At what stage should the question of Serious Harm be considered in defamation cases under the Uniform Defamation Laws?

The recent decision in GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63 provides an insightful look into when the issue of serious harm is addressed in defamation cases under the uniform defamation laws. (Note: the serious harm test does not yet apply in Western Australia).

Serious Harm: A Key Element in Defamation Cases

As a result of amendments that took effect on 1 July 2021, proof of serious harm is a necessary element in the cause of action in defamation cases in New South Wales (Wilks v Qu (Ruling) [2022] VCC 620 at [40]–[4] and Wilks v Qu (Ruling 2) [2022] VCC 1503 at [6]–[11]).

The purpose of establishing serious harm is to discourage the bringing of cases likely to result in modest awards where the costs are out of proportion to the damages (Newman v Whittington [2022] NSWSC 249 at [30]–[46]).

Timing and Determination of Serious Harm

Under the uniform defamation laws, the question of serious harm must be determined early in the litigation unless there are “special circumstances” (s 10A(5)).

Special circumstances, as outlined in GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63 at [48], include situations where:

1. The nature of the publications (e.g., slanders in a foreign language) requires the trial judge to hear the evidence and manner of publication before determining serious harm.

2. Serious harm cannot be disentangled from other trial issues, such as financial loss or the grapevine effect.

3. The determination of serious harm could take a significant amount of time, requiring many witnesses to give evidence twice, which would result in additional costs, emotional burdens, and time constraints for the court.

The court also relied on guidance from English decisions, such as Ames v The Spamhaus Project Ltd [2015] EWHC 127 (QB), where it was determined that the proceedings were "not ripe" for a preliminary hearing on serious harm, as the facts deserved further examination.

Where the burden lies

The burden of satisfying the court that there are special circumstances justifying the postponement of the determination of serious harm to a later stage in the proceedings lies on the plaintiff (Hossein v Ali (Ruling) [2022] VCC 2195 at [45]).

The Limitation Period for Defamation Cases: Factors a Plaintiff Should Consider prior to Commencing a Case

In the world of defamation law, time is of the essence.

In Western Australia, as well as other Australian states, the limitation period for bringing a defamation case is one year from the date of publication.

This truncated period was first introduced as part of a suite of amendments to promote the resolution of defamation proceedings in a timely manner and to encourage non-litigious methods of resolving disputes.

This blog post discusses the various factors and actions potential claimants should consider during the one-year limitation period before deciding whether to pursue a defamation case.

Key considerations during the Limitation Period (also serves as a checklist for potential plaintiffs)

1. Reflect and consider maturely whether the proposed litigation can be resolved without litigation: As noted in the case of Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385, the one-year limitation period allows potential claimants time to reflect and consider whether the dispute can be resolved without resorting to legal action. Initiating a defamation lawsuit can be costly and time-consuming, so it is important to explore alternative dispute resolution methods, such as mediation or issuing a concerns notice to the publisher, as provided under Pt 3 Div 1 of the Defamation Act.

2. Consider whether the cost of litigation would be proportionate to the extent of perceived damage: Before pursuing a defamation case, claimants should weigh the costs of litigation against the potential recovery and the extent of the perceived damage. It is important to ensure that the costs of the lawsuit are not disproportionate to the potential outcome.

3. Conduct necessary enquiries as to the identity of the respondent or respondents: Identifying the correct respondent(s) is crucial in a defamation case. The one-year limitation period provides potential claimants with time to conduct necessary enquiries to accurately identify the parties responsible for the publication of the alleged defamatory material.

4. Assess the availability of sufficient material to support the claim: To succeed in a defamation case, a claimant must have sufficient evidence to support their allegations. The one-year limitation period allows claimants to gather the necessary material to establish their case.

5. Reflect on the potential impact of litigation on personal and financial well-being: Pursuing a defamation lawsuit can be a life-changing decision that may bring stress and potential adverse financial consequences. Claimants should take the time during the limitation period to consider the possible ramifications of litigation on their personal and financial well-being.

