French v Triple M Melbourne Pty Ltd (Ruling No 5)
[2008] VSC 553
•24 November 2008
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7928 of 2005
| MARK FRENCH | Plaintiff |
| v | |
| TRIPLE M MELBOURNE PTY LIMITED ACN 095 319 903 & Ors | Defendants |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10-14, 17-21, 24-28 November and 1 December 2008 | |
DATE OF JUDGMENT: | 24 November 2008 | |
CASE MAY BE CITED AS: | French v Triple M Melbourne Pty Limited & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 553 | |
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DEFAMATION – Defence of fair comment – Malice – What constitutes malice – Reckless indifference to truth - Directions to the jury – No case submission by defendants – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.J. Hayes with Ms J.E. Treleaven | Russell Kennedy |
| For the Defendants | Mr B. McClintock SC with Mr S. O’Meara | Monahan & Rowell |
HIS HONOUR:
Introduction
I adopt, for the purpose of this ruling my previous statements as to the background of this proceeding.
Prior to final addresses and my charge to the jury, the defendants have raised an issue which relates to their defence of fair comment and the plaintiff’s response to it. Questions 3 and 4 to be answered by the jury will be:
Q3: If yes to Question 1 (was the broadcast defamatory) was the broadcast fair comment on a matter of public interest?
Q4: If yes to Question 3, were the defendants actuated by malice in making the broadcast?
The defendants assert, amongst other things, that the contents of the program broadcast on Triple M constituted fair comment and that therefore provides a defence to the plaintiff’s claim. The plaintiff in response contends that the defamatory comments (if so found) were actuated or distorted by malice on the part of the defendants and therefore the comment cannot be fair and the defence must fail.
Mr McClintock SC who appears with Mr O’Meara, for the defendants, contends that malice in this context requires the plaintiff to establish a lack of genuine belief in the comment if the fair comment defence is to be trumped. Mr Hayes, who appears with Ms Treleaven for the plaintiff, contends that lack of genuine belief is but one of a number of factors which might enliven a finding of malice. He submits that, provided the comment was motivated by ill-will, spite or improper motive, then the response can be made out.
If the defendants persuade me that their analysis is correct, then it goes to two issues. First, the directions to be given by me to the jury and, presumably, the form of addresses of counsel to the jury. Secondly, to the defendants’ application made at the end of the trial that the question of malice not be left to the jury.
Analysis
The issue of malice arises in various aspects in libel proceedings. It may defeat a plea of qualified privilege. It is relevant to the assessment of damages, and particularly aggravated or exemplary damages. In this case, it is, of course, relevant to the plaintiff’s attempt to defeat the defence of fair comment.
At the outset, it may be observed that the use of the plea in the context of qualified privilege differs from that associated with fair comment as the rationale of the defence of qualified privilege differs to that of fair comment. Underpinning the defence of qualified privilege is a recognition that the public interest requires that a recipient be able to receive frank and uninhibited communications of particular information from another source without being liable for any defamatory imputations that may arise from them.[1] The qualification to the privilege is that it not be used for a motive foreign to the duty that protects the making of the statement.[2]
[1]Reynolds v Times Newspaper Limited [1999] 3 WLR 1010, 1017.
[2]Roberts v Bass (2002) 212 CLR 1, [62].
The rationale behind the defence of fair comment is different. There is no subsisting relationship that gives rise to the privilege. The defence is open to all. It is underpinned by the concept of freedom of expression. As long as the comment concerns a matter of public interest, it permits the publisher to express opinions, crackpot, left field or otherwise, provided it is made clear that it is comment or opinion and is based on facts which are either expressly or implicitly set out.[3] In doing so, it upholds the right of freedom of expression, which is a fundamental notion enshrined in the common law. In considering a defence of fair comment, the court determines objectively (by endeavouring to place itself in the position of the fair-minded listener), whether an honest person could have expressed that opinion, no matter how belligerently or offensively that opinion might be expressed.[4]
[3]Pervan v The North Queensland Newspaper Co Ltd [1992 – 1993] 178 CLR 309, 320, 327.
[4]Channel Seven Adelaide Pty Ltd v Manock (2007) 231 CLR 245, [3] – [6], Turner v Metro-Goldwyn-Mayer Pictures Pty Ltd [1950] 1 All ER 449, 461.
