Carleton v Australian Broadcasting Corporation
[2002] ACTSC 127
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.
Copyright Act 1968 (Cth)
Defamation Act1889 (Qld) s 14, s 16, s 16(1)(h), s 17
Defamation Act 1974 (NSW) s 22, ss 29-35
Defamation Act 1957 (Tas) s 14, s 14(2), ss 16(1)(e) and (h) and 16(2)
Defamation Act (NT) s 6A
The Criminal Code (WA) s 355
Defamation Act 2001 (ACT)
Civil Law (Wrongs) Act 2002 (ACT)
Defamation Act 1901 (ACT)
Commonwealth of Australia v John Fairfax & Sons Limited (1980) 147 CLR 39 Commonwealth of Australia v Walsh (1980) 147 CLR 61
De Garis v Neville Jeffress Pidler Pty Ltd (1990) 95 ALR 625
Costello v Random HouseAustralia Pty Limited [1999] ACTSC 13; (1999) 137 ACTR 1
Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158
Consolidated Trust Company Limited v Browne (1949) 49 SR (NSW) 86
Levien v Fox (1890) 11 NSWLR 414
Consolidated Press Holdings v John Fairfax Publications Pty Ltd [2002] ACTSC 63 (15 July 2002)
Hansen v Northern Land Council [1999] NTSC 69 (12 July 1999)
Ownit Homes Pty Ltd v D & F Mancuso Investments Pty Ltd [1988] AIPC 90-488; 5 BCL 64
Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278
Flanagan v University College Dublin [1988] IEHC 1 (29 September 1988)
Howe v Lees (1910) 11 CLR 361
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Mann v O’Neill (1997) 191 CLR 204
Popovic v Herald & Weekly Times Ltd [2002] VSC 174 (21 May 2002)
Nationwide News Pty Ltd v Christopher Michael Rogers [2002] NSWCA 71 (15 March 2002)
Evatt v Nationwide News Pty Ltd [1999] NSWCA 99 (19 April 1999)
Theodore Skalkos v Joseph Assaf [2002] NSWCA 14; [2002] Aust Torts Reports 81-644
Morgan v John Fairfax & Sons Ltd(No 2) (1991) 23 NSWLR 374
Kemsley v Foot [1951] 2 KB 34
Merivale v Carson (1887) 20 QBD 275
Bamberger v Mirror Newspapers Ltd (1969) 43 ALJR 242
Kemsley v Foot [1952] AC 345
Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171
Turner v Metro-Goldwyn-Mayer PicturesLtd [1950] 1 All ER 449
Telnikoff v Matusevitch [1991] 1 QB 102
Telnikoff v Matusevitch [1992] 2 AC 343
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309
Grundmann v Georgeson [1996] QCA 189; (1996) Aust Torts Reports 81-396
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309
New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448
Palmer v Belan [1999] NSWSC 187 (12 March 1999)
Horrocks v Lowe [1975] AC 135
Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431
Lenox Hewitt v Queensland Newspapers Pty Limited [1995] ACTSC 54 (5 June 1995)
Calwell v IPEC Australia Limited (1975) 135 CLR 321
Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749
Tobin T K QC & Sexton M G SC, (1999) Australian Defamation Law and Practice, Butterworths
Skone James F E and Skone James E P, (1965) Copinger & Skone James on Copyright, 10th ed
Gatley, J C C, (1998) Gatley on Libel and Slander, 9th ed
Duncan & Neill on Defamation, 2nd ed (1983)
Gatley, J C C, (1981) Gatley on Libel and Slander, 8th ed
Gillooly M, (1998) The Law of Defamation in Australia and New Zealand, Federation Press
No. SC 474 of 2000
Judge: Higgins J
Supreme Court of the ACT
Date: 18 December 2002
IN THE SUPREME COURT OF THE )
) No. SC 474 of 2000
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: RICHARD GEORGE CARLETON
First Plaintiff
JOHN DOUGLAS WESTACOTT
Second Plaintiff
HOWARD WENTWORTH SACRE
Third Plaintiff
AND:AUSTRALIAN BROADCASTING CORPORATION
First Defendant
PAUL BARRY
Second Defendant
PETER McEVOY
Third Defendant
ORDER
Judge: Higgins J
Date: 18 December 2002
Place: Canberra
THE COURT ORDERS THAT:
There be judgment for the defendants.
The parties will be heard as to costs.
This case concerns a tragic event, or series of events, concerning a small town named Srebrenica. It was situated in the former Yugoslavia in the Republic of Bosnia and Herzegovina.
In July 1995, the town was the centre of a small enclave of Muslims surrounded by a hostile Bosnian Serb Army. The situation in the former Yugoslavia had, by then, degenerated into open warfare between the main population groups (Muslims, Croats and Serbs). Those groups, though largely of similar racial and language backgrounds, were divided by religion. The Croats were (predominantly) Catholic, the Serbs, again predominantly, Orthodox.
There were then about 40,000 people in the Srebrenica enclave. The Bosnian Serb Army, then under the command of General Ratko Mladic, entered the enclave, which was supposedly protected by United Nations troops, on 11 July 1995. The populace fled to the United Nations Camp, staffed by Dutch troops. It was near a place called Potocari.
In the days that followed the Bosnian Serb Army persuaded the Dutch troops to hand over the civilians who were intended to be under United Nations protection. The Dutch troops agreed, both because the superior might of the Serb Army would have made resistance futile, and because General Mladic, falsely as it transpired, represented that the civilians would simply be safely transported to Muslim areas outside Serb control. This transportation was part of a process which has come to be called “ethnic cleansing”. The Muslims were to be forced to abandon their homes and businesses so that those facilities could be taken over by a Serbian population as, in fact, has occurred.
But there was a darker purpose which it now appears General Mladic and his troops had in mind.
Once the civilians were under General Mladic’s control, the men and boys were separated from the women and girls. The latter were, at least for the most part, sent to Muslim-controlled areas. The former were summarily executed and their bodies disposed of in mass graves. The number of victims was about 8,000. In a war marked by atrocities on each side this was, possibly, the worst. It was clearly a war crime and, indeed, General Mladic’s deputy, General Krstic, was later put on trial for war crimes in The Hague in relation to this massacre.
This case does not concern those events directly. They form a background, however. The first plaintiff, Mr Carleton, is a television journalist. He has, for some years now, been a presenter for 60 Minutes. The second plaintiff is that program’s executive producer. The third plaintiff was the producer who worked on particular stories with Mr Carleton, including the story central to these proceedings.
As it happened, Mr Carleton was in Belgrade when the Srebrenica massacre occurred in 1995 though, understandably, he was not able to get to Srebrenica and then only heard of it as one amongst a number of credible rumours.
Another journalist, with The Christian Science Monitor, Mr David Rohde, had, during 1995 and 1996, investigated those rumours. Those investigations led to Mr Rohde publishing a book, “End Game”, telling the story of the massacre. He conducted interviews with many of those who told their stories in the subsequent television documentaries, including Mr Carleton’s piece. It appears to have been a very thorough and definitive work.
The book was published in August 1997. Mr Carleton bought a copy. He was both impressed and distressed by it. He was, he says, seized by a desire to present such a story in a format suitable for his 60 Minutes program, that is, typically, a 13 minute documentary depicting, amongst other stories of interest, current affairs.
The most recently depicted story on the massacres before Mr Carleton carried out his intention to portray the story of the massacre at Srebrenica was broadcast on BBC television in December 1999. It was a powerful and graphic documentary of one hour and forty four minutes in length. The rights to it were acquired by SBS television and the program was broadcast in Australia on that network on 16 April 2000. The program was called “Cry from the Grave”. It was a production of Antelope Films. By all accounts, the viewing audience was not large. It was certainly less than half the audience 60 Minutes might expect.
There were two previous documentaries. In early 1996, the BBC Panorama program screened a documentary on the Srebrenica massacre. American 60 Minutes published a similar documentary on 10 March 1999 on CBS television. Channel Nine, the proprietor of the 60 Minutes program, had rights to re-transmit American 60 Minutes segments. Within Channel Nine, 60 minutes had, effectively, first refusal rights. The program directors, in consultation with Mr Carleton (inter alia), decided not to transmit the CBS 60 Minutes segment on 60 Minutes. It was instead transmitted on 11 April 1999 on the Channel Nine “Sunday” program.
Mr Carleton’s reasons for supporting that decision was that he wished to retain the option of himself producing such a program for his audience as he had wished to do since reading Mr Rohde’s book.
There is no doubt that Mr Carleton was further inspired to produce a program on the Srebrenica massacre by his viewing of the Antelope Films’ “Cry from the Grave”.
As Mr Carleton perceived it, none of the preceding film documentaries was suitable for direct screening on Channel Nine’s 60 Minutes. For example, the Panorama program, though shorter than “Cry from the Grave”, was still 40 minutes long.
The American 60 Minutes program was clearly one Channel Nine 60 Minutes could have used both as a matter of copyright law and format. However, Mr Carleton felt, as he told his Executive Producer, Mr Westacott, that it concentrated on the role and plight of the Dutch peacekeepers. That should not have been the main focus as he saw it. He felt he could do a better job, if given the opportunity.
The production of “Cry from the Grave” inspired Mr Carleton to obtain a copy of it. He showed it to Mr Westacott. His intention in doing so was to demonstrate the “myriad footage” concerning the massacre. He told Mr Westacott (Transcript 160):
“… whatever footage they’ve got we – we can surely get. I want to do the story, I want to do it now.”
It was agreed with Mr Westacott that, as part of an overseas trip for the purpose of other stories, Mr Carleton and his team could visit Bosnia to do the story he wished to do on the Srebrenica massacre.
He was, of course, well aware that this was re-visiting a story previously told but he persuaded Mr Westacott that a “5th Anniversary” of the massacre would be a useful introductory technique.
Mr Carleton, having obtained approval for the project, then contacted Antelope Films. He spoke with Mr Paul Jenkins, an assistant producer of “Cry from the Grave”. Though objected to, it seems to me that that conversation is relevant and, hence, admissible, at least for the purpose of clarifying the extent to which “Cry from the Grave” was used by Mr Carleton and his team as a model for the program he proposed to make.
