act).
284 The 1958 Act was primarily based upon the Defamation Act 1889 (Qld) (1889 Queensland Act) which sought to state the law exclusively by statute. It contained a defence of qualified privilege, proposed by Sir Samuel Griffith, providing "lawful excuse for the publication of defamatory matter" "if the publication is made in good faith for the protection of the interests of the person making the publication, or of some other person, or for the public good" (s 17(c)) or in "answer to an inquiry" by a person "with an interest in knowing the truth" (s 17(d)); and "for the purpose of giving information to a person with respect to some subject as to which that person has an interest in knowing the truth" (s 17(e)). In his second reading speech in support of the 1889 Queensland Act, Sir Samuel noted that in his view, the provision largely reflected the then present law: Queensland, Parliamentary Debates, Legislative Assembly, 19 July 1889 (at 735); see also Dun v Macintosh (1906) 3 CLR 1134 (at 1147 per Griffith CJ). Notably, these provisions did not require the controlling factor at common law of reciprocity of duty and interest.
285 The potential of the 1958 Act to protect public interest speech was demonstrated in Calwell v IPEC Australia Ltd (1975) 135 CLR 321, where Mr Arthur Calwell, the former leader of the Australian Labor Party, sued in relation to a newspaper article accusing him of party disloyalty. Justice Mason (with whom Barwick CJ and Gibbs, Stephen and Jacobs JJ agreed) reasoned (at 331) that the publication in question fell within s 17(e). Importantly for present purposes, in addition to protection under s 17(e), Jacobs J (with whom Stephen J agreed) explained that the defence for matters published for the "public good" (s 17(c)) was also satisfied because (at 335-336):
It is for the greatest public good that views on the political attitudes, including party loyalty, of members of the Houses of Parliament should be able to be expressed without inhibition. The public are entitled to the views on such a subject of political commentators, expert or inexpert. The views expressed … may be correct or incorrect, but the public has an interest in hearing them whatever they may be and it is for the public good that interest should not be stultified …
286 The Defamation Act 1974 (NSW) (1974 Act) returned New South Wales to the common law, subject to statutory modification. The 1974 Act included a new defence in s 22, concerning the passing of "information", in the following terms:
22 Information
(1) Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in having information on some subject,
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication.
(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest.
(3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward.
287 It was intended s 22 would extend the reach of qualified privilege to defendants who could not satisfy the reciprocity requirement at common law: Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 797 per Moffitt P and Hope and Reynolds JJA). In its Report of the Law Reform Commission on Defamation (Report No 11, 1971) (at [103]-[104]), the New South Wales Law Reform Commission (NSWLRC) endorsed ss 17(d) and 17(e) of the 1958 Act and expressed a view the common law position remained "artificial" and was "insufficiently wide to cover many of the cases where protection should be afforded". The NSWLRC explained (at [104]):
Section 22 makes the interest or apparent interest of the recipient the determining factor. If there is an appropriate interest or apparent interest, and the conduct of the publisher in publishing the matter in question is reasonable, then the section would give a qualified privilege. The section puts a test of reasonableness in the place of the common law doctrines of interest or duty in the publisher. The section is intended to supplement the common law in this field and not to hinder its development by judicial decision.
288 Notwithstanding Parliament made explicit its intention to broaden the available occasions of privilege beyond those where duty and interest were aligned, the addition of s 22(1)(c) was far from a boon for media outlets: see Nagle v Chulov [2001] NSWSC 9 (at [53] per Levine J).
289 The reason was the judicial narrowing of the concept of "reasonableness", originating from the so-called "checklist" set out by Hunt AJA (with whom Samuels JA agreed) in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 (at 385-388). Notwithstanding that a highly experienced defamation judge made plain these propositions were non-exhaustive, and cautioned it would be dangerous to give comprehensive definition to what conduct would be "reasonable in the circumstances" in any given case, certain propositions have been seen as vital to establishing reasonableness, putting achievement of the standard beyond reach for many respondents: see New South Wales Law Reform Commission, Defamation (Discussion Paper No 32, 1993) (NSWLRC Discussion Paper) (at [10.12]); John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Reports ¶81-789; Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 109; (2006) 68 NSWLR 150.
290 A particular difficulty has been the respondent's ability to establish honest belief: Professor S Walker, 'Lange v ABC: the High Court rethinks the "constitutionalisation" of defamation law' (1998) 6 Torts Law Journal 9 (at 21). This is especially so where a media respondent may be required to reveal sources: NSWLRC Discussion Paper (at [10.12]); K Gould, 'The more things change, the more they stay the same … or do they?' (2007) 12 Media and Arts Law Review 29 (at 34).
