Tag Archives: judges

The long copyright battle over a monkey’s selfie

By MARK PEARSON

The booklet Understanding Copyright and Related Rights (WIPO, 2016) is an excellent entry-point for learning about the basic copyright principles applying globally. Any monkey would understand it.

Monkey selfie taken by Indonesian macaque named Naruto on equipment set up by photographer David Slater. Sourced from Wikimedia Commons. © disputed.

It explains that ‘copyright’ translates into ‘author’s rights’ in many other languages because it is the creator of the work—the ‘author’ of written works—who holds the right to reproduce their outputs.

The word ‘copyright’ in English refers to that act itself—the ‘right’ to ‘copy’ something you have created. As the holder of that right, you have the legal power to license others to do so as well.

A fascinating international example of the principle that copyright rests with the creator of a work is the Monkey case (2018). In 2011 an Indonesian monkey named Naruto – a crested black macaque – took a ‘selfie’ with camera equipment set up by wildlife photographer David Slater. Monkey see, monkey do.

Slater complained to Wikimedia Commons after the images were posted there, but they refused his demand that he take them down, arguing he did not hold copyright in the images because he did not actually take them – the monkey did (Wikimedia Foundation, 2014).

The basic principle stood: copyright rests with the human creator of a work (Monkey case, 2018).

However, the monkey did not get to claim damages for the photographer’s use of the work. The US Ninth Circuit Court of Appeals denied an application by an animal rights group to have the monkey’s copyright in the images formally acknowledged, stating that animals did not have standing. The photographer and the monkey (represented by animal rights group PETA) negotiated a settlement (Toliver, 2017).

Monkey case: Naruto Monkey PETA v Slater CA9 No. 16-15469 D.C. No. 3:15-cv-04324-WHO Opinion 04 23 18 < https://www.documentcloud.org/documents/4444209-Naruto-Monkey-PETA-v-Slater-CA9-Opinion-04-23-18.html >

Toliver, Z. 2017. ‘Settlement Reached: ‘Monkey Selfie’ Case Broke New Ground for Animal Rights’, PETA (People for the Ethical Treatment of Animals) website. [11 September.] < https://www.peta.org/blog/settlement-reached-monkey-selfie-case-broke-new-ground-animal-rights/ >.

Wikimedia Foundation (2014). ‘Monkey Selfie’, Wikimedia Foundation Transparency Report. https://transparency.wikimedia.org/stories.html

© Mark Pearson 2018

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.

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Defamation research and social media mean it’s time to consider reform

By MARK PEARSON

The Sydney Morning Herald recently published my commentary welcoming the NSW Government’s rethink of defamation law in the light of recent research showing a large number of cases involve ordinary citizens (rather than celebrities) and social media posts (as distinct from media publications).

It was titled ‘Social media gives people a wider audience for their bile – and defamation laws must reflect that’.

Here is the extended unedited version for those with a special interest:

The decision to review NSW defamation laws announced yesterday is overdue, and changes need to address several aspects of the legislation as well as the very human flaws of vindictive remarks, fragile egos and ignorance of the law.

NSW District Court defamation expert Judge Judith Gibson called for reform this week, pointing to the rise of Internet-related defamation cases, a phenomenon unanticipated when uniform defamation laws were introduced throughout Australia in a landmark 2005 reform.

Her argument was underscored by research released last week by the UTS Centre for Media Transition which found that more than half of defamation cases over the past five years involved reputational damage in a digital medium, up from 17 per cent in 2007 when social media was in its infancy.

The common perception that defamation cases typically involve celebrities suing the media for millions of dollars – like recent litigants Rebel Wilson and Geoffrey Rush – is a myth. The study showed that among the 189 decided cases from 2013-2017, only one third of defendants were media companies, and only about one fifth of those bringing the action were celebrities or public figures.

When you read the detail on the cases, it becomes clear that most defamation cases are contests between ordinary citizens over negative remarks they have made about each other on social media, websites, emails and other means of digital communication.

With the advent of social media, everyone is a publisher in the eyes of defamation law – and many more people in far-flung places can see or hear the nasty things we say about each other.

Broken friendships, business disagreements and political or moral debates escalate and get vindictive and personal.

There was the first Twitter case where a misguided former student posted a social media character assassination against a school teacher because he mistakenly thought she had cost his father his job.

And the disgruntled businessman who used the social media platform WeChat and targeted emails to tell the world a meat trader was a conman, corrupt and a criminal, with no factual basis.

And the Victorian junior football umpire with Asperger’s Syndrome who was taunted on a US autism website with falsities that he was a pedophile and was faking his condition.

For centuries there have been some people inclined to write poison pen letters, spread nasty rumours and to post sick messages on public noticeboards and toilet walls. The Internet and social media has given them a wide audience for their bile and some of these now result in defamation trials.

Prior to the 2005 reforms, defamation law in Australia was a complicated mess. Major variations existed across the states and territories on a host of issues, including the limitation periods in which people could bring an action and the defences available. ‘Forum shopping’ was rife, with plaintiffs selecting the jurisdiction where the law best suited their case.

The reforms were remarkable in that attorneys-general in eight states and territories reached agreement and forged the changes through their parliaments.

But those laws are desperately in need of reform if they are to catch up with the social and technological changes of the past decade.

The ‘offer of amends’ system introduced with the last reforms was a novel initiative to keep actions out of court with encouragement for an early offer of damages and an apology. But it is complex, often appealed, and other mediation incentives should be put in place to educate parties about settling their differences earlier to avoid the public and personal expense and distress of litigation. Alternative remedies to damages and injunctions would be a bonus.

The triviality defence is flawed and needs to include something of the flavor of the UK’s “serious harm” test – requiring serious reputational harm as a prerequisite to an action.

Changes also need to encourage public interest journalism rather than punish it.

Journalists deserve a stronger public interest (qualified privilege) defence which does not fail when they refuse to reveal their confidential sources and allows for minor errors in important exposés.

And the truth defence should be narrowed to focus on the single most obvious defamatory meaning to give certainty to the reportage so that lawyers do not generate more obscure meanings a journalist might never have anticipated when researching a story.

The implied freedom to communicate on matters of government – a welcome but technical initiative of the High Court – should be enshrined as a formal statutory defence and satirists should get their own defence to better protect robust political critique via parody and satire.

But in tandem with defamation reforms we need government investment in digital legal literacy. School and adult learning curricula must include the basic legalities of social media and Internet use – stressing the key risks posed by defamatory and contemptuous posts.

Teachers might use some of those moral aphorisms our mothers used to tell us.

They would scold us over our nasty comments with “Do not say to others what you would not want said to you”.

And they would soothe our fragile egos:  and “Sticks and stones may break my bones, but names will never hurt me.”

Education and mediation encouraging mindful communication might resolve some defamation actions before they even start.

