Media Law Exam notes
Table of contents Freedom of speech 3 Open justice 8 General contempt of court 21 Sub judice contempt 31 Liability for defamation 39 Defamation defences 59 Defamation privileges 72 Defamation remedies 82
Freedom of speech Role of the media The media is an important institution that can serve to hold powerful people and organisation to public account. The public sphere The concept of the media as a public sphere traces back to the work of Habermas. The public sphere captured the notion that the media served as an interface between society and the state. Habermas view of the media was one free from state and private commercial interests. Mass media is thus an aberration of Habermas public sphere. Nevertheless, the internet has restored the concept of Habermas public sphere by allowing many small-scale publishers to convert private opinion into public opinion. The fourth estate The media is said to serve as the fourth estate of government (the other three being the executive, legislature and judiciary (formerly, the monarch, clergy and parliament)). It operates as a check on executive power and public institutions, in the interests of society. However, the shift towards tabloid and sensationalist media coverage undermines the ideal of the fourth estate. Public vs private media The divide between public broadcasting and commercial media organisations is important. Public broadcasters embody the modern day public sphere / fourth estate, by remaining free from commercial conflicts of interests and (largely) free from government interference. Only commercial media organisations can truly be said to be free from state influence, but reliance on advertising revenue streams hinders such organisations from engaging in unbiased reporting. Regulation of the media The media is regulated on two fronts: public (statute) and private (civil claims). Public regulatory constraints Public regulatory constraints can be classified into five categories: 1. Platform access regulation regulates media organisations through access to the publicly-owned broadcasting spectrum.!3
2. Content access regulation anti-siphoning laws prevent one media company from buying up key content (typically live sport). 3. Journalistic conduct regulation limits the ways in which journalists gather information for published stories (see, eg, Surveillance Devices Act 2004). 4. Content regulation direct regulation of particular type of conduct and when that content is allowed to be broadcast. 5. Professional standards regulation various associations convene to agree on standards of broadcast media or print media. Private regulatory constraints Private law regulatory constraints relate to the civil actions that may be brought against actors in the media: (1) defamation; (2) brach of confidence; (3) passing-off; (4) copyright; (5) injurious falsehood; (6) negligence; (7) trespass; (8) vilification; (9) breach of contract. Freedom of expression Freedom of expression, and freedom of the press, are seen as essential elements of free society. In Australia, no specific legal protection exists for freedom of expression. However the High Court has held that an implied freedom of political communication is an indispensable incident of the constitutionally-entrenched system of representative government (Lange). Freedom Freedom is a flexible concept. Freedom of speech has traditionally been conceived as a negative liberty that prevented government interference with expression. However, some positive intervention may be required in order to protect the freedom (for example, a rule requiring broadcasters to provide airtime for a right of reply). Rationales There are broadly three rationales for freedom of expression: (1) truth; (2) democracy; and (3) selfdetermination. 1. Truth truth emerges where there is open discussion and unrestricted competition between opposing viewpoints The work of JS Mill in On Liberty supports this rationale, as well as Justice Oliver Wendall Holmes in Abrams v US: the ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market. There are, however, valid criticisms of the truth rationale. For example, the truth may not necessarily emerge in the competition of ideas: not all of the participants in the exchange of views have equal influence. Even if it is accepted that, in time, the truth will emerge, the short-term acceptance of false opinion can be damaging.!4
2. Democratic that freedom of expression is necessary for a system of representative government This rationale is the one adopted by the High Court. The implied freedom of political communication is regarded as a necessary incident of the system of representative government set out in the Constitution. However, free communication that rests on this rationale must necessarily be limited to political communications, and must therefore not extend to matters such as art, scent and literature. Many of the criticisms applicable to the truth rationale are applicable here as well. Both rationales rest on the assumption that each participant in the marketplace of ideas has the same level of influence. This is clearly note borne out in reality. 