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Australian Press Council New s, February 2008
Developments in the defence of fair comment
Case note: The M a n o ck case
Background
Channel Seven’s high-rating, prime-time television programme
(sometimes misleadingly referred to as being “current affairs”),
Today Tonight, has something of a reputation for sensationalism.
It is no stranger to controversy, nor to litigation. On 5 March 2004
Channel Seven broadcast a promotion for a forthcoming edition
of Today Tonight. Displayed on the screen was an image of
forensic pathologist, Dr Colin Manock, while the voiceover
recited the following words:
The new Keogh facts. The evidence they kept to themselves.
The data, dates and documents that don’t add up.
The
evidence changed from one court to the next. They’re so smug
and complacent about how fantastic our court system is, that
we need an urgent wakeup call. Unless the investigation is
thorough then the court proceedings aren’t going to be complete
because they’re only getting part of the story.
Dr. Manock brought defamation proceedings against Channel
Seven, alleging that the promotion conveyed the meaning that the
he had deliberately concealed evidence. Channel Seven sought to
defend the action on the basis of fair comment, but extensive
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IN S ID E T H I S IS S U E
• Getting the balance right
1
Deborah Kirkman examines Council adjudications
dealing with redress.
• Developments in the defence of fair comment
2
Case Note: The Manock case
• Press Council News
4
News and information about the News by email;
the Prize; a vacancy on the Council; a trip to New
Zealand; submissions on privacy, children in court
and freedom of information; two opinion articles;
the expulsion of a publisher from Fiji; generic
images of children; and conciliated complaints.
• Fairfax v Hitchcock
8
A Case Note on the public interest
• Press Council Adjudications
9
Rulings from December 2007 and January 2008.
• About the Council
12
<________________________________________________ >
portions of the defence pleadings were struck out. Channel Seven
appealed to the High Court in an effort to have those paragraphs
retained.
Pleadings and Imputations
The first aspect of the High Court’s decision in Channel Seven
Adelaide Pty Ltd v Manock [2007], which may generate some
concern, is the nairowness with which the issues were framed by
the plaintiff and the acceptance of this approach by the court. The
plaintiff s case was confined to a single contention: that the
promotion had inferred that the plaintiff had deliberately concealed
evidence. The defendant sought to have the “matter complained
o f ’, i.e. the promotion, considered as a whole, which explains the
way its pleading was devised.
The defence alleged that the true meaning of the promotion was
that the plaintiffs evidence in criminal trials was unsatisfactory
and emphasised that the plaintiff had conducted an inadequate
investigation into the Keogh case and had given inaccurate
evidence. The court, in accepting the plaintiff s narrow focus on
a single pleaded imputation, was essentially rejecting a contextual
approach to the broadcast material.
The defendant’s pleading was struck out on the basis that it did not
specifically address the plaintiffs pleading that the promotion
carried the imputation that the plaintiff had deliberately concealed
evidence, instead being concerned with individuals other than the
plaintiff or inadequacies in the plaintiffs investigation. The
defendant argued that the cause of action lay in the published
material and not in the imputations conveyed. In response to this
argument, the High Court stated that even if the defence should be
directed at the words complained of, the defendant’s pleading
does not meet that criterion.
While the narrow framing of the issues and the reference to
imputations may ring alarm bells with members of the media, this
aspect of the decision should not be over-emphasised. The court
stated that it would prefer that the tenn “imputation” not be used.
The court is simply stating that the defendant has failed to address
the plaintiffs complaint that the published material made
representations that the plaintiff had concealed evidence, and
large sections of the defence were struck out on the basis that they
were irrelevant to that issue.
This aspect of Manock was relied upon in a recent decision of the
Victorian Court of Appeal. In the case of Hore-Lacy v Cleary
[2007], the court considered whether it is necessary for the
defence of fair comment to address the “sting of the libel as
pleaded”. The High Court’s position in Manock was cited as
supporting the plaintiffs application for the striking out of certain
paragraphs o f the pleaded defence.
Australian Press Council News, February 2008
The facts upon which comment based must be
“sufficiently indicated”
The second aspect of Manock which may generate concern
among media professionals is the reference to facts as a component
of the fair comment defence. The representations made in the
matter complained of may have been supported by facts which
were only broadcast at a later time, as part of the full story in
Today Tonight. But the plaintiff s action was directed at the
promotion, which did not recite facts. It was contended that the
defendant could not rely on the fair comment defence in the
absence of a statement of facts which could be the basis for such
comment.