 


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 2018

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Why the public isn’t allowed to know specifics about the George Pell case #MLGriff

By MARK PEARSON

This article was originally published on The Conversation. Read the original article.

File 20180320 31614 7icnee.jpg?ixlib=rb 1.1
George Pell emerges from court during his committal hearing on historical sexual offences.
AAP/Stefan Postles

Mark Pearson, Griffith University

Many Australians are left perplexed when media coverage of high-profile criminal cases is suddenly suspended or abbreviated “for legal reasons”. The current committal hearing of Catholic Cardinal George Pell on historical sexual offences engages the principle of “open justice” and some of its most important exceptions.

Coverage of such matters is restricted at various stages of criminal trials. This is because of the relative priority the courts and lawmakers have assigned to the principles of open justice and the administration of justice, and the competing rights of free expression, privacy and a fair trial.

What is ‘open justice’?

The principle of open justice dates back to at least the 12th century; it involves people’s access to observe the goings-on in a courtroom. It was later extended to the media as “the eyes and ears of the public” in court.

Australia’s High Court has ruled that open justice is of constitutional significance, and nothing should be done to discourage the media from publishing fair and accurate reports of what occurs in the courtroom. But, it added, the principle is not absolute.

An open court involving fair and accurate media coverage is thus the default position for Australian courts. The common law recognises only a limited number of well-defined exceptions. Lawmakers have developed hundreds more.

One important common law limitation is in the area of sub judice contempt. This puts a halt to prejudicial coverage of a criminal matter from the moment an accused is arrested or charged right through until the appeal period has expired.

Important restrictions here are upon any suggestion an accused might be guilty (or innocent), coverage of contested evidence that may or may not be put to a jury, coverage of earlier proceedings (such as preliminary hearings and royal commissions), interviews with key witnesses, details of any confessions, the criminal history or character evidence about the accused, and visual identification of the accused if that might be at issue in a trial.

Specific restrictions on court cases

Legislation in all Australian jurisdictions has placed a litany of further restrictions on attendance at – and reporting on – a host of situations. These include family law cases, juvenile cases, mental health proceedings and – most relevant here – sexual matters.

The statutory gags forcing closure of courts, banning of coverage, and de-identifying of parties vary in important ways. This is because lawmakers have placed a differing emphasis on the competing rights and interests.

For example, if Pell was facing his committal hearing in South Australia or Queensland, he could not even be identified until after he is committed to trial – if that eventuates.

Lawmakers in those states have decided the reputational damage attached to an allegation of a serious sexual offence is so damaging that an accused person should not be identifiable until it is proven there is at least a prima facie case to answer at trial.

In Victoria, where Pell’s committal hearing is taking place, the accused can usually be identified. However, other restrictions apply either under legislation or in suppression orders issued by a presiding judge or magistrate.

In no Australian jurisdiction can the victim (known as the “complainant”) be identified – directly or indirectly – in sexual matters. But the laws vary on whether they might be identified after proceedings with their permission or the court’s permission.

This means complainants who might have been identified in earlier coverage or proceedings are suddenly rendered anonymous from the moment the matter is “pending” – after the arrest or charging of a suspect.

Special protections apply to complainants during committal hearings involving sexual offences. This includes closing the court while victims give evidence.

A complex array of policy issues inform these kinds of restrictions. These include the perceived vulnerability of victims, their privacy, and the important likelihood that victims might not come forward to bring charges of this nature if they sense they might be in the media spotlight.

Do we need a rethink in the digital age?

Victoria has had more than its share of journalists and others falling foul of court restrictions through defiance or ignorance of the law.

Former journalist and blogger (now senator) Derryn Hinch has twice been jailed as a result of contemptuous coverage – once in 1987 for broadcasting prejudicial talkback radio programs about a former priest facing child molestation charges, and again in 2013 after refusing to pay a A$100,000 fine for blogging the prior convictions of Jill Meagher’s accused killer in breach of a suppression order.


Read more:
You wouldn’t read about it: Adrian Bayley rape trials expose flaw in suppression orders


Two ABC journalists were convicted of identifying a rape victim in radio broadcasts in 2007. They and their employer were later ordered to pay her $234,190 in damages in a civil suit for the invasion of her privacy among other injuries.

In 2017, Yahoo!7 was fined $300,000 for contempt after it published social media material about a victim and the accused. The publication forced the jury in a murder trial to be discharged.

Many of the restrictions on coverage are problematic in the digital era. Mainstream media are more likely to be charged with sub judice contempt than social media users because the large audiences of mainstream media mean their prejudicial coverage is more likely to reach potential jurors.

The cross-jurisdictional nature of digital publishing also renders journalists and social media users subject to the tangled web of restrictions on criminal justice reporting when covering a criminal matter from another state.

Court orders to take down earlier reportage on websites are typically futile, because online dissemination is so widespread. So, the bizarre situation exists where the prior character evidence and coverage of earlier proceedings still sits online for anyone to access with a simple search of an accused’s name.

This is problematic if a rogue juror decides to become a cyber Sherlock Holmes. It means we require better training of jurors.


Read more:
Trial by social media: why we need to properly educate juries


Suppression orders are also a problem because these are typically circulated only to mainstream media in the trial’s immediate vicinity. This leaves others blissfully unaware of the orders. Some orders – known as “super injunctions” – are so secret that even publication of the fact they have been issued is prohibited.

Victoria’s Open Courts Act was meant to reduce the number of suppression orders and inject an element of consistency to the issuing of these. However, it has been problematic.

The ConversationAt least the media are better assisted in the modern era. Court information officers help explain the various restrictions and keep the media well briefed in high-profile trials – as they have done in Victoria during Pell’s committal hearing.

Mark Pearson, Professor of Journalism and Social Media, Griffith Centre for Social and Cultural Research, Griffith University, Griffith University

© Mark Pearson 2018

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.

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Contempt in the face of the court is no laughing matter – usually #MLGriff

By MARK PEARSON

The ancient charge of ‘contempt in the face of the court’ is alive and well, as I have found in the research for the next edition of our text The Journalist’s Guide to Media Law (with Mark Polden).

Almost any behaviour that disrupts the courtroom can be considered a ‘contempt in the face of the court’ – a charge directed at behaviour in the actual courtroom that interferes with the administration of justice. The Australian Law Reform Commission (1987: 3) defined ‘contempt in the face of the court’ as:

Improper behaviour in court. Anything done to interrupt significantly the smooth and appropriately dignified hearing of a case in a courtroom risks being treated as contempt and punished accordingly.

Examples have included outright physical assaults in the courtroom, verbal abuse, inappropriate dress, sleeping and even attempting to release laughing gas into the court building.