No Obligation to Commence Proceedings at the First Opportunity

In the Lehrmann case, it was held that the claimant does not have a positive obligation to commence proceedings at the first possible opportunity or in one period over another within the time set by the legislature.

The statutory task is holistic, requiring an evaluation of all relevant facts or "the circumstances" that existed within one year of the date of the publication.

As emphasized by Chesterman JA in Noonan v McLennan, a claimant does not have to account for every day or week in the limitation year, but rather must satisfy the court that it was not reasonable in the circumstances to have commenced an action within the limitation period.

Considering the Whole of the Circumstances

It is essential to recognize that while the fact that it may have been reasonable to commence proceedings for a significant period within the limitation period is material and could be determinative, the existence of this fact alone is not necessarily fatal.

As stated in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 at [24], the courts will consider the whole of the circumstances when evaluating the reasonableness of commencing proceedings.

For instance, an unexpected and catastrophic event occurring towards the end of the limitation period might make it unreasonable for a claimant to commence proceedings for the first time.

In such cases, if the court's consideration of the whole of the circumstances leads them to conclude that the claimant did not commence proceedings due to the unanticipated event, the statutory test may still be satisfied.

Thus, it is crucial for potential claimants to be aware that the courts will take a holistic approach when assessing the reasonableness of commencing proceedings within the one-year limitation period.

Assessing Damages in Defamation Cases: An Overview

Defamation law exists to protect individuals and entities from false statements that could harm their reputation.

When a person or organisation is defamed, they may be entitled to compensation for the damage done to their reputation and the associated emotional distress.

In this blog post, I discuss the principles for assessing damages in defamation cases, drawing on the case of Cables v Winchester [2018] VSC 392, as well as other relevant cases, to provide a general overview of the subject.

Key Principles for Assessing Damages in Defamation Cases:

In Wilson v Bauer Media, John Dixon J summarized the well-established principles for assessing damages in defamation cases as follows:

1. Damages should provide consolation for hurt feelings, damage to reputation, and vindication of the plaintiff's reputation.

2. Damages ought to reflect the high value the law places on reputation, particularly for those whose work and life depend on their honesty, integrity, and judgment.

3. The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff.

4. There must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

5. The extent of publication and the seriousness of the defamatory sting are pertinent considerations.

6. The court should take into account the 'grapevine' effect arising from the publication when determining the damage done to a plaintiff's reputation.

7. Injury to feelings may constitute a significant part of the harm sustained by a plaintiff.

8. Aggravated damages are a form of compensatory damages designed to reflect aggravation caused to a plaintiff's hurt or injury by reason of some conduct of the defendant.

Factors to Consider in Awarding Aggravated Damages:

In Cables v Winchester [2018] VSC 392, the court found that an award of aggravated damages was appropriate due to the following conduct of the defendant:

- Publishing words with the sole purpose of injuring the plaintiff's reputation

- Refusing to apologize

- Not appearing in the proceeding (until the hearing for assessment of damages)

Comparative Exercise and the Importance of Context:

As noted by Hayne J in Rogers v Nationwide News Pty Ltd, engaging in a comparative exercise for damages may be misleading, as each case is unique.

However, considering awards in comparable cases can be appropriate when there is no contradictor to respond to the submissions of the plaintiff.

In Fraser, Daly AsJ highlighted the importance of context, stating that reviewing other cases can be instructive in illustrating what features the current case does not have.

Social Media Publications and Defamation: Imputations and Extent of Publication

The increasing prevalence of social media has led to a rise in defamation cases involving online publications.

This blog post discusses the legal approach to evaluating social media publications in defamation cases, specifically focusing on imputations and the extent of publication.

The analysis will draw from the case of Hockings v Lynch & Adams [2022] QDC 127, as well as referencing other pertinent cases such as O'Reilly v Edgar and Bolton v Stoltenberg.

Extent of publication

When determining the extent of publication in defamation cases involving social media, courts take into account various aspects.