291 Accordingly, litigants sought alternative means to defend the publication of matters to wide audiences. An extended category of common law qualified privilege, now known as the Lange defence, came about as a result of the discernment of the implied freedom of political communication, arising from the text and structure of the Commonwealth Constitution, in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The unanimous decision of the High Court (comprising Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) in Lange confirmed that the concept of representative democracy required and so protected the dissemination of information about government and political matters to the widest possible audience.
292 As I explained in Palmer v McGowan (at 666 [202]-[203]), Lange qualified privilege was conceived of as an extension of the then existing categories of the defence. The High Court reasoned (at 571):
The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter. It may be that, in some respects, the common law defence as so extended goes beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution.
293 Malice remained a controlling element: Lange (at 572). Further, in view of the much wider audience that has an interest in receiving discussion about government and political matters, it was explained, by reference to s 22, that the protection will be lost unless the publisher of the false or defamatory material proves they acted reasonably. The requirement was articulated as "go[ing] beyond mere honesty" and "properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires": Lange (at 574-575). It was also noted that reasonableness had been invoked in s 377 of the Criminal Code Act 1899 (Qld) (Qld Criminal Code) and s 16 of the Defamation Act 1957 (Tas), and by the plurality in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 (at 136-137 per Mason CJ, Toohey and Gaudron JJ).
294 A short time later, in the United Kingdom, what might be described as a common law prototype of s 4 of the UK Act was seen in the decision of the House of Lords in Reynolds. That decision concerned the publication of a story about Mr Albert Reynolds, Éire's former Taoiseach, in the London edition of the Sunday Times. The publication related to the 1994 political crisis culminating in Mr Reynolds' resignation and the collapse of his coalition government which had, during its course, progressed the peace process in Northern Ireland, memorably entitled, "Goodbye gombeen man: why a fib too far proved fatal for the political career of Ireland's peacemaker and Mr Fixit."
295 The House of Lords held that the duty-interest requirement for privilege could be satisfied by media publications where the public had a right to know in all the circumstances (at 195 per Lord Nicholls). In Bonnick v Morris [2003] 1 AC 300 (at 309 [23] per Lord Nicholls) summarised the position in Reynolds as follows:
Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have the benefit of the privilege journalists must exercise due professional skill and care.
(Emphasis added).
296 What is clear, from the bolded text, is that "responsible journalism" is conceived as an inherently mutable concept. As Lord Nicholls remarked in his speech in Reynolds (at 204-205), "the elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern" (emphasis added). This fluid formulation was anchored in ten factors set out by Lord Nicholls (at 205) and said to be illustrative of an occasion of privilege.
297 The passage of time would reveal that Lange would be regularly pleaded but rarely successful. In a similar vein, while Reynolds privilege had some success in the United Kingdom, it did not develop into a "different jurisprudential creature" in Australia: Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783 (at 806 [35] per Lord Phillips MR); Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 (at 381 [46] per Lord Hoffmann, 408 [146] per Baroness Hale). Indeed, in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (at [1165]-[1170]), Beazley, Giles and Santow JJA explained that were it the case that Reynolds expanded the availability of qualified privilege in respect of information of public concern, on application of the common law test of reciprocity of duty and interest, such a test was significantly broader than and "could not stand alongside Lange": see also John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; (2001) 52 NSWLR 373 (at 380-381 [107]-[112] per Heydon JA, with whom Handley and Giles JJA agreed).
298 Recognition was, of course, hampered by the different constitutional environment in which the Reynolds privilege developed, informed as it was by the Human Rights Act 1998 (UK) which incorporated several provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952) including the guarantee of freedom of expression in art 10: Vilo (at 380 [108] per Heydon JA, with whom Handley and Giles JJA agreed); Marsden (at [1168]-[1169] per Beazley, Giles and Santow JJA).
299 But two important factors merit emphasis.
300 First, the Lange formulation of reasonableness was given express endorsement by Lord Bingham in Reynolds in the Court of Appeal (at 176; see also 220-221 per Lord Cooke; and Professor E Descheemaeker, 'A man must take care not to defame his neighbour: the origins and significance of the defence of responsible publication' (2015) 34(2) University of Queensland Law Journal 239 (at 251-252)). Secondly, in New South Wales, the legislature sought, in effect, to import Reynolds into the 1974 Act, at first by the introduction of s 22(2A) in 2002: New South Wales Attorney-General's Task Force on Defamation Law Reform, Defamation Law - Proposals for Reform in NSW (2002), Recommendation 13 (at 30). The section included a list of eight factors, drawn from Reynolds, which the court could, but was not required to, consider in determining whether the conduct of a publisher was reasonable in the circumstances.
