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Date: Tue, 3 Oct 2006 12:05:50 +1000 From: Neil Foster Subject: High Court of Australia on public interest in defamation
Dear Colleagues; A brief note. The High Court in ABC v O'Neill [2006] HCA 46 (28 Sept 2006) ruled by 4-2 that the Australian Broadcasting Corp should not have been restrained by injunction from broadcasting a TV program suggesting that Mr O'Neill, who is currently serving a life sentence for murder of a young boy (and who is said to have confessed to police his responsibility for another similar murder for which he was not prosecuted), was guilty of another 3 murders of children in the 1960s (a notorious unsolved case involving the Beaumont children). [At the time in Tasmania to make out the defence of justification the publisher needed to prove not only truth but also public benefit. This was also the case in NSW and some other Australian states. In general the States have now all amended their laws to adopt a (reasonably) uniform system which now provides that truth alone is a defence, the situation which I understand has been the case for some time in the UK. See eg Defamation Act 2005 (NSW) s 25. I know less about other jurisdictions. However, given that the decision here revolves around high-level issues such as prior restraint and freedom of speech, the case may still be relevant even now that truth alone is a defence.] It was assumed that there was some reason to think that the allegations contained in the program were true, especially ones like "Mr O'Neill is suspected of being involved in the Beaumont disappearance." Certainly some high-profile police were quoted as having such suspicions. But the trial judge granted an application for an interlocutory injunction preventing publication because he was not satisfied that it was in the public interest for there to be a "trial by media". The majority of the High Court held that there should not have been "prior restraint" of publication. There is much discussion of Bonnard v Perryman [1891] 2 Ch 269 which has been seen as setting up a very strong presumption against injunctions restraining publication in defamation cases. Courts should be reluctant to prevent publication of allegations of criminal behaviour, as in the past it was only through such publication that some matters have come to light. Free speech is an important consideration in these matters. In addition, given the current situation of the plaintiff, a convicted murderer who has apparently already confessed to another murder, the majority thought that it was fairly clear that even a successful trial of a defamation action would result in a small amount of damages. The dissenters, Kirby & Heydon JJ in separate judgements, hold effectively that the plaintiff, despite his position, is still entitled to defend himself against such grave allegations. (Even those convicted of serious crimes are not "libel-proof" - see eg [159].) As they note, the ABC could have simply chosen to expedite the hearing of the actual trial where the various matters could have been properly assessed. The allegations concerned matters that were many years old with no particular need for urgent disclosure. They also took into account the fact (not mentioned by the majority) that Mr O'Neill had effectively been persuaded to provide some of the information on which the TV show was based through deception practiced by the producers of the program (though not necessarily with the knowledge of the ABC.) The dissenters urge that Bonnard not be seen as setting up an "inflexible" rule. There is much discussion in the judgements of the basis for injunctions in defamation actions, delving into the history of both equity and the defamation area - see esp Gummow & Hayne JJ in the majority, and Heydon J in dissent. There is a lot more in the decision (it certainly won't appeal to those who look for shorter judgements and no footnotes!) but this hopefully gives an idea of the issues.
Regards
Neil
Foster
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