These include the number of followers, shares, likes, and comments, which can serve as evidence of the publication's reach. For instance, in O'Reilly v Edgar, the court acknowledged that at least 1,000 members of a Facebook group had downloaded and read the defamatory posts.

In contrast, in Bolton v Stoltenberg, the court inferred from the evidence of reach, likes, comments, and shares that a substantial number of people had downloaded and read the material.

Context

The context in which defamatory posts are made is also a crucial factor to consider.

As articulated by Muir DCJ in Brose v Baluskas (No 6), examining the posts within the context they were posted and as part of the broader conversation on the relevant sites is essential.

Social media platforms possess particular characteristics, such as:

• inconsistent moderation,

• a propensity for false or exaggerated claims,

• the use of emojis and non-standard characters.

These factors can impact how an ordinary and reasonable reader interprets and understands the posts.

Ongoing Publication

Additionally, the extent of ongoing publication plays a significant role in defamation cases.

In Hockings v Lynch & Adams, for example, the court examined whether the defamatory posts remained publicly accessible on the internet at the time of the trial. The court found that, due to the grapevine effect, the defamatory posts had been published to an estimated hundreds of people.

Reasonableness and the Lange Defence in Defamation Law: Balancing Free Speech and Reputation Protection

The concept of reasonableness in the context of the Lange defence in defamation law has been a subject of debate and evolving interpretation.

This article discusses the concept of reasonableness and its application to the Lange defence, based on the decision in Palmer v McGowan (No 5) [2022] FCA 893.

I explore the three potential approaches to reasonableness outlined in the case and examine the implications for balancing freedom of speech and reputation protection.

Three Potential Approaches to Reasonableness

1. Eschewing the reasonableness requirement

The first approach argues that in specific situations, such as when a communication meets the duty and interest components of common law qualified privilege, the reasonableness criterion may not apply. This perspective aligns with the High Court's decision in Lange, which introduced reasonableness as an additional condition for mass media publications that could potentially cause more significant harm to one's reputation.

However, this method has faced criticism as it seems to overlook the fact that in Lange, reasonableness replaced the reciprocity requirement rather than being added to it. Moreover, this approach could be perceived as granting an unrestricted exemption for particular statements without carefully considering the balance between free speech and protecting one's reputation.

2. Adapting the concept of reasonableness

The second approach proposes that the concept of reasonableness should be adapted or more stringently defined to prevent the imposition of an undue burden on the implied freedom of speech.

This perspective has arisen in reaction to how reasonableness has been interpreted under Lange, often incorporating judicial interpretations of reasonableness from defamation legislation, such as the Defamation Act.

Critics assert that this method has resulted in a detailed examination of pre-publication conduct, imposing a burden on both litigants and decision-makers.

Instead, proponents of this approach recommend that reasonableness should be addressed with greater flexibility, taking into account "all of the circumstances of the case," as expressed in Lange.

3. Revisiting the reasonableness criterion

The third approach advocates for revisiting and potentially removing the reasonableness criterion as part of the Lange defence. However, this view has faced challenges, as seen in the refusal of special leave to reopen Lange in The Herald & Weekly Times Ltd v Popovic [2004] HCATrans 180.

The approach taken in Palmer v McGowan (No 5) [2022] FCA 893

Section 30 of the Defamation Act outlines a statutory defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that:

(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 them information on that subject; and

(c) the conduct of the defendant in publishing the matter is reasonable in the circumstances.

Despite nuances like these, courts have generally equated the reasonableness requirement in Lange to that in Section 30 of the Act.

However, this has led to the Lange defence losing its practical utility.

Commentators have criticized the defence as "ill-defined" and "about as hopeless as you can get," with some even calling it a "disaster." Such strong critiques emphasize the need to reevaluate and clarify the reasonableness requirement in Lange.

Striking a Balance

The reasonableness requirement in the Lange defence has been criticized for being too onerous and hindering the proper balance between freedom of speech and reputation protection. The need to strike a balance between these interests was a key rationale behind the High Court's decision in Lange.