3. Self-determination that freedom of expression has an inherent value: the ability to communicate thoughts and opinions freely is an intrinsic part of being human Under this rationale, any restrictions whether on political or non-political communications would impinge upon the individual freedom of each person s ability to express themselves. The only restrictions that may be allowable under this rationale are prohibitions on communications that are physically harmful, such as yelling Fire! in a crowded theatre. Express protections of freedom of expression Different legal systems offer different protection for freedom of expression. In Australia, constitutional protection of freedom of expression was established in 1992, by two decisions delivered by the High Court. In Nationwide News and Australian Capital Television, the High Court held that an implied freedom of political communication exists as an incident of the system of representative and responsible government. The position of the law was refined in Lange v ABC where the Court unanimously held that the implied freedom of political communication does not confer personal rights to freedom of speech, but rather operates as control on legislative and executive power. The United States Constitution contains an express protection of free speech in the First Amendment: Congress shall make no law abridging the freedom of speech or of the press. Read literally, this is an unqualified protection. However, the Supreme Court has read it down to avoid imminent lawless action (Brandenburg v Ohio). Defamation law in the United States is circumscribed by the First Amendment: there must be actual malice before liability can arise for defendants, at least for public individuals who invite attention and comment (Gertz v Robert Welch Inc).!5
The European Convention on Human Rights includes a right to freedom of expression. Unlike the First Amendment, a number of exceptions are set out. Article 10 (European Convention for the Protection of Human Rights and Fundamental Freedoms) 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Implied freedom in Australia As set out above, the twin 1992 cases of Nationwide News and Australian Capital Television established the implied freedom of political communication. However, the members of the Court did not share a unanimous conception of the freedom. Mason CJ described it as a freedom of communication in relation to public affairs and political discussion. Brennan J referred to the freedom of the Australian people to discuss governments and political matters. Deane and Toohey JJ considered that the Constitution s implication of freedom of communication extends to all political matters, including matters relating to other levels of government within the national system. McHugh J offered the narrowest interpretation. People have a constitutional right to convey and receive opinions, arguments and information concerning matters intended or likely to affect voting in an election for the Senate or the House of Representatives. In Theophanous v Herald and Weekly Times Ltd in 1994, the Court extended the freedom by creating a constitutional defence to defamation occurring in the context of political debate. Lange represented a retreat of the court s conception of the implied freedom. There, the Court decided that the implied freedom of political communication does not confer any personal rights to freedom of speech, but operates as a check on legislative and executive power. Scope Today, the scope of the freedom is limited to communications of government or political matters that enable decisions about voting in elections of members of the Commonwealth legislature. Lange sets out a two-step test: 1. Does the law effectively burden freedom of communication about government to political matters either in its terms, operation or effect?!6
2. If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the system of government prescribed by the Constitution. Lange David Lange, the then Prime Minister of New Zealand, was the subject of a report on the ABC current affairs program Four Corners and brought defamation proceedings against the broadcaster; the report alleged that the Labour Party, then in government, had come to be improperly under the influence of large business interests as a result of large donations made to the Party in the lead up to the 1987 election. The Court reformulated and clarified the views it expressed in earlier cases, the freedom of political communication drawn from ss 7, 24, 64 and 128 of the Constitution can validly extend only so far as is necessary to give effect to [the] sections. Cheryl Saunders argues that the text and structure approach of the Lange decision is only superficially limiting: Public issues not currently on the legislative agenda are obviously relevant since the failure to adopt a policy may be just as revealing as a decision to act. Added to these are communications on many matters that are not themselves explicitly political (detention of asylum seekers, same sex marriage, IVF availability, legitimacy of war and torture, etc)...voters understanding of, and attitudes towards, questions like these, and ultimately their vote at a federal election, might depend on their capacity to communicate about religion, moral philosophy, history, medical science and sociology, at least as much as they depend on explicitly political communication.!7