Two recent examples have included:

  • The Indigenous laughing case (2017). An Aboriginal land rights activist was jailed for two hours after defying a Gympie magistrate by laughing at him in the courtroom. Gary Tomlinson (also known as “Wit-boooka”) had challenged the authority of the court to hear public nuisance and trespass offences related to a protest at Gympie Regional Council.
  • NT homeless ‘genius’ case (2017). A homeless man, self-described genius and would-be mayoral candidate who continuously insulted court officers interrupted the judge, and disrobed in court was twice jailed for contempt in the face of the court in 2016 and 2017. His appeals failed against his total of five months’ contempt sentence and alleged bias by the judge.

Given that both cases involved citizens who appeared outside of the mainstream of society, it is worth monitoring future cases to assess whether the charge is being disproportionately used against vulnerable, alienated, outspoken or disenfranchised individuals.

Journalists and bloggers are warned to show respect in the courtroom. This extends beyond paying attention to the proceedings, remaining clothed and avoiding throwing projectiles at the magistrate.

Indigenous laughing case, 2017. Gorrie, A. (18 December 2017). UPDATE: Gympie activist serves two hours for contempt. Gympie Times <https://www.gympietimes.com.au/news/update-gympie-activist-serves-two-hours-for-contem/3293365/>

NT homeless ‘genius’ case (2017). Jenkins v Whittington [2017] NTSC 65. < https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nt/NTSC/2017/65.html>

 

© Mark Pearson 2018

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.

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Rare victory for truth defence in vocational education case – #MLGriff

By MARK PEARSON

CASE REPORT: Charan v Nationwide News Pty Ltd [2018] VSC 3

The Australian newspaper had a rare victory using the truth (or justification) defence to defamation in a recent case involving a vocational education businessman.

Pure truth defences rarely make their way through the courts because they are usually either settled or decided on other defences such as honest opinion, fair report, triviality or qualified privilege.

Plaintiffs will not usually undergo the pain of public defamation trials if there is some semblance of truth to the allegations against them which will be aired for all to see in media coverage.

 

Facts

On November 20, 2015, The Australian newspaper published a print article (‘Watchdog takes peak training college to court’) and a similar online version (‘ACCC to take top training college Phoenix Institute to court’). The story was about proposed court action by the Australian Competition and Consumer Commission (ACCC) against a vocational training college called Phoenix Institute owned by the publicly listed Australian Careers Network company (CAN) in the midst of a general crackdown on the sector over unscrupulous door-to-door marketing practices. The article mentioned earlier media reports that alleged Phoenix had sent sales staff into housing commission estates, pressuring potential students to join up and stated that the parent company was under investigation by both the Federal Department of Education and the Australian Skills Quality Authority and that its shares had been suspended from trade for the previous month. The article identified the plaintiff, Atkinson Prakash Charan, as one of the company’s heads and stated he had amassed a $35 million fortune from the vocational education business. In short, it suggested that, “whilst under his management, VET organisations acted unscrupulously, in breach of regulatory standards, and that he made a large amount of money as a result of that conduct” (para 2). Mr Charan had in fact left the company about a year earlier and The Australian the next day published a correction to that effect in its print edition and later an online apology for the error.

Law

The plaintiff pleaded eight imputations arose from the article, which the judge grouped into four headings:

  1. Mr Charan was head of ACN, a company which engaged in unscrupulous business practices that took advantage of vulnerable consumers

  2. Mr Charan was head of ACN, a company which engaged in misleading and deceptive conduct.

  3. Charan was head of ACN, which engaged in unscrupulous door-to-door marketing practices to vulnerable consumers

  4. Mr Charan [as head of] ACN carried on a business which was significantly non-compliant with quality standards (para 27).

The defendant Nationwide News – publisher of The Australian – argued successfully that imputations 2 and 3 did not arise and defended the imputations of unscrupulous business practices and significant noncompliance with quality standards successfully using the justification defence by proving that the imputations were substantially true as required under section 25 of the Defamation Act 2005. To prove the unscrupulous conduct allegations it had to convince the court under the civil burden of proof – the ‘balance of probabilities’ – that there was ‘clear and cogent proof’. To do so it drew upon a host of material obtained after the publication, including:

(a) the oral testimony of a number of witnesses who had worked in the CTI group;

(b) the oral testimony of three “students” allegedly enrolled in CTI courses conducted by CTI companies;

(c) the contents of a series of audit reports, student interviews and file reviews (with associated documentation) of CTT and AMA, carried out in 2015 under the instructions of DET; and

(d) a large number of emails and associated documents flowing to and from Mr Charan and other officers or employees of the CTI companies” (para 77).

The latter included records of phone calls and messages subpoenaed from Mr Charan’s telephone service provider Telstra.

Justice Forrest found the plaintiff was ‘was an entirely unreliable witness, not only on this issue but as to all matters relevant to his claim’ (para 111). He concluded with a concise summary of his 768 paragraph judgment:

(a) Mr Charan was defamed in both the written and online versions of the article;

(b) the article defamed him by conveying imputations that:

(1) Mr Charan managed a VET organisation which engaged in unscrupulous business practices which took advantage of vulnerable consumers which resulted in him making a large amount of money; and

(2) Mr Charan managed a VET organisation which was significantly non-compliant with quality standards

I am satisfied that Nationwide has established the substantial truth of both imputations. (paras 762 -763).

Lessons for professional communicators

Several lessons arise from this rare but successful use of the justification (truth) defence by a publisher:

  • Considerable evidence can be required to prove the truth of imputations stemming from an article, and sometimes this has to be located after the reporting and publishing process has finished, although as much evidence as possible should be available at the time of publication;
  • A publisher defendant can still win a case on the pleaded imputations even if there is basic error in the story – in this case the fact that Mr Charan had not been formally involved with the management of the company for a year. (Of course, such errors should normally be avoided).;
  • Defamation cases can be enormously expensive. In this case the 35-day trial was reported to have cost both side mores than $3.5 million in legal fees (Duke and Vedelago, 2018)

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 2018

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Scandalising the court – backgrounding the recent Victorian Court of Appeal matter

By MARK PEARSON

The ancient contempt charge of ‘scandalising the court’ appeared alive and well last month when the Victorian Court of Appeal formally stated its concerns about criticisms made by three Australian government Ministers, published in the national daily newspaper The Australian.

The statement noted:

Given that the court’s decisions in both cases were pending, the court is concerned that the attributed statements were impermissible at law and improperly made in an attempt to influence the court in its decision or decisions. Further, the court is concerned that some of the statements purported to scandalise the court. That is by being calculated to improperly undermine public confidence in the administration of justice in this state in respect of the disposition of the appeals that the court has presently under consideration.

The court was further concerned that the attributed statements were made by three ministers of the Crown. The statements on their face:

  • Fail to respect the doctrine of separation of powers;

  • Breach the principle of sub judice; and

  • Reflect a lack of proper understanding of the importance to our democracy of the independence of the judiciary from the political arms of government.