Although the Lange defence is rarely successful, primarily due to the stringent reasonableness requirement, it is important to consider whether the current approach to reasonableness adequately balances free speech and reputation protection. A more evaluative approach to reasonableness, free from the constraints imposed by authorities, may be necessary to strike the appropriate balance.

Key Take-Aways

• The concept of reasonableness in the Lange defence remains a complex and evolving area of defamation law.

• While the approaches outlined in Palmer v McGowan (No 5) provide potential avenues for reevaluating reasonableness, it is essential to consider the overarching goal of striking a balance between freedom of speech and reputation protection.

Understanding the Lange Defence in Defamation Law

Defamation law seeks to balance the protection of individual reputations with the importance of free speech, particularly in matters of government and politics.

One key aspect of defamation law in Australia is the Lange defence, a constitutionally protected privilege that provides a further protection for publishers of false and defamatory material.

In this blog post, I discuss the origins and principles of the Lange defence, as well as its limitations.

The Lange Defence: Background and Principles

The Lange defence emerged from a line of High Court cases starting with Theophanous v Herald & Weekly Times Ltd (1994) and Stephen v West Australian Newspapers Ltd (1994).

The defence was settled by the unanimous decision of the High Court in Lange v Australian Broadcasting Corporation (1997), where the court recognised the importance of the concept of representative democracy and the dissemination of information about government and political matters to the widest possible audience.

Under the Lange defence, each member of the Australian community has an interest in receiving information, opinions, and arguments concerning government and political matters, and each person has a correlative duty to disseminate such information, opinions, and arguments. This new category of qualified privilege was seen as an extension of the existing categories of qualified privilege.

The Lange Defence: Conditions and Reasonableness

A crucial aspect of the Lange defence is the question of the conditions upon which this extended category of common law qualified privilege should depend.

Just as the traditional categories of qualified privilege are unavailable where a respondent was actuated by malice, the High Court noted that as long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory.

Additionally, in view of the much wider audience that has an interest in receiving discussion about government and political matters, the High Court held that the protection will be lost unless the publisher of the false or defamatory material proves they acted reasonably.

The concept of reasonableness has been the subject of debate and differing interpretations, but it generally encompasses factors such as:

• having reasonable grounds for believing the imputation was true,

• taking proper steps to verify the accuracy of the material, and

• seeking a response from the person defamed.

Limitations and Criticisms of the Lange Defence

Despite the potential importance of the Lange defence in striking a balance between freedom of discussion and protection of reputations, it has been criticised as being "ill-defined" and having limited utility, primarily due to the stringent reasonableness requirement.

Some commentators have even labeled it a "disaster" and called for a reconsideration of the balance between free speech and reasonable protection of individuals involved in government or politics.

In practice, the Lange defence is rarely successful, leading to questions about whether a proper balance is being struck.

Key Take-Aways

• The Lange defence represents an important aspect of defamation law in Australia, seeking to balance the competing interests of free speech and protection of individual reputations.

• While the defence has its limitations and has been subject to criticism, it remains an essential component of the legal landscape, protecting the communication of government and political matters.

Aggravated Damages in Defamation Cases: An Overview

In defamation cases, aggravated damages can be awarded when the defendant's conduct is particularly harmful or egregious.

This blog post explores the grounds for awarding aggravated damages in defamation, with reference to a recent court decision, Hockings v Lynch & Adams [2022] QDC 127.

Grounds for Awarding Aggravated Damages

Aggravated damages can be awarded over and above the maximum general damages.

A court can award aggravated damages where a defendant acts improperly or unjustifiably, or in a way which demonstrates a lack of good faith, thereby improperly aggravating the injury done to a plaintiff.

In Hockings v Lynch & Adams [2022] QDC 127, the plaintiff sought aggravated damages against each defendant individually, pointing to several factors:

1. The number and persistent nature of the defamatory publications and the extended period over which they were made (para [356](a)).

