Qualified Privilege and Publication to the World at Large

• Author: Roger McConchie; David Potts
• Profession: Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
• Pages: 425-463

CHAFTER

NIN

EJEEN:

Qualified Privilege

and

Publication

to the

World

at

Large:

D

e

v

e 1 o p

in

e

n

t s i

n

Australia,

I

Ii

e

U

n

i

t e d

K.

i n g d o

in

, a n.

cl

N e

w

Z

c

a I a

n

cl

A.

INTRODUCTION

The

scope

of a

qualified

privilege

defence

for

publication

to the

world

at

large

in the

news media

has

significantly

expanded

in

Australia,

the

United

Kingdom,

and New

Zealand since

the

Supreme Court

of

Canada last dis-

cussed

qualified

privilege

in

Hill

v.

Church

of

Scientology

of

Toronto,

[1995]

2

S.C.R.

1130.

The

highest courts

in

those three

foreign

jurisdictions have extended

the

common

law

defence

of

qualified

privilege

as it

applies

to

expression

in the

news media.

The

leading cases are:

Lange

v.

Australian

Broadcasting

Corp.

(1997),

145

A.L.R.

96,

where

a

unani-

mous High Court

of

Australia recognized

an

extended category

of

qualified

privilege

for

expression concerning government

and

political matters that

affect

the

people

of

Australia.

As a

constraint,

a

test

of

"reasonableness" must

be

satisfied

by the

publisher.

Reynolds v. Times Newspapers Ltd., [1999] 4 All E.R. 609 (H.L. (Eng.)), where

the

House

of

Lords held that

a

publication

to the

world

at

large

may

attract

the

protection

of

qualified

privilege,

on a

case-by-case basis, depending

on all

the

circumstances,

if the

public interest

is

served.

To

obtain

the

benefit

of

"Reynolds

privilege,"

a

publisher must

satisfy

the

requirements

of

"responsi-

ble

journalism."

Lange

v.

Atkinson, [2000]

3

N.Z.L.R.

385,

where

the New

Zealand Court

of

Appeal

unanimously held that political expression concerning

the

actions

and

qualities

of

persons currently

or

formerly

elected

to

Parliament

and

those

with immediate aspirations

to

such

office,

so far as

those actions

and

quali-

ties

directly

affect

or

affected

their capacity

to

meet their political responsibil-

425

426

CANADIAN

LIBEL

AND

SLANDER ACTIONS

ities,

was

privileged.

The

constraint

is

that

the

privilege must

be

responsibly

used,

not

misused.

In

some cases,

the

obligation

to be

responsible will come

close

to a

requirement

to

take reasonable care;

in

others,

a

genuine

belief

after

hasty

and

incomplete consideration

may be

adequate.

These decisions

and

subsequent foreign authorities which have inter-

preted

or

applied them warrant close scrutiny

by

Canadian judges

who are

now

being asked

by

defendants, particularly

the

news media,

to

expand

the

scope

of

qualified

privilege

for

publication

to the

world

at

large.

Lord

Nicholls,

speaking

as a

member

of the

Judicial Committee

of the

Privy

Council

in

Lange

v.

Atkinson,

[2000]

1

N.Z.L.R.

257, said

(at

pages

261-63):

...

[S]triking

a

balance between

freedom

of

expression

and

protection

of

rep-

utation

calls

for a

value judgment which depends

on

local political

and

social

conditions. These conditions include matters such

as the

responsibility

and

vulnerability

of the

press

...

Even

on

issues

of

public policy, every jurisdic-

tion

can

benefit

from

examinations

of an

issue undertaken

by

others. Inter-

action

between

the

jurisdictions

can

help

to

clarify

and

refine

the

issues

and

the

available options, without prejudicing national autonomy.

A

succinct explanation

of the

distinctions between

the

three decisions

is

given

in the

judgment

of the New

Zealand Court

of

Appeal

in

Lange

v.

Atkinson, [2000]

3

N.Z.L.R.

385:

18

Each country

has

recognized

a new

occasion

or the

potential

for a new

occasion

may be one in

which

the

communication

is

made

to the

public

at

large,

thereby removing

any

capacity

for the

defence

to be

defeated

by

excess

of

publication.

The

compass

of the

subject-matter

seen

as

giving rise

or

capa-

ble of

giving rise

to the

privilege

is not the

same

in the

three countries.

In the

United

Kingdom

the

subject-matter

is

widely

defined,

but the

focus

is

direct-

ly

particularly

to the

position

of a

national newspaper.

In

Australia

the

sub-

ject-matter

relates essentially

to the

conduct

of

politicians, both

in

that

country

and

elsewhere.

In New

Zealand,

the

subject-matter

is

tightly defined,

but its

application

is to all

manner

of

publications.

It is

primarily

the

defini-

tion

of the

controls governing

the

extension which

has

given rise

to

differ-

ences

of

approach.

The

implications

of the

differing

solutions adopted

by the

Australian,

United Kingdom,

and New

Zealand courts cannot

be

understood without

a

detailed review

of the

facts

and

judicial reasoning underlying

the

decision

in

each jurisdiction. This chapter attempts such

a

review below.

Chapter

Nineteen:

Qualified

Privilege

and

Publication

to the

World

B.

LANGE

v.

AUSTRALIAN

BROADCASTING

CORPORATION

Plaintiff

David Lange,

a

former

Prime Minister

of New

Zealand,

sued

the

Australian

Broadcasting Corporation

in the

Supreme Court

of New

South

Wales over

a

broadcast

which

occurred

when

he was a

member

of the New

Zealand Parliament.

The

broadcaster defended

by

pleading, among other defences, common

law

qualified privilege, alleging that

the

expression

at

issue concerned sub-

jects

of

public interest

and

political matters

and

that

the

defendant

had a

duty

to

publish

the

material

to

viewers

who had a

legitimate interest there-

in, and a

reciprocal interest

in

receiving information relating

to

those sub-

jects because they related

to

political, social,

and

economic matters occurring

in New

Zealand.

The

matter came

before

the

High Court

of

Australia

on a

stated case

from

the

Supreme Court

of New

South Wales

[(1997),

145

A.L.R.

96].

At the

hearing

in the

High Court,

the

plaintiff

asked

the

Court

to

reconsider

its

decisions in Theophanous v. Herald and Weekly Times Ltd. (1994), 182 C.L.R.

104

(H.C.A.)

and

Stephens

v.

West

Australian

Newspapers

Ltd.

(1994),

182

C.L.R.

211

(H.C.A.),

and to

hold that those decisions

did

not,

in any

event,

apply

to the

discussion

in

Australia

of the

conduct

of a

Member

of

Parlia-

ment

for New

Zealand.

On 8

July

1997,

the

High Court

of

Australia unanimously ruled (5-0)

[paragraphs

62-63]:

162

...

each member

of the

Australian community

has an

interest

in

dissem-

inating

and

receiving information, opinions

and

arguments concerning gov-

ernment

and

political matters that

affect

the

people

of

Australia.

The

duty

to

disseminate such information

is

simply

the

correlative

of the

interest

in

receiving

it. 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

Aus-

tralian

community

has in

such

a

discussion

extends

the

categories

of

quali-

fied

privilege. Consequently, those categories

now

must

be

recognised

as

protecting

a

communication made

to the

public

on a

government

or

political

matter.

Discussion

of

matters concerning

the

United Nations

or

other coun-

tries

may be

protected

by the

extended defence

of

qualified

privilege, even

if

those

discussions

cannot

illuminate

the

choice

for

electors

at

federal

elections

or

in

amending

the

Constitution

or

cannot throw light

on the

administration

of

federal

government.

427