The newspaper and the three ministers narrowly escaped contempt by apologising for their comments criticising the judiciary in the midst of two major terrorism trials.

Given the fact that the contempt charge of scandalising the court was front and centre in the debate, I reproduce here my 2008 article from the Pacific Journalism Review explaining that charge, its origins, and recent application.


Pearson, M. (2008, April). Scandalising media freedom: Resurrection of an ancient contempt. Pacific Journalism Review, 14(1), 64-78.

Abstract

The ancient charge of “scandalising the court” (publications aiming at lowering the authority of the court) has had a resurgence in Australia over the past decade, at the very time judges and magistrates have developed an inclination to sue for defamation. The combined effect is to send a warning to media organisations to take care when criticising judicial officers or the judicial process, particularly if that involves implying some improper motive on the part of a judge or magistrate. In New Zealand there have been some isolated but significant threats and cases, particularly in the volatile area of family law. This paper reviews some recent Australian and New Zealand cases where a charge of scandalising the court has been either threatened or enforced and considers the implications for freedom of media expression in a new era of anti-terrorism when important questions are being asked about the fairness of justice processes.

The form of contempt of court known as ‘scandalising the court’ – defined as ‘any act done or writing published calculated to bring the court or a judge of the court into contempt or to lower his authority’ (R v. Gray, 1900) – has long been used by small African and Pacific Island states as a mechanism for silencing media criticism of the judicial process. (See, for example, Attorney-General v. Namoa, 2000; and Chaudhary v Attorney-General, 1999; where it was used recently in Tonga and Fiji). In Canada the offence has been found incompatible with that country’s Charter of Rights and Freedoms, in the United Kingdom it has not been prosecuted successfully against the media since 1931 and in the United States it does not exist at all (Weisenhaus, 2007, pp. 74-75). Sadly, it has been revitalised in Australia over the past decade at the very time members of the judiciary have begun to sue for defamation, presenting a dual affront to media freedom. It has also been used in a notable case in New Zealand and threatened in another. This is despite the fact that the legislature in New Zealand and the High Court in Australia have made moves to enshrine freedom of communication, in New Zealand with a Bill of Rights and in Australia within a series of decisions through the 1990s guaranteeing free speech on governmental and political matters. This paper considers briefly the background to scandalising contempt before reviewing the key cases in the field and considering the resulting implications for judicial critique in the media.

Background to scandalising the court

One of the most famous examples of scandalising the court was the attack in the Birmingham Daily Argus upon Crown Court Justice Darling at the turn of the last century. Editor Howard Alexander Gray was convicted of contempt for his tirade against the good justice, describing him as an “impudent little man in horse-hair, a microcosm of conceit and empty-headedness” (R. v. Gray, 1900).

The term ‘scandalising’ was described in the Australian High Court in 1935 as applying to:

publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office

(R. v. Dunbabin; Ex parte Williams, 1935, p. 442).

This type of contempt can be committed by publishing material scandalising the courts or judges by abusing them in scurrilous terms, alleging they are corrupt or lack integrity, or that they have bowed to outside influences in reaching their decisions (Pearson, 2007, p. 109). Historically, the courts have been tolerant of reasonable criticism. Lord Atkin summed up the approach with this quote in 1936: ‘Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, though outspoken, comments of ordinary men’ (Ambard v. Attorney-General of Trinidad and Tobago, p. 335). This statement reinforced the fact that in Britain the offence was considered to have become obsolete in 1899, as Butler and Rodrick note (2004, p. 282). But, they continue:

This declaration turned out to be premature. The offence remains extant in England, although it has been described as quiescent, as there have been no convictions for scandalising contempt for almost 70 years. In Australia there is no doubt that the offence continues to exist. In fact, prosecutions are relatively common.

As this paper sets out to establish, scandalising charges have become even more common in recent years, a disturbing development for media freedom.

The two best-known cases in this area in Australia in the late 20th century were called the ‘BLF cases’, as both involved officials of the militant union, the Builders’ Labourers Federation — Jack Mundey and Norm Gallagher — a decade apart. In each case, the accused had made comments (picked up by the media) implying that judges had bowed to union pressure in reaching their decisions. The first, Attorney-General (NSW) v. Mundey (1972), occurred during the heat of the anti-apartheid protests against South Africa in the early 1970s. Members of the Builders’ Labourers Federation had sawn off the goalposts at the Sydney Cricket Ground in the prelude to a rugby Test match between Australia and South Africa’s Springboks. After their trials, a union official, Jack Mundey, told the media the judge should have allowed evidence of broader political material in their defence, such as United Nations documentation on South Africa’s race policies. Mundey claimed there had been a miscarriage of justice and that the judge was a racist. Mundey was charged with contempt for these comments, but the charges were dismissed in the Supreme Court because Mundey’s comments about the judge being a racist needed to be considered in the broader context of his comments about racism throughout Australian society. The court ruled that Mundey would have been in contempt if he had implied that the judge had been motivated by some racist bias against the accused in reaching his decision.

The second BLF case, Gallagher v. Durack (1983), a decade later, had a different result. There, Builders’ Labourers Federation federal secretary Norm Gallagher won a Federal Court appeal against one contempt charge, but his comments about the judicial process landed him in contempt on a new charge of scandalising the court. Gallagher told the media that industrial action by his union members had exerted enough pressure to force the court to reverse the decision to jail him over the first contempt charge. He told one television channel: ‘the rank and file of the union … has shown such fine support of the officials of the union and I believe that by their actions in demonstrating in walking off jobs … I believe that has been the main reason for the court changing its mind’ (Gallagher v. Durack, 1983, p. 239). The Federal Court held that the statement was contemptuous and sentenced Gallagher to three months’ jail. (The court justified the jail sentence on the basis that Gallagher had boasted that if he had been fined the union would pay it for him.) The decision was appealed to the High Court, which upheld the contempt conviction. The court said the whole area of scandalising involved balancing the principle of free speech against the need to maintain public confidence in the judicial system. Gallagher’s insinuation that the Federal Court had bowed to outside pressure in reaching its decision was calculated to undermine public confidence in the Federal Court. Justice Murphy dissented, saying the case raised important principles of both free speech and justice.

In a more recent case, the Anissa Pty Ltd v. Simon Harry Parsons on application of the Prothonotary of the Supreme Court of Victoria, (1999, at para. 19), Justice Cummins of the Supreme Court of Victoria summed up the three basic principles of contempt by scandalising the court:

First, proceeding for contempt of court is not and must not be in diminution of free speech. Second, proceeding for contempt of court is to preserve the administration of justice. Third, proceeding for contempt of court is not to protect the individual person of the judge.