2. The recklessness of the defendants as to the truth of the statements they made and the meanings conveyed (para [356](b)).

3. The pursuit of the justification defense at trial, as well as a plea of truth and a defense of triviality in an earlier version of the defense (para [356](c)).

4. The allegations going to the very heart of the plaintiff's personal and professional life (para [356](d)).

5. The defendants' persistent refusal to apologize (para [356](e)).

6. The failure to respond to the concerns notice in a timely way and, upon receiving particulars, failing to make an offer to make amends or give an apology (para [356](f)).

The court in Hockings v Lynch & Adams [2022] QDC 127 emphasized that the plaintiff bears a heavy onus to establish malice, as per the principles in Brigginshaw v Brigginshaw (1938) 60 CLR 336, where stupidity, bias, or carelessness are not enough (para [360]). Malice refers to the defendant's primary or predominant motive for publishing the remark and can be inferred from the acts, conduct, or expressions of the defendants (para [359]).

Factors to Consider

The court in Hockings v Lynch & Adams [2022] QDC 127 considered several factors in determining the award of aggravated damages, including:

- The number, frequency, and tenor of the defamatory posts (para [365]).

- Whether the defendants were motivated by a desire to attack or diminish the plaintiff (paras [365], [367], [368]).

- The seriousness of the allegations made, particularly when related to a person's professional life (para [365]).

- The defendants' refusal to apologize and their persistence in pursuing their defense (para [373]).

In this case, the court found that the first defendant's conduct was substantially more egregious than the second defendant's conduct and awarded aggravated damages against the first defendant (para [374]). However, the court was not persuaded that an award of aggravated damages should be made against the second defendant (para [375]).

Key Take-Aways

• Aggravated damages in defamation cases can be awarded when the defendant's conduct is particularly harmful or egregious.

• Factors such as the number and nature of defamatory publications, the defendant's motive, the seriousness of the allegations, and the defendant's refusal to apologize may be considered by the court in determining the award of aggravated damages.

Understanding the Serious Harm Test in Defamation Law (yet to apply in WA)

In this blog post, I explore the serious harm test, drawing on the first Australian trial to consider it, Martin v Najem [2022] NSWDC 479, and other relevant cases.

The Serious Harm Test

The serious harm test, as adapted from Section 1 of the UK's Defamation Act 2013, requires plaintiffs to establish that serious harm has been or is likely to be caused by the defamatory statements in question.

As laid out in the case of Newman v Whittington [2022] NSWSC 249, this test aims to discourage cases where the legal costs are disproportionate to the potential damages.

Factors to Consider

In assessing whether serious harm has been or is likely to be caused, the following factors may be considered, as outlined in Martin v Najem [2022] NSWDC 479:

1. The meaning of the words and the gravity of any imputations.

2. The extent of publication.

3. The standing of the defendant.

4. The identity of the recipients and their relationship (if any) with the plaintiff.

5. The circumstances of the plaintiff.

6. The reaction of the recipients.

However, these factors should not be treated as evidence in themselves, but rather as headings under which relevant evidence may be presented.

Proving Serious Harm

Establishing serious harm requires a fact-rich proof of harm that is actually or likely to be serious, as opposed to mere inferences of serious harm. There must be causation between the publication and the serious harm, which may be established by inference, particularly when considering future matters such as the statement's impact on people who will come to know the plaintiff in the future (Napag Trading Ltd v Gedi Gruppo Editoriale SPA [2020] EWHC 3034 (QB)).

Martin v Najem [2022] NSWDC 479

Introduction

This was legal battle between two prominent food influencers.

The plaintiff, known by his social media handle "@Issac_eatsalot", and the defendant built their careers on blogging about food-related issues on Instagram. However, their rivalry took a dark turn, resulting in defamatory comments.