That was made explicit by Mr Carleton when he told Mr Jenkins:
“I want to do in 13 minutes what you’ve done in an hour and three quarters, tell the story of Srebrenica.”
Mr Jenkins, he said, was supportive of the view that the story of Srebrenica should be told as widely as possible. Mr Carleton asked Mr Jenkins whom he had used as a “fixer” and where he had got the historic footage he had used.
A “fixer”, it was explained, was a local agent who could arrange for access to film footage, locations and interviewees as well as arranging transport, accommodation etc. The person Mr Jenkins had used was Dusko Tubic, a Bosnian Muslim. He had also used a lady, Rialda Musaefendic, a Bosnian Serb. Mr Jenkins warned Mr Carleton that the latter two did not get on well together.
Mr Jenkins and Mr Carleton discussed obtaining film footage and the whereabouts of the various interviewees who had appeared in “Cry from the Grave”.
Mr Carleton, himself, made enquiries about the whereabouts of Warrant Officer Wim Dijkema, a Dutch military cameraman who had appeared in (inter alia) “Cry from the Grave”, having got some information about him from Mr Jenkins. Mr Carleton personally contacted Warrant Officer Dijkema to seek a suitably formatted copy of the footage the latter had taken at Srebrenica.
There then followed extensive correspondence between Mr Carleton and Mr Tubic. It is apparent from that correspondence that Mr Carleton was desirous of inspecting some of the sites shown in “Cry from the Grave” and of interviewing at least some of the persons interviewed in it and of obtaining from their owners copies of film footage shown in it. He also sought footage of General Krstic’s appearance at The Hague when the latter appeared accused of war crimes to stand trial in the special International Criminal Tribunal set up under the United Nations to punish war criminals in former Yugoslavia. The range of footage sought went beyond what was shown in “Cry from the Grave” and, indeed, well beyond the footage 60 Minutes ultimately used. Clearly, Mr Carleton had in mind to show a mass morgue and a mass grave as depicted in “Cry from the Grave”. His intention was made clear, for example, in the terms in which he sought assistance to interview war crimes investigator Jean-René Ruez who had been interviewed in “Cry from the Grave”. In a memo of 18 May 2000 to a prosecutor at The Hague, he said:
“I would guess you are familiar with the television production Cry from the Grave.
Inspired by that production, it is my plan to be in The Hague June 9 and in Bosnia June 12 thru (sic) 17 to make a fifteen minute segment for Australian, and other, television marking the fifth anniversary of the events of Srebrenica.”
Nevertheless, it is clear that, presumably for copyright reasons, Mr Carleton was anxious to “gather the material [that is, the desired film footage] independently”. However, he did instruct Mr Tubic, as a negotiating ploy, to tell any greedy film holders that, if they wanted too high a price:
“… you should break-off negotiations and we will simply lift the footage from an off air copy of Cry. Provided we use only small amounts of footage in this way we are well within the copyright law in Australia under the ‘fair review and comment’ provision.”
That is a reference, not necessarily accurate, to the defences of “fair dealing” or “public interest” referred to in the Copyright Act 1968 (Cth) – see also Commonwealth of Australia v John Fairfax & Sons Limited (1980) 147 CLR 39; Commonwealth of Australia v Walsh (1980) 147 CLR 61; De Garis v Neville Jeffress Pidler Pty Ltd (1990) 95 ALR 625.
However, it is apparent that quality of the reproduction aside, a viewer would be unlikely to notice the difference between re-copied footage from “off air” and that dubbed from original footage.
On 1 June 2000, Mr Carleton and his team, including Mr Sacre, departed Australia. They had, of course, other stories to produce but, relevantly to the proposed Srebrenica story, they visited The Hague (9-10 June 2000) then Bosnia (12-18 June 2000). The team returned to Australia on 29 June 2000.
At The Hague, Mr Carleton obtained some historical footage both from the International Criminal Tribunal and Warrant Officer Dijkema. He conducted an interview to camera with the latter and also with Mr John Ralston, a senior investigator with the Tribunal. The latter interview was not used, though the interview with Warrant Officer Dijkema was.
In Bosnia, Mr Carleton discovered that the “salt mine” morgue shown in “Cry from the Grave” had been closed. It had been replaced by a purpose built morgue near Tuzla, a town approximately 50 kilometres from Srebrenica. By coincidence, when Mr Carleton and his team visited the Tuzla morgue, some pitiful clothing remains and some artefacts recovered from some of the bodies (over three thousand) were being cleaned by washing them in the hope that they might assist relatives to identify the dead. That process was superficially similar to a scene in “Cry from the Grave” where human remains, (rather than artefacts), were being cleaned at the salt mine morgue. However, the purpose of that latter cleansing was forensic. The Tuzla bodies had already been exhumed and examined, so far as the War Crimes investigators had considered it useful to do so.
Mr Carleton also interviewed to camera both Hasan Nuhanovic, a United Nations interpreter at Srebrenica, whose family had been led away and massacred by the Serb soldiers of General Mladic, and Kadir Habibovic, a survivor of one of the massacres. They had been previously interviewed on “Cry from the Grave” (again inter alia). Mr Carleton was a little surprised that Mr Habibovic had not been mentioned by Mr Rohde in his book but found him an impressive interviewee on “Cry from the Grave”. He satisfied himself that the latter’s story was credible.
Nor were there any exhumations of massacre victims of Srebrenica occurring in Bosnia at the time of Mr Carleton’s visit. There was, however, an exhumation site near Prijedor. Prijedor was over 175 kms from Srebrenica. The human remains in question were of Bosnian Muslims executed by Serb soldiers but the remains were not of persons from Srebrenica. Indeed, they were the result of an earlier massacre elsewhere.
On site, Mr Carleton interviewed to camera Ms Gail McKinnon and Professor Wright, an anthropologist. The latter interview was not used but the former was. Neither of those persons had been interviewed on “Cry from the Grave”.
The 60 Minutes team then travelled to Srebrenica and Potocari where the Dutch base camp had been. As it happened, there was a “wide shot” taken from the hill overlooking Srebrenica. That was similar to a scene shown in “Cry from the Grave”. The voice over, as ultimately shown on 60 Minutes, made reference, as the commentary on “Cry from the Grave” had done, to the history of Srebrenica as “a Roman town, popular for its health spas”.
Footage was also taken, used to introduce Mr Habibovic, of a ruined school building as an example of a place where prisoners had been detained pending execution. It was similar to a building shown in “Cry from the Grave”. Mr Carleton said that the similarity had not been a factor in his mind in having the shot done. It was not suggested that the building shown had, in fact, any connection with the Srebrenica massacre.
The 60 Minutes segment “The Evil that Men Do” was then put together and shown to the 60 Minutes viewing audience on 9 July 2000.
It appears that, though not known to Mr Carleton until later, when the final cut was prepared, footage of a Muslim man calling his son (Nermin) and others down from the hills to surrender to the Serb Army, known as “Ramo/Nermin” footage, could not be located. The sequence used was directly dubbed off the copy of “Cry from the Grave” which 60 Minutes had. It had been part of the material which had been obtained, at least so far as Mr Carleton and his team were aware, from the International Criminal Tribunal. However, the film so obtained has not since been located.
Although the defendants submitted otherwise, I am persuaded that such footage had been obtained as Mr Carleton believed it had. It was readily available, as was other footage, from the Tribunal. In any event, little turns on the question unless Antelope Films had desired to complain of breach of copyright. The net result was the same as if the film so shown had been a copy of the film possessed by the International Criminal Tribunal and made available to Mr Carleton.
I am satisfied that Mr Carleton was very pleased with the result he achieved. The story was well-told. It was a moving and compelling account of the massacre of the men and boys of Srebrenica.
The story does not suggest that the massacre was previously unknown or unreported. It is obvious that the footage shown of past events was not shot by 60 Minutes. The Tribunal proceedings shown in the course of the segment have the logo of the Tribunal on them. The rest of the film footage of the events of 1995 is obviously historical. The interviews and other footage of current day Bosnia were exactly as they were represented to be, though the morgue and mass grave could have been mistaken by the viewer as being Srebrenica related.
Then, on 17 July 2000, Mr Carleton and, I presume, most of those in the media industry in Australia, then or later, saw Media Watch on ABC Television. It was hosted by Mr Barry and produced by Mr McEvoy. The first defendant (ABC) employed both Mr Barry (the second defendant) and Mr McEvoy (the third defendant).
Media Watch is a program that reports (usually) on errors and lapses in journalistic standards committed by journalists, whether in newspapers or other journals as well as by other media performers including broadcasters and, of course, television presenters. Since the days of Mr Littlemore QC, the program has adopted a somewhat superior air, “exposing” foibles, mistakes and lapses in standards of other members of the media. That the program is a valuable tool for the maintenance of proper standards of journalistic behaviour cannot be doubted. The exposure of the “cash for comment” scandal is one recent example. Another exposure was of a reporter who pretended to be in Majorca being pursued by agents of Christopher Skase when, in truth, he was in Barcelona being pursued by no one.
An abiding interest of Media Watch presenters has been plagiarism. The usual example being a journalist placing his or her by-line on a report from elsewhere written by someone else. The result of that activity would be to pass off, without acknowledgment of the source, someone else’s creative work as their own.
It is difficult, of course, to render in words a television program. However, not only was Media Watch broadcast, it was also placed in transcript form on the first defendant’s web site. I have viewed the telecast to experience the tone of the program as well as to assess the difference, if any, in its impact. The words published were as follows:
“Paul Barry:
The Nine Network was also responsible for one of the best pieces of television last week.
The 60 Minutes story about the massacre at Srebrenica in 1995.
Richard Carlton: This must be the biggest morgue in the world. There are 3,968 body bags here, and in so far as it can be determined, all bar one contains a male.