A turning point in the law of scandalising was reached with one of the Australian High Court’s famous free speech decisions in 1992 — Nationwide News Pty Ltd v. Wills. There, a newspaper group challenged the federal government’s power to legislate against criticism of the Industrial Relations Commission or its members. The High Court held there was an implied constitutional right to criticise important public institutions and that this legislation infringed that right. However, the court also ruled that the crime of scandalising the court was not obsolete and that two defences applied to it: truth and fair comment (Chesterman 2000: 68). (In other words, it would be a defence to a charge of scandalising the court if you could prove that the substance of your criticisms was true or that your criticisms were made in good faith, were honestly held, fairly conducted and did not imply improper motives on the part of the judiciary.)

In Nationwide News Pty Ltd v. Wills, Mason CJ described scandalising as a ‘well recognised form of criminal contempt’ (at para 21) but suggested there was no contempt at common law ‘if all that the defendant does is to exercise his or her ordinary right to criticise, in good faith, the conduct of the court or the judge’ (at para 21). He stated the judiciary should be open to criticism and cited US Supreme Court Justice Hugo Black stating in Bridges v. California in 1941:

The assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the
character of American public opinion. … an enforced silence, however
limited, solely in the name of preserving the dignity of the bench,
would probably engender resentment, suspicion, and contempt much more
than it would enhance respect (pp. 270-271).

Burrows and Cheer (2005, pp. 384-387) offer six danger zones for scandalising the court:

  • Extravagant and scurrilous language;
  • Vendettas against judges;
  • Criticism based on inaccuracies;
  • Accusations of bias or impartiality on the part of the judiciary;
  • Suggestions judges are susceptible to pressure; and
  • The social conditions of the times.

The key recent New Zealand case of scandalising the court, Solicitor-General for NZ v. Smith (2004), also raised issues of free expression in relation to that country’s Bill of Rights Act. The case was explained well by Cheer (2004). The High Court found MP Nick Smith had made several inflammatory media statements about a custody dispute before the Family Court which undermined public confidence in the court and had the potential to interfere with the administration of justice by placing public pressure upon the court. As Burrows and Cheer (2005, p. 386) noted, ‘whichever way the Family Court judge decided the case, the public perception would be affected by seeing the pressure that had been so publicly applied’. It also convicted TV3 and Radio NZ of the same charge and found the freedom expression provisions of section 14 of the Bill of Rights did not offer protection against a charge of scandalising the court. Justices Wild and MacKenzie stated:

We do not accept that the offence of scandalising the Court cannot be justified as a reasonable limitation upon freedom of expression… The rights guaranteed by the BORA [Bill of Rights Act] depend upon the rule of law, the upholding of which is the function of the Courts. Courts can only effectively discharge that function if they command the authority and respect of the public. A limit upon conduct which undermines that authority and respect is thus not only commensurate with the rights and freedoms contained in the BORA, but is ultimately necessary to ensure that they are upheld. (Solicitor-General for NZ v. Smith, 2004, p. 568, cited in Burrows and Cheer, 2005, p. 384).

Thus, in both countries, despite the legislature and the highest courts enshrining free expression about politics and government, the courts have decided this ancient punishment should still be available to the judiciary.

 

The resurgence of scandalising the court

Over the past 10 years in Australia and New Zealand there have been several charges or threats of scandalising the court involving the media in a variety of ways, all containing extreme statements about the judiciary. These include:

  • Re South Australian Telecasters Limited (1998). The Family Court of Australia stopped Channel Seven in Adelaide from broadcasting a current affairs story about a custody battle between the natural parents of two children and their foster mother. As well as identification issues related to the dispute taking place in a small semi-rural town, and the risk of sub judice contempt related to the upcoming custody hearing, Chief Justice Nicholson expressed concern about the potential for scandalising the court. He said the report risked bringing the court into contempt and lowering its authority.
  • Alice in Wonderland case (2001). As Burrows and Cheer (2005, p. 387) report, an Environment Court judge asked counsel for argument over whether a contempt by scandalising had been committed when a local body politician criticised an Environment Court decision as ‘Alice in Wonderland’ in an issued statement. He also called upon landowners to state their disapproval to the judge. The matter was eventually resolved with an apology where the politician withdrew the comments.
  • Hoser & Kotabi Pty Ltd v. The Queen (2003). The author of two books about police corruption in Victoria was fined $3000 and his publishing company fined $2000 for making malicious and baseless allegations of bias and impropriety against two County Court judges who had tried earlier cases involving the author. A defence that the statements were fair comment made in good faith failed.
  • Bell v. Umina Beach Bowling Club Ltd (No 2) (2003). Directors of a New South Wales bowls club were disgruntled that their suspension of a fellow director had been ruled void by NSW Chief Judge in Equity Justice Young. The Central Coast Herald wrote a report of the decision, ending with the sentence: ‘Two of the club directors indicated an appeal against Justice Young who they accused of bias.’ The judge warned the comment was a contempt by scandalising, but handled it with a warning. Justice Young said: ‘Of course there is a wide range of legitimate criticism that can be made of courts and their decisions. However a statement to a newspaper of wide circulation that the only reason the spokesman lost was because the judge was biased goes beyond legitimate criticism, weakens the authority of the court in the eyes of the public and is a contempt.’
  • Website case (2003). A New Zealand-based web site listed 14 judges it was purportedly investigating for ‘corruption, incompetence and suspect character’ and threatened to release further information proving these allegations. Burrows and Cheer (2005, p. 385) report that the publication prompted a letter from the Solicitor-General and the material was subsequently removed from the site.
  • Attorney-General for State of Queensland v. Colin Lovitt QC (2003). Barrister Colin Lovitt was so frustrated with a Queensland magistrate’s ruling in a high-profile case, he turned to journalists covering the hearing and declared: ‘This bloke’s a complete cretin. Surely they can’t all be like this.’ The comments were reported and journalists testified they had heard him. Queensland Supreme Court Justice Richard Chesterman fined him $10000, saying the statement constituted both ‘scurrilous abuse and an attack upon the authority of the court’.
  • Mills & Ors v. Townsville City Council & Anor (No. 2) (2003). Planning and Environment Court Judge Clive Wall considered charging three Townsville councillors with contempt by scandalising when they were quoted criticising his decision to reject their approval of a nursing home development. One accused him of making decisions on design and aesthetics and another suggested the judge had ‘usurped the role of council’. Mayor Tony Mooney was quoted as saying: ‘Those appointed to the bench are not appointed by divine intervention [and] they don’t always get it right.’ Judge Wall decided the comments did not amount to contempt by scandalising because they could not be said to be of a character calculated to interfere with the administration of justice or to undermine the public confidence in the proper functioning of the Courts’. ‘Courts should not rush to be overly critical of criticism, even discourteous, wrong and mistaken criticism, as the present is’, he said.
  • Solicitor-General v. Smith (2004). MP Nick Smith was fined $5000, TV3 $25,000 and Radio New Zealand $5000 by the New Zealand High Court over comments he made about a Family Court custody case which were broadcast on the television and radio stations. The comments were inaccurate, applied pressure on the court, undermined confidence in the judicial process and had the potential to interfere with the administration of justice, the court held.
  • DPP v. Francis & Anor (No. 2) (2006). Veteran Adelaide broadcaster Bob Francis was given a nine week suspended jail sentence and fined $20,000 over a 2005 program in which he criticised a magistrate for considering granting bail to a man accused of possessing child pornography. (Magistrate Gary Gumpl was obliged under legislation to hear a bail application.) Francis told his audience: ‘Oh, smash the judge’s face in.’ The magistrate also settled out of court for a reported $110,000 defamation payout (McGarry 2006).
  • Environment Protection Authority v. Pannowitz (2006). Steepleton Pty Ltd and its director Kenneth Pannowitz were convicted and fined by the Environment Protection Authority in New South Wales for unlawful transport and disposal of waste. Part of their sentence was an order to place an advertisement in the Newcastle Herald newspaper with stipulated wording announcing their conviction. The director changed the notice in various ways and added the sentence ‘This matter has been referred by Steepleton to ICAC for further investigation’. Land and Environment Court Justice Lloyd found the suggestion that a corruption body was being called upon to investigate the court had ‘an inherent tendency to scandalise the court’. He also ruled Pannowitz had interfered with the course of justice by changing the size, position and wording of the notice.

