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AUSTRALIA DEFAMATION LAW IN AUSTRALIA
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AUSTRALIADEFAMATION LAW IN AUSTRALIAIn most Australian jurisdictions defamation law is a mixture of statute and common law. The law is far from uniform from State to State. In 1979 the Australian Law Reform Commission recommended numerous changes to the law of defamation including introducing a uniform defamation law for all of Australia. Despite attempts to bring such law into effect,1 this has not occurred nationally, although three States (New South Wales, Victoria and Queensland) adopted uniform laws in 1992. The main issue in relation to the law of defamation (which seeks to protect individual reputation) ‘is how to reconcile [its] purpose with the competing demands of free speech’.2 In Australia free speech in the political arena is implied into the constitution but is not otherwise constitutionally protected. This is different to the United States where freedom of speech enjoys broader constitutional protection. As a result, in Australia, in contrast to the US, ‘libel actions still play a prominent role in our own public affairs as a regular arsenal of political combat’.3 What is most interesting then is the way in which the recent ‘free speech’ cases have impacted on the law of defamation in Australia.4 In particular, the cases of Theophanous v. The Herald Weekly Times Ltd & Anor and Stephens & Ors v. West Australian Newspapers Ltd are of significance. In effect these cases have established a constitutional defence in situations where the defamatory material is a matter of political discussion. In Theophanous v. The Herald Weekly Times Ltd v. Times Ltd & Anor it was held that a defamatory publication will not be actionable under the law relating to defamation if the defendant establishes that: (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly (ie, not caring if the material was true or false); and (c) the publication was reasonable in the circumstances. A publication that attracts the freedom implied in the Commonwealth Constitution can be described as a publication on an occasion of qualified privilege. Theophanous was applied in the decision of Stephens & Ors v. West Australian Newspapers Ltd, which went further and confirmed that the defence applied to State (as well as Federal) political publications As a defence derived from the Constitution this new form of qualified privilege cannot be restricted or overridden by state, territory or federal legislation. Indeed, in Theophanous it was held that ‘defamation law, whether it be based on legislation or the common law, was subject to and could be shaped by, the implied constitutional freedom of political discussion’.5 The effect of finding an implied freedom of political discussion in the Constitution has been to expand the defences available in defamation actions and thus reduce the circumstances in which speech can be legitimately restricted. Consequently, the balance between free speech and protection of reputation has shifted, with a move towards greater protection of free speech and the ‘constitutionalization’ of defamation law, not unlike that existing in American law. In fact, Walker argues that these Australian decisions ‘strike a better balance than New York Times Co. v. Sullivan between the protection of reputation from wrongful attack and the protection of freedom of communication.’6 It is still not clear to what extent that this development will impact upon the rest of defamation law.7 Probably, to a large degree it will depend on the extent to which free speech is or isn’t ultimately recognized as a constitutional right. BIBLIOGRAPHY 1 Armstrong, Blakeney & Watterson, Media Law in Australia (2nd ed. 1988). Brennan, The defence of Truth and Defamation Law Reform, 20 Monash University Law Review 151 (1994). Chesterman, The Money or the Truth: Defamation Reform in Australia and the USA, 18 University of NSW Law Journal 300 (1995). Fleming, The Law of Torts (8th ed. 1992). Kenyon, Defamation, Artistic Criticism and Fair Comment, 18 SLR 193 (1996). The Law Reform Commission, Defamation - Options for Reform (1977). The Law Reform Commission, Unfair Publication: Defamation and Privacy (1979). Trindade & Cane, The Law of Torts in Australia (1985). Trindade, ‘Political Discussion’ and the Law of Defamation, 111 The Law Quarterly Review 199 (1995). Walker, The Impact of the High Court’s Free Speech Cases on Defamation Law, 17 Sydney Law Review 43 (1995). THEOPHANOUS v THE HERALD AND WEEKLY TIMES LIMITED AND ANOTHER F.C. 94/041 Constitutional Law (Cth) – Defamation (1994) 182 CLR 104 (1994) 124 ALR 1 (1994) Aust Torts Reports 81-297: Freedom to discuss government and political matters; publication without malice; qualified priviledge.Answer the questions reserved in the case stated as follows: 1. Is there a freedom guaranteed by the Commonwealth Constitution to publish material: (a) discussing government and political matters; (b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees; (c) in relation to the suitability of persons for office as members of the Parliament? Answer: There is implied in the Commonwealth Constitution a freedom to publish material: (a) discussing government and political matters; (b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees; (c) in relation to the suitability of persons for office as members of the Parliament. 