RICHARD GEORGE CARLETON v AUSTRALIAN BROADCASTING CORPORATION [2002] ACTSC 127 (18 December 2002)
CATCHWORDS
DEFAMATION – television broadcast and transcripts on web site – allegations of plagiarism and ‘lazy journalism’.
DEFAMATION – test for determining what allegedly defamatory material conveys is that which an ordinary reasonable reader or viewer would derive from the matter complained of.
DEFAMATION – imputations of ‘plagiarism’ and ‘lazy journalism’ but not theft of materials nor, separately from those imputations, any imputation of deceit or dishonesty – imputation of ‘lazy journalism’ is clearly defamatory.
DEFAMATION – identification when not directly named in publication.
DEFAMATION – defence of truth – charge of plagiarism found to be both false and defamatory, that is, not true as a statement of fact – imputation of lazy journalism found to be both false and defamatory – defence of truth fails.
DEFAMATION – defences – common law qualified privilege – test is whether the subject was a matter of sufficient public interest to make the publication of the allegations to the public at large a privileged occasion at common law – it was – qualifications on ‘public interest’ qualified privilege – subject matter and context advances a public interest – publication is necessary to meet the public interest – conduct of defendant in publishing the defamatory matter must have been reasonable in all the circumstances.
DEFAMATION – defences – statutory defences in Tasmania and Queensland – qualified protection co-extensive with common law for the purposes of ‘public interest’ qualified privilege.
DEFAMATION – defences – qualification for common law qualified privilege – reasonableness of publication – opinions not expressed dishonestly but were illogical, unfair and unreasonable – conclusion to which Media Watch came, as to plagiarism past and present and as to lazy journalism went beyond qualified privilege.
DEFAMATION – defences – fair comment and comment – at common law a person has the right to express an opinion on any matter of public interest – subject matter of publications was a matter of public interest – distinction between expressions of opinion or fact – requirement of fairness – Media Watch presentations did not go beyond protection of fair comment – defence will succeed unless plaintiffs can show malice or lack of bona fides.
DEFAMATION – defences – fair comment and comment – statutory defences – topics of discussion were protected topics – lawful to publish fair comment on them – no substantial factual mis-statement such as would render this defence inapplicable found.
DEFAMATION – defences – fair comment and comment – New South Wales statutory defences – comment defence succeeds as to publication in New South Wales.
DEFAMATION – qualification to defences – malice in the sense of lack of honest adherence to opinions expressed rejected – defence of fair comment not defeated by malice in this case.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Carleton v Australian Broadcasting Corporation [2002] ACTSC 127
Case
[2002] ACTSC 127
Decision Date
CaseChat Overview and Summary
This case involves a defamation claim brought by three journalists against the Australian Broadcasting Corporation (ABC), one of its employees, and a television program called Media Watch. The plaintiffs claim that Media Watch defamed them by accusing them of plagiarism and lazy journalism in relation to a documentary they produced about the Srebrenica massacre. The plaintiffs sought damages for defamation in the Supreme Court of the Australian Capital Territory. The court found that the Media Watch program did convey defamatory imputations of plagiarism and lazy journalism, but also found that the defendants had available to them the defences of common law qualified privilege, statutory qualified privilege, fair comment, and comment. The court held that the defences of qualified privilege and fair comment were available to the defendants, and that the defence of comment was also available in New South Wales. The court further found that the defence of fair comment was not defeated by malice, as the defendants honestly believed in the truth of the comments they made. As a result, the plaintiffs were not entitled to damages for defamation. The court also noted the potential for law reform in cases such as this, where a person is defamed but unable to obtain a legal remedy due to the availability of certain defences.