(Channel Nine 60 Minutes 9/7/00)
Paul Barry: This was an appalling story, well told, well shot, 60 Minutes at its best. But, and it’s a big but, it wasn’t all their own work.
Back in April, SBS showed a documentary called ‘Cry from the grave’ made by the BBC in 1999.
Richard Carleton wasn’t in it but everything else was.
The story, the scenes, the shots and the characters were almost all the same and 60 Minutes lifted them lock stock and barrel.The shocking scene in the morgue kicked off both programs.
Both had the hose, washing the remains…
They even climbed the same hill in Srebrenica and used the same commentary line about Roman baths and spas.
One memorable sequence in the 60 Minutes story showed a man forced to lure his family to their deaths.
Carleton: This captured father was used as a Judas goat to bring down his son.
father: (subtitled) Nermin, Nermin… come down here… don’t be afraid of the Serbs…come down all of you…
Carleton: Both father and son are now dead.
(Channel Nine 60 Minutes 9/7/00)
Paul Barry: The BBC documentary shown on SBS in April featured exactly the same scene.
(subtitled) Nermin, Nermin… come down here…don’t be afraid of the Serbs… come down all of you…
(BBC, Cry from the Grave)
Paul Barry: There was very little in the 60 Minutes story – apart from Richard Carleton – that wasn’t copied from the BBC.
60 Minutes chose the same shots of Radko Mladic walking into town.
They chose the same shots of Mladic giving a present to the UN commander.
They used the same shots of the War Crimes Tribunal in the Hague.
And that was just the start of it.
60 Minutes recruited the same cast of characters too.
Dutch cameraman Wim Dykemar (sic) was in the BBC doco and 60 Minutes.And they got them to tell the same stories.
Hasan Nuhanovic, a UN interpreter told the BBC he had lost his family after they had been forced to leave the UN base.
Hasan Nuhanovic: My father says, ‘Sir, what about my wife and son, hoping that he would say let them stay too.’ he (sic) said, ‘listen, tell your father if he doesn’t want to stay he can leave too.’
(BBC, Cry from the Grave)
Paul Barry: He told the same story to 60 Minutes.
Hasan Nuhanovic: And I was yelling, ‘I’m coming with you, I’m coming with you so I’m coming outside the base.
When my parents realised that I was really going to come outside the base they turn around and they told me, ‘listen, Hasan, if you can stay, you stay, you don’t come with us.’
(Channel Nine 60 Minutes 9/7/00)
Paul Barry: On the BBC documentary, Kadir Habibovic relived his miraculous escape from the Serbian killers.
Kadir Habibovic: (subtitled) I was sitting in the truck when two men who jumped out were shot. At that moment, I jumped out.
I was close to a forest, I saw it.
Someone yelled from behind the truck, “He’s running away! F*** his Muslim mother!”
(BBC, Cry from the Grave)
Paul Barry: On 60 Minutes he told it again:
Kadir Habibovic: (through interpreter) Two others tried to run but were shot.
I jumped over the side of the truck and I ran down the slope. I fell down and rolled into the forest.
(Channel Nine 60 Minutes 9/7/00)
Paul Barry: Now I don’t know quite what you call this – plagiarism perhaps.
But whatever the name it fits a pattern.
60 minutes has been caught at this by Media Watch several times before.It’s depressing to know we have so little effect.
All I can say is that I hope the BBC producer and researcher have collected a hefty fee for doing the work.
And should there be any awards, I’m sure Mr Carleton will know where to send them.”
Mr Carleton was outraged. Although he had set out to produce a similar but more concentrated story of the Srebrenica massacre, he regarded the broadcast product as his own, not a mere “cut and paste” of the BBC program.
The second plaintiff, Mr Westacott, as Executive Producer of 60 Minutes, wrote to his counterpart on Media Watch, the third defendant, Mr McEvoy, on 21 July 2000. The letter was in the following terms:
“Your program of 17th July accused Richard Carleton and 60 Minutes of plagiarism in the research and production of the above story. Mr Barry made statements that 60 Minutes lifted the story lock, stock and barrel from a BBC documentary “Cry from the Grave” and had done little more than insert Richard Carleton as a presenter of BBC research, footage and talent. The BBC program was in fact produced by Antelope Films.
Plagiarism is a most heinous allegation against journalists or producers. Regrettably, you did not check with me or anyone else on 60 Minutes before airing these defamatory and damaging allegations. Had you checked, you would have learnt that:
1. In July 1995, when the massacres occurred at Srebenica, Richard Carleton was in Bosnia in the vicinity of that town investigating rumours of a massacre.
2. Also twice in 1995, David Rhode (sic), a journalist then with The Christian Science Monitor was in Bosnia investigating the same rumours.
3. In 1997, David Rhode’s book ‘Endgame: The Betrayal and Fall of Srebenica (sic): Europe’s Worst Massacre since World War II’ was published.
4. In 1996, David Rhode was awarded the Pulitzer prize for his Srebenica stories.
5. The BBC documentary ‘Cry from the Grave’ was a production of Antelope Films. Virtually every fact referred to in the Antelope Films production was in Rhode’s book.
6. On 10 March 1999, CBS 60 Minutes II aired a segment on the Srebenica massacre, paralleling much of what later appeared in the Antelope Films production. In particular, the CBS 60 Minutes II program included interviews with the Dutch Warrant Officer, Wim Dijkema and Srebenica survivor and UN interpreter, Hassan Nuhanovic. It also included library footage of Bosnian Serb soldiers in action, General Mladic in the streets of Srebenica, Mladic in Potacari patting a young Muslim male refugee on the cheek, truckloads of refugees arriving in Potacari from Srebenica, refugees coming off trucks at the Potacari base, still shots of Nuhanovic family members, refugee babies being lifted from trucks, refugees being loaded onto buses and footage from Dijkema’s handicam. Some or all of those shots were used in the Antelope Films/BBC production and/or the Australian 60 Minutes’ Srebenica story.
7. The CBS 60 Minutes II segment was broadcast by Nine on the Sunday program on 11 April 1999.
8. The Antelope Films/BBC production was broadcast in the United States on 17th January 2000 and in the U.K in 1999 using material from the David Rhode book and footage previously broadcast by CBS 60 Minutes II and/or the Sunday program on Nine.
9. In early 2000, 60 Minutes decided to produce a 15 minute story to mark the 5th anniversary of the Srebenica massacre.
10. On 24 March 2000, Richard Carleton contacted a producer with Antelope Films for assistance in producing a story along the same lines as the one hour 45 minute documentary. The producer was co-operative and enthusiastic about the proposed story and gave Mr Carleton names and contacts for the Bosnian Serb researcher used by Antelope Films, the sources from whom footage was obtained and the talent used. The producer was happy for Mr Carleton to purchase the same footage and use the same talent to tell a story which in fact was a matter of historical record.
11. The footage used on the 60 Minutes’ program comprised footage purchased from sources identified by Antelope Films, footage obtained from the International Criminal Tribunal – Yugoslavia in The Hague (being the same library footage identified by Antelope Films) Nine Network library footage, footage from the CBS 60 Minutes II program and other library sources and footage shot by 60 Minutes and Richard Carleton’s interviews.
12. The footage on the Australian 60 Minutes’ program of the morgue scene was shot by Richard Carleton. The footage on the Antelope Films/BBC production of the morgue scene was in fact shot at a Tuzla saltmine where the bodies were stored before being removed to a purpose built morgue in Tuzla proper. It was at the latter location that 60 Minutes shot its footage.
13. Two of the three people appearing on the 60 Minutes’ program, the Dutch Warrant Officer Wim Dijkema, and the UN interpreter, Hasan Nuhanovic, were both featured on the CBS 60 Minutes II production. They also appeared in the Antelope Films production as did the Srebenica survivor (and there were only two others, who were both incapable of being interviewed). All three were later interviewed by Richard Carleton as the people best able to give a direct account of what in fact happened at Srebenica.
14. Srebenica is a town nestled in a narrow mountain valley. The ‘top shot’ of the town is best taken from a lookout at a point where the road from the south enters. It is the obvious spot for a commanding view of the city and it is not surprising that the Antelope Films production filmed the city from the same spot. The coincidence of both productions using this location is no more remarkable than a foreign crew shooting the Sydney Harbour Bridge, Big Ben or Times Square to locate themselves in Sydney, London or New York.
15. The Antelope Films production was one hour 45 minutes and the 60 Minutes’ program was 14 minutes. It is not surprising that there are many similarities and even identical sequences in the two productions when:
(a) they are telling essentially the same story of a major historical event;
(b) they are using the same library footage from the same sources because it is the best available;
(c) they are using the same talent because they are either the best or the only talent available;
(d) they are using the same or similar locations because they are the obvious ones to shoot from; and
(e) they are both telling the same story in the same obvious chronological order.
It is obvious from the above facts that 60 Minutes produced the story with the consent and co-operation of Antelope Films, the producer of the BBC documentary which we are accused of plagiarising. There is no property right attaching to historical facts or surviving witnesses to those facts. The relevant footage was properly acquired and paid for and the BBC documentary was itself a re-broadcast, in part, of footage on the earlier CBS 60 Minutes II program and/or Nine’s Sunday programme. The research was carried out by Richard Carleton and the 60 Minutes production team with the full co-operation and assistance of Antelope Films.
I understand that it is now the policy of Media Watch to correct its own mistakes.
You owe 60 Minutes, Richard Carleton and his producers an apology for the most damaging attack ever made against this program or one of its presenters. I require that you broadcast the attached apology on your next program. If you do not, our lawyers will commence immediate defamation proceedings.”
That letter elicited a response dated 24 July 2000.
“I refer to your letter dated 21 July 2000.
Nothing in your letter persuades the ABC that the substance of Media Watch’s criticism of the 60 Minutes story – that it drew heavily on the documentary ‘Cry from the Grave’ without appropriate acknowledgement or attribution of that fact – was unjustified.
The fact that the 60 Minutes report was made with the knowledge and assistance of Antelope Films is irrelevant to the issue of plagiarism. As the 1996 AJA Report into the Journalists Code of Ethics clearly acknowledged, plagiarism occurs where there is a failure to attribute fairly.
