Defamation and Privacy Down Under
64 Iowa Law Review 1209, 1979
34 Pages Posted: 19 Dec 2012 Last revised: 23 Feb 2015
Date Written: 1979
Observers of the common-law world find many interesting comparisons between the law of torts within the United States and the British Commonwealth. Because of the contrast, and because of the fascinating nuances of social attitude reflected in the defamation mirror, a review of the law of defamation and privacy in the Commonwealth from the perspective of recent developments in the United States is worthy of attention. This article analyses suggestions for reforms of the law of defamation that have been made in Australia and New Zealand, and related concerns about development of a privacy tort.
One conspicuous feature of the law of defamation in Australia and New Zealand is the propensity of politicians and public figures to sue. In the United States it is beyond controversy that a public official cannot recover for defamation unless he or she can prove with convincing clarity that the statement sued upon was made with actual malice – with knowledge that it was false or with reckless disregard for whether it was false.
The idea that an action for defamation is necessary to preserve honour seems rooted in values connected with the British notions of social class. It is by no means clear, however, that the same ideas flourish in the more aggressively egalitarian social environments of Australia and New Zealand. Nevertheless, defamation has been a consistent source of litigation in those countries. This raises the question whether defamation was once more popular in the United States than is now possible because of the development of the common law. Comparisons between New Zealand and Iowa cases, however, suggest the possibility that the twilight of defamation preceded rather than resulted from the New York Times v Sullivan decision. New Zealand responses to questionnaires about defamation indicate that while there is no doubt that free speech is regarded as an important democratic feature of New Zealand political culture, it is a value that tends to be regarded as having to function within the framework of existing law.
The common thread connecting Australian and New Zealand inquiries into defamation law reform appears to be the view that the common law of defamation, as it has developed in the Commonwealth, imposes restrictions that are too great to accommodate the full and free functioning of the mass media. Although the committees in all three Commonwealth nations formally considered application of American defamation standards, the absence of analysis concerning why the American rule should be rejected is striking. The rejection seems firmly rooted in cultural assumptions about the appropriate balance between speech and reputation that the committees did not regard as necessary to articulate. The conclusion seems plain: the relaxed American rules relating to defamation of public officials and public figures will not be adopted in the United Kingdom, New Zealand or Australia whatever other changes in defamation law might be made. Nevertheless, this paper considers some alterations recommended in the United Kingdom and largely followed, though with some differences, in New Zealand.
The paper also discusses the law of privacy, observing that the courts of England, New Zealand, and the Australian States have developed no separate tort providing a remedy for invasions of privacy. Considering the American experience with the tort, a number of conclusions can be reached. The tort or torts have been unsatisfactory; the operation of the law has been unpredictable; and the complications with freedom of expression have raised constitutional difficulties. The paper also discusses the potential for law reform in the area of privacy in Commonwealth countries.
Keywords: defamation, privacy, Commonwealth, Australia, New Zealand, freedom of speech, freedom of expression
JEL Classification: K13, K19
Suggested Citation: Suggested Citation