Open justice The principle of open justice The principle of open justice is a fundamental tenet of the common law: unless strictly necessary, court proceedings must be conducted in open court. The principle of open justice is so critical for media lawyers because most of the public are unable to personally attend court. The public therefore rely on the media to provide them with reports of what has taken place in court. While some take the view that journalists are an indispensable part of open justice (see Lord Denning in The Road to Justice below) others debate whether the media only focus on what are regarded as newsworthy cases. Road to Justice, Lord Denning A newspaper reporter is in every court. He sits through the dullest cases in the Court of Appeal and the most trivial cases before the magistrates. He says nothing but writes a lot. He notes all that goes on and makes a fair and accurate report of it. He supplies it for use either in the national press or in the local press according to the public interest it commands. He is, I verily believe, the watchdog of justice. If he is to do his work properly and effectively we must hold fast to the principle that every case must be heard and determined in open court. It must not take place behind locked doors. Every member of the public must be entitled to report in the public press all that he has seen and heard. The reason for this rule is the very salutary influence which publicity has for those who work in the light of it. The judge will be careful to see that the trial is fairly and properly conducted if he realises that any unfairness or impropriety on his part will be noted by those in court and may be reported in the press. He will be more anxious to give a correct decision if he knows that his reasons must justify themselves at the bar of public opinion. Corollaries of the principle Butler and Rodrick identify a number of important corollaries of the principle of open justice: 1. No member of the court may seek anonymity (Felixstowe Justices ex parte Leigh); Felixstowe The role of the journalist and his importance for the public interest in the administration of justice has been commented upon on many occasions. No one nowadays surely can doubt that his presence in court for the purpose of reporting proceedings conducted therein is indispensable. Without him, how is the public to be informed of how justice is being administered in our courts? (Watkins LJ) 2. Magistrates and judges must pronounce their decisions in open court, and publish their reasons (Wandin Springs v Wagner; Soulemezis v Dudley);!8
Soulemezis courts are under a general duty to provide reasons; this obligation is an incident of the judicial process and essential for facilitating an effective right of appeal; however, the content of this duty is unclear and varies with the circumstances of the case, the complexity of the issues and the availability of appeal rights. 3. Evidence communicated to the court is communicated publicly (Attorney-General v Leveller Magazine); AG v Leveller appellants were magazine publishers and journalists who published the name of a witness, a member of the security services, despite the fact an order had been made for his name not to be disclosed. Court held that Scott v Scott (see below) is the general rule, but since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceedings are such that the [general rule] would frustrate or render impracticable the administration of justice. Concluded that the witness had provided evidence that could lead to his identity being discovered; thus the conviction for contempt of court was overturned. 4. What passes in court an be reported at large to the public by those who choose to attend (Raybos v Jones). Relevant case law Scott v Scott is regarded as the leading modern authority on the principle of open justice. Scott v Scott Mrs Scott applied to have her marriage to Mr Scott annulled on the basis of Mr Scott impotence; the proceedings were conducted in camera and the decree pronounced; later, Mrs Scott instructed her solicitor to obtain a copy of the transcript and sent it to members of Mr Scott s family; Mr Scott applied to have his ex-wife punished for contempt of court. House of Lords held that the open justice principle may only be derogated from where necessary, not merely where convenient. The applicant seeking the proceedings be closed must show that by nothing short of exclusion of the public can justice be done. Matters of mere delicacy are insufficient to warrant a derogation of the open justice principle. The only instance where proceedings ought to be closed is where the administration of justice would be rendered impracticable (i.e., only where absolutely necessary). Scott v Scott was first endorsed by the High Court in Dickason v Dickason in 1913, and is routinely reaffirmed. Russell v Russell It is the ordinary rule [that] proceedings shall be conduced publicly and in open view (Scott v Scott) The public administration of justice tends to maintain confidence in the integrity and independence of the courts It distinguishes [Court s] activities from the of administrative officials for publicity is the authentic hall-mark of judicial as distinct from administrative procedure (Gibbs J). Hogan v Hinch Derryn Hinch was charged with breaching suppression orders by naming convicted sex offenders on air. French CJ noted: An essential characteristic of courts is that they sit in public. That principle is a mean to an end, and not an end in itself. Its rationale is the benefit that flows from subjective court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. However, French CJ went on to state that the principle of open justice is not absolute: the application of the open justice principle may be limited in the exercise of a superior court s inherent jurisdiction or an inferior court s implied powers. This may be done where it is necessary to secure the proper administration of justice.!9
