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,
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
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