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Snapshot

  • Since 1 July 2021, NSW Defamation law has a dedicated defence for publications in the ‘public interest’.
  • The defence has been part of English common law since 1999 and UK statute since 2013.
  • Given the almost identical NSW provision, UK cases may be instructive as to how NSW courts will determine this test.

In 1 July 2021, the Defamation Amendment Act 2020 brought into force several changes to NSW’s Defamation Act 2005.

One noteworthy reform (see ‘Defamation law and the new serious harm test’, 81 Law Society of NSW Journal, September 2021, p80 for another one) is the new s 29A; s 29A(1) states it is a defence to the publication of defamatory matter if the defendant proves that:

  1. ‘the matter concerns an issue of public interest, and
  2.  the defendant reasonably believed that the publication of the matter was in the public interest.’

Section 29A(2) states all the circumstances of the case must be taken into account, but s 29A(3) states a court may take into account one or more of the nine factors listed, if it considers any of them applicable. To ensure s 29A(3) is not used as a checklist, s 29A(4) stresses that s 29A(3) does not require each factor to be taken into account or limit the matters that may be taken into account. Finally, in trying to clear up the hitherto vexing question as to whether the jury or judge decides ‘reasonableness’ in qualified privilege (see e.g. Fairfax v Gayle [2019] NSWCA 172), s 29A(5) states this defence is to be determined by the jury, if there is one.

In the Second Reading Speech and the Explanatory Notes to the Amendment Act, the Government has said the object of this defence is ensuring defamation law does not ‘place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance’ (Notes, p 10) and also says, like serious harm, that this new defence is ‘comparable… to the defence in the UK Defamation Act’ (see Notes, p 9, and Speech).

Thank the Brits … again

Since Reynolds v Times Newspapers Ltd [1999] UKHL 45; [2001] 2 AC 127 (‘Reynolds’) English common law had a defence for publishing defamatory material when the

defendant reasonably believed it was in the public interest. The ‘Reynolds defence’ has often been categorised as the missing defence for mass media organisations.

The question for the House of Lords in Reynolds was whether the defence of common law qualified privilege should be extended to cover a new occasion of privilege based on subject-matter alone; political information.

Even though the House of Lords said no to that extension, their Lordships explained that the reciprocity of interest required for qualified privilege had been unduly narrowed over the decades and that qualified privilege was always elastic enough to cover mass media communicating responsibly to the general public on matters of public concern (see e.g. p 204H per Lord Nicholls, p 213D per Lord Steyn; and also Bonnick v Morris [2003] 1 AC 300 at [23] per Lord Nicholls).

Lord Nicholls then gave 10 ‘illustrative’ factors to help determine whether the defence was established (at p 205A-C). Those factors are essentially our s 29A(3) factors.

Fast forward to 2013 and s 4 Defamation Act 2013 (UK) abolished the Reynolds defence and codified the test, but without Lord Nicholls’ list of factors.

Mr Lachaux … redux!

Since 2013, there have been many UK cases on s 4. However, thankfully for fans of the long-running Mr Lachaux saga (from ‘serious harm’ fame), the most authoritative cases were reviewed by Nicklin J in Lachaux v Independent Print Ltd [2021] EWHC 1797 (‘Lachaux’), Mr Lachaux’s substantive defamation trial after a seven-year wait.

Nicklin J (from [128]) analysed the key authorities and said there are three questions to determine under s 4(1) (changed ever so slightly for our s 29A(1)):

  1. ‘Was the [matter] complained of a [matter] of public interest? If so,
  2. Did the defendant believe that publishing the [matter] complained of was in the public interest? If so,
  3. Was that belief reasonable?’

Question 1 is an objective question for the Court. But, of course, it is dependent on the definition of ‘public interest’. This concept is not new to UK or Australian courts (see e.g. London Artists v Littler [1969] 2 QB 375, 391; Bellino v ABC (1996) 185 CLR 183; [1996] HCA 47, 221-225). However, it is fair to say the metes and bounds of this concept remain uncertain.

