Defamation

Comparative Law and Practice

Andrew Kenyon

• Publisher: UCL Press
• Year: 2013
• Print ISBN: 9781138423664
• eBook ISBN: 9781136791567
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Defamation: Comparative Law and Practice offers a timely and original investigation into defamation law and litigation practice in England, Australia and the United States, combining close legal analysis and extensive empirical research to examine central aspects of defamation law.

This groundbreaking contribution to legal knowledge will be useful to researchers, academics, students and practitioners working in media and communications law. It will enable lawyers outside the US to make more informed use of US law and commentary and it sets out, in an accessible manner, the intricacies of English and Australian defamation law and practice for US legal readers.

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INTRODUCTION

Defamation actions are usually about words. The meaning of the words at issue is probably the most important single factor in a defamation case, since it is of cardinal significance at a great many stages.¹

I OVERVIEW

This book combines a close analysis of defamation law with extensive empirical research into defamation litigation practice in England, Australia and the US.² It examines issues that are most often at stake in, and central to, defamation disputes in each country. Although some points related to remedies are considered – including aspects of mitigating damages in England and Australia – the book’s analysis is focussed on two themes. The first examines the central role that a publication’s meaning plays in defamation law and practice, especially in England and Australia. The second investigates the ways in which media speech is protected by qualified privilege in England and Australia, and by the US constitutional rules developed since New York Times v Sullivan.³ The book provides legal analysis and empirical context for understanding important changes to defamation law, which have occurred in a number of commonwealth countries since the mid-1990s, and comparing them with the US law and practice that has experienced far longer constitutional influence.⁴

The book presents doctrinal and empirical material on the major elements of each party’s case in England and the most significant Australian defamation jurisdictions, namely the country’s two most populous states of New South Wales (NSW) and Victoria. In addition, defamation law elsewhere in Australia is noted at many points and the research’s implications for Australian jurisdictions are discussed at length.⁵ The issues examined concern each side’s pleading practices; defences related to truth, opinion and privilege; and litigation practices at the pre-trial and trial stages. The book also uses doctrinal and empirical material to explain legal and procedural differences under US law. The central aims of these sections include enabling non-US readers to make more informed use of US law and commentary, and bringing the intricacies of English and Australian defamation law to US readers in an accessible manner.

In relation to each of its themes, defamatory meaning and privileges for media speech, the book suggests that the ways in which different jurisdictions regulate defamation litigation is a major influence on the way reputation and free speech are reconciled. In this the book builds on previous work that has reviewed how legal procedures affect the protection of speech,⁶ and provides ample evidence of the ways in which the detail of practice matters for comparative legal analyses. The book has been completed when reforms to create uniform Australian defamation law appear reasonably likely to be enacted. They are discussed in detail in Chapter 10, and might be operating by the time the work is published. This makes it important to emphasise from the outset that almost every issue dicussed in this book related to meaning and privilege will have great relevance if the reforms occur. If the new provisions become law, Australian courts will need to make many decisions about their interpretation. In jurisdictions such as NSW, the research set out in the following chapters explains how some of the proposed changes should greatly influence the future operation of defamation law. Understanding how the existing law operates – especially in Australia and England – will be invaluable for working out how best to deal with uniform Australian defamation law. Similarly, those in non-Australian jurisdictions will need to take careful note of the current peculiarities in Australian defamation law, as discussed in later chapters, to appreciate how to draw on the Australian experience, both under its current and its proposed laws.

The focus on issues connected with the treatment of publications’ meaning is worth examining a little further at the outset. The meaning of words is complex, and is central to defamation law, particularly in England and Australia. Yet this area of ‘cardinal significance’ has not been examined closely in the defamation literature. To do that is one of this book’s central aims: it undertakes a comparative investigation of how meaning is dealt with in defamation law and litigation practice in England, Australia and the US. The most detailed examination is given to England, NSW and Victoria. The book addresses, in particular, the role of defence pleading of meaning under case law that has developed since the 1980s in England and Victoria, and the effects of the statutory cause of action and the limited role for the jury in NSW. Also examined are the very different ways in which issues of meaning arise in US law and practice. Meaning is a focus because it is almost inevitable that parties will differ as to what meaning is conveyed by a publication. This book explores how such a difference between the parties is dealt with in litigation, including the pleading and pre-trial practices that are open to each party and the arguments that can be presented at trial. The book investigates the various methods law can use for dealing with the word games that parties can play. It compares the law and litigation practice – concentrating on three significant English and Australian jurisdictions, while also explaining the very different US approach – to evaluate strengths and weaknesses in their differing approaches to meaning in defamation.

A Chapter outline

This chapter discusses existing empirical defamation research and other research into defamatory meaning and explains the project’s sociolegal focus. (The appendix provides further background to the book’s empirical research.) Addressing the book’s first theme begins in Chapters 2 and 3, in which the law most relevant to defamatory meaning in England and Australia is analysed. The chapters raise four related aspects of the law, and address them purely in doctrinal terms:

(a) the way a party is bound to a pleaded meaning;

(b) the degree of specificity required in a pleaded meaning;

(c) whether, and how, defence meanings are pleaded and dealt with in litigation; and

(d) the stage of a dispute at which differences between the parties about meaning are dealt with, including pre-trial and trial determinations.

Three of these major aspects appear in Chapter 2: how parties are bound, the degree of specificity required, and the stage of a dispute at which differences are determined. How should defamation law deal with these aspects of pleading meaning? NSW requires great precision in defamation pleading. The reported cases suggest many interlocutory hearings occur about the capacity of a publication to convey the pleaded imputations. The common law approach, however, may no longer be very different. It also witnesses arguments about which meanings are capable of being conveyed. But the common law may have advantages in avoiding some of the NSW technicality, which has been criticised by some commentators. The fourth aspect, raised in Chapter 3, is to evaluate the Lucas-Box or Polly Peck style of defence pleading,⁷ and the contextual truth defence under s 16 of the Defamation Act 1974 (NSW). Does either approach arise often and how is it dealt with? Are there reasons of trial practice supporting either approach? This matter is timely after criticism of the Polly Peck approach in the Australian High Court and subsequent alteration of the law in many Australian states.⁸ In short, defence pleading of meaning appears to be significant in practice and worthy of greater consideration.

In Chapters 4 to 6 the book moves to litigation practice in relation to these four aspects of the law. For defamatory meaning, examining practice is invaluable, as this chapter’s opening quotation from the Faulks Committee in England suggests.⁹ So, in these chapters, defamation practice from England, NSW and Victoria is investigated. By analysing court files and reporting on practitioners’ understandings of litigation, the chapters examine the practices c...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Preface
• Table of Contents
• Table of Cases
• Tables of Statutes and Rules
• Short Citations and Abbreviations
• 1 Introduction
• 2 Is a Defamatory Meaning Conveyed? English and Australian Law
• 3 Defences Relevant to Meaning: English and Australian Law
• 4 Meaning: English Defamation Practice
• 5 Meaning: New South Wales Defamation Practice
• 6 Meaning: Victorian Defamation Practice
• 7 Qualified Privilege: English and Australian Law and Practice
• 8 US Defamation Law and Practice
• 9 Lucas-Box and Polly Peck in Australia
• 10 Comparative Defamation Law and Practice
• Appendix Empirical Methodology and Research Samples
• Bibliography
• Index