By Steven | October 8, 2013
Here’s a surprising thing about the Defamation Act 1992. It removes the right for editorials to argue honest opinion (what used to be called “fair comment”).
You ought to be sceptical about that claim. It sounds absurd. Editorials are the very epitome of fair comment/honest opinion. They are written on the assumption that the defence applies. Otherwise, editorials that express critical views of people (and that’s 95% of editorials) may be exposed to defamation lawsuits.
So how do I reach the conclusion that this defence isn’t available? The Defamation Act reformed the law of honest opinion (for one thing, it replaced the name “fair comment”). Here’s the main bit, section 10:
In any proceedings for defamation in respect of matter that includes or consists of an expression of opinion, a defence of honest opinion by a defendant who is not the author of the matter containing the opinion shall fail unless,—
(a) where the author of the matter containing the opinion was, at the time of the publication of that matter, an employee or agent of the defendant, the defendant proves that—
(i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant; and
(ii) the defendant believed that the opinion was the genuine opinion of the author of the matter containing the opinion:
(b) where the author of the matter containing the opinion was not an employee or agent of the defendant at the time of the publication of that matter, the defendant proves that—
(i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant or of any employee or agent of the defendant; and
(ii) the defendant had no reasonable cause to believe that the opinion was not the genuine opinion of the author of the matter containing the opinion.
Okay. Boring. What this does is create a tiered system of honest opinion defences. If you are sued for something you wrote yourself, you need to show that it’s your “genuine opinion.”
If you’re publishing something written by your employee or agent, you need to show that you believe it’s his or her genuine opinion.
If you’re publishing something written by someone else (a letter to the editor, for example, or a comment on one of your blog posts, or a quote from a source), you have to show that you have no reason to believe that it’s not his or her genuine opinion.
So far, so good. But notice the fine print. For the last two categories, you also have to show that it doesn’t purport to be your opinion. Ordinarily, that will be easy. The op-ed contributor has a byline. The letter to editor is signed. The quote is attributed to a source. No problems. A newspaper gets sued, and it will readily be able to show it had no reason to doubt the genuineness of those people, and that no-one can be confused about whose opinion is being expressed.
Now think about editorials. They are written by employees of the newspaper. (They are often written at the direction of an editorial board). Sometimes, they’ll be written by contractors. Are you starting to see where I’m going here?
Editorials purport to be the opinion of the paper. That’s the whole point. They are unsigned. They often run under the masthead. They are exactly the paper’s opinion.
Now look again at the requirements for an honest opinion defence. Assume a newspaper is sued for defamation over an editorial. Assume one of the newspaper’s employees wrote that editorial. The paper may be able to prove that it believed the editorial was the genuine opinion of the author. (Actually, right there is a problem too: if a staff editorial writer is instructed by the paper’s editorial board to take a particular line, can the paper say it believed the piece to be the writer’s genuine opinion? What if it’s clear that the author actually disagrees with the party line?)
But let’s say that the paper can show it’s the genuine opinion of the employee who wrote the editorial. There’s a bigger problem. The paper then has to show that the editorial didn’t purport to be its opinion. But it can’t do that. Editorials do purport to be the newspaper’s opinion.
The Defamation Act says that the defence of honest opinon “shall fail” unless these elements can be proved. And I don’t think they can.
Now, I accept that this is a weird outcome. I accept that courts will strain themselves to find a way to allow a newspaper to have a defence of honest opinion for its editorials.
The best I can come up with is that the paper will argue that it falls into the first category above. That is: the paper is the author of the editorial. It will put its editor on the stand, or the head of the editorial board, and that person will speak for the paper and say “this is the paper’s genuine opinion.”
Like I say, that’s the best I can do. But it’s pretty problematic. Because it involves treating the paper as the “author”, and this interpretation is directly contradicted in the very next subsection of the Defamation Act. That’s the one that distinguishes between defendants who are the author, and defendants that hire someone else to be the author. And that seems to be precisely what’s happening with the editorial.
As far as I know, my theory is entirely untested. No one has raised it in the courts. But if someone were to try, the result might give a bunch of newspapers a fright.
Topics: Defamation |
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