In Lachaux (at [130]), Nicklin J cites Doyle v Smith [2019] EMLR 15 at [69] (which cites Reynolds) saying that ‘[m]atters of public interest are of potentially wide compass, but exclude matters which are “personal and private, such that there is not public interest in their disclosure”’.

In Lachaux, the defendants published highly defamatory claims about Mr Lachaux, including that he abused his wife, subjected her to domestic violence when they lived in Dubai, and had instigated an unfair criminal charge against her alleging that she kidnapped their son.

Both defendants argued there was a public interest in publishing a story about a female British citizen facing the application of Sharia law relating to her divorce and custody arrangements, where that law was known to discriminate against women and failed to provide due process, including in relation to allegations of domestic violence and abuse, and where it appeared the British government was reluctant to intervene because of proposed sales of military jets to Dubai.

Nicklin J accepted this and was satisfied that the articles were statements on matters of public interest (at [162]-[164]), seemingly accepting that very personal/private matters can cross into the public interest.

Question 2 requires the defendant to prove that, at time of publishing, they had a subjective belief that publishing the matter was in the public interest.

In Lachaux, the first defendant was not successful in proving this element. There was no contemporaneous evidence and ‘zero recollection’ from the Deputy News Editor to support the necessary subjective belief (see [165]-168]).

The main point from Lachaux on this question is that it is not for the claimant/plaintiff to prove the absence of the subjective belief but for the defendant to prove the presence of it.

In giving evidence, the defendant, via editors, journalists, etc must convince the court that their evidence establishes what they believed at the relevant time. Therefore, publishers should ensure there is contemporaneous objective evidence that can be mustered to support the required subjective belief at the time  of publishing. Naturally this will be enhanced if that objective evidence can explain why one’s subjective belief was held.

Lastly, question 3. This will be the ‘major point of contention whenever reliance is placed upon a [s 29A] defence’ (at [132]).

In the UK cases, and even evidenced by s 29A(3), whether the publisher’s belief was reasonable will rest on whether the publisher’s actions at the time were reasonable and responsible.

In Economou v de Freitas [2016] EWHC 1853 (‘Economou’) Warby J said that ‘[i]t seems hard to describe a belief as reasonable if it has been arrived at without care, in the absence of any examination of relevant factors, and without engaging in appropriate enquiries’ (at [239]). A belief is reasonable ‘only if it is one arrived at after conducting such inquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case’ (at [241]). This was cited with approval in Lachaux (at [136]); by Sharp LJ in the Economou appeal (at [101]) and in Serafin v Malkiewicz [2020] UKSC 23 (at [67]), where Lord Wilson said ‘[i]t is almost impossible to expand in the abstract on the meaning of the word “reasonable”’.

Returning back to Lachaux, even accepting the evidentiary hurdles the defendants faced given the elapsed time, Nicklin J found that neither had established the reasonableness of any belief. For more details see [169]-[177] and [184]-[191] but essentially, neither publisher engaged in responsible journalism, as evidenced by serious failures in basic journalistic standards. For example, they failed to follow applicable codes of practice/conduct, the articles were clearly one-sided accounts (the second defendant’s online article even linked to a petition to sign in support of Mrs Lachaux); any genuine efforts to investigate the claims were superficial and inadequate, even when knowing the allegations by Mrs Lachaux and her adult son were partisan and there was material that suggested the claims were exaggerated; and they failed to make any reasonable attempt to seek Mr Lachaux’s input.

In summary

The UK authorities show the key to establishing the defence will be having the evidence to prove that at the time of publication, the publisher’s belief and actions were reasonable and responsible. Therefore, publishers should be taking contemporaneous notes; talking to others as to their belief and why they think it is reasonable; following any codes of practice to show reasonable and responsible behaviour; and asking, do the public really need to know this?

And Mr Lachaux? Aside from becoming synonymous with many facets of UK defamation law, he was awarded damages of £50,000 against the first defendant, £70,000 against the second defendant, and received £40,000 against the Huffington Post by way of settlement.



David J Helvadjian
is a Barrister at 153 Phillip Barristers.