2. If yes to any part or parts of question 1, is any such freedom subject to a condition that the publication will not be actionable under the law relating to defamation if: (a) the publication be without malice; (b) the publication be reasonable in the circumstances; (c) the publication not be made without any honest belief in the truth of the material published or made with reckless disregard for the truth or untruth of the material published; or (d) the publication be made at a time when it was publicly anticipated that a federal election was about to be called? Answer: In the light of the freedom implied in the Commonwealth Constitution, the publication will not be actionable under the law relating to defamation if the defendant establishes that: (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly, that is, not caring whether the material was true or false; and (c) the publication was reasonable in the circumstances.
(a) if published at a time when it was publicly anticipated that a federal election was about to be called; (b) if published at a time when it was not publicly anticipated that a federal election was about to be called? Answer: A publication that attracts the freedom implied in the Commonwealth Constitution can also be described as a publication on an occasion of qualified privilege. Whether a federal election is about to be called is not a relevant consideration. 4. Are the defences pleaded in paragraphs 11 and 12 of (the first defendant's) Further Further Amended Defence bad in law? Answer: No. JUDGE1 MASON CJ, TOOHEY AND GAUDRON JJ This is a case stated by the Chief Justice pursuant to s.18 of the Judiciary Act 1903 (Cth). The plaintiff, Dr Andrew Theophanous, is and has been since 1980 a member of the House of Representatives. He was on 8 November 1992 the chairperson of the Joint Parliamentary Standing Committee on Migration Regulations and the chairperson of the Australian Labor Party's Federal Caucus Immigration Committee. He has played a prominent part in public discussion of migration issues. On 8 and 12 October 1992, Mr Graeme Campbell, M.H.R., criticized the plaintiff's views and conduct in relation to migration issues and that criticism received media publicity. 2. The second defendant, Mr Bruce Ruxton, is and was on 8 November 1992 the President of the Victorian branch of the Returned and Services League. On 8 November 1992, the first defendant, The Herald and Weekly Times Limited, published in its newspaper The Sunday Herald Sun a letter to the editor written by Ruxton entitled "Give Theophanous the shove". The letter was as follows: "IF Reports coming out of Canberra are true about the alleged behaviour of Dr Andrew Theophanous, then it is high time he was thrown off Parliament's immigration committee. I have read reports that he stands for most things Australians are against. He appears to want a bias shown towards Greeks as migrants.... The plaintiff's action for defamation and the proceedings 3. On 11 February 1993 the plaintiff commenced defamation proceedings in the County Court of Victoria against the two defendants. Certain imputations pleaded in the plaintiff's statement of claim were struck out. The imputations remaining are: "(a) the Plaintiff showed a bias towards Greeks as migrants; (b) the Plaintiff stood for things that most Australians were against; (c) the Plaintiff was an idiot and his actions were the antics of an idiotic man." By its amended defence, the first defendant pleaded a number of defences which vary in accordance with the differing laws of defamation in the States and Territories. Those defences included truth, truth in relation to a matter of public interest, fair comment on a matter of public interest and qualified privilege. Paragraphs 11 and 12 of the further further amended defence are in the following terms: "11. In further answer to the whole of the Statement of Claim: (a) the words were published pursuant to a freedom guaranteed by the Commonwealth Constitution to publish material: (i) in the course of discussion of government and political matters; (ii) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees; (iii) in relation to the suitability of persons for office as members of the Parliament. (b) The publication of the words was: (i) in the course of discussion of government and political matters; (ii) of and concern the plaintiff as a member of the House of Representatives and as Chairperson of the Joint Parliamentary Standing Committee on Migration Regulation and the Australian Labor Party's Federal Caucus Immigration Committee; (iii) in respect of the plaintiff's performance of his duties as a member and as Chairperson as aforesaid; (iv) in relation to the plaintiff's suitability for office as a member of Parliament; (v) without malice; (vi) reasonable in the circumstances; (vii) not made without an honest belief in the truth of the words or made with reckless disregard for the truth or untruth of the words; (viii) made at a time when it was publicly anticipated that a federal election was about to be called. (c) By reason of each of the matters aforesaid the said publication is not actionable. 