Defamation as defined in the Black’s Law Dictionary is the act of injuring someone’s reputation by making false claims to a third party. There exists a thin line between the freedom of expression especially where the media is concerned and the right to honour, dignity and reputation (Human Rights Review, 2012). This is a common issue affecting the media in various jurisdictions especially when the victims claiming to have been defamed are public personalities, particularly politicians. This paper shall discuss an Australian case with regards to defamation and the court’s approach in resolving the dispute. The paper shall also discuss a similar case presided over by the High Court of Justice of England and Wales in a bid to compare and contrast how courts in the two different jurisdictions deal with defamation cases in relation to the freedom of expression of the media and other private persons.
Adjudication 1659: Complainant/WA Today (December 2015)
Summary of the facts
A former teacher in a Catholic girls’ school made a complaint to the Press Council about an article published on 09 May 2015 in WA Today, and their associated Facebook and twitter accounts. The article was titled “Bong claims Santa Maria teacher’s job: You’ve got to be toking?” and contained allegations that a teacher had lost her job as a result of damage to her reputation through a photograph circulating within the media circles of her at a certain music festival holding a bong. The article also named the source of their information as rumour file by a local radio station. The article did not specifically mention the teacher’s name.
The next day, the article was revised by the publication upon receipt of comments by the principal of the school that the drug involvement was false. However, the article maintained the rumour of the photo of the teacher topless being the cause of her resignation.
The former teacher disputed the existence of such a photo and rejected it as the cause of her resignation. The revision of the article did not remedy the situation as the previous article had already been shared to many other online users. The article’s contents were an intrusion on her private life and negatively affected her future potential employment opportunities. The publication acknowledging the teacher’s concerns maintained that the article was pursuing a public interest objective which was to unveil the effect of social media on employment of persons.
McAlpine v Bercow
Summary of the facts
On 2nd November 2012, Newsnight of BBC Two broadcasted a false report about an anonymous senior conservative ‘Tory’ politician was involved in a claim of child sexual abuse. Two days later, Sally Bercow through a social network, twitter, wrote: “Why is Lord McAlpine Trending? *Innocent Face*” (Sherwin, 2013). After the allegations were deemed unfounded, Lord McAlpine sought to pursue legal action against the persons who made the allegations. Whereas media houses and twitter users made public apologies, paid damages to Lord McAlpine or offered donations to BBC children in need charity (Hough, 2012) , Bercow consistently maintained that her words in the tweet were not libellous (Halliday, 2012). However, to McAlpine, her words implied that he was a paedophile and the fact that she had more than 50,000 followers, her tweet had the effect of injuring his reputation (Halliday, 2013).
Issues for determination
In the WA Today case, the Australian Press Council had to determine whether the information as reported by the publication was defamatory, whether the publication took remedial steps to rectify the situation and whether their actions were in the best interests of the public. In the McAlpine case, the court had to determine whether Bercow’s tweet was defamatory and if so, configure the amount of damages payable to Lord McAlpine. This was difficult because the plain and ordinary meaning of the words in the tweet as Bercow pointed out were completely neutral. It was an innocent question and nothing more should be inferred from it.
The relevant legal framework
The Australian Press Council has an established Standard of Practice which the media should abide with during the course of their business. Their material must be ‘accurate and not misleading’ (Australian Press Council, 2011). General principle 3 of the standards provides that the information must be based on balance and reasonable fairness, avoiding incorrect factual information or omission of facts. Where they fail to abide by these (perhaps due to mistake), General Principle 2 provides that they should rectify the information or take other remedial measures. Principles 5 and 6 prohibit the media from intruding into someone’s privacy or causing them prejudice, distress, risk of safety or harm to their personal health unless it is in the interest of the public.
The European Convention on Human Rights (ECHR) had for a long time governed the freedom of expression before the enactment of the Human Rights Act 1998 (HRA). It still remains relevant as it recognises the right to one’s reputation in article 10. This article restricts the freedom of expression where it has the effect of damaging one’s reputation. The right to reputation is also recognized under article 8 of the ECHR as part of the right to respect for one’s private life (ECtHR Press Unit, 2016). Civil liability under the tort of defamation can also be found in case law that has set precedence for courts to follow. Tugendhat J cited the case of Rubber Improvements Ltd and Lewis v Daily Telegraph Ltd where Lord Devlin pointed out that articles published by the Daily Telegraph and the Daily Mail were not defamatory in reporting on the investigations ongoing in a firm. The reporting did not impute guilt on the firm. In the words of Lord Devlin, it would be difficult to ensure accuracy in information if every sensible man was of the view that wherever there were investigations, there was guilt.
The Court of Appeal in Chase v Newsgroup Newspapers Ltd pointed out three categories of defamatory statements.
i) Statements that give meaning that the claimant has committed a grievous act;
ii) Statements that suggest reasonable grounds for suspecting the claimant; and
iii) Statements that give a party grounds to investigate whether the claimant is indeed the commissioner of that act.
The repetition rule as applied in Flood v Times would make the defendant guilty of defamatory allegations by repeating, republishing or reproducing the defamatory statements. However, the media can avoid the harshness of the repetition rule where the statements reported are completely neutral without any interest whatsoever but for public interest. It simply reported that allegations were made without concerning itself with the truth or falsity of the allegations. This principle is known as reportage.