Rationales and purposes of open justice 1. Open justice is said to aid the administration of justice. It acts as a bastion against the arbitrary exercise of power by judges, and serves to ensure high judicial performance. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial. It is to publicity, more than anything else put together, that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst (Bentham). 2. Open justice acts as a check on the veracity of witnesses. Witnesses are more likely to tell the truth if they have to testify in public. 3. Open justice benefits litigants. While some litigants seek to resolve matters privately, many seek public vindication for the wrong that they have suffered. Public trials ensure that litigants get to have their day in court. 4. Open justice also benefits the public at large. When proceedings are conducted in public, it helps to educate the communication about what the law is, what conduct is unacceptable, and what legal precedents are establish that bind all of society. Role of the media As noted above, in the modern world, court processes are only truly open if they are able to be published by the media. This is because many people cannot attend court hearings for themselves. However, despite their pivotal role, the media have no greater common law right to attend and report court proceedings than any other member of the public. Some accomodations have been made (such as relaxing the restrictions on audio recordings, and special seating) but in terms of substantive right, the media are in the same position as the common man. Achieving the Aims of Open Justice, Sharon Rodrick Rodrick argues that there are three functions of or rationales for open justice: (1) oversight of the courts to ensure judges perform to an acceptable standard; (2) education of expected community standards, and improved confidence of the courts system; and (3) a free speech function. Rodrick argues that the media can act as vehicles through which the court achieves the functions of the principle of open justice. However, in many cases, the media fails in this idealised role. Nevertheless, the media remains the most significant bridge between the public and the courts. Accordingly, the courts seek to build a constructive relationship with the media by: engaging with the media (by writing op-eds); by responding to criticism directly (rather than relying on the AG s traditional duty to defend the courts); producing brief summaries of decisions so that the crux of a decision may be easily digested. Rodrick recommends that courts should take an active role in engaging more with the public directly (and bypassing the media), noting that the internet and social media create platforms to facilitate such communication.!10
Constitutional basis of open justice principle Unlike some countries, Australia does not have a Bill of Rights with an express protection of freedom of expression or freedom to a fair and public trial. However, two sources of constitutional rights relating to these matters can be identified: 1. It may be argued that the structure of ch III of the Constitution implies that all state and federal courts must be open to the public. In Russell v Russell, the High Court held that Parliament could not validly require state courts to sit in camera (closed) invariably, as to do so would be to alter the nature of the court. However it was also stated that parliaments could require certain cases to be invariably held in camera, and that this would not be inconsistent with the courts essential characteristics. 2. A second approach relies on the implied freedom of political communication. Several cases have dealt with the issue of whether communication about courts and their judgments constitutes government or political communication, and judges remain divided over whether the communication must have some link with acts or omissions of the legislature or executive government. Three rules of open justice The overarching principle of open justice gives rise to a number of substantive open justice rules. 1. Judicial proceedings are conducted, and decisions pronounced, in open court; 2. Evidence is communicated publicly to those present in the court; and 3. Nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media. 4. [Bosland and Gill advocate for a fourth rule of open justice the public reasons rule which provides:] Courts must give public reasons for all but minor interlocutory decisions (stemming from the decisions in Soulemezis, Ives v WA [No 2], Idoport v NAB and Mifsud v Campbell). Common law exceptions to open justice The substantive rules stemming from the principle of open justice are not absolute (Fairfax v Local Court). Bosland and Gill state that in circumstances where it is necessary to avoid prejudice to the administration of justice, in particular proceeding or to avoid some other relevant harm court can derogate from the open justice rules. John Fairfax Group v Local Court issue arose as to whether the Magistrate had the power to make a pseudonym order. Kirby P noted that the normal rule is that justice is administered in open court, but that there are limited, strictly confined derogations from the principle of open justice either permitted by the common law or by statute.!11