As was said by Gleeson CJ in Channel Seven Adelaide Pty Ltd v Manock:[5]
“The protection from actionability which the common law gives to fair and honest comment on matters of public interest is an important aspect of freedom of speech. In this context, ‘fair’ does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word ‘fair’ refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts.”
[5](2007) 231 CLR 245, [3].
Central to the defence, as I have said, is that the broadcast clearly spell out the facts so that the hypothetical listener can then make for himself or herself a decision as to whether the opinion is well founded or just nonsense.
In considering the defence of fair comment, when a court comes to determine the question of malice, it examines the subjective motivation of the speaker in making the comment. It is concerned with finding out what actuated the speaker to make the comment. The short, but nevertheless difficult point, that arises here is whether proof of spite, ill‑will or anger in the context of fair comment of itself constitutes malice or must the plaintiff go further and prove a lack of genuine or honest belief on the part of the publisher.
One of the problems which bedevils the resolution of this point is that the principles applicable to the use of malice in upsetting a defence of qualified privilege have, at times, been applied to the defence of fair comment, notwithstanding the quite different purposes which the two defences serve.
The question of malice in the context of a plea of qualified privilege was considered by the High Court in Roberts v Bass.[6] The court held that the plaintiff must prove that the defendant acted dishonestly by not using the occasion of the publication for a improper purpose.[7] In that case, which involved the distribution of how to vote cards which contained defamatory material, the distributors did not lose the protection of the occasion because they had no positive belief in what was said. The court held that it was proper for the distributors to communicate their candidate’s views to voters, notwithstanding their lack of belief in the truth of the defamatory matter. To prove malice so as to defeat a defence of qualified privilege, it was necessary for the plaintiff to prove not only an improper motive, but that this was the dominant reason for the publication:
“In our opinion, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. But knowledge of falsity is ‘almost conclusive evidence’ of improper motive, except where the defendant is under a legal duty to publish the defamation.
In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice.”[8]
[6](2002) 212 CLR 1.
[7](2002) 212 CLR 1, [97].
[8](2002) 212 CLR 1, [83], [84].
Significantly, the court held that stupidity, anger, spite or prejudice may be relevant considerations in determining whether the use of the occasion has been for an improper motive but that the fundamental issue to be resolved is whether the use of the occasion has been for an improper motive.[9]
[9](2002) 212 CLR 1 [103].
Turning now to the concept of malice where a defence of fair comment is raised, in Renouf v Federal Capital Press of Australia Pty Ltd,[10] Blackburn J said, in relation to the question of malice: [11]
“Everything must turn on the state of mind of the person whose comment is alleged to be fair. Is it sufficient, on the one hand, to show that the defendant, notwithstanding that he made a comment which is on a matter of public interest and is within the bounds of fair comment, was motivated by a desire to embarrass or prejudice the plaintiff? Or is it necessary to show that such desire affected the comment that he made?”
[10](1977) 17 ACTR 35.
[11](1977) 17 ACTR 35, 53.
Having considered the limited authorities on the topic, his Honour concluded as follows:[12]
“If the plaintiff can show that the opinion represented by the comment was affected by personal hostility, or some such irrelevant motive, in such a way that it does not represent a disinterested judgment upon the matter which is the subject of the comment, then the reply of malice succeeds, notwithstanding that it is not proved that the comment was insincere – ie did not represent the defendant’s real opinion. It seems to me that unless this is so, the law ignores the common human experience that personal animosity may perfectly consort with sincerity to produce a comment which is harmful and unfair.”
[12](1977) 17 ACTR 35, 54.
If this is the applicable law, then the jury in this trial would be directed that to establish malice, the plaintiff only need prove that the comment was not disinterested and no more. In other words, as long as the motive for the publication is tainted by spite, anger or ill-will, it is not disinterested and therefore is malicious.
In Cheng & Anor v Tse Wai Chun,[13] in a highly persuasive discussion of the concept of malice in the context of a fair comment defence, Lord Nicholls considered a number of Commonwealth authorities; His Lordship rejected Blackburn J’s analysis in Renouf in the following terms:
“The root cause of the difficulty here is that the defence of fair comment is bedevilled by its name and by the continuing use of the anachronistic and confusing term ‘malice’. In layman’s terms, a view which is warped by a dominant intent to injure does not rank as a fair comment. Blackburn J’s solution is to curtail the scope of the subjective test of genuineness, or ‘sincerity’, of belief. Sincerity of belief will be efficacious only so long as it is disinterested. I can see no sufficient warrant for thus cutting down the scope of the defence of fair comment. Disinterestedness cannot always be expected in political life. Its presence should not be a pre-requisite of the freedom to make comments on matters of public interest.”[14]
[13][2000] 3 HKLRD 418.
