By MARK PEARSON Follow @Journlaw
QUEENSLAND police have charged a Sunshine Coast man with criminal defamation under a rarely used provision of the Criminal Code 1899.
They will allege he distributed pamphlets to neighbourhood homes claiming a former associate was a paedophile.
As Lord Denning, in the 1977 Goldsmith case, said, ‘A criminal libel is so serious that the offender should be punished for it by the state itself. He should either be sent to prison or made to pay a fine to the state itself’ (at 485).
As we explain in the sixth edition of The Journalist’s Guide to Media Law (Pearson and Polden, Allen & Unwin, 2019, pp 298-299), instances of criminal defamation usually arise between ordinary citizens rather than in the media.
Examples include the Wineries case (1998), where a disgruntled businessman penned a letter, purportedly from his business partner’s wife, in which she described her husband as someone who ‘engages in adultery, deception, taxation fraud and is a confidence trickster’ who could be ‘compared to the worst, most infectious, bacterial parasite which can only be found at the bottom of the most unhygienic sewage scum swamp’.
The man sent the letter to at least one South Australian winery and pleaded guilty to criminal defamation.
In 2001, a quadriplegic woman and her mother were charged with six counts of criminal defamation after they allegedly posted notices accusing townsfolk of perjuring themselves in her compensation claim against the local council and its swimming pool operators (Quadriplegic case, 2001). Police later dropped the charges.
Horse racing identities Robert and William Waterhouse prosecuted the producer and reporter of an ABC Four Corners program. The NSW Director of Public Prosecutions eventually stepped in to prevent the defamation prosecutions from proceeding because the defence of qualified privilege was going to be available (Waterhouse case, 1988).
The most famous instance in Australia was the politically motivated prosecution of leftist author Frank Hardy for criminal libel over his volcanic first novel Power Without Glory in August 1950, which he successfully defended.
Sadly, criminal defamation and seditious libel have often been used as political weapons against opposition groups and the media in many small Commonwealth countries.
For media law geeks, the Queensland legislation reads as follows:
CRIMINAL CODE 1899 – SECT 365
365 Criminal defamation
(1) Any person who, without lawful excuse, publishes matter defamatory of another living person (the
“relevant person” )—
(a) knowing the matter to be false or without having regard to whether the matter is true or false; and
(b) intending to cause serious harm to the relevant person or any other person or without having regard to whether serious harm to the relevant person or any other person is caused;
commits a misdemeanour.
Maximum penalty—3 years imprisonment.
(2) In a proceeding for an offence defined in this section, the accused person has a lawful excuse for the publication of defamatory matter about the relevant person if, and only if, subsection (3) applies.
(3) This subsection applies if the accused person would, having regard only to the circumstances happening before or at the time of the publication, have had a relevant defencefor the publication if the relevant person had brought civil proceedings for defamation against the accused person.
(4) The prosecution has the burden of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the accused person.
(5) Whether the matter complained of is capable of bearing a defamatory meaning is a question of law.
(6) Whether the matter complained of does bear a defamatory meaning is a question of fact.
(7) A person can not be prosecuted for an offence defined in this section without the consent of the director of public prosecutions.
(8) In this section—
“defamatory” has the meaning that it has in the law of tort (as modified by the Defamation Act 2005 ) relating to defamation.
“modified statutory defence of justification” means the defence stated in the Defamation Act 2005 , section 25 as if that section provided that it is a defence to the publication of defamatory matter if the defendant proves that—
(a) the defamatory imputations carried by the matter of which the relevant person complains are substantially true; and
(b) it was for the public benefit that the publication should be made.
“publish” has the meaning that it has in the law of tort (as modified by the Defamation Act 2005 ) relating to defamation.
“relevant defence” means—
(a) a defence available under the Defamation Act 2005 other than—
(i) the statutory defence of justification; or
(ii) the statutory defence of failure to accept reasonable offer; or
(b) the modified statutory defence of justification; or
(c) a defence available other than under the Defamation Act 2005 , including under the general law.
“statutory defence of failure to accept reasonable offer” means the defence stated in the Defamation Act 2005 , section 18 (1) .
“statutory defence of justification” means the defence stated in the Defamation Act 2005 , section 25 .
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.
© Mark Pearson 2019