Defaming Politicians: The Not So Common Law

Published date01 September 2000
Date01 September 2000
AuthorKevin Williams
Defaming Politicians: The Not So Common Law
Kevin Williams*
How free are citizens and the media to criticise politicians (or other public figures)
without fear of having to pay libel damages if they get their facts wrong or cannot
show them to be true? How is the balance to be struck between freedom of
expression and the protection of public reputations? These questions or something
like them have recently been asked of the highest appellate courts in Australia,
New Zealand and Britain.
Traditionally, the common law has refused to accept that a defamatory
statement, not provably true, could properly be made to the world at large simply
because it concerned matters of public interest. Similarly, fair comment demands
that defendants show the factual basis of the comment to be true. While qualified
privilege is not dependent on the proof of truth, it does require that what is said
serve ‘the common convenience and welfare of society.’1What was requisite for
the public benefit was narrowly construed. Conventional wisdom denied that there
could be a privilege in favour of widespread political dialogue which was honest,
albeit erroneous.2Additionally, the extent of publication had to be appropriate to
the occasion and no wider than necessary.3
Each of the cases under review departs from this tradition to some extent.
Though they differ significantly, they broadly agree about three matters. Firstly, in
modern democratic societies a freedom to communicate widely about the use of
political power and other matters of public moment is essential. Secondly, the law
must allow the media some margin for factual error if the exercise of that freedom
is not to be unduly inhibited by the threat of having to pay substantial damages –
libel’s so-called ‘chilling’ effect. Thirdly, some form of qualified privilege is the
most appropriate method of securing an expanded freedom of expression while
continuing to offer suitable protection to reputation.
The Litigation
In Lange vAustralian Broadcasting Corporation,4David Lange, a former premier
of New Zealand, complained that a television documentary shown in Australia had
ßThe Modern Law Review Limited 2000 (MLR 63:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
* Sheffield Hallam University.
1Toogood vSpyring (1834) 1 C M & R 181,193 per Parke B.
2 See Blackshaw vLord [1984] 1 QB 1.
3 See Braddock vBevins [1948] 1 KB 580 (communication by an elector to other electors in the same
ward, but not to all the world, privileged). The effect of this decision was reversed by the Defamation
Act 1952, s 10 which deems the publication of candidates’ election addresses not to be privileged.
Section 10 is now ripe for review.
4 (1997) 145 ALR 96. For comment see F.A. Trindade, ‘Defamation in the course of political
discussion-the new common law defence’ (1998) 114 LQR 1.

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