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Date: Fri, 14 Dec 2007 04:35 From: Neil Foster Subject: HCA on fair comment in defamation
Dear Colleagues For those on the torts side of the fence, the High Court considers the defence of "fair comment" in Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 (13 December 2007). The essence of the disagreement between the majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) and Kirby J in dissent was whether, in the context of a television "promo" for an upcoming story on a "tabloid-style" current affairs show, a defence of fair comment should be struck out because the facts on which the comments were allegedly based were not "sufficiently identified" in the context. For the majority, strike-out was appropriate; the brief advertisement made a number of defamatory comments, and in the advertisement itself nothing else was given to support them. The relevant facts were neither expressly stated, referred to, or "notorious"- see e.g. the summary at [49]. For Kirby J, a strike-out rule of this sort in relation to a short television advertisement was inappropriate and unduly restrictive of free speech. His Honour stressed the need to adapt the common law (the case was decided in South Australia before the Uniform Defamation Acts came into effect) to the circumstances of modern communication. Here the advertisement itself indicated that by watching the main show a viewer would be given a chance to weigh up the relevant facts - see e.g. [163]. Hence this should have amounted to a sufficient "reference" to the facts. There is a lot of other stuff in the case, but I think this boils down the main issue.
Regards Neil Foster
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