Your letter concedes 60 Minutes was aware of the documentary and that Richard Carleton approached a producer with Antelope films ‘for assistance in producing a story along the same lines…’. Indeed, it is further conceded that Mr Carleton obtained considerable assistance from those involved in making the documentary including research and footage sources as well as contact details for the talent. We note that, despite your contention that the research for the 60 Minutes report was carried out by Richard Carleton, the story contains no new or substantially different information than that contained in the documentary. It is difficult to see what original work or research, other than interviewing the same talent and re-scripting, Mr Carleton or 60 Minutes undertook in preparing their story.
Given this reliance on the documentary it is not unreasonable to expect or suggest that the program should at the very least have acknowledged the documentary as a major source for the report. The failure to do so can be construed as plagiarism regardless of the knowledge or consent of that source.
Essentially telling the same story, as you put it, using the same library footage, talent, shots and chronological order as the documentary and having relied on the assistance of the documentary makers to gain access to the same library footage, talent and researcher would seem to call for an appropriate acknowledgement of the contribution of the documentary and its makers.
In the circumstances we don’t believe any apology is warranted. We will however be making some further comment in tonight’s program which you may be interested in watching.”
As foreshadowed, there was “further comment”.
Mr Barry, following an attack by him on another 60 Minutes piece for paying a disgraced cricketer for an interview in apparent breach of Channel Nine policy, which comment, incidentally, identified Mr John Westacott as the program’s Executive Producer, referred to the Srebrenica matter again:
“Paul Barry: And before we go tonight we have an update on last week’s 60 Minutes story.
60 Minutes threatens to sue ABC
(The Weekend Australian 22-23/7/00, p9)
Paul Barry: Last week we told you that 60 Minutes lifted their excellent piece on Srebrenica from a documentary made for the BBC.
(Media Watch 17/7/00)
Paul Barry: Dutch cameraman Wim Dykemar (sic) was in the BBC doco and 60 Minutes.
And they got them to tell the same stories.
Hasan Huhanovic, a UN interpreter told the BBC he had lost his family after they had been forced to leave the UN base.
Hasan Nuhanovic: My father says, ‘Sir, what about my wife and son, hoping that he would say let them stay too.’ he (sic) said, ‘listen, tell your father if he doesn’t want to stay he can leave too.’
(BBC, Cry from the Grave)
Paul Barry: He told the same story to 60 Minutes.
Hasan Nuhanovic: And I was yelling, ‘I’m coming with you, I’m coming with you so I’m coming outside the base.
When my parents realised that I was really going to come outside the base they turn around and they told me, ‘listen, Hasan, if you can stay, you stay, you don’t come with us.’(Channel Nine 60 Minutes 9/7/00)
Paul Barry: On the BBC documentary, Kadir Habibovic relived his miraculous escape from the Serbian killers.
Kadir Habibovic: (subtitled) I was sitting in the truck when two men who jumped out were shot. At that moment, I jumped out.
I was close to a forest, I saw it.
Someone yelled from behind the truck, ‘He’s running away! F*** his Muslim mother!’
(BBC, Cry from the Grave)
Paul Barry: On 60 Minutes he told it again:
Kadir Habibovic: (through interpreter) Two others tried to run but were shot.
I jumped over the side of the truck and I ran down the slope. I fell down and rolled into the forest.(Channel Nine 60 Minutes 9/7/00)
Paul Barry: Since then 60 Minutes has sent us a letter explaining that:
1. They got permission to do what they did; and
2. There’s only one story to tell and one way to tell it – and that’s why all the stories look the same.
Well we think that’s missing the point.
Media Watch didn’t accuse 60 Minutes of stealing film footage.
And we always believed they had been helped by those who worked on the BBC documentary.
The point of our report was that they failed to acknowledge their debt.
As I said last week I’m not sure what you call it – perhaps it’s plagiarism – certainly it’s lazy journalism.
We’ll let you be the judge.
See you next week.”
It is apparent, both from the letter and the latter broadcast, that the Media Watch criticism had concentrated on lack of acknowledgement of the assistance derived from the BBC program “Cry from the Grave”. It was suggested that it was only in that sense that the label of “plagiarism” was intended to be applicable. That is the position the defendants have, since then, adhered to.
As all sides have acknowledged, an accusation of plagiarism against a journalist is to impute a grave breach of journalistic standards.
Mr Carleton, unsurprisingly, was far from mollified by Mr Barry’s broadcast. He was so angry he threw a glass of whiskey (Chivas Regal) that he had been drinking, at his television set.
The text of that latter Media Watch episode (which I have, of course, also viewed) also appeared on the ABC website.
These proceedings were commenced four days later. Each of the plaintiffs claims to be defamed by each of the publications by Media Watch referring to the Srebrenica program.
The claim by the plaintiffs
The plaintiffs’ objection to the Media Watch programs and web transcripts was that they had been accused of “plagiarism”. The first program also alleged that 60 Minutes has been caught “at this” several times before.
So far as Mr Carleton is concerned that became pleaded as imputations that he:
“(a)… stole material and research from a BBC documentary to pass-off as his own work; or (sic)
(b)… has repeatedly stolen material and research from television programs to pass-off as his own work;
(c)… is guilty of plagiarism of a BBC documentary;
(d)… has committed plagiarism on previous occasions;
(e)… deliberately misled the viewers of 60 Minutes into believing that the story, scenes, shots and the characters featured in a 60 Minute program were the result of his own research and preparation;
(f)… is a dishonest journalist;”
So far as Mr Westacott is concerned, the pleaded imputations were that he:
“(g)… was responsible for the production of a 60 Minutes program about the Srebenica (sic) massacre which he knew contained stolen material;
(h) … is guilty of plagiarism of a BBC documentary;
(i)… was responsible for the production of a misleading and deceptive television program;
(j)… so dishonestly carried out his duties as Executive Producer of 60 Minutes that the program and its staff repeatedly stole and used material and ideas from other television programs;
(k) …is a dishonest television producer;
(l)… carried out his duties as an Executive Producer in a lazy manner;”
So far as Mr Sacre is concerned, the pleaded imputations were that he:
“(m)… was responsible for the production of a 60 Minutes program about the Srebenica massacre which he knew contained stolen material;
(n) … is guilty of plagiarism of a BBC documentary;
(o)… was responsible for the production of a misleading and deceptive television program;
(p) … is a dishonest television producer.”
In respect of the second publication, both the Media Watch program of 24 July 2000 and the subsequent website transcript, in relation, first, to Mr Carleton, imputations (a), (c), (e) and (f) were repeated. Imputations (b) and (d) were not alleged to be conveyed. There was, however, a new imputation, that he:
“(e) … is a lazy journalist.”
In respect of Mr Westacott, (g), (h), (i), (k) and (l) were repeated, (j) was omitted.
In respect of Mr Sacre, (m), (n), (o) and (p) were repeated. There was a new imputation allegedly conveyed that he:
“(o) … carried out his duties in a lazy manner.”
The reference to “lazy” journalism was made only in the second publications not the first. It is alleged to arise, as noted above, only in relation to Mr Carleton and Mr Sacre.
Was the Media Watch presentation defamatory?
There is no doubt that Mr Barry expressly describes the 60 Minutes production as “plagiarism, perhaps”. To add “perhaps” does not detract from the impact of the accusation in the mind of the ordinary reasonable viewer or reader.
Further, he states that “60 Minutes has been caught at this by Media Watch several times before”. “This” can only mean “plagiarism”. Whilst not expressly referring to Mr Carleton or his producer, Mr Sacre, the imputation suggests that all persons identified with 60 Minutes engaged in such a practice routinely.
There is, leading up to the accusation of plagiarism, an assertion that the 60 Minutes segment “The Evil that Men Do” was “lifted lock stock and barrel” from a BBC documentary shown on SBS television and called “Cry from the Grave”. The similarities between the two programs were shown to illustrate this accusation.
It was not suggested that the interviews and commentary were “dubbed”. Rather that the story, film footage, scenes and interviewees were the same or very similar to those used in “Cry from the Grave”. It was not suggested by the Media Watch presentation that Mr Carleton and his team had not gone to Bosnia or The Hague as they were depicted as doing.
The second Media Watch presentation repeated the suggestion that 60 Minutes “lifted” the “excellent piece on Srebrenica” from the BBC documentary. It referred briefly to the letter from Mr Westacott which was described as saying:
“…They [60 Minutes] got permission to do what they did; and two: there’s only one story to tell and one way to tell it.”
Mr Barry denied that 60 Minutes had been accused of “stealing film footage”. He defined the point as being that the “debt” to the BBC program was not acknowledged. That was said to be “plagiarism” “perhaps” but “certainly”, “lazy journalism”.
There is no doubt that the accusation of plagiarism is likely to affect those in the media adversely. Indeed, item 10 of the journalism Code of Ethics (exhibit EE) says, expressly “do not plagiarise”.
The defendants do concede that plagiarism is alleged. They deny that it amounts to an allegation of “stealing” material.
I would respectfully agree. “Theft” or “stealing” is an appropriation of material, not only without acknowledgement but without permission. In terms of film footage that could also be a breach of copyright. However, it seems to me that what Mr Barry conveyed by what he said and showed was that Mr Carleton’s segment was a copy or imitation of the program “Cry from the Grave”.
It was obvious that it was Mr Carleton who was on location and conducting the interviews seen on 60 Minutes as well as some of the location shots. What then of the historic film footage? True, it was possible that it might have been dubbed from the BBC documentary but it would not be assumed that 60 Minutes would have taken such footage in breach of copyright. If it had been, that might have been “stealing”. That imputation is not, however, conveyed or suggested by the matter complained of.
I referred to the test for determining what allegedly defamatory material conveys in Costello v Random HouseAustralia Pty Limited [1999] ACTSC 13; (1999) 137 ACTR 1 at 8-9. The relevant meaning is that which the hypothetical ordinary reasonable reader/viewer would derive from the matter complained of.