12. Further and alternatively, by reason of the freedom guaranteed by the Commonwealth Constitution as aforesaid, the words were published on an occasion of qualified privilege." The implied freedom of communication 6. The defences pleaded in pars 11 and 12 are based on the implication of freedom of communication in the Commonwealth Constitution recognized in the judgments of this Court in Nationwide News Pty. Ltd. v. Wills ((1) (1992) 177 CLR 1.) and Australian Capital Television Pty. Ltd. v. The Commonwealth ((2) (1992) 177 CLR 106.). In those cases, a majority of the Court distilled from the provisions and structure of the Constitution, particularly from the concept of representative government which is enshrined in the Constitution, an implication of freedom of communication. That implication does not extend to freedom of expression generally ((3) cf. the First Amendment to the Constitution of the United States which reads: "Congress shall make no law ... abridging the freedom of speech, or of the press".). The limited scope of the freedom was expressed in various ways by the members of the Court. It was described as "freedom of communication, at least in relation to public affairs and political discussion" ((4) Australian Capital Television (1992) 177 CLR at 138, 142 per Mason CJ), "freedom ... to discuss governments and political matters" ((5) Nationwide News (1992) 177 CLR at 50 per Brennan J), "freedom of communication about the government of the Commonwealth" which "extends to all political matters", including "matters relating to other levels of government" ((6) Australian Capital Television (1992) 177 CLR at 169 per Deane and Toohey JJ), "freedom of political discourse" ((7) ibid. at 214 per Gaudron J) and "freedom of participation, association and communication in relation to federal elections" ((8) ibid. at 227 per McHugh J). 8. It follows therefore..... that there is an implied freedom of communication with respect to "discussion of government and political matters".... The scope of the implied freedom 9. Whether that freedom extends to the publication of matter concerning members of Parliament relating to the performance by such members of their parliamentary duties and their suitability for parliamentary office is the next question. The implied freedom of communication is not limited to communication between the electors and the elected. Because the system of representative government depends for its efficacy on the free flow of information and ideas and of debate, the freedom extends to all those who participate in political discussion. By protecting the free flow of information, ideas and debate, the Constitution better equips the elected to make decisions and the electors to make choices and thereby enhances the efficacy of representative government. Is the freedom confined to discussion of matters relating to the Parliament and government of the Commonwealth and Commonwealth public affairs? 10. The concept of "political discussion" is not limited to matters relating to the government of the Commonwealth, using that expression in its broadest sense so as to include the public affairs of the Commonwealth. In Australian Capital Television, Mason CJ, Deane and Toohey JJ and Gaudron J rejected that limitation ((10) ibid. at 142, 168-169, 215-217.). The interrelationship of Commonwealth and State powers and the interaction between the various tiers of government in Australia, the constant flow of political information, ideas and debate across the tiers of government and the absence of any limit capable of definition to the range of matters that may be relevant to debate in the Commonwealth Parliament and to its workings make unrealistic any attempt to confine the freedom to matters relating to the Commonwealth government... 11. ...criticism of the views, performance and capacity of a member of Parliament and of the member's fitness for public office, particularly when an election is in the offing, is at the very centre of the freedom of political discussion ((13) See Nationwide News (1992) 177 CLR at 72 per Deane and Toohey JJ). 12. But it is desirable to consider the question: what is the content of the expression "political discussion", bearing in mind that the underlying purpose of the freedom is to ensure the efficacious working of representative democracy. In approaching that question, the fact that it is not possible to fix a limit to the range of matters that may be relevant to debate in the Commonwealth Parliament is again a relevant consideration. 14. For present purposes, it is sufficient to say that "political discussion" includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, e.g., trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices. Barendt states that ((15) Freedom of Speech, (1985) at 152.): "'political speech' refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about". It was this idea which Mason CJ endeavoured to capture when, in Australian Capital Television, he referred to "public affairs" as a subject protected by the freedom ((16) (1992) 177 CLR at 138-140.).
