Defamation, the Media, and Free Speech: Australia's Experiment with Expanded Qualified Privilege

In the 1960s, during the ferment of civil rights in the South, the United States Supreme Court decided New York Times Co. v. Sullivan,1 and gave broad protection to the press and other media who report and comment on government. The essence of the N. Y. Times decision was a rule that shifted radically the common law of defamation, and prevented public officials from recovering for defamation unless they could show that the defendant had acted with malice. The actual standard required public officials and, later, public figures2 to show that those who defamed them knew that what they published was untrue, or that the defamer acted with reckless disregard for the truth. At a stroke, reputation was subjugated to free speech, the province of state common law was created to loosely define federal constitutional law oversight, and the jury function was usurped by judges.3 Sullivan was met with great approbation and has continued to be a cornerstone of a strong constitutional interpretation of civil rights.4 This landmark case was driven by eloquent and strident rhetoric centering free speech at the apex of a liberal democracy. The sweep of the case was not total. Some questioned whether the Court needed to upset the fine balance of interests within the common law and usurp states' authority to establish common law of defamation that throughout its development had always closely hewed to the social norms of the society regulated.5 The Court embraced a strongly individualistic stance eschewing communitarian values.6 Other liberal democracies have more recently turned to the issue of whether traditional rules of defamation unduly chill free speech. In a complex society, the press was perceived as an institution that could function to fight governmental over-reaching and corruption. Defamation designed for societies built on status lost salience in the fluid mobile societies of the second half of the twentieth century. In searching for models by which the press could more adequately perform its public function and avoid its chilling via defamation rules, the Sullivan doctrine was subjected to close examination.7 In England, Australia, Canada, and New Zealand, the goal of giving a greater protection to free speech was embraced. In each, Sullivan was seen as a harbinger, but also was criticized as suffering from flaws making it incompatible as a transplant.8 Three British Commonwealth countries have tried to accomplish the objective of protecting political speech through an extension of common law qualified privilege. In Reynolds v. Times Newspapers,9 the English House of Lords extended qualified privilege to protect reporting on matters of public concern. In Lange v. Australian Broadcasting Corporation,10 the Australian High Court found that a qualified privilege exists for publication of material pertaining to governmental and political matters affecting the representational governmental structure of Australia, provided that the publisher acts reasonably. Finally, in Lange v. Atkinson,11 the New Zealand Court of Appeal articulated a common law privilege deriving from notions of democracy, dictating that the wider public may have a proper interest in respect of generally-published statements which directly concern the functioning of representative and responsible government, including statements about the performance or possible future performance of specific individuals in elected office.12 Based on extensive interviews that began in the early 1990s, much is known about how the U.S. media responds to the malice standard and how the British media responded to Britain's pre-Reynolds defamation law.li5 In general, the British media was inhibited by British law, and the U.S. media responded quite positively to the Sullivan decision.14 By contrast, little is known about how the British, Australian, and New Zealand media have responded to the recent extensions of common law qualified privilege. …

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