As I stated in that case, by way of warning to myself as the fact-finding tribunal [1999] ACTSC 13 at [31]; (1999) 137 ACTR 1 at 9:
“It is important to distinguish between inferences which the ordinary reasonable reader would draw from the matter published and speculation such a reader might, even probably, engage in.”
I also bear in mind, so far as the telecasts of 17 and 24 July 2000 are concerned, that, in contrast to a written publication, a viewer/listener may not have devoted the same degree of concentration to the significance of the whole of it. (See Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 165-166).
What follows from that, in this case, is that the average reasonable viewer will not assume that the term “plagiarism” is used in some benign fashion. He or she will take the ordinary meaning of it, possibly unqualified by the context. In this case I believe that even the transcript of the Media Watch program conveys that imputation.
It follows that I am satisfied that the imputation of “plagiarism” was conveyed by the matter complained of. I will further consider what that means and against whom subsequently.
What then of the suggestion of the misleading of viewers into believing that “the story, the scenes, the shots and the characters” were the result of Mr Carleton’s own research and preparation?
It seems to me that the reference in each publication to, in the first, “a hefty fee” being due to “the BBC producer and researcher” as well as “awards”, and in the second to “acknowledge their debt” does convey that imputation. It is apparent that Mr Carleton is alleged to have known of the BBC documentary and to have deliberately set out to use the research and preparation of the BBC to produce his program. That, it is clearly implied, is misleading and, to that extent, deceptive. His “own research and preparation” does not imply that it was represented to be all Mr Carleton’s work. It would be understood that the research and preparation would be a team effort, including Mr Sacre.
However, it also seems to me that any defamatory meaning this imputation conveys is co-extensive with the plagiarism allegation. Thus there is no need separately to consider it.
The second publications contained the further imputation of “lazy journalism”. It is not disputed that this imputation was made directly. It is clearly defamatory. Albeit it would convey a less derogatory meaning than “plagiarism”.
Thus, I find that the defendants have conveyed imputations of “plagiarism” and “lazy journalism”, but not theft of materials nor, separately from those imputations, any imputation of deceit or dishonesty.
Against whom are the defamatory imputations made?
There was an issue raised as to identification. That was not in dispute in respect of Mr Carleton insofar as it concerned the first publications. He was referred to both by name and by depiction. (See Consolidated Trust Company Limited v Browne (1949) 49 SR (NSW) 86 at 89).
He was not named or shown in the second Media Watch program but it seems probable that at least some viewers and some readers of the web page would have seen or read the first publications.
I do, therefore, consider that in each jurisdiction in respect of each publication at least one person would have identified Mr Carleton as the presenter of the impugned program. It is probable that there were many more.
In respect of the other two plaintiffs, however, neither is identified by name or image in the Media Watch programs, although, in the preceding story on the Media Watch of 24 July 2000, Mr Barry does refer to a reply received on “behalf of 60 Minutes” from “executive producer John Westacott”. I have noted he had mentioned Mr Westacott and his role earlier in the same program, albeit in an unrelated context.
So far as identification of Mr Westacott more generally, I am satisfied that the nature and content of Media Watch is, and was in July 2000, of a kind that would be avidly watched by all (in Australia) engaged in the industry of journalism in respect of whatever medium, not only to see if they (or their colleagues) were adversely mentioned but also to enjoy the discomfiture of those who might be so mentioned. Of course, not all those involved in journalism would be able to view every telecast of Media Watch at the time it was telecast. Some might view it later, having recorded it for later viewing. Many would look at or download the web transcripts. I consider that all would attempt to do one or other of those things, though it is inevitable that a few would have failed to see or read it.
This was confirmed for me by the evidence of Mr Gerald Stone. Of course, his evidence that his mind went to Mr Westacott as a person against whom the accusations contained in the matter complained of were levelled is not decisive. He was Mr Westacott’s predecessor. However, it seems to me that any well-informed journalist would know of Mr Westacott’s position. It is, after all, their role to be well-informed, particularly about their own industry and its senior characters.
Further, Mr Westacott’s role is and was routinely acknowledged in the 60 Minutes credits and that quite prominently.
I conclude that many viewers, in each jurisdiction, would have known of Mr Westacott’s role as “executive producer”. But does that mean that those viewers or readers would assume the imputations included his guilt of plagiarism or serial plagiarism?
As to the usual understanding of the role of an executive producer, reference may be made to Tobin T K QC & Sexton M G SC, (1999) Australian Defamation Law and Practice, Butterworths (“Tobin & Sexton”) [5210]:
“The editor of a newspaper, or executive producer of a television program, who exercises general supervision but may not be involved in any direct way with the defamatory publication will be liable for acts of his staff in the course of their employment. The liability of the editor or executive producer derives from his overall position of authority and his general supervisory role, from which it can be said that he participated in the publication, although he may not have known of its defamatory content. The question of his liability does not depend on any act by the editor with regard to the particular defamatory publication which is sued upon. He need not have read it, sub-edited it or taken any direct part in its composition. Therefore the liability of the editor or executive producer extends beyond that involving matter published with his express authority, or at his instigation or request. It extends to all matters published in circumstances where he had the authority and responsibility to supervise their content.
An analogy should not, however, be drawn with the case of the absent proprietor who incurs civil liability by virtue of his ownership and control of the business. There does not seem to be any reason in principle why an editor should be liable for publications made while he is formally absent from the chair. In those circumstances, he does not have, nor does he purport to have, the opportunity to exercise general authority over the content of the paper or program in question. On the same basis, it might be doubted that the chief executive officer of the publishing company or its directors would be liable in the absence of any particular involvement in the publication in question.” (footnotes omitted)
Of course, the imputations against Mr Westacott are not defamatory of him if it is merely to be understood by the viewer/reader that he was only vicariously responsible for the content of the particular and previous programs exhibiting “plagiarism”.
However, in my view, particularly given the close association of Mr Westacott’s name with 60 Minutes programs generally and his role in defending it, I conclude that it would generally be assumed that an executive producer in his position would have, at least, authorised and approved the publication of Mr Carleton’s program knowing of its provenance and content. It would be assumed that he knew of Mr Carleton’s objective (as in fact he did) of presenting a program, similar, inter alia, to “Cry from the Grave”. In my view, though Levien v Fox (1890) 11 NSWLR 414 is of little direct assistance on this question, it can, by analogy, be used to support a view that an editor (or executive producer) will be assumed by the average reasonable reader/viewer to have approved a particular publication apparently published under his or her name. That is to be distinguished from those more remote from the publication, such as the managing director or chief executive of the publishing company – see, for example, Consolidated Press Holdings v John Fairfax Publications Pty Ltd [2002] ACTSC 63 (15 July 2002).
That latter decision supports the learned authors’ view in the last sentence of the commentary referred to in par 93 (supra).
The role of Mr Howard Sacre is even closer to the particular publication. However, whilst an executive producer has and would be expected to exercise well-informed though general control of each segment of a 60 Minutes program, a producer would be regarded as responsible only for those particular segments on which he or she had (or was believed to have) worked.
Nevertheless, I am satisfied, not only on Mr Stone’s evidence but also that of Mr Paul Bongiorno that, not only would Mr Sacre be identified in media circles as a producer of 60 Minutes segments, he would also be known as Mr Carleton’s producer.
Thus I am satisfied that the imputations made against Mr Carleton would also be taken by the average reasonable viewer/reader against Mr Westacott in the sense that he at least sanctioned plagiarism and lazy journalism and against Mr Sacre in that he actively participated in the detail of it in relation to the particular program in question.
Of course, I bear in mind that, predominantly, only those viewers/readers who were well-informed on media matters or avidly read credits of programs (not a large class) would turn their minds to Mr Westacott and Mr Sacre as being a subject of the imputations, but that class is large enough to satisfy the test in Consolidated Trust Company Limited v Browne (supra) in respect of each State and Territory of Australia.
What then are the defamatory meanings conveyed?
The allegation of plagiarism is expressly conveyed, albeit with the qualifier “perhaps”. It does not seem to me that “stealing” of material is made out. The allegation made by the words and pictures is of copying or imitating rather than stealing material.
There is an allegation also of similar past conduct not, of course, “stealing”, but of plagiarism.
It is conceded by the defendants that their definition of plagiarism contains an element of “dishonesty”. It is regarded by journalists and, indeed, many others as an accusation of disgraceful and reprehensible conduct.
The second telecast adds the allegation of “lazy journalism”. That implies a lack of professionalism, very damaging to any journalist let alone one considered to be in the top ranks of journalism.
It would be inferred that the producer was also guilty of that disgraceful conduct and had been complicit in the lack of professionalism implied by “lazy journalism”.
Each of those accusations would have seriously damaged the reputation of the plaintiffs, particularly amongst journalists but, in any event, generally.
Are the imputations “true”?
The defendants rely on truth as a defence or as an essential element of a defence.
The dictionary definition of plagiarism is:
“1. the appropriation or imitation of another’s ideas and manner of expressing them, as in art, literature, etc, to be passed off as one’s own. 2. something appropriated and passed off as one’s own in this manner.” (The Macquarie Dictionary)
“1. The action or practice of plagiarizing; the taking and using as one’s own of the thoughts, writings, or inventions of another. 2. A purloined idea, design, passage, or work.” (The Shorter Oxford English Dictionary)
“(1) The act of plagiarising. (2) An idea, passage, plot etc that has been plagiarised” and “plagiarised” is defined as: ‘(1) to take and pass off as one’s own (the ideas, writings, etc of another). (2) to take ideas, writings etc from and pass them off as one’s own’.” (Webster’s Dictionary)
The sense conveyed may be seen in the Latin from which the word is derived:
“plagiarus-ii, m. kidnapper, plagiarist” (Cassell’s Compact Latin – English Dictionary)
It follows that not every copying or imitation of the work of another without attribution will be plagiarism. It must also be wrongful. As, for example, students copying an answer or essay prepared by another and representing it to be their work. However, for one student to copy, with permission, the study notes of a fellow student so as to prepare their own essay or examination answers would not be improper nor require any attribution if the ideas only were used and not the expression of them.