"is assured only to speech which bears, directly or indirectly, upon issues with which voters have to deal - only, therefore, to the consideration of matters of public interest. Private speech, or private interest in speech, on the other hand, has no claim whatsoever to the protection of the First Amendment". Thus, he distinguishes between commercial speech - "a merchant advertising his wares" - and speech on matters of public concern ((18) ibid. at 37.). The problem is, of course, that what is ordinarily private speech may develop into speech on a matter of public concern with a change in content, emphasis or context. That conclusion is not inconsistent with the proposition that speech which is simply aimed at selling goods and services and enhancing profit-making activities will ordinarily fall outside the area of constitutional protection. Commercial speech without political content "says nothing about how people are governed or how they should govern themselves" ((19) Re Klein and Law Society of Upper Canada (1985) 16 DLR (4th) 489 at 539 per Callaghan J; cf. Ford v. Quebec (Attorney-General) (1988) 54 DLR (4th) 577 at 618-619.). 16. It is necessary to treat with some caution Canadian and United States judicial decisions dealing with general guarantees of freedom of speech. Their constitutional provisions are not the same as ours. In our case, not all speech can claim the protection of the constitutional implication of freedom we have identified in order to ensure the efficacious working of representative democracy and government. The foregoing examination of the freedom implied by the Australian Constitution indicates that there is a significant difference between that freedom and an unlimited freedom of expression and that the difference, though it does not lend itself to precise definition, is capable of being ascertained when the occasion to do so arises. In this respect, it is instructive to contrast the limited concept of freedom of expression as implied earlier by the Supreme Court of Canada from the British North America Act 1867 (Imp.) ((20) See, for example, Re Alberta Legislation (1938) 2 DLR 81; Switzman v. Elbling (1957) 7 DLR (2d) 337.) with the expanded concept of freedom of expression resulting from that Court's more recent interpretation of the Canadian Charter of Rights and Freedoms ((21) See, for example, Retail, etc., Union v. Dolphin Delivery Ltd. (1986) 33 DLR (4th) 174; Ford v. Quebec (Attorney- General).). The difference between the two reflects the difference between protection of freedom of expression generally as a fundamental human right and the protection of freedom of communication in matters of political discussion as an indispensable element in ensuring the efficacious working of representative democracy and government. Is the implied freedom a source of positive rights, an immunity or a restriction on legislative and executive power? The relationship between the implied freedom and the common law of defamation 17.... 18. It is also clear that the implied freedom is one that shapes and controls the common law. At the very least, development in the common law must accord with its content. And, though it may not have been apparent in 1901 or, indeed, at any time prior to the decisions in Nationwide News and Australian capital Television, if the content of the freedom so required, the common law must be taken to have adapted to it in 1901. 19. The question in this case is whether the nature of the implied freedom is such that that freedom impinges on the existing laws of defamation.... 21. ...the limits to constitutional freedoms are to be determined by evaluating what is necessary for the working of the Constitution and its principles.... The antecedent common law can at most be a guide in this analysis...