 

Family Court criticism

Family law cases can be particularly volatile and the Family Court in both countries has been subject to harsh criticism by both litigants and the media, some of which have led to scandalising contempt charges as noted above in the Re South Australian Telecasters Limited (1998) and Solicitor-General v. Smith (2004). Other scandalising charges have been pursued against Family Court litigants without involving the media. Disaffected fathers who have lost custody of their children have often been scathing in their criticism of the court. As Lane (2000, p. 14) reported, the Family Court brought scandalising charges against four of its strident critics who protested with placards and leaflets outside its building in Melbourne in 1998, but the cases fell over when a judge threw out the case against the first, ‘PT’. In New Zealand, such individuals have faced other charges. For example, Rowan (2007) reports that the founder of the HandsOnEqualParent Trust, Jim Baily, was charged with disorderly conduct over his protest against the Family Court by driving a van with a loudspeaker around the streets of Tauranga. The charges were withdrawn.

Heads of the Family Court in both countries took public stances in 2006 to address such critics. New Zealand’s Principal Family Court Judge Peter Boshier said the media’s reportage of men’s groups’ gripes about the court’s alleged secrecy, biases and unfair processes was itself often biased and undertaken without reporters actually attending the court proceedings. “The reporting of the father’s groups’ protests shows that the more strident and extreme the claims made the more likely the media will give them publicity – and uncritical publicity,” he said (Boshier, 2006, p.5). In Australia, the Chief Justice of the Family Court, Diana Bryant, went public to counter criticism that her court was biased by announcing the court would be collecting statistics including those showing the percentage of arrangements involving or excluding fathers (Porter, 2006, p. 6).

When magistrates and judges sue

Complicating the scandalising cases is the fact that members of the judiciary have become more inclined to sue for defamation in recent years, as evidenced by the award of $246,500 in damages in 2002 to Victorian Deputy Magistrate Jelena Popovic over a Herald Sun article by Andrew Bolt (Popovic v Herald & Weekly Times Ltd and Anor, 2002), and the 2005 victory over the Sydney Morning Herald by NSW magistrate Pat O’Shane (John Fairfax Publications Pty Ltd v O’Shane, 2005). Burrows and Cheer (2005, p. 383 footnote 29) also record a New Zealand newspaper report of a judge settling a defamation action against a media organisation. The propensity of the judiciary to sue means media organisations potentially face both criminal and civil responses to their harsh critique of the administration of justice in the form of a scandalising contempt charge and a defamation suit.

Conclusion and directions

All this is not to say that judges in either country jump at the opportunity to charge media organisations with contempt by scandalising. Media outlets do indeed publish quite harsh criticisms of the judiciary and get away with it. For example, the editor of Sydney’s Daily Telegraph, David Penberthy, almost challenged the courts to charge him with contempt when he reported that District Court Judge Ian Dodd had developed quite a reputation for going to sleep while presiding over cases. Penberthy started his piece as follows:

This might constitute a contempt of court. But we thought we’d run it anyway, as there’s every chance the judge in question will be curled up under his judicial sombrero, oblivious to any slur against his name. (Penberthy, 2005, p. 21).

While Penberthy went ahead and published his humorous exposé of the sleeping judge, the point for this article is more that he was ‘chilled’ enough by the contempt laws to verbalise the risk in his very first sentence. An ancient law hangs like a guillotine over fair and open reportage in the modern era.

Twenty years ago the Australian Law Reform Commission (1987) criticised the law of scandalising on two main grounds and recommended its common law version be abolished. The first criticism was that there was no need to prove the accused intended to impair public confidence in the administration of justice; it was enough that the accused published the remarks intentionally (para 414). Secondly, there was no formal defence of justification available to the accused; the truth or falsity of the published remarks was irrelevant (para 415). Of course, as noted above, the High Court indeed decided truth would be a defence to scandalising in Nationwide News Pty Ltd v. Wills (1992).

While the Commission recommended scandalising be abolished from the common law, it suggested it be replaced by a limited offence which prohibited the publication of an allegation imputing misconduct to a judge if it was likely to cause serious harm to the judge’s reputation in his or her official capacity (para 460). Liability would lie with each officer of the media organisation in a position to exercise control over the publication (para 261) and the initial maker of the scandalising statement if he or she knew, or should have known, the allegation would be published (para 264). The Commission also recommended the defence of justification (if the accused proved the allegation was true or believed it was true on reasonable grounds) and the defence of it being made as part of a fair and accurate report of court or parliament (para 460). The offence would be tried by jury except when all concerned had consented to have it tried summarily by a magistrate (para 476, 479).

The Commission’s recommendations, the free speech cases in the Australian High Court in the early 1990s, the higher public profile of the judiciary and the fact that more judicial officers were pursuing defamation actions to defend their reputations all raised hopes that the authorities would not pursue charges of scandalising the court. Such hopes were reinforced in 2005 when Federal Court Justice Ronald Sackville delivered the 13th Lucinda Lecture at Monash University (Sackville, 2005). Sackville asked ‘How fragile are the courts?’ and traced the history of criticism of the courts, including a critique of scandalising contempt. He supported the ALRC by suggesting courts should be able to resort to some powers ‘in the rare cases where verbal attacks pose a genuine threat to the standing of the judiciary’. He also suggested that, like politicians and other public officials, judges should be able to sue for defamation where their reputations have been unfairly damaged. He concluded:

But the independence of the judiciary does not justify conferring on judges greater protection than those representatives or officials enjoy. It is to be hoped that the High Court will interpret the scope of the implied freedom of communication more broadly than recent decisions might suggest.  If the High Court does not do so, there is a strong case for legislation to bring the principles governing criticism of the Australian judiciary into line with those of other liberal democracies (Sackville, 2005, p. 24).