Nor is it improper to copy a draft prepared by another for the very purpose of being copied and then passed off as the work of the apparent author – see, for example, Hansen v Northern Land Council [1999] NTSC 69 (12 July 1999) at [10].
The notion of “copying” is always a matter of degree. What are the points of similarity? What are the points of difference? Are the latter present merely to cover up the former?
The issue of “copying”, for example, house plans often revolves around breach of copyright. That breach is what imparts wrongfulness or impropriety.
Ownit Homes Pty Ltd v D & F Mancuso Investments Pty Ltd [1988] AIPC 90-488; 5 BCL 64 (“Ownit Homes”) is an example of that process. The Court (Fisher, Pincus, Einfeld JJ) commented on an argument that the notion of intentionally creating similarity had been given too little weight at first instance, (Ownit Homes [1988] AIPC 90-488 at 38, 240; 5 BCL 64 at 69-70):
“… This line of argument appears to be rooted in the ‘rough practical test’ advanced by Petersen J in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at p 610 ‘… that what is worth copying is prima facie worth protecting’ – a test in which Lord Reid in Ladbroke [(Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273] saw ‘much wisdom’ (at p 279). However, as Sir Owen Dixon remarked, ‘stealing from one author is plagiarism; stealing from three authors is research’ (The Dictionary of Australian Quotations, Heinemann 1984).”
The difficulty is explained with his customary clarity by Street J (as he then was) in Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278.
At 283, his Honour cited with approval the following, (from Copinger & Skone James on Copyright, 10th ed. par 406):
“Form not idea protected. A preliminary observation is that it is essential to have in mind in approaching any question of infringement the nature of the thing protected by copyright law. What is protected is not original thought or information but the original expression of thought or information in some concrete form. Consequently, it is only an infringement if the defendant has made an unlawful use of the form in which the thought or information is expressed. The defendant must, to be liable, have made a substantial use of this form; he is not liable if he has taken from the work the essential idea, however original, and expressed the idea in his own form or used the idea for his own purposes …” (emphasis added)
Expressed in his own words, his Honour said, (at 284):
“There is a clear distinction between the protection which the law will afford to an architect’s plans on the one hand, and, on the other hand, the absence of any protection to the architectural idea or concept which may happen to be expressed in a given set of plans.
… The law does not prevent one architect from following in the footsteps of a colleague; it does prevent him from copying the plans of his colleague so as to enable him to follow those footsteps; and it does prevent him from physically reproducing those footsteps and thereby following them.
… An architect may legitimately inspect an original plan or house and then, having absorbed the architectural concept and appreciated the architectural style represented therein, return to his own drawing board and apply that concept and style to an original plan prepared by him and in due course to a house built to such plan … In many instances it will be difficult to state categorically whether the dividing line has been crossed … The borderline area is clouded by a band of grey within which opinions and conclusions may differ.”
There is an obvious analogy between an original architectural plan and a television program. Where the subject of the program is not fiction but history, as with the plans of a dwelling, there must necessarily be considerable elements of similarity between the original and the subsequent work.
The telling of the story of a war crime ought not to vary as to the facts conveyed. “Cry from the Grave” was comprehensive. Certainly more so than “The Evil that Men Do”.
Of course, breach of copyright, though a clear case of plagiarism, is not the only situation in which plagiarism may be found to exist.
Flanagan v University College Dublin [1988] IEHC 1 (29 September 1988) (High Court of Ireland) is an illustration of scholarly plagiarism.
Barron J, at [20], observed:
“Clearly, the charge of plagiarism is a charge of cheating and as such the most serious academic breach of discipline possible. It is also criminal in its nature.”
Again, however, there is a distinction between the appropriation of ideas through research and the copying of the expression of those ideas by others without attribution.
In the present case, Mr Carleton and his team between them, but primarily, on the evidence, Mr Carleton, researched the reports made on the Srebrenica massacre. That included David Rohde’s book “End Game”. It included the 60 Minutes CBS program and the Panorama program.
Any such program must have included file footage (if any) of the relevant events. It will include scenic representations of the places referred to and, possibly, re-enactment of events and, certainly, interviews with relevant witnesses or commentators. It will be linked together by the narrator.
So it was in this case. Given that Mr Carleton’s program set out to tell the story in 15 minutes (it, in fact, took 14 minutes) only the most telling scenes and witnesses would be expected to be portrayed.
In the case of “The Evil that Men Do” the real difference was Mr Carleton. It was his telling of the story, his presence at the various Bosnian/Serbian sites, his conduct of interviews, that told the same story his way.
That it was inspired by and used similar film footage and locations and interviewees does not establish plagiarism. To do so there would need to be an element of “cheating”. That could be done by, for example, miming a dubbed interview, that is, pretending to conduct an interview that had been conducted by some other journalist. Pretending to be on site but instead using shots provided by others may be cheating. It is not “cheating” to use file footage, particularly where the right to use it is obtained lawfully.
In other words, the 60 Minutes program was not plagiarised from the BBC program. It follows that it did not need to acknowledge prior research or its inspirational source or sources. Nor had the “Cry from the Grave” producers been obliged to, nor did they, acknowledge the preceding accounts of the story they told in their way. That is not to say that it would not have been courteous to have done so. It is simply that the omission of a courtesy does not constitute plagiarism.
It follows that the charge of plagiarism levelled by the defendants at the plaintiffs was both false and defamatory. That is, it was not true as a statement of fact.
The defendants did suggest that, by lifting one scene from “Cry from the Grave” (the Ramo/Nermin footage) that the charge of “cheating” is made out. Further reference was made to the use of the morgue scene, as if it contained only Srebrenica victims and the depiction of the grave site being exhumed, to convey a similar meaning, when that was not literally true.
Mr Carlton conceded, and Mr Sacre certainly must have known, that those latter matters conveyed false representations. Mr Carleton did not know that the “Nermin film” had been “lifted” from “Cry from the Grave” until after “The Evil that Men Do” was screened, though Mr Sacre certainly did.
The latter contention, I must say, seems trivial. I accept that 60 Minutes had purchased the rights to use the Nermin footage. By some error, unexplained, they lost it. The use of the lifted footage conveys nothing false or misleading to the average viewer. The event occurred. 60 Minutes had the right to portray it. There was a misrepresentation only in the sense that Mr Sacre was representing that the copy shown was copy 60 Minutes had obtained independently of Antelope Films but no-one would have been aware of that and it was a relatively trivial matter.
The other two matters were indeed misrepresentations. They were made knowingly, and for dramatic effect.
However, as I have noted, there is no imputation conveyed by the matter complained of that the program was misleading or deceptive in any sense other than that it was plagiarised from the BBC program.
Nor is the accusation of “dishonesty” made otherwise than as a consequence of the accusation of “plagiarism”.
The accusation against “60 Minutes” of doing “this” before, so far as it applies to Mr Carleton or Mr Sacre, is not supported by any evidence. It is a false and defamatory accusation so far as they are concerned.
Mr Westacott stands in a different position as executive producer. He is responsible for all programs and was responsible for the previous programs alluded to by Mr Barry.
The defendants pointed to five previous programs to justify the accusation of previous plagiarism. The Media Watch criticism was:
§ 25/9/94 (per Stuart Littlemore) A story concerning serial killer Aileen Wuornos – similar to a previous BBC documentary. It was, however, criticized by Media Watch for careless errors rather than merely re-telling the same story or plagiarism.
§ 16/2/97 (per Stuart Littlemore) A story concerning the Shaolin “warrior” monks. A re-make of an old story was the criticism. Not plagiarism.
§ 25/5/97 (per Stuart Littlemore) A story concerning the making of a cartoon show “Wallace & Grommit”. The 60 Minutes report being a voice over of various fill in segments and interviews with Nick Park and parents.
Some fill in segments are copies but much is not. Again the criticism is that it is merely re-telling a story recently told elsewhere, not plagiarism.
§ 24/8/97 (per Stuart Littlemore) “Guru Busters” – a story about fake gurus using stage magic to attract supporters and money. (from Ch 4 UK 1/6/95) compared with Jeff McMullan “God Botherers” – some use of similar footage but also new face to face interviews – a substantially different story. The point of the criticism is not clear but it was not plagiarism.
§ 28/2/99 (per Richard Ackland) “Dancing with Strangers” – Australian Story (ABC) compared with 60 Minutes “Dead Man Talking”. Story of two women murdered by Eric Edgar Cooke. John Button was blamed and convicted of the murder of one of them. Australian Story told only the story of John Button (based on Estelle Backburn’s story). Media Watch examined the other case as well. A vastly different story overall. The point of the Media Watch story was to complain of repetition, not plagiarism.
In truth none of these Media Watch programs alleged more than a revisiting by 60 Minutes of previous told and, usually, more detailed stories. There had been points of similarity between the compared stories for that reason.
There were also substantial areas of difference. Further, each reporter conducted substantial interviews with, not only the same, but also additional interviewees.
It cannot be said to have been “plagiarism”. Nor was that the Media Watch complaint at the time. It was more a complaint of repetition, of boring viewers with a story recently told elsewhere rather than the telling of a new story. It follows that Mr Barry’s statement first alleging plagiarism, then asserting prior occasions of “this”, conveys a false and defamatory accusation of “plagiarism” against Mr Westacott as it does against Mr Carleton and Mr Sacre. The examples, if identified, might not have done so against the latter two but, as they were not, the imputation is made out.
Then there is the allegation of “lazy journalism”. Clearly, that is to be understood as utilising the work of others, whether improperly or not, so as to save time and effort. Of course, that is precisely what Mr Carleton did. But was it laziness or efficiency? Clearly, the word “laziness” carries with it the connotation of idleness, lethargy, indolence, slothfulness, lack of energy.