27. The contention that the existing laws of defamation do not constitute an infringement of the implied freedom is said to draw some support from two considerations. The first is that, in both England and Canada, it has been decided by courts of the highest authority that defamation laws rejecting the sufficiency of the honest belief defence in defamation are consistent with a guarantee of freedom of expression. In Derbyshire C.C. v. Times Newspapers Lord Keith of Kinkel (with whom the other Law Lords agreed) referred ((31) (1993) AC 534 at 551.) with approval to the comment of Lord Goff of Chieveley in Attorney-General v. Guardian Newspapers Ltd. (No.2) ((32) (1990) 1 AC 109 at 283-284.) that, in the field of freedom of speech, there was no difference in principle between English law on the subject and Art.10 of the European Convention on Human Rights. However, whatever significance that statement might have otherwise had for the present case disappears when attention is given to the actual decision in Derbyshire. The House of Lords unanimously upheld a unanimous decision of the Court of Appeal. In so doing, their Lordships held that, since it was of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism and since the threat of civil actions for defamation would place an undesirable fetter on the freedom to express such criticism, it would be contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for defamation ((33) (1993) AC at 547, 549, 550.). 28. The second consideration is that, in Canada, it has been decided that the freedom of expression guaranteed by s.32 of the Charter of Rights and Freedoms does not confer upon a person any right or immunity beyond that accorded by the relevant laws of defamation ((34) Retail, etc., Union v. Dolphin Delivery Ltd.; Coates v. The Citizen (1988) 85 NSR (2d) 146; Derrickson v. Tomat (1992) 88 DLR (4th) 401 at 408; Pindling v. National Broadcasting Corp. (1984) 14 DLR (4th) 391 at 399.). The basis of the Canadian approach seems to be that the freedom is a protection truly against government conduct and government conduct does not include the judicial enforcement of private common law rights. However, that is not the approach which was taken by the Supreme Court of the United States in the celebrated case of New York Times Co. v. Sullivan ((35) (1964) 376 US 254.). In that case, the Supreme Court held that the guarantee of free speech contained in the First Amendment protected even false defamatory speech unless the plaintiff could prove actual malice or reckless disregard for truth or falsity on the part of the defendant. This approach does not limit the protection to protection against government conduct. The European Court of Human Rights has also taken a broad approach to Art.10 of the European Convention on Human Rights ((36) Lingens v. Austria (1986) 8 EHRR 407; Case of Oberschlick v. Austria Series A, No. 204, 23 May 1991.). Article 10 and the First Amendment are general guarantees of freedom of expression and are not confined to ensuring the efficacy of democratic government. But that circumstance is not a reason for concluding that the United States and European approaches are irrelevant or inappropriate to our situation. 29. To our minds, it is incontrovertible that an implication of freedom of communication, the purpose of which is to ensure the efficacy of representative democracy, must extend to protect political discussion from exposure to onerous criminal and civil liability if the implication is to be effective in achieving its purpose. The correctness of that proposition has repeatedly been affirmed. In the United States, in City of Chicago v. Tribune Co. Thompson CJ said ((37) (1923) 139 NE 86 at 90.): "While in the early history of the struggle for freedom of speech the restrictions were enforced by criminal prosecutions, it is clear that a civil action is as great, if not a greater, restriction than a criminal prosecution. If the right to criticize the government is a privilege which ... cannot be restricted, then all civil as well as criminal actions are forbidden. A despotic or corrupt government can more easily stifle opposition by a series of civil actions than by criminal prosecutions". That statement, along with others to the same effect, was endorsed by the Supreme Court of the United States in Sullivan.