The court found that the facts upon which the defendant’s
comment were based were not sufficiently indicated or notorious
to enable those who viewed the promotion to judge for themselves
how far the opinions expressed were well founded. On this basis,
the defence of fair comment was not available. But before
jumping to the conclusion (as some commentators have done)
that the High Court has narrowed the scope of the fair comment
defence or has added any additional hurdle to be overcome, it
should be acknowledged that the High Court was doing no more
than applying a precedent which has been in place since 1993.
In Pervan v North Queensland Newspaper Co Ltd (1993), the
High Court stated that “facts on which the comment is based
[must be] sufficiently indicated or notorious to enable persons to
whom the defamatory matter is published to judge for themselves
how far the opinion expressed in the comment is well founded”.
The majority decision in Pervan is precedent for the principle that
the fair comment defence is only available if the facts upon which
the comment is based are either notorious or are stated or referred
to in the published material. This is in order to enable readers to
decide for themselves whether the comment is fair, rather than
relying on the word of the publisher.
However, it may not be necessary to recite relevant facts together
with the published material, provided they are “sufficiently
indicated” or “notorious”. The question that editors must ask is:
what is required to satisfy the definition of “sufficiently indicated”?
Plainly, the Today Tonight promotion did not sufficiently indicate
the relevant facts, although a similar promotion might have been
defensible if it concerned a matter which was well-known to the
average viewer. In recent years, some publishers have adopted
the practice of directing readers to an Internet address in order to
access more detailed information, a practice hinted at in Justice
Kirby’s judgment, where he refers to changes in technology and
interactivity. This suggests that an issue which might arise in the
future is whether such a hyperlink or a reference to a website,
where detailed facts can be found if the reader cares to pursue
them, would be sufficient to satisfy the test o f facts being
sufficiently indicated.
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Reasonableness
A third aspect of Manock that might give cause for anxiety among
editors is the issue of whether a comment must be reasonable in
order to satisfy the fair comment defence. On behalf of Channel
Seven, it was argued that reasonableness is not a requirement of
the test for fair comment. It was submitted that the fair comment
defence would apply where the opinion expressed could be held
by an “honest person, allowing for the fact that that person might
be prejudiced and hold exaggerated or obstinate views ... on the
basis of the pleaded accumulation of such a large number of
inconsistencies and inadequacies”. The High Court majority
rejected that submission, citing two cases - Goldsbrough v John
Fairfax and O ’Shaughnessy v Mirror Newspapers - which state
that to be fair, comment must express an opinion that might be
reasonably formed by a fair-minded or honest person upon the
facts.
In his judgment, Chief Justice Gleeson stated that, in the context
of the fair comment defence, fair “does not mean objectively
reasonable”, but rather, “the defence protects obstinate, or foolish,
or offensive statements of opinion, or inference, or judgment”.
From Gleeson’s words we can conclude that the “fairness” in fair
comment does not refer to the reasonableness or otherwise of the
opinions expressed in the published comment, but rather the
fairness derives from the comment being presented in a context in
which the reader or audience is in a position to agree or disagree
with the comment, because the relevant facts are notorious, or
because the facts are referred to in the published material.
There appears to be a contradiction, or at least a slight shift,
between the views of Gleeson CJ and those of the majority. Can
they be reconciled? The defendant’s submission uses the word
“prejudice”, which could be considered as consistent with malice
on the part of the opinion holder. It may be that the majority’s
intent in rejecting the defence’s submission was not to require a
rational or well-reasoned basis for an opinion expressed in a fair
comment, but rather to make clear that prejudice or malice is
inconsistent with the fair comment defence.
Regardless of whether the majority did or did not intend to make
reasonableness a component of fair comment, it is not crucial in
the rejection of the defendant’s pleading, which was based on the
defendant’s failure to give adequate reference to the facts
underlying its comments in relation to the plaintiff. Consequently,
it may be regarded as obiter dicta. While the court’s remarks in
relation to reasonableness may be cited in the future, they should
not carry the same weight as if they were central to the court’s
ratio decidendi.
Inez Ryan