301 I cannot pass from this aspect of the history without noting that the reform agenda which saw the insertion of s 22(2A) into the 1974 Act also resulted in the insertion of a statement of objects into that Act, including the object (in s 3(b)) "to ensure that the law of defamation does not place unreasonable limits on the publication and discussion of matters of public interest and importance".
302 The introduction of the uniform defamation legislation in 2005 saw the repeal of s 22 and the conception of s 30, "based on" the second generation s 22 defence: New South Wales, Parliamentary Debates, Legislative Assembly, 13 September 2005 (at 5). There were various iterations of s 30, each fundamentally requiring the following in order to establish a complete defence for the publication of defamatory matter: first, that the recipient has an "interest or apparent interest in having information on some subject"; secondly, the matter is published to the recipient in the course of giving the recipient information on that subject"; and thirdly, "the conduct of the defendant in publishing the matter is reasonable in the circumstances". Section 30(3) also provided a non-mandatory and non-exhaustive list of considerations, to which the court "may" have had regard in assessing whether a publisher's conduct was reasonable. The relevance or weight to be given to any one or more of the factors hinged on the particular facts of the case.
303 But, plus ça change, plus c'est la même chose.
304 Unsurprisingly by this point in the story, experience has shown submissions as to the defence in s 30 often lose sight of the overriding importance of context and a consideration of all relevant circumstances and revert to a form of "checklist" approach: Palmer v McGowan (at 664-665 [195]). While the statutory qualified privilege defence was successfully established on a few occasions, almost all relevant defendants were not media organisations and the impugned material was not published to a wide audience: see, for example, Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690; Haddon v Forsyth [2011] NSWSC 123; and O'Hara v Sims [2009] QCA 186.
305 In 2013, the common law Reynolds defence was abolished by s 4 of the UK Act. Notwithstanding the new phraseology ("reasonable belief" rather than "responsible journalism") and Parliament's earlier rejection of a proposed form of statutory defence modelled directly on Reynolds, the extrinsic materials exhibit an intention that the defence would, in substance, fill the gap previously occupied by Reynolds: see, generally, Professor D Rolph, 'A Critique of the Defamation Act 2013: Lessons for and from Australian Defamation Law Reform' (Legal Studies Research Paper No. 17/98). The new provision was said to be "based on existing common law and the defence established in Reynolds … [it is] intended to reflect the principles established in that case and in subsequent case law…and gives the court appropriate flexibility": United Kingdom, Hansard, House of Commons (12 June 2012) (at col 230); see also Explanatory Note, Defamation Act 2013 (UK) (at [35]). It has been interpreted in line with this intent, and that "it could not sensibly be suggested that the rationale for the Reynolds defence and for the public interest defence are materially different": Economou EWCA (at [86] per Sharp LJ, with whom Lewison and Ryder LJJ agreed).
306 In 2018, the New South Wales Department of Justice tabled a statutory review of the Defamation Act in Parliament, which concluded that the Act's core policy objectives "remain[ed] valid" but the statute "would benefit from some amendment and modernisation": Council of Attorneys-General, Review of Model Defamation Provisions (Discussion Paper, February 2019) (at 10) (CAG Discussion Paper). Relevantly, it was noted that there was support for "the more flexible approach adopted in the UK", emphasising that in determining "reasonable belief" in s 4 of the UK Act, the court is to have regard to all the circumstances and "make such allowance for editorial judgment as it considers appropriate": CAG Discussion Paper (at [5.23]).
307 The Council of Attorneys-General agreed in 2018 to reconvene the Model Defamation Law Working Party (Working Party), to consider "whether the policy objectives of the Model Defamation Provisions remain valid and whether the provisions remain appropriate to achieve these objectives": CAG Discussion Paper (at 9-10). The review, led by New South Wales, was conducted in 2019 and 2020. The Working Party recommended to the Council of Attorneys-General that amendments prepared by the Australasian Parliamentary Counsel's Committee be made. The Council agreed in July 2020 to support the enactment of the Model Defamation Amendment Provisions 2020 by each State and Territory.
308 Against the background of this long story, but informed by the history, we now find ourselves tasked with applying s 29A for the first time. Unfortunately, for reasons that might already be evident, the facts of this case do not present a good vehicle for demonstrating that the defence has real work to do in making appropriate allowances for editorial judgment and recalibrating the balance between two important rights which often exhibit tension: the right to freedom of expression on matters of public interest and the right to reputation.