"While these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlaid them are no less valid in this country. What has been described as 'the chilling effect' induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available." Earlier his Lordship had observed ((40) ibid. at 547.): "The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech." 31. The statements quoted above, as well as the decision in Sullivan, speak eloquently of the tendency of the law of defamation to inhibit the exercise of the freedom of communication - "the chilling effect" - in the United States and the United Kingdom. In Australia also the existence of that tendency has been noted ((41) New South Wales Law Reform Commission, Discussion Paper No.32, Defamation, August 1993.). Nonetheless, there is an argument that, despite that tendency of the law of defamation, it does not amount to an infringement of the freedom because the common law of defamation has endeavoured to achieve an acceptable balance between the public interest in giving effect to freedom of speech and the competing public interest in protecting the reputation of individuals who are defamed. The defences of truth, privilege and fair comment have been developed with a view to resolving the tension which exists between recognition of freedom of speech and the necessity of protecting the individual from injury to reputation. Thus, it may be said that, because the common law of defamation has been moulded by the judges with that end in view, the law has arrived at an appropriate balance of the competing interests so that freedom of communication is not infringed. The answer to this argument, so it seems to us, is that, in reaching that balance, the courts have not taken account of the fact that there is an implied freedom of communication. The decisions which establish the common law principles have not been concerned to assess the inhibiting impact of the law of defamation and threats of action for defamation on the exercise of that freedom. It follows, in our view, that the Court is not justified in concluding that the balance achieved by the common law in protecting the reputation of the individual defamed and the publication of political discussion necessarily means that there is no inconsistency between common law principles and the freedom. 32. Furthermore, the acknowledged tendency of the existing law of defamation to inhibit the exercise of the freedom tells strongly against the absence of such inconsistency. In Sullivan, Brennan J, who delivered the opinion of the Court, pointed out ((42) (1963) 376 US at 279.) that a rule compelling the critic of official conduct to prove truth as a defence to actions in which punitive damages may be awarded does not deter false speech only. It is often difficult to prove the truth of the alleged libel in all its particulars. And the necessity of proving truth as a defence may well deter a critic from voicing criticism, even if it be true, because of doubt whether it can be proved or fear of the expense of having to do so.... 33. The common law defences of fair comment and qualified privilege are not always available. Fair comment is available only for the expression of opinion and, then, only if the comment is based on facts which are notorious or truly stated. Qualified privilege depends on the absence of malice and on the person who makes the communication having an interest or duty in its making and on the recipient having a corresponding interest or duty in receiving it. The requirement for reciprocity of interest has the effect that common law qualified privilege is usually not available where the information has been disseminated to the public generally.... 34. In these circumstances, the common law defences which protect the reputation of persons who are the subject of defamatory publications do so at the price of significantly inhibiting free communication. To that extent, the balance is tilted too far against free communication and the need to protect the efficacious working of representative democracy and government in favour of the protection of individual reputation. In the case of a statutory regime, the outcome will depend on identification of the criteria which determine whether publication of political matter is non-actionable. The criteria to determine whether publication of political matter is non-actionable 35. What then are the criteria to be applied in determining whether a publication which discusses political matters and is defamatory of the plaintiff is nonetheless not actionable?... the freedom under the Australian Constitution is not absolute, an absolute immunity from action cannot easily be supported. It does not seem to us that the efficacious working of representative democracy and government demands or needs protection in the form of an absolute immunity. There is nothing in that concept which requires that a person who publishes a statement be protected from the consequences of making a defamatory statement which is knowingly false. Nor does that concept require protection of a publication made with reckless disregard for the truth or untruth of the material published. The public interest to be served does not warrant protecting statements made irresponsibly. 36. The case for adopting the Sullivan test - that the publication is not actionable unless it is made with knowledge of falsity or with reckless disregard for the truth or falsity - or some version of it, is that it offers some protection to the reputation of the individual who is defamed and at the same time offers a large measure of protection to the publisher. The publisher is at risk only if the publisher has knowledge of falsity or acts recklessly. Although the so-called "chilling effect" of a threatened action for defamation may not entirely be dispelled, it would be substantially eliminated by the application of such a test. The principal criticism of such a test is that it sets too little store by the reputation of the person defamed. Further, the Sullivan test imposes an additional obstacle by requiring a plaintiff to make out a case with "convincing clarity". 