The Australian Press Council in the WA Today case found that there was no drug involvement in the resignation of the teacher. The council found that the allegations were grievous and the source of information namely the rumour file not credible. There was also no evidence of the existence of the alleged topless photo. The council also found that even though the teacher in the article was unnamed, one could easily identify the said teacher because the school was named in the article. The review of the article was not a remedial step as the article still contained allegations that could not be established. The article was still running online despite the complaints raised. The publication had to exercise a greater duty of care in establishing the facts before publishing them. The Australian Press Council therefore found WA Today in breach of its General Standards of Practice, particularly principles 1, 2 and 3.
The court in McAlpine case noted that there was an innuendo meaning as well as an ordinary meaning that could be drawn from Bercow’s tweet. The innuendo meaning could only be drawn from the extrinsic knowledge- complaints in the public about the sexual abuse of boys (which the court further noted was not general knowledge). However, the natural meaning did not require such extrinsic knowledge but simply what fell within the borders of general knowledge. Thus a claimant can be defamed only to readers with knowledge of intrinsic facts in the case of an innuendo meaning without being defamed to persons who do not possess such knowledge. McAlpine therefore had to prove that these extrinsic facts were known to members of the public.
The court cited a similar case, Fullam v Newcastle Chronicle & Journal Ltd where proving extrinsic facts was not necessary especially where such information could be understood to have been known by the periodic receiver of such material for example newspapers. In the McAlpine case, having been a politician. The news could be understood to be in the public domain and the extrinsic facts easily connected to the innuendo by a reasonable reader. The tweet had to be construed not as a publication to the world at large but a publication on twitter and the reasonable reader’s test was to be applied in relation to twitter users. Drawing from the case of Jeynes v News Magazines Limited a reasonable reader is unduly suspicious and not naïve. Tugendhat J found that the reasonable reader, users of twitter and followers of Bercow, had extrinsic knowledge of Bercow’s interest in politics and of McAlpine’s political career. The court held that a reasonable reader would interpret both meanings and find Bercow’s tweet ironical and insincere.
From both cases, we can draw similar facts on the media, its users, the freedom of expression and defamation. Perhaps a greater similarity is the aspect of unnamed persons in allegations. The questions that the court have had to ask in the course of the proceedings is whether despite the fact that the claimants were unnamed and their anonymity maintained in the potentially defamatory publications, could this amount to defamation?
As seen earlier in the WA Today case, regardless of the anonymity maintained in the article, the former teacher could be sufficiently identified by reasonable readers and sufficiently linked to both the allegations and the school since the school had been mentioned and a word from the principal included in the article. Similarly, in the McAlpine case, though the claimant was unnamed, the court found that a reasonable reader following Bercow on twitter and knowing her political interests as well as McAlpine’s political career could easily find her tweet ironical and thus defamatory in both ordinary and natural meaning.
It can therefore be concluded that where sufficient linkage can be established and readers found to have extrinsic knowledge or can sufficiently satisfy their undue curiosity and identify the claimant with regard to the defamatory publications, the defendant shall be liable for defamation.
Also as established in Flood v Times, repetition of a defamatory material by a claimant would be make them liable for defamation, unless they can be protected under the Reynolds Privilege of reportage. Applied in the McAlpine case, Mrs. Bercow’s tweet implied that McAlpine was guilty of abusing boys in care. Even though her tweet was a mere questioning of facts available in public, it was defamatory. Similarly, persons with less than 500 followers having retweeted the defamatory material were also found liable but given a lesser punishment.
If the repetition principle was to be applied in the WA Today case, the publication would still be found defamatory. The publication was a repetition of a rumour file available from a local radio broadcast. Nevertheless, it had repetitive defamatory material whose facts could not be established by the writers of the article. It is therefore an established principle by case law that repetitors of defamatory material would by default be liable for defamation. They can only avoid liability where the reportage was simply on the existence of the allegations without them having any interests whatsoever therein.
We can also conclude that private persons particularly users of social networking services have a duty of care towards persons they write about. It is not only an obligation to the media but to private persons as well. There is a general requirement by law that defendants should take a remedial step to rectify defamatory material.
Rubber Improvements Ltd and Lewis v Daily Telegraph Ltd  AC 234
Chase v Newsgroup Newspapers Ltd  EMLR 218,  EWCA Civ 1772
Flood v Times  UKSC 11;  2 AC 273
Fullam v Newcastle Chronicle & Journal Ltd  1 WLR. 651
Jeynes v News Magazines Limited  EWCA Civ 130
Human Rights Review (2012) Article 10: Freedom of Expression. Available from http://www.equalityhumanrights.com/sites (Accessed: 4th March 2016)
Steel, J. (2013) Journalism and Free Speech. London: Routledge Publishers
Milo, D. (2008) Defamation and Freedom of Speech. London: Oxford University Press
Sherwin, A. (2013) Twitter Libel: Sally Bercow says she has learned the hard way as she settles with Tory peer Lord McAlpine over libellous tweet. [Online] Available from: www.independent.co.uk>News>UK>Crime The Independent. Accessed 05 March 2016
Halliday, J. (2013) Lord McAlpine Row: George Monbiot reaches unprecedented settlement. [Online] Available from: www.theguardian.com>Media>MediaLaw The Guardian. Accessed 5 March 2016
 9th edn.
 See Ukrainian Media Group v Ukraine (2005) ECtHR 72713/01, Lingens v Austria  ECtHR
  EWCH 1342 QB
 Australian Press Council, Adjudication 1659: Complainant/WA Today (December 2015) (2011) Available at: http://www.presscouncil.org.au/document-search/adj-1659/ accessed, 04 March 2016
  AC 234
  EMLR 218,  EWCA Civ 1772
  UKSC 11;  2 AC 273
 See Jones v Skeleton  1 WLR
  1 WLR. 651
  EWCA Civ 130
  2 AC 273