[14][2000] 3 HKLRD 418, [74].
Lord Nicholls reached the following conclusion as to the constituents of the defence of malice:
“To summarise, in my view a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred. Proof of motivation may also be relevant on other issues in the action, such as damages.” (Emphasis added).
I think that the application of the test propounded in Renouf intrudes too much into the essence of the defence of fair comment. Someone can intensely dislike another person but still honestly believe the comments that he or she makes. The defence of fair comment should remain open to that person. On the other hand, if the statement is coloured only by spite or ill-will with no accompanying honest belief then the defence should be lost. In my view, Lord Nicholls’ analysis should be accepted.
In addition to Renouf, the plaintiff relied upon what was said by the Supreme Court of Canada in Simpson v Mair: [15]
“Some commentators have suggested the proof of honest belief negates the possibility of a finding of malice. This is not necessarily true. If a defendant relies on objective honest belief the defence can still be defeated by proof that subjective malice was the dominant motive of the particular comment.”
[15](2008) SCC 40, 53. 293 DLR (4th) 513 [53].
The court in Simpson v Mair did not examine the ingredients of a plea of malice, rather it emphasised the need to prove subjective malice to stymie the defence of fair comment. As the paragraphs preceding the above extract show, the real issue before the Court was that of the onus of proof in establishing a defence of fair comment. The court was not, in my view, doing anything more than emphasising that the onus remained on the defendant to establish fair comment and reaffirm that malice as represented by the motivation of the author may still defeat the objective assessment required by the defence of fair comment.
In summary, I am persuaded that the proper test to be applied is that set out by Lord Nicholls in Cheng and set out above at paragraph [19], and that shall form the basis of the directions I propose to give the jury.
That leaves one remaining matter; whether there is any evidence upon which the question of malice can be left to the jury applying the test I have set out. The principles are well known and are set out by the High Court in Naxakis v Western General Hospital[16] and by the Court of Appeal in Herald & Weekly Times Ltd v Popovic.[17]
[16](1999) 197 CLR 269; See also Hocking v Bell (1945) 71 CLR 430, and Swain v Waverley MC (2005) 220 CLR 517.
[17](2003) 9 VR 1 [126].
The principles, I think, can be stated succinctly. First, the evidence is to be considered on the basis most favourable to the party who carries the burden of proof,[18] in this case the plaintiff. Second, the test to be applied is whether there is evidence upon which a jury properly directed could reasonably return a verdict for the plaintiff.[19] Third, the question is not whether a verdict for the plaintiff would be unreasonable or perverse as in the appellate context.[20]
[18]Popovic (2003) 9 VR 1 [128].
[19]Naxakis (1999) 197 CLR 269 [16].
[20]Naxakis (1999) 197 CLR 269 [40]; Swain (2005) 220 CLR 217, [203].
Given my conclusions as to the proper test for establishing malice in this case, the issues are: is there evidence upon which the jury could reasonably conclude that the broadcasters did not genuinely or honestly hold the opinions expressed by them. Alternatively, is there evidence upon which the jury could reasonably conclude that the broadcasters were recklessly indifferent as to whether their comments were true or false. In this case, the following aspects of the evidence are relevant to this determination:
First, the nature of the comments (if the jury conclude that they were comments) denigrating the plaintiff which included calling him a drug cheat, un‑Australian, a dobber who had injected “nag steroids”, and “a dirty stinking dobbing cyclist”. This was said in the context of an 18 year old world champion, elite in his chosen sport.
Secondly, the remarks made by Mr Smith when he introduced the segment:
Smith: “Now I watched 60 Minutes last night. I was amazed, I must admit. I watched it to see the tornado story, but before I got to the tornado story, I got to meet up close and personal a young man by the name of Mark French, who is our disgraced cyclist. He’s our disgraced cyclist. I believe he took one for the team. I reckon. I’m dubious of the claims of young Sean and Shane. However I think that when asked, Mark dobbed them in.”
Duclos: “What are you talking about? He’s a drug patsy?”