Background

@Issac_eatsalot, a former pastry chef, began his social media career by participating in competitive food eating contests and promoting the venues he visited. He had amassed a significant following on various social media platforms and frequently worked in paid partnerships with venues and businesses. His wife, who was also involved in his food blogging work, had been directly affected by the escalating situation.

The Feud

On April 22, 2022, @Issac_eatsalot was informed by one of his followers that the defendant had published a video about him on Instagram. In the video, the defendant called @Issac_eatsalot a paedophile and a racist. Concerned and offended by the content, @Issac_eatsalot discovered that the defendant had directed his followers to a second Instagram account, where he continued to post defamatory content.

The Impact

The plaintiff's anxiety and distress were exacerbated by the knowledge that the defendant was an Instagram business rival with a relatively substantial following.

The defendant's campaign of abuse continued with several more videos and a direct message threatening to destroy @Issac_eatsalot. This resulted in the plaintiff reporting the publications to the police and seeking medical assistance.

The Legal Battle

The plaintiff commenced legal proceedings in July 2022, seeking damages for the defamatory content posted by the defendant. Since then, @Issac_eatsalot continued to receive negative and derogatory comments on his own Instagram account.

The Findings

In Martin v Najem [2022] NSWDC 479, the court found that the publications in question caused serious harm due to factors such as the extreme nature of the allegations, the manner of publication, the extent of publication, and the ongoing impact on the plaintiff's health and security.

The court also considered the reactions of third parties and the plaintiff's own affidavit detailing the stress and anxiety caused by the publications.

Common Law Qualified Privilege in Defamation: Understanding the Reciprocity of Duty and Interest

Defamation law seeks to balance two competing interests: the protection of an individual's reputation and the freedom of speech.

One of the defences available to a defendant in a defamation case is common law qualified privilege, which arises when there is a reciprocity of duty and interest between the publisher and the recipient of the statement.

This blog post provides a better understanding of common law qualified privilege, focusing on the concept of “interest”, as highlighted in the case of Bolton v Stoltenberg [2018] NSWSC 1518.

The Defence of Qualified Privilege

A communication is protected by common law qualified privilege when the publisher has a legal, social, or moral interest or duty to make a statement on a particular occasion, and the recipient has a corresponding interest or duty to receive it (Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470).

The question of whether common law qualified privilege applies depends on a close scrutiny of the circumstances of each case, the situation of the parties, the relations of all concerned, and the events leading up to and surrounding the publication (Bashford).

As a result, determining whether qualified privilege applies can be challenging and requires a careful analysis of the specific facts of the case.

Reciprocity of Duty and Interest

The concept of reciprocity of duty and interest is essential to the defence of qualified privilege.

To establish this reciprocity, the publisher must demonstrate that they had an interest or duty in making the statement and that the recipient had a corresponding interest or duty in receiving it.

In the case of Visscher v Maritime Union of Australia (No 6), Beech-Jones J rejected a submission that readers of a website operated by the Maritime Union of Australia had a direct or indirect interest in the maritime industry simply because of the nature of the forum. Beech-Jones J emphasized that the defence of common law qualified privilege could not apply to unrestricted publications available to the general public.

Excessive Publication

Even when there is a reciprocity of duty and interest, excessive publication may still defeat the defence of qualified privilege.

Excessive publication occurs when a statement is made available to a broader audience than necessary to satisfy the interest or duty.

In Vakras v Cripps, the Victorian Court of Appeal held that publication to the world at large on general websites could be evidence of excessive publication and thus, not protected by qualified privilege.

Bolton v Stoltenberg [2018] NSWSC 1518

In Bolton v Stoltenberg [2018] NSWSC 1518 the defense of common law qualified privilege was considered by the court.

The case involved a Facebook page called Narri Leaks, which was claimed to be dedicated to dealing with issues of interest to persons within the Narrabri Shire. The defendant, Mr. Stoltenberg, argued that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire and had a reciprocal interest in issues relating to the Narrabri Shire Council.