In truth, the effort put into and the preparation for all of the programs referred to, including “The Evil that Men Do” bespeaks the opposite. The real criticism is that, in the instances chosen, including the present, 60 Minutes was retelling a story previously told, usually in greater depth and to a different audience served by a different outlet. That different outlet was, almost invariably, catering to a much lesser audience in terms of numbers. 60 Minutes adopts a “popular press” rather than a “quality press” approach. Indeed, the Media Watch approach simplistically focussing on similarities in the retelling of stories is no more valid a criticism as a complaint that the Telegraph Herald had told a similar story, though more succinctly, to an in-depth article in the Sydney Morning Herald. It is an elitist view that ignores the fact that the audiences for the stories in question are different. As already noted, it is not plagiarism, nor is it “lazy”, to take inspiration from a previous story and to re-tell it as 60 Minutes did in each case in their own style.
The imputation of lazy journalism is also false and defamatory. The defence of truth fails.
Common Law qualified privilege
The defendants concede that, in the present circumstances, common law qualified privilege is only available where the defamatory matter is published to persons who have “an interest” in knowing the truth of the matter. This is not an occasion of a duty to publish, of political discourse, of response to an attack, of complaints against public officials or office holders. It is a case of an alleged “community of interest” (see Howe v Lees (1910) 11 CLR 361). The defendants contend that the public interest in knowing the truth as to apparent lapses in journalistic standards satisfies that test. The communication of information on an occasion of qualified privilege is protected from an action for damages for defamation even if the information or matter conveyed is both false and defamatory.
In truth, the recognition of political discourse as an occasion of qualified privilege is a species of “community of interest”. The defence usually protects only communications to a limited range of persons. A dishonest employee, for example, would be of “interest” to the employer, perhaps to customers or clients of the employer, perhaps, also, to prospective employers but to not the general public. But the dishonesty of a political candidate is of “interest” to all voters and even to the general public.
In its re-formulation of the Theophanous test (Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104) in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court recognised the latter notion of mutual interest. The test was expressed as follows, at 572:
“At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communications. But, apart from a few exceptional cases, [for example, Adam v Ward [1917] AC 309; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503], the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. Because privileged occasions are ordinarily occasions of limited publication – more often than not occasions of publication to a single person – the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory.” (some footnotes omitted)
However, the Court added that, in those exceptional cases where mass communication is protected, there is an additional requirement, the same as is contained in the statutory defences of qualified privilege in New South Wales, Queensland and Tasmania, of “reasonableness of conduct”. Their Honours noted, at 573:
“In all but exceptional cases, the proof of reasonableness will fail as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication.”
And the Court further warned, at 574:
“But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.” (footnotes omitted)
Communication to the general public has been sanctioned in the case of the exercise of public functions and powers vested in public representatives and officials – see Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 264-6 per McHugh J.
The particular category of qualified privilege his Honour there referred to was:
“… communications made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those functions and powers.”
It applies even if “the information is subsequently proved to be incorrect”. It must, however, be published “honestly … for the purpose of informing the public about such matters”.
In the present case, Media Watch based its accusation of plagiarism on the failure to “acknowledge their debt” on the part of 60 Minutes. It assumed, correctly, that “Cry from the Grave” was a source of information and emulation (commentary, scenes, footage, interviewees). It failed to appreciate, nor does it seem that the Media Watch researchers were aware, that the two other documentaries (Panorama, CBS) were also sources of information and, to a lesser extent, emulation, as was David Rohde’s book “End Game”. If that had been known and, if the lack of attribution of such sources had been seen not to be required or expected, the criticism of “plagiarism” might not have been made. It is true that the 60 Minutes letter of complaint referred to those sources and made that point. The response was to the effect that there was “no new or substantially different information” from the Antelope Films production. The letter of reply did not address the point made as to the way in which “Cry from the Grave” had utilised its sources of inspiration and information. It assumed that the very objective of the 60 Minutes segment – to produce, as a five year remembrance of the Srebrenica Massacre, a “story along the same lines” as “Cry from the Grave” was itself “plagiarism” because, although the story was remade and retold, it had a similar format and content (insofar as it did) and it should, therefore, have been acknowledged that it had been inspired (at least) by “Cry from the Grave”. It is true that a 1996 report on journalistic ethics, Ethics Review Committee Final Report November 1996 (a publicly available document) says “6. Plagiarism is stealing. Always attribute fairly”. That differs (though not markedly) from rule 10 in exhibit EE (“Do not plagiarise”). The former, however, makes more express that which I have considered the essential element of plagiarism, namely, the element of “stealing” (including cheating or misappropriating) and then imposing an obligation to attribute the material borrowed from another “fairly”.
The facts on which the comment of the defendants was based were, in my view, sufficiently indicated so as to enable the viewer to “be the judge” of the fairness of the comment, as Mr Barry himself suggested in the second publications. True, some might think that, although they would not describe the similarities between two programs as being “plagiarism”, if Mr Barry thought it was plagiarism, it must be so. But that is precisely the difference of opinion, even if it be persuasion to adopt an opinion, that is protected by these defences.
In any event, I do not consider that there was any substantial factual mis-statement such as would render the defences inapplicable.
New South Wales Defence of Comment
Part 3 Division 7, sections 29-35 of the Defamation Act 1974 (NSW), deals with this defence. Overall, however, the common law approach to fair comment is retained. The distinction between fact and comment is not addressed. It is a question of fact for me to determine and I am satisfied that the defamatory imputations resulted from expressions of opinion and, hence, were capable of being regarded as comment on the facts stated or referred to. They were, in my view, expressions of opinion.
The Act does not make a distinction, in s 30(2), between the facts commented upon, which need not be, themselves, a matter of public interest, and the comment which, pursuant to s 31, must relate to a matter of public interest.
In the present case, I have already accepted that the comment itself did relate to a matter of public interest. It is in accord with the view of that concept adopted by the New South Wales Court of Appeal in New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340. See also Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448.
Tobin and Sexton comment, at [13120], that the statutory defence:
“… represents an expansion of the common law position in relation to the material on which comment may be based but, in providing for the expansion, [s] 30(3)(b) introduces the requirement of reasonableness between the opinion expressed and the material which forms the basis for the expression of opinion.”
It is unnecessary, in the present context, to consider whether the defence is directed to the words constituting the comment or the imputations (for New South Wales) constituting the cause(s) of action. In the present case they are, in my view, congruous.
Nor is there any lack of reasonable connection between the material commented upon and the comment itself.
The question which does arise is whether s 32 applies, that is, is it shown that “… the comment did not represent the opinion of the defendant” (s 32(2) Defamation Act 1974 (NSW))?
That issue really only arises if the defendants have established the defence of comment. If so, it is “defeated” by that circumstance. It mirrors the “malice” issue in relation to “fair comment”. It is, however, a different question. There is no doubt that, subject to that issue being determined, the defence of comment is applicable.
As Gillooly M, (1998) The Law of Defamation in Australia and New Zealand, The Federation Press, commented at 140 (approved by Kirby J in Palmer v Belan [1999] NSWSC 187 (12 March 1999) at [194]):
“Where the defendant is the maker of the comment, the s 32 defence will only be forfeited if the plaintiff proves that ‘the comment did not represent the opinion of the defendant’ (s 32(2)). The motives of the commentator (including whether he or she is actuated by malice) are irrelevant – the issue is whether the commentator genuinely believed in the truth of the comment (Bickel v John Fairfax & Sons [1981] 2 NSWLR 475 at 491, 493). Hence if a defendant asserts that he or she did not intend to convey the imputation found by the tribunal of fact to have been conveyed by way of comment, then the defence must fail since ‘a person who states that he did not intend to convey a particular defamatory imputation cannot reasonably be taken to have held the opinion represented by that imputation’ (Lloyd v David Syme (1985) 3 NSWLR 728 at 736 per Lord Keith).”
For the defence to succeed the comment must be based on “proper material for comment”. The comment in question was based on such material, as is implicit in my finding as to the defence of fair comment at common law. The comment relates to a matter of public interest. Section 30 and 31 of the Defamation Act 1974 (NSW) are, therefore, satisfied.
Being a comment of the defendants, the defence is liable to be defeated if it, “did not represent the opinion of the defendant” (s 32(2)).
It is true that none of the defendants gave or offered evidence that directly asserted that Mr Barry and Mr McEvoy truly held the opinions they had expressed.
However, I do have the advantage of viewing the two programs complained of. I have before me Mr McEvoy’s letter. It seems to me unlikely that either of them did not hold the views they each expressed, including, in each case, the views expressed by the other of them. Though I find that each of them adopted a mistaken view as to what constitutes “plagiarism” or “lazy journalism”, I do not consider that either of them was merely pretending to hold the opinions he expressed. I am satisfied that the opinions represented the opinion of each of the defendants. (The ABC, of course, has no separate opinion from that of the other defendants.)
It was submitted that I should find that following Mr Westacott’s letter none of the defendants could honestly have held the opinions expressed in the second program of Media Watch. I disagree. It misses the point. The fact that the defendants were in error does not deny the honesty of their erroneous belief.
Whilst it is true that neither telecast, relevantly not the first, identifies the prior programs criticised by it, the methodology criticised would have been assumed to be the same as that involved in the making of the 60 Minutes program, the direct subject of the matter complained of itself. To my mind, that does miss the point. The defendants believed that the 60 Minutes program followed a similar storyline and format to “Cry from the Grave”. That was entirely correct. However, they took the view that to do so, without attribution, constituted plagiarism. In that, for the reasons I have given, they were mistaken. It does not impugn the honesty of the defendants’ belief in the appropriateness of their comment that they did not change their view when faced with Mr Westacott’s response. Indeed, Mr Westacott had simply failed to understand the meaning of plagiarism that the defendants had adopted. It was not a meaning that had occurred to him (reasonably so). Hence his letter did not address the real difference of opinion on that issue. This was not a case, as I have already indicated, where such a difference could only be attributed to dishonesty on the part of the defendants. Indeed, I am satisfied that the difference of opinion was a genuine one. It follows that this defence succeeds whether or not malice/lack of good faith otherwise exists.
It follows that the statutory defence of “comment” succeeds as to publication in New South Wales.