Smith: “Well, he had been injecting performance enhancing steroids and he – a bit of nag steroid injected. A lot injecting vitamins and him going ‘They’re only vitamins’.”
Assuming that Mr Smith had watched 60 Minutes the night before, there were glaring errors in his opening remarks. The plaintiff had, throughout the 60 Minutes interview, denied using eGH. On several occasions during the 60 Minutes program there was reference to the fact that there was no evidence that the plaintiff had taken eGH. The plaintiff also emphasised that he was appealing the decision of the Court of Arbitration of Sport.
Thirdly, when subsequently in the program, Mr Brayshaw, another compere, said:
“I didn’t see the story, Timbo”.
After a break for a traffic report, Mr Brayshaw said the following:
“The open line, 133353 and our can of worms is about dobbing your mates like the cyclist. The dirty, stinking, dobbing cyclist dobbed in his mates for shooting up vitamins”.
The tone in which this remark was made was one that was emphasised by counsel for the plaintiff when opening the case on his behalf.
Fourthly, at no time during the course of the program did Mr Brayshaw or Mr Smith allude to the fact which had been made demonstrably clear on the 60 Minutes program, that the plaintiff not only denied taking performance enhancing drugs but that an independent internal investigation had found there was no evidence to support such a conclusion and that the plaintiff was proposing to appeal the Court of Arbitration of Sport decision which had imposed a two year disqualification upon him.
Finally, no inquiry was made by Mr Smith or Mr Brayshaw or anyone else on behalf of the defendants to obtain the plaintiff’s side of the story. Given that the program had gone to air the night before the jury may or may not think that it was not necessary to get Mr French’s side of the story. However, conversely they may also take the view that, given the misrepresentation of what the plaintiff had said on 60 Minutes, that it would have been appropriate to get his side of the story.
In my view, there is insufficient evidence for a jury to conclude that Mr Smith or Mr Brayshaw did not have a genuine or honest belief as to the remarks they made. However, the jury could, I think, take the view having seen the 60 Minutes program, and then having heard the opening remarks by Mr Smith that there was, at least, a reckless indifference by him as to the truth or falsity of his statements. The jury may think that if he had watched the 60 Minutes program it ought to have been clear to him that the plaintiff did not say anything about taking nag steroids; he did not say that he was taking performance enhancing drugs, quite the opposite, he said that he had self‑injected vitamins. The jury may infer that Mr Smith’s statement was just careless, a slip perhaps. (Although if he had watched the program as he said it is difficult to see how.) Alternatively, they may think that he could not have cared less when he made the remark, to the extent that he was recklessly indifferent to whether it was true or false. The jury may also have regard to the fact that it was said at the opening of the program and may conclude that it was sensationalised at a time when the listener’s attention needed to be secured. The failure to make any inquiry of the plaintiff may also be relevant to the jury’s consideration of whether there was reckless indifference to the truth of the comments made.
It seems to me that there is sufficient evidence for the jury to take the view that Mr Smith’s opening remarks were made with a reckless indifference to their truth or falsity. Moreover, the jury may also think that Mr Brayshaw’s remarks after the traffic report, bearing in mind he did not see the 60 Minutes story, were made in such a fashion as to, arguably at least, be regarded in the same light.
Assuming that I am correct in concluding that there is some evidence upon which to establish reckless indifference, as I think there is, then the failure of either Mr Brayshaw or Mr Smith to give evidence is a matter the jury will be entitled to take into account as to their respective states of mind in drawing inferences arising from their comments made during the course of the program.[21] The jury also may well think in evaluating the evidence that the persons who best knew what they meant by their remarks had not given evidence. [22] Their failure to give evidence on this issue is a matter which the jury could take into account in reaching their verdict.
[21]Jones v Dunkel [1958 – 1959] 101 CLR 298, O’Donnell v Reichard [1975] VR 916, 929.
[22]Swain v Waverley M.C. (2004) 220 CLR 517, 525; Russo & Anor v Aillo (2003) 215 CLR 643 [10], [11]; Earle v Castlemaine District Community Hospital [1974] VR 722, 733; Blatch v Archer (1774) 98 ER 969
In my view taking the most favourable view of the evidence for the plaintiff, I think that there is sufficient evidence upon which a jury might reasonably return a verdict for the plaintiff on question 4. I refuse the defendants’ application to have question 4 taken away from the jury.
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