Despite Justice Sackville’s refreshing perspective reinforcing the recommendations of the ALRC 20 years ago, it seems that in recent years such charges have had somewhat of a resurgence in Australia and, to a lesser extent, in New Zealand.

Whether or not this has resulted in a debilitating ‘chill’ upon media critique of the courts is a moot point, but journalists certainly need to ensure that any criticism of the judiciary and the legal system is carefully phrased and measured so that it does not unfairly imply any wrongdoing that might erode public confidence. Journalists should note that, while some of the media organisations mentioned above escaped contempt charges when they reported the contemptuous statements of others (such as disgruntled fathers on the steps of the Family Court) it is open to the authorities to prosecute both the individuals who make contemptuous comments (at a press conference, for example) and the media outlet that reported the comments, as they did in Solicitor-General v. Smith (2004) in New Zealand. Litaba (2003) noted that while scandalising the court should not be used to protect individual judges against reputational attacks, there were numerous examples where judges seemed to have ‘stood on their personal dignity’. Further, Litaba questioned whether under the existing law truth as a defence applied, despite the High Court’s statements on the matter in Nationwide News Pty Ltd v. Wills (1992), a disturbing possibility given that part of the democratic process should surely be the right to make legitimate, well founded, criticism of the judicial process.

The slim risk of being charged with scandalising the court should not prevent journalists partaking in fair, well-reasoned criticism of the administration of justice. It is only when the criticism is personal, scurrilous abuse of a judge, which brings the judicial system into disrepute, or when it implies some improper motive on the part of the judiciary that it is more likely to overstep the mark. Nevertheless, all in the media would argue that judges and the judicial process should be open to such criticism. This has been even more the case in recent years when judges themselves have spoken about their decisions in public forums. Family Court and High Court justices, particularly, have been vocal on broader policy issues affecting the workings of the justice system. Many welcome such a public profile of the judiciary, but argue that judges cannot adopt such a stance and later hide behind the protections of ancient laws, such as scandalising the court, to punish those who have publicly disagreed with them.

The need for unshackled critique is even more pressing in an era when anti-terrorism laws leave so many court processes open to criticism and when the sentencing of criminals is such a heated political topic.

Media groups, such as Australia’s Right to Know lobby, and the press councils in both countries, should press for greater clarity in the law of scandalising. It would have the advantage of allowing reasoned public criticism of judges and the court system and sound investigative reporting of suspicious judicial practices without fear of reprisal from an irate judge wielding summary powers. Media freedom should not be held to ransom by impudent little men in horsehair, microcosms of conceit and empty-headedness nor, for that matter, by snoring wigs curled up under their judicial sombreros.

 

References

Australian Law Reform Commission (ALRC). (1987). Report no. 35 — contempt,

Australian Government Publishing Service, Canberra. [Electronic version.]

Boshier, P. (2006, August 9). Fair deal for Family Court. Dominion Post, p. 5.

Burrows, J. and & Cheer, U. (2005). Media law in New Zealand. (5th ed.). South Melbourne: Oxford University Press.

Butler, D. & Rodrick, S. (2004). Australian media law. (2nd ed). Sydney: Thomson Law Book Company.

Chesterman, M. (2000) Freedom of speech in Australian law: A delicate plant. Aldershot: Ashgate Dartmouth.

Cheer, U. (2004). New Zealand media law update. Recent developments – defamation, censorship and contempt. Media and Arts Law Review. 9 (3): 237-246.

Lane, B. (2000, March 8). Street protester beats judges at own game. The Australian. p. 14.

Litaba, O. (2003). Does the ‘offence’ of contempt by scandalising the court have a valid place in the law of modern day Australia? [Electronic version]. DeakinLRev 6.

McGarry, A. (2006, 3 August) Jail for Bob the broadcaster? The Australian,

  1. 14.

Pearson, M. (2007). The journalist’s guide to media law. Dealing with legal and ethical issues. (3rd ed.). Allen & Unwin, Sydney.

Porter, L. (2006, December 24). Family Court fights back over bias claims. Sunday Age. P. 6.

Rowan, J. (2007, January 26). Family Court protester avoids conviction. New Zealand Herald.

Sackville, Justice R. (2005). How fragile are the courts? Freedom of speech and criticism of the judiciary. 13th Lucinda Lecture. Monash University, 29 August 2005. Retrieved March 10, 2008, from http://www.wbde.org/documents/2005_Aug_29_Justice_Sackvill_%20Re_Criticism_of_Judiciary.pdf

Weisenhaus, D. (2007). Hong Kong media law. A guide for journalists and media professionals. Hong Kong: HK University Press.

 

Cases cited

Ambard v. Attorney-General of Trinidad and Tobago [1936] AC 322.

Anissa Pty Ltd v. Simon Harry Parsons on application of the Prothonotary of the Supreme Court of Victoria [1999] VSC 430. Retrieved March 10, 2008 from www.austlii.edu.au//cgi-bin/disp.pl/au/cases/vic/VSC/1999/430.html.

Attorney-General v. Namoa [2000] TOSC 13 Retrieved March 10, 2008 from http://www.paclii.org/to/cases/TOSC/2000/13.html.

Attorney-General NSW v. Mundey [1972] 2 NSWLR 887.

Attorney-General for State of Queensland v. Colin Lovitt QC [2003] QSC 279. Retrieved March 10, 2008 from http://www.austlii.edu.au/au/cases/qld/QSC/2003/279.html.

Bell v. Umina Beach Bowling Club Ltd (No 2) [2003] NSWSC

846 Retrieved March 10, 2008 from www.austlii.edu.au/au/cases/nsw/supreme_ct/2003/846.html.

Bridges v. California (1941) 314 US 252.

Chaudhary v Attorney-General [1999] FJCA 23, [17] (Fiji Court of Appeal). Retrieved March 10, 2008 from http://www.paclii.org/fj/cases/FJCA/1999/27.html.

DPP v. Francis & Anor (No. 2) [2006] SASC 261 Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/sa/SASC/2006/261.html.

Environment Protection Authority v. Pannowitz [2006] NSWLEC 219 Retrieved March 10, 2008 from http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2006/219.html.

Gallagher v. Durack (1983) 152 CLR 238.

Hoser & Kotabi Pty Ltd v. The Queen (ex parte The Attorney-General for the State of Victoria); The Queen (ex parte The Attorney-General for the State of Victoria) v. Hoser & Kotabi Pty Ltd [2003] VSCA 194 Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/vic/VSCA/2003/194.html.