43. However, once it is acknowledged, as it must be, that the existing law seriously inhibits freedom of communication on political matters, especially in relation to the views, conduct and suitability for office of an elected representative of the people in the Australian Parliament, then, as it seems to us, that law is inconsistent with the requirements of the implied freedom of free communication. The law of defamation, whether common law or statute law, must conform to the implication of freedom, even if conformity means that plaintiffs experience greater difficulty in protecting their reputations. The interests of the individual must give way to the requirements of the Constitution. At the same time, the protection of free communication does not necessitate such a subordination of the protection of individual reputation as appears to have occurred in the United States. 44. For that reason the defendant should be required to establish that the circumstances were such as to make it reasonable to publish the impugned material without ascertaining whether it was true or false. The publisher should be required to show that, in the circumstances which prevailed, it acted reasonably, either by taking some steps to check the accuracy of the impugned material or by establishing that it was otherwise justified in publishing without taking such steps or steps which were adequate. To require more of those wishing to participate in political discussion would impose impractical and, sometimes, severe restraint on commentators and others who participate in discussion of public affairs. Such a restraint would severely cramp that freedom of political discussion which is so essential to the effective and open working of modern government. At the same time, it cannot be said to be in the public interest or conducive to the working of democratic government if anyone were at liberty to publish false and damaging defamatory matter free from any responsibility at all in relation to the accuracy of what is published. 45. In other words, if a defendant publishes false and defamatory matter about a plaintiff, the defendant should be liable in damages unless it can establish that it was unaware of the falsity, that it did not publish recklessly (i.e., not caring whether the matter was true or false), and that the publication was reasonable in the sense described. These requirements will redress the balance and give the publisher protection, consistently with the implied freedom, whether or not the material is accurate. 47. It will be noted from the preceding paragraphs that we do not consider that the plaintiff should bear the onus of proving that the publication is not protected. In our view, it is for the defendant to establish that the publication falls within the constitutional protection. That approach accords with the approach that the courts have taken in the past to proof of matters of justification and excuse and we are not persuaded that the constitutional character of the justification should make any difference to the onus of proof. Whether the defendant has acted reasonably will involve consideration of any inquiry made by the defendant before publishing; that is a matter peculiarly within the knowledge of the defendant. 48. The requirement that a publisher publish honestly, not recklessly, and reasonably is to require no more than is reasonably necessary to protect the individual's reputation from damaging defamatory publications. True it is that the test so formulated does not call for a determination of the truth or untruth of the defamatory imputation, that being the gravamen of the plaintiff's complaint in most cases. And the test, as we have formulated it, deprives a plaintiff of a trial on the issue of truth or falsity. A trial on that issue, if the outcome were favourable to the plaintiff, would result in his or her vindication. However, the formulation of a test which focuses on the truth or falsity of the defamatory imputation rather than the defendant's belief in truth or falsity, would, in our view, run counter to the freedom of communication implied by the Constitution and the purpose it seeks to serve. Whether a publisher has acted reasonably must be a question of fact in every case. It will depend upon the standards and expectations of the community as to whether the allegations needed to be investigated. Reasonableness is a concept with which the law is familiar.... The constitutional implication of freedom and qualified privilege 52. Common law qualified privilege must now be viewed in the light of the implied constitutional freedom. That does not necessitate a review of its essential feature, namely, publication on an occasion of qualified privilege, or of the common law requirement that publication be without malice. It does, however, require some consideration of the notion of reciprocal interest and duty. The public at large has an interest in the discussion of political matters such that each and every person has an interest, of the kind contemplated by the common law, in communicating his or her views on those matters and each and every person has an interest in receiving information on those matters. It is an interest which exists at all times; it is not confined to situations where it is publicly anticipated that a federal election will be called. It follows that the discussion of political matters is an occasion of qualified privilege. Even understood in this light, the common law defence does not conform to the constitutional freedom. As already explained, the freedom requires no more than that the person who publishes defamatory matter in the course of political discussion does not know that it is false, does not publish recklessly, and does not publish unreasonably, in the sense earlier explained.
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