Malice
Whilst the New South Wales statutory defence of comment is defeated by a lack of genuine adherence to the opinions expressed, the common law defence of fair comment and the other statutory defences of fair comment or comment are defeated by malice or, in the case of the statutory defences, lack of good faith.
Although the comment defence succeeds so far as New South Wales is concerned, even if the publication be otherwise malicious, that does not lead to the same conclusion as to the defences of fair comment (or if they were otherwise alive, defences of qualified privilege).
Proof of malice (or lack of bona fides) will defeat any such defences.
It follows that, whilst fair comment and comment defences have succeeded, proof of malice (or lack of good faith) arising otherwise than from the expression of opinions not truly held will defeat those defences within all jurisdictions (other than in New South Wales). Malice, in the sense of lack of honest adherence to the opinions expressed, I have already positively rejected. “Malice”, however, may be found even if an opinion has been honestly expressed.
The meaning of the term “malice” was referred to by Lord Diplock in Horrocks v Lowe [1975] AC 135 at 149, in the following passage:
“So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on [the defendant] to prove that he [or she] was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice’ is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove.”
In the present case, the contention that the defendants were actuated by malice on either or both occasions of publication (each being a broadcast plus the website transcript), is based first on a lack of honest belief in the truth of the accusations. For reasons already given, I reject that contention in respect of each of the sets of publication.
To an extent, there was reliance on a suggestion of unfairness. That is, that whilst points of similarity were emphasised, points of dissimilarity were largely ignored. But that is because the defendants’ perspective was that the points of dissimilarity were irrelevant to their comment that the unacknowledged similarities constituted “plagiarism” (perhaps) or “lazy journalism”.
There was not, relevantly, any misstatement of fact in either set of publications, although, in the second, the letter of explanation was somewhat glibly and even, perhaps, unfairly summarised. Insofar as an entire reading of that letter might have led to a clearer understanding in the discerning viewer/reader of the different perspectives of the opposing parties, it did unfairly favour the defendants’ view. However, it does not seem to me that it was so deliberately contrived that it bespeaks a lack of honest belief in the accuracy of the comment made nor any improper desire to cause injury.
It was also submitted that the belief expressed by the defendants was so unreasonable that their failure to appreciate that it was, particularly after the plaintiffs had pointed out that it was erroneous, bespeaks malice.
It is true that, in Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431, referring to the defeat of the defence of qualified privilege by reason of malice, Lord Esher MR said at 444:
“But there is a state of mind, short of deliberate falsehood, by reason of which a person may properly be held by a jury to have abused the occasion, and in that sense to have spoken maliciously. If a person from anger or some other wrong motive has allowed his mind to get into such a state as to make him cast aspersions on other people, reckless whether they are true or false, it has been held, and I think rightly held, that a jury is justified in finding that he has abused the occasion. Therefore, the question seems to me to be whether there is evidence of such a state of mind on the part of the defendant. It has been said that anger would be such a state of mind; but I think that gross and unreasoning prejudice, not only with regard to particular people, but with regard to a subject-matter in question, would have the same effect. If a person charged with the duty of dealing with other people’s rights and interests has allowed his mind to fall into such a state of unreasoning prejudice in regard to the subject-matter that he was reckless whether what he stated was true or false, there would be evidence upon which a jury might say that he abused the occasion.”
In that case the defendant had characterised a performance as “indecent”. It was a wholly inappropriate description. Thus it was held that the jury could find that the comment was actuated by malice. There was “gross and unreasoning prejudice”.
Although malice was not a relevant issue in Lenox Hewitt v Queensland Newspapers Pty Limited [1995] ACTSC 54 (5 June 1995) the factual situation illustrates that concept. It is an example of the concept of “gross and unreasoning prejudice” that bespeaks malice. The defendant had referred in its newspaper (The Courier-Mail) to proceedings for a civil debt (ultimately unsuccessful) as if they were criminal proceedings taken against the plaintiff. I said, at [105]:
“No person having adequate knowledge of the English language could have failed to perceive that the article implied that the plaintiff had been accused of criminal conduct by proper authorities …”
That is, to my mind, the extent to which, to establish lack of honest belief in the appropriateness of the comment complained of, the plaintiff must go to establish malice merely (or substantially) from the form and content of the matter complained of.
In this case there is, further, no evidence of any ulterior purpose or “hidden agenda” to support a finding of malice by reason of misuse of either occasion for comment.
Sometimes a failure to give notice of the proposed defamatory comment might bespeak malice but that is not the case here. Sometimes a failure to withdraw and apologise will bespeak malice but that is only if it is patently obvious that the comment was erroneous and, that being pointed out, it is patently reckless or stubbornly blind for the defendants to refuse so to do. That may also reveal a discreditable motive for the prior publication. That is not the case here.
Accordingly, I am not persuaded, notwithstanding the lack of oral testimony from Messrs Barry and McEvoy, that the defence of fair comment is defeated by malice.
Damages
It follows from the above that the plaintiffs are not entitled to damages for defamation. There must be judgment for the defendants.
In the event that I was wrong about that, I would have awarded $50,000 to Mr Carleton for damage to his reputation and feelings. I consider that he was genuine in his assertion of hurt and affront. It was exacerbated by the repetition of the offending matter and a denial of a retraction and withdrawal, though the latter is ameliorated by the fact, as it seems to me, that the refusal, though inappropriate, was made in good faith. The award is further ameliorated by the two opportunities, both by means of television and radio, which Mr Carleton took to defend his position. Nevertheless, the award of damages would have needed to be of the order above referred to, aggregating all jurisdictions, to vindicate his reputation and condemn the unjustified slur on his reputation.
I would have awarded $20,000 each to Mr Sacre and Mr Westacott. That represents a lesser audience to whom they were known and hence less damage to reputation. They also benefited, indirectly, from Mr Carleton’s advocacy of his cause. I could not have made any award to either for hurt feelings. They did not give any evidence of that (or anything else).
If it was necessary to do so, I would apportion 40% to the first publications and 60% to the second by reason of the difference between the viewing numbers (website hits are not terribly significant) and the additional aggravation occasioned by the repetition. I should add that in the case of Mr Westacott, there was an additional slur upon him, namely, the allegation that he was a serial plagiarist. However, he would have been assumed to have had less immediate involvement in the production of “The Evil that Men Do”. That warrants parity in the assessment of damages compared with Mr Sacre.
Law Reform
The result arrived at in this case, though dictated by the law, is far from satisfactory.
Of course, defendants, in the media or otherwise, should not have to pay damages where they have published matter in circumstances not amounting to defamation (or malicious falsehood), or even if defamatory, where it is excused by an appropriate defence, even if they have made statements concerning another which happen to be untrue and even if those untrue statements are hurtful and, potentially, damaging.
On the other hand, why should not a person about whom an untrue and damaging statement is made, whether or not strictly defamatory and whether or not excused by privilege, qualified or absolute, or by fair comment at least be entitled to a correction of that untruth?
There is in the Defamation Act 2001 (ACT), now included in the Civil Law (Wrongs) Act 2002, a series of provisions aimed at vindication of reputation without litigation, at least in a case such as the present.
A publisher may offer to “make amends” by offering a reasonable apology and retraction together with payment of compensation for costs and other expenses (ss 49- 50).
In that event, damages, save for imputation of criminal conduct, are not payable.
If the offer is accepted, a court may enforce an agreement for amends, even if the quantum of compensation has not been fixed by the offer. The court may assess and fix that sum.
Acceptance bars action for damages for defamation (s 51). Rejection of a reasonable and timely offer is a defence (s 53).
That provision expands upon s 8 Defamation Act 1901 (ACT) (now repealed). (Defence of apology and payment into court - see Levien v Fox (supra)). It adds somewhat to it. A defendant, admitting libel, may, by early apology and offer of amends, escape liability pursuant to that provision.
In Calwell v IPEC Australia Limited (1975) 135 CLR 321, the plaintiff was (falsely) presented as disloyal to his leader and his political party (the Australian Labor Party). The article was found defamatory but the publisher was excused, by reason of qualified privilege. Thus the Hon. Arthur Calwell could not, without a costs penalty, demonstrate that he had not been disloyal, even though it was accepted that the accusation was untrue and, politically, quite damaging.
In Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749, the imputation that the plaintiff had an improper sexual relationship with her employer (the Hon. Jim Cairns) was found not to be defamatory. On an appeal the Court of Appeal simply found that latter conclusion to have been open to the jury. However, it meant that, whilst the jury might (or might not) have rejected the truth of the accusation, the plaintiff had no declaration of falsity in her favour (assuming she was so entitled).
In the present case, I have found the accusations levelled by the defendants at the plaintiffs to be untrue. Yet I am obliged to deny them damages, rightly so, as the defendants’ freedom of speech, protected by fair comment, allows them to have published their opinions, however wrongheaded and prejudiced, without legal penalty. But that leaves the plaintiffs who have been falsely accused of plagiarism with no legal remedy. They have, by reason of my findings, vindicated their reputations, at least in my opinion. This is not a just result but it is the only conclusion to which I can come. I will hear the parties, of course, as to costs but it is inevitable that this finding that they have been defamed will be at the plaintiffs’ expense.
Report 10 (Defamation) of the Community Law Reform Committee of the Australian Capital Territory, pars 152 to 159, recommended a “corrections” procedure. A defamed person could so apply. Defences, other than truth, would not deny a correction. But a plaintiff having achieved a correction would have only a qualified right to then pursue damages and could be met by any other available defence. The new Civil Law (Wrongs) Act 2002 may provide, in future cases, a useful alternative to litigation such as the present.
I certify that the preceding three hundred and nine (309) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Higgins.
Associate:
Date: 18 December 2002
Counsels for the first, second and
third plaintiffs: Mr B R McClintock SC with Mr M Richardson
Solicitors for the first, second and
third plaintiffs: Phillips Fox
Counsels for the first, second and
third defendants: Mr T K Tobin QC with Mr M Lynch
Solicitors for the first, second and
third defendants: Colquhoun Murphy
Date of hearing: 22 May 2002
Date of judgment: 18 December 2002
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