John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164. Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2005/164.html.

Mills & Ors v. Townsville City Council & Anor (No. 2) [2003] QPEC 18 Retrieved March 10, 2008 from http://www.austlii.edu.au/au/cases/qld/QPEC/2003/18.html.

Nationwide News Pty Ltd v. Wills (1992) 177 CLR 1.

Popovic v Herald & Weekly Times Ltd and Anor [2002] VSC 174 Retrieved March 10, 2008 from http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VICSC/2002/174.html.

Re South Australian Telecasters Limited (Publication Injunction) [1998] FamCA 117 Retrieved March 10, 2008 from www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/family_ct/1998/117.html

R v. Dunbabin; Ex parte Williams (1935) 53 CLR 419.

R v. Gray [1900] 2 QB 36.

Solicitor-General v. Smith [2004] 2 NZLR 540.

 

© Mark Pearson 2008 & 2017

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.

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DEFAMATION CASE UPDATE: Zoef v Nationwide News Pty Ltd – identification and offer of amends appealed #MLGriff

By MARK PEARSON

CASE UPDATE: Zoef v Nationwide News Pty Ltd – 2015, 2016 and 2017

I blogged in 2016 about a case where the mistaken identification of an innocent octogenarian tailor in place of his alleged gun-running son produced a useful case study for media law educators trying to explain the basic elements of defamation.

Indeed, the NSW District Court case of Zoef v Nationwide News Pty Limited & Ors [2015] NSWDC 232 remains an excellent introduction to defamation, although in October 2016 the NSW Court of Appeal overturned the publisher’s defence of “offer of amends” which was originally granted by the lower court, in the appeal case of Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, and awarded the plaintiff $150,000 in damages. The appellant, Mr Tony Zoef, also had a partial victory in a more recent appeal over the backdating of the damages award, costs and interest owing in Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2.

The first appeal is useful for educators explaining identification issues in defamation and the “offer of amends” defence requirements under s 18 of the Defamation Act 2005 (NSW) (Defamation Act) – and its equivalent in other Australian jurisdictions – while the 2017 appeal holds little value for media law teachers.

The case centred upon an article published in The Daily Telegraph on 22 August 2013.

It appeared a relatively straightforward case of confused identity, where the reporter mistakenly attributed to the older Mr Zoef – a suburban Sydney tailor – the alleged crimes of his son who lived at the same address. At trial, the sole basis on which Mr Zoef’s claim was dismissed was the newspaper’s defence that Mr Zoef had failed unreasonably to accept its offer of amends.

The article in the Telegraph (22-8-13, p. 9) carried the heading “Tailor’s alter ego as a gunrunner”, which might also make an interesting topic of discussion for students around the issue of sub judice contempt: Does such a heading carry a presumption of the accused’s guilt when accompanying a report of a preliminary court appearance? [The article in question is attached to the judgment as a pdf file.]

The article portrayed a then 81-year-old suburban tailor (with a distinctive surname ‘Zoef’) as a gun-runner who had been arrested, charged and appeared in court facing charges related to him holding a huge cache of weapons and ammunition at his home.

Police had indeed raided his premises and had found weapons and ammunition in the house’s garage, occupied by the tailor’s 43-year-old son, who shared his father’s name and was the actual individual who had appeared in court facing those charges.

As I blogged in 2016, the trial judgment by District Court Judge Leonard Levy is a fascinating one for student discussion because several basic concepts in defamation were contested and resolved, including:

  • imputations – how they are worded and presented
  • the misidentification’s impact on the plaintiff’s relationships, business and emotional state
  • the question of identification and case law establishing the extent of defamation of a second person with the same name and address as the first [*** considered on appeal].
  • whether a claim for defamation will hold when some other identifying factors do not match one of the named individuals. [In this case, while the headline identified the plaintiff as a tailor, the article featured a small photograph of his 43 year old son and mentioned the younger man’s age]. [*** considered on appeal].
  • whether the defences of a fair report of proceedings of public concern could apply when there were serious inaccuracies in the article
  • whether an offer of amends had been reasonable and whether it had been accepted by the plaintiff [***the trial judge’s decision which was subsequently overturned on appeal].

The trial judge had held that, despite the serious errors in the reporting of the story and a dispute over whether the publisher’s offer of amends was reasonable and had been withdrawn, the newspaper was entitled to the offer of amends defence.

In the leading appeal judgment, Justice Fabian Gleeson stated:

Taking into account the seriousness of the defamatory imputations and the significant hurt they caused the appellant, the damage to his business as a tailor, the unequal prominence the respondent afforded to the proposed correction and apology and their resultant inadequacy, the modest monetary component of the offer, and the likelihood of the proceedings being successful, the offer of amends was not reasonable. His Honour was in error in finding to the contrary and upholding the respondent’s defence under s 18 of the Defamation Act. (at para 78).

His reasons for that decision involved a step-by-step appraisal of the offer of amends defence and thus make useful instructional material for educators wanting to explain this defence to students. It should also serve to remind journalists that the offer of amends is very much a ‘lawyers’ defence’ – not something that should be handled by journalists or editors independent of legal advice – and given its time constraints it means that counsel from lawyers on the efficacy and wording of any such offer should be sought promptly.

The publisher also challenged the trial judge’s findings on whether the plaintiff had been identified in the article when it carried a photograph of his son and stated his age as 43 years old.

The Court of Appeal affirmed the trial judge’s decision that Mr Zoef Sr had been identified in the article despite those countering factors. Justice Gleeson ruled:

The article in this case contained a prominent and sensational headline, which, when read together with the first paragraph (par 29), would be reasonably understood to refer to the appellant. The strength of the general impression thereby created surpasses and dominates that of the subsequent reference in par 30 to a “43 year old” which is not something the ordinary reasonable reader might be expected to have focused on, let alone re-read or reviewed. It lacked the prominence of the sensational headline and the focus on the local, relatable indicia of the identified person’s name, profession and locality in the foregoing paragraph.

In respect of the photograph, his Honour’s finding that it was “immaterial” is supported by three considerations. One is that the photograph was small, cropped, and, as his Honour found, “less than distinct”. Next, the appellant gave unchallenged evidence in cross-examination that his son was not known to his customers. No identification would therefore have been made on a visual basis by the appellant’s customers. Finally, the use of historical photographs in newspaper articles is not so uncommon as to render unreasonable a conclusion by the ordinary reasonable reader that the article (with an unfamiliar photo) referred yet to the appellant. (paras 159-160).

So there you have it. The Zoef case – both at trial and on appeal – holds valuable lessons for media law students and educators are encouraged to use it as a case study. I have done so successfully with both journalists and tertiary students.

———–

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 2017

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