The court, however, found that the readership of Narri Leaks extended far beyond the residents of the Narrabri Shire Council who were interested in the finances of the Council. The judge cited evidence such as interrogatories provided by Mr. Stoltenberg, Facebook posts made by him, and Facebook activity logs, among other things. The posts themselves contained references to the wide readership of Narri Leaks, and the defendant admitted to having spent money on "boosting" posts all over the state.

As a result, the court concluded that Mr. Stoltenberg had failed to establish that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire with a reciprocal interest in a limited subject matter.

Furthermore, even if the matters complained of were only downloaded and viewed by a limited class of persons with an interest in a limited subject matter, the evidence of publication of the Narri Leaks Facebook page was evidence of excessive publication.

The court also rejected the argument that the matters complained of fell within the special and reciprocal interest identified by Mr. Stoltenberg. While the finances of the Narrabri Shire Council and the appointment of General Managers were important topics in the Narrabri area, the defendant had no duty to attack the plaintiff's reputation. The court concluded that the defense of common law qualified privilege was not applicable in this case.

This case demonstrates that in the digital age, establishing a limited audience for defamatory publications can be challenging, especially when social media platforms are involved. Courts will carefully scrutinize the facts to determine whether a defense of qualified privilege can be upheld. In this case, the court concluded that the readership of the Narri Leaks Facebook page was not limited to residents of the Narrabri Shire with a reciprocal interest in a limited subject matter, and therefore, the defense of qualified privilege was rejected.

Key Take-Aways

• Establishing the defence of qualified privilege in defamation cases requires a close examination of the circumstances surrounding the publication and the interests or duties of the publisher and recipient.

• It is essential to demonstrate a reciprocity of duty and interest and to avoid excessive publication.

• Ultimately, whether qualified privilege applies will depend on the specific facts and context of each case.

Fair Comment in Defamation Law: Understanding the Key Principles

Fair comment is an important defence in defamation cases that serves to protect freedom of speech, allowing people to express their honest opinions on matters of public interest. In this article, we will discuss the key principles of fair comment in defamation law, using the case of Cook v Flaherty [2021] SASC 73 as a reference.

Fair Comment vs. Fact

According to Pryke v Advertiser Newspapers Ltd, a statement can only be considered comment if the facts it is based on are stated or indicated with sufficient clarity. As explained in Channel Seven Adelaide Pty Ltd v Manock, fair comment protects even obstinate, foolish, or offensive statements of opinion, provided certain conditions are met. The key distinction is between comments (such as opinions, inferences, or evaluations) and statements of fact, which affects the viability of the defence.

The Conventional Case of Fair Comment

In Pervan v North Queensland Newspaper Co Ltd, McHugh J described the conventional case of fair comment as one where the basis of the comment appears in the publication, and the reader is able to judge whether the facts justify the comments. The defence is concerned with comments based on facts, and the truth of those facts will affect the viability of the defence.

The Kemsley Situation

The Kemsley situation, as explained in Cook v Flaherty [2021] SASC 73, refers to a type of fair comment where certain forms of conduct are of such a nature as to invite comment. In these cases, it is not necessary for the reader, viewer, or listener to be in a position to form their own opinion, as long as the statements are presented as comments and not as facts.

Notorious Facts

In order for a comment to be considered fair, the facts it is based on must be true or published under privilege. While the facts do not necessarily have to be stated explicitly in the publication, they can be referred to or be considered "notorious," meaning they are well-known or easily ascertainable matters in the public arena.

Fairness and Accuracy

As mentioned in Cook v Flaherty [2021] SASC 73, fairness requires that the comment or opinion be based on facts that are true or published under privilege. Inaccurate or false facts will render a comment unfair, and therefore, not protected by the fair comment defence.

Key Take-Aways

• In summary, the fair comment defence in defamation law is an important aspect of protecting freedom of speech, allowing individuals to express their honest opinions on matters of public interest.

• The key principles of fair comment involve distinguishing between comments and statements of fact, the truth of the underlying facts, and the fairness and accuracy of the comment.