It’s been quite a month for high-profile defamation cases, with Ben Roberts-Smith pursuing his claim against Channel 9 in Sydney, and Clive Palmer locking horns with Mark McGowan in the Federal Court. In London, Prince Harry launched a case against the Mail, while former vice-presidential candidate Sarah Palin took on the New York Times in a New York court.
Sarah Palin, the former Governor of Alaska, has been subjected to plenty of unflattering coverage in the past, ranging from Tina Fey’s merciless impressions on Saturday Night Live to a notoriously scurrilous, yet mystifyingly popular, ah, adult feature entitled Who’s Nailin’ Paylin? But the publication that eventually sent her to court was a 2017 New York Times editorial that drew a connection between the shooting of Louisiana congressman, Steve Scalise, and a document released by Palin’s political action committee that showed cross-hairs over twenty House districts held by Democrats. The editorial observed that “the link to political incitement is clear”, and connected Palin’s message with another shooting (in 2011, of Arizona congresswoman Gaby Giffords). The Times corrected its piece the following day, and issued a retraction, but Palin sued. The case went to hearing in February 2022.
After the jury retired to consider its verdict, the judge announced that, even if it found in Palin’s favour, he would quash the verdict, because Palin hadn’t discharged her onus of proving that the New York Times acted with malice. As it happened, that wasn’t necessary, since the jury reached the same conclusion on its own (Palin is now seeking a retrial). Since the Supreme Court case of New York Times v Sullivan in 1964, a public figure who sues for defamation in the USA has been required to prove malice: that is, that the person who published the offensive material did so knowing that it was untrue, or with a reckless disregard for whether it was true or not. Unless actual malice is proved, then the right to publish comment on a public figure, even very robust comment, is protected by the First Amendment to the Constitution, which protects freedom of speech.
Had Palin been suing in the courts of New South Wales, her case would almost certainly have been stronger. A defamation plaintiff in New South Wales doesn’t need to prove malice as an element of his or her case – only that the publication was made, and that it conveyed defamatory meanings. The High Court, in the 1994 case of Theophanus v Herald & Weekly Times, specifically rejected the New York Times v Sullivan approach, saying that it provided public figures with too little protection from defamatory statements. And in Bashford v Information Australia (Newsletters) Pty Ltd, in 2004, the High Court referred to an “inference of malice that ordinarily follows from showing the false and injurious words have been published.” Australian courts, in other words, will readily assume something that requires proof in American actions. So Ben Roberts-Smith, for example, doesn’t, in order to bring his case, need to show that Channel 9 deliberately and maliciously broadcast untrue statements about him. Despite (or perhaps because of) numerous amendments to the Australian defamation laws in recent years, the laws remain balanced in favour of plaintiffs.
That doesn’t mean that malice is entirely irrelevant to Australian defamation law. Importantly, it provides an answer to some common defences. Qualified privilege is an important defence that allows a person to convey information, for a legitimate purpose, to someone who has a legitimate interest in receiving the information. Section 30(4) of the Defamation Act 2005 (NSW) provides that a defendant can’t rely on a defence of qualified privilege if the plaintiff proves that the publication of the defamatory material was actuated by malice. Nor could a defendant acting with malice rely on the defences of honest opinion (section 31) or innocent dissemination (section 32). On the other hand, malice will usually not be taken into account in assessing damages, unless it can be shown that it has some impact on the harm suffered by the plaintiff.
In New York, Sarah Palin needed to prove that the New York Times published its editorial knowing it to be untrue, which effectively placed upon her the burden of proving the falsity of the publication. In Australia, that onus is reversed: truth is available as a defence, but it’s the publisher who has to prove it. That’s why all that harrowing evidence about military operations in Afghanistan (and USBs buried in back gardens) has been led by Channel 9, not by Ben Roberts-Smith.
In the end, it’s a matter of emphasis. US law slants towards the protection of free speech; Australian law continues to lean towards the protection of reputation.