From: Neil Foster <>
To: John Goldberg <>
Obligations list <>
Date: 19/01/2009 22:48:39 UTC
Subject: Re: ODG- Defamation

Dear John;
A couple of brief initial responses.
>opinions from British, Canadian, and/or Australian courts that demonstrate a bit
>more solicitude for victims of defamation than is typcial for U.S.
At the "top" level of fairly recent decisions by the High Court of Australia, two major decisions went in favour of the publisher, though each had a powerful dissent from one or more members of the court- see Bashford v Information Australia (Newsletters) Pty Limited [2004] HCA 5, where an attack on the plaintiff in a trade journal was held to be protected by "qualified privilege";  ABC v O’Neill [2006] HCA 46 where the Court refused to support an injunction preventing publication of allegations that someone who was already serving time for murder, was guilty of another couple of murders, in part on the grounds that the plaintiff hardly had any reputation to lose! But interesting comments were made about the reluctance of the common law courts to engage in “prior restraint” of publication (esp see Bonnard v Perryman [1891] 2 Ch 269) based on the high public interest in freedom of speech, a doctrine echoed in US jurisprudence of course.
Others have gone in favour of the plaintiff. In John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28,  a review of the restaurant “Coco Roco” which described the food as “unpalatable” and the service as bad was held to be defamatory despite the fact that it carried no imputations about the "moral" turpitude of the owners, an attack on their competence being enough.
In Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 a TV broadcaster was successfully sued for a brief TV "promo" for a current affairs show making allegations of improper behaviour in a murder investigation by a pathologist- the majority refused to apply a defence of "fair comment" as there were insufficient supporting facts in the context to allow viewers to make their own judgement (this despite, as Kirby J noted in dissent, the fact that the "promo" promised to reveal those facts if viewers chose to watch the full show.)
None of these cases involved "high profile" people or politicians. One that did at a lower level of the court system was Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059 – accusations made in an article that Eddie Obeid, a Cabinet Minister, had asked for a donation to the ALP (his political party) to allow development of a major building project. The judge examined the possible application of what is known in Australia as the Lange privilege (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 held that the defence of qualified privilege was expanded by recognition of the fact that every member of the Australian community has an interest in the dissemination of material concerning government and politics), but found that even on that more generous test the behaviour of the newspaper was not "reasonable" in that they had not fully checked all available sources. Mr Obeid won, in other words.
>I am looking for news articles, historical
>treatments, or literary works that vividly depict a social world in
>which individuals are - for better or worse - very mindful as to how
>they speak about others, in part because they run the risk of liability
>or prosecution.
One area that interests me is the newly developing area of "religious vilification" laws. With the admirable goal of preventing vicious verbal attacks on others based on their religion, do we end up stifling legitimate religious debate? In Australia we had the very controversial case in Victoria (one of the few States where there is a specific prohibition on "religious vilification") of Islamic Council of Victoria v Catch the Fire Ministries Inc [2004] VCAT 2510, [2005] VCAT 1159 where an administrative tribunal found CTF and the two pastors who were involved in it guilty of such vilification of Islam for running a seminar advertised as being a critique of Islam, to which some representatives of the ICV had chosen to go. The decision was later overturned by the Victorian Court of Appeal- see Catch the Fire Ministries Inc v Islamic Council of Victoria [2006] VSCA 284 on various grounds, though in my view the best set of reasons are offered by Nettle JA, who pointed out that simply attacking the beliefs of a religion alone does not amount to stirring up hatred for the adherents of that religion.
I  understand (other colleagues may have more information) that there is now legislation in the UK (Racial and Religious Hatred Act 2006) which may raise similar issues. In general there is an increase in "anti-vilification" laws which clearly have the potential, unless carefully drawn up and applied, to create a large barrier to freedom of speech on some controversial issues.
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931
>>> John Goldberg <> 20/01/09 6:02 >>>
I'm teaching a torts course this spring that will include coverage of
libel and slander.  These wrongs present particular pedagogic challenges
to those of us teaching in the U.S.  Part of the problem is the profound
imbalance between the complexity of the doctrine and the contemporary
significance of these torts.  Simply put, it's somewhat difficult to
justify a multi-week slog through the ins and outs of common law
doctrine, then another slog through elaborate statutory and
constitutional overlays, only to end with the punchline that defamation
suits comprise a miniscule portion (1%???) of filed tort claims, and
that most of these are destined to be dismissed.  Of course that's not
stopping me .....  

Another teaching challenge - and the immediate subject of this query -
is that of giving students a feel for what it is like, or was like, to
live in something very different from the U.S.'s current "anything goes"
free speech culture.  Partly for this reason, I plan to include opinions
from British, Canadian, and/or Australian courts that demonstrate a bit
more solicitude for victims of defamation than is typcial for U.S.
courts.   Beyond these, I am looking for news articles, historical
treatments, or literary works that vividly depict a social world in
which individuals are - for better or worse - very mindful as to how
they speak about others, in part because they run the risk of liability
or prosecution.   (At the moment, I'm not looking for science fiction
accounts of repressive dystopias: a small smattering of U.S. federal
court defamation decisions will more than suffice to induce my students
toward the view that anyone ought to be able to say anything about
anyone without incurring the risk of being the target of legal action.)

To elaborate a bit on what I have in mind:  I may include some
historical materials on the loathsome Sedition Act from early U.S.
history.  I may also given the students part or all of a long essay in
the NY Review of Books from the Guardian's Editor in Chief.  It recounts
the litigation travails his paper endured when sued by a large British
firm for a story about the firm's strategies for setting up tax
shelters.  The essay ends, not surprisingly, with a plea for greater
press freedom in England.  Here's the link: 

Thanks for any help; feel free to reply on- or off-list.

John Goldberg