How journalists can reduce defamation risk

6 minute read  01.02.2021 Peter Bartlett, David Poulton, Patrick Considine, Dean Levitan, Dylan Dexter, Dougal Hurley

A recent decision illustrates some of the steps that journalists can take to improve their prospects of being protected by qualified privilege.


Key takeouts


  • Rely on a 'store of information' – Journalists will need to have a wide variety of sources, including documentary evidence that can be identified in Court.
  • Scrutinise the credibility of your sources – Journalists should place careful scrutiny on the credibility of their sources – including, for example, whether there is any reason to doubt the veracity of the information provided by the source.
  • Make reasonable attempts to obtain and publish a response from the subject of the story – Journalists should try a variety of means to contact the subject to gain a response.
Historically, the defence of qualified privilege has been interpreted so conservatively that it has provided little protection for media defendants. The recent decision in Bailey v Win Television Pty Ltd [2020] NSWCA 352 (Bailey) has some significant implications for media defendants in defamation litigation, particularly in relation to qualified privilege and what is deemed to be 'reasonable' conduct in the course of publication.

Background

Roger Bailey was the General Manager of Lithgow City Council (Council). On 19 October 2016, his employment was terminated by majority vote of the Council. The following evening, a news report was televised by Win Television Pty Ltd (First Respondent) and posted on Facebook by Win Corporation Pty Ltd (Second Respondent) (together, Respondents). The report stated, amongst other things, that “discontent and lack of morale amongst staff have been blamed for the sacking of Lithgow’s General Manager Roger Bailey ” and that “according to Council, there have been a number of allegations of bullying and intimidation from Mr Bailey which contributed to the group’s decision”. Mr Bailey alleged that the Respondents actions gave rise to a number of defamatory imputations, including that Mr Bailey bullied and intimidated Council staff (Bullying and Intimidation Imputation). Mr Bailey's defamation claim was unsuccessful at first instance.

Issue on appeal: qualified privilege

Among the issues on appeal was whether the statutory defence of qualified privilege was made out, in particular whether the Respondents’ conduct in publishing the news item was reasonable in the circumstances.

Mr Bailey argued that the Respondents could not show their conduct was reasonable and succeed in the defence unless they established that they, or the journalist that prepared the news report (Wilson), believed that the Bullying and Intimidation Imputation was true.

Mr Bailey relied on the decision in Morgan v John Fairfax Ltd [No 2] (1991) 23 NSWLR 374 (Morgan [No 2]), including the statement that "in determining whether the defendant’s conduct was reasonable in the circumstances, the defendant must in most cases establish his honest belief in the truth of what he has written".

Why qualified privilege was upheld

Simpson AJA held that the propositions in Morgan [No 2] are "no longer determinative" of whether a defendant's conduct is reasonable for the purpose of the statutory defence of qualified privilege. The Respondents were not required to establish that they honestly believed that the Bullying and Intimidation Imputation was true.

Simpson AJA went on to consider whether the Respondents' conduct was reasonable and whether they should be protected by statutory qualified privilege. She held that the reasonableness of the Respondents' conduct must be measured by reference to the conduct of Mr Wilson, and to a lesser extent, the First Respondent's chief of staff, Kate Fotheringham who directed Mr Wilson to gather information for the news report.

Mr Bailey submitted that the Respondents had not acted reasonably for three principal reasons:

1. Sufficient information to justify publication

Mr Bailey contended that there was no evidence that Mr Wilson had information to the effect that Mr Bailey was the perpetrator of the bullying and intimidation that caused the unhappiness of the workforce.

Simpson AJA accepted Mr Bailey's submission that there was no clear direct evidence that Mr Wilson had information implicating him as the perpetrator of the bullying and intimidation, but Simpson AJA said "there was, however, much from which an inference to that effect could legitimately be drawn". Simpson AJA had particular regard to the following evidence:

  • recurrent emails and Facebook postings from the Lithgow Ratepayers’ Association, from which Mr Wilson understood that there were issues in the Council stemming from Mr Bailey;
  • a survey of Council staff (which Mr Wilson had heard rumours about but had not seen) included complaints of failure of “senior management to communicate with and listen to employees”, “micro-management” and “bullying”. A number of survey responses made specific adverse reference to Mr Bailey;
  • an ABC news bulletin reported the termination of Mr Bailey's employment, which preceded and contained “similar content” to the Respondents' news report;
  • the information given to Mr Wilson by Councillor Maree Statham about Mr Bailey's termination and the disharmony within Council. Ms Statham said “that change was absolutely essential” and that the termination was “going to be inevitable unless things changed”. Mr Wilson considered Ms Statham to be an "extremely credible" source; and
  • the fact that Council had voted to terminate Mr Bailey's employment.

Relevantly, Simpson AJA noted that the test to establish whether a publisher's conduct was reasonable is less rigorous than that required to prove a defamatory imputation to be true. Simpson AJA was satisfied that Mr Wilson "had accumulated a considerable store of information, from a variety of sources", which, in combination, was sufficient to justify broadcasting the news item, including the Bullying and Intimidation Imputation.

2. A good reason to believe the truth

In rejecting Mr Bailey's submissions that the Respondent's had acted unreasonably, Simpson AJA held that the propositions in Morgan [No 2] were not determinative of whether the Respondents' conduct was reasonable, she said they "remain relevant considerations".

Simpson AJA concluded that there was "no basis for concluding that Mr Wilson believed [the Bullying and Intimidation Imputation] to be untrue". Simpson AJA said that on the basis of the variety of information discussed above "Mr Wilson had good reason to believe in the truth of [the Bullying and Intimidation Imputation]".

3. Reasonable attempts to obtain a response

Simpson AJA outlined the attempts that Mr Wilson made to allow Mr Bailey to present his side of the story:

"Mr Wilson attempted to obtain a telephone number to contact [Mr Bailey] and was unable to do so. At his request a message was conveyed to [Mr Bailey], who declined to engage with him. After a brief discussion with Ms Fotheringham, Mr Wilson waited in his car, for about 45 minutes, for a response. The response was (explicitly) negative"

Mr Bailey argued that these attempts were “grossly inadequate” and that Mr Wilson ought to have given him a clear indication of what he proposed to publish. Mr Bailey argued that Mr Wilson should have asked Mr Bailey's colleagues for his contact details or made an attempt to reach him via Facebook communication.

However, Simpson AJA accepted that the time to obtain the Mr Bailey's side of the story was limited to ensure the news item was brought to air that night. Therefore, she concluded that "Given Mr Bailey's refusal to engage with Mr Wilson there was little more that the first respondent could have done."

Conclusion

Although a successful qualified privilege defence is extremely rare, Bailey has clarified that a journalist is not required to prove an honest belief in the truth of the imputations to show that their conduct was reasonable for the purposes of statutory qualified privilege.

Importantly, Bailey is also a useful guide as to what will be considered in determining whether the journalist acted reasonably. Regard should be had to the key takeaways above when determining potential defamation risk and the availability of a qualified privilege defence for future pieces.

These key takeaways are expected to remain relevant once changes to the Defamation Act are in force. The statutory qualified privilege defence will remain in place. There will be a change in wording to clarify that defendants need not meet every one of the listed factors in order to be found to have conducted themselves reasonably under section 30, but this is unlikely to change the way in which Courts consider reasonableness.

If you would like to learn more about a qualified privilege defence, please contact a member of our team.

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