Politicians, public figures and defamation: what can be said and what cannot

Australian politicians sue for defamation often, and they sometimes win large awards. This differs from American law, under which a public official must prove that the publisher knew a statement was false or was reckless about it. No such rule exists here. A politician, a mayor, a union leader or a prominent activist is a plaintiff like any other, and the publisher must find a defence. The defences do, however, reflect the special place of political speech.

No public figure defence

The High Court briefly moved towards a constitutional defence in Theophanous v Herald & Weekly Times Ltd in 1994, holding that a publication about government and political matters was not actionable if the publisher was unaware of its falsity, did not publish recklessly and acted reasonably.¹ Three years later, in Lange v Australian Broadcasting Corporation, a unanimous Court reset the position. The implied freedom of political communication is not a personal right but a limit on legislative and executive power, and the common law of defamation must conform to it. The Court achieved that conformity not by creating a free standing defence but by extending the common law of qualified privilege.² Theophanous is now of historical interest only.

The practical consequence is that a politician does not have to prove malice, falsity or damage beyond the ordinary elements of the tort, together with serious harm in the reformed jurisdictions. The publisher bears the onus of proving a defence to the imputations. Politicians have lost cases on meaning, as Peter Dutton did on appeal, but when they have won the awards have been substantial: $120,000 for Sarah Hanson-Young, $120,000 and $80,000 on separate publications for Joe Hockey, and $715,000 for John Barilaro.^{3 4 5}

Lange qualified privilege

Lange holds that each member of the Australian community has an interest in receiving information, opinions and arguments about government and political matters affecting the people of Australia, and that publishers have a corresponding duty to publish them, so that such publications are made on an occasion of qualified privilege. Because the audience is the whole community, the Court added a condition not found in conventional qualified privilege: the publisher’s conduct must have been reasonable in the circumstances.²

Reasonableness is the defence’s weak point for the media. As a general rule, conduct will not be reasonable unless the publisher had reasonable grounds for believing the imputation was true, took proper steps, so far as reasonably open, to verify the material, did not believe the imputation to be untrue, and, except where it was not practicable or unnecessary, sought and published a response from the person defamed.² In Hockey v Fairfax Media Publications Pty Ltd the Lange and statutory defences both failed because the publishers never put to Mr Hockey the central imputation they went on to publish, and the Sydney Morning Herald’s defence was separately defeated by findings that its editor in chief was actuated by animus towards him.⁴ In Leyonhjelm v Hanson-Young a majority of the Full Federal Court upheld findings that Senator Leyonhjelm’s conduct in publishing his statements about Senator Hanson-Young outside the Senate was not reasonable and that he was actuated by malice, and noted that the common law and Lange privileges had effectively been abandoned at trial as adding nothing to the statutory defence.³

The defence is defeated by malice in the sense of an improper purpose foreign to the occasion. In Roberts v Bass the High Court made clear that, in the electoral context, an intention to damage a candidate’s prospects or to cause the candidate to lose the election is not itself an improper purpose, because that is what electoral debate is for; what matters is the motive for which the occasion is used, and knowledge of falsity is, in the Court’s words, “almost conclusive evidence” of an improper motive.⁶ Roberts v Bass also confirms that communications by candidates, electors and their helpers to electors about a candidate’s record and fitness attract conventional qualified privilege without the reasonableness requirement, which makes the defence considerably stronger for grass roots campaigners than for mass media.⁶

Government and political matter includes the conduct of ministers, members of parliament and public officials at Commonwealth, state, territory and local level, and the policies and performance of parties and candidates. It does not reach every topic of public interest, and criticism of a politician’s private conduct unconnected with public office will often fall outside it.²

Honest opinion and political commentary

Most political criticism is opinion, and the honest opinion defence in s 31 of the Defamation Act 2005 is the natural home for it. The publisher must prove that the matter was an expression of opinion rather than a statement of fact, that the opinion related to a matter of public interest, and that it was based on proper material, meaning material that is substantially true or itself privileged and that is set out in the publication, notorious, accessible from a link or apparent from the context. The defence fails only if the plaintiff proves the opinion was not honestly held.⁷ The conduct of politicians is plainly a matter of public interest, so the contest is almost always over the first and third elements.

The first element is where political posts fail. A statement that a minister is “a disgrace” reads as comment. A statement that the minister “took a bribe” reads as fact, however strongly the writer believes it, and must be justified as fact. Context can move a statement from one category to the other. In Bazzi v Dutton a tweet calling Mr Dutton “a rape apologist” above an extract from a news article about his scepticism of asylum seekers’ rape claims was held at trial to convey that he excuses rape, and honest opinion was rejected. The Full Court set the judgment aside on meaning, holding that the ordinary reasonable reader would read the six words with the extract, understand the tweet as a derogatory criticism of his response to the claims, and not conclude that he excused rape.⁵ Mr Bazzi won on meaning rather than on the defence, and the case is a reminder that the defendant does not choose which imputation is tried.

The third element requires the facts on which the opinion rests to be true and apparent to the reader. A columnist who writes “given the minister’s vote against the inquiry, she cannot be trusted on integrity” has stated the fact and can defend the comment if the vote happened. The same words with no stated basis, or with a false one, have no proper material. Satire and parody are treated the same way: they are protected to the extent that readers recognise them as comment on true or notorious facts, and they lose protection when the joke carries a factual sting that cannot be proved. Barilaro v Google LLC illustrates the outer edge. Rares J found that the videos’ misstatements and distortions of fact meant honest opinion could not have succeeded, and that while politicians must expect their conduct and policies to be open to scrutiny and criticism, that gives no licence for racial slurs, name calling or threats.⁸

Parliamentary privilege and repetition outside the chamber

Anything said in the course of proceedings in parliament is absolutely privileged. Section 27 of the Defamation Act 2005 provides that matter published in the course of the proceedings of a parliamentary body, including evidence to a committee and documents tabled, is published on an occasion of absolute privilege, and the definition of parliamentary body extends to the parliaments, houses and committees of any country.⁹ For the Commonwealth Parliament, s 16 of the Parliamentary Privileges Act 1987 declares that article 9 of the Bill of Rights 1688 applies and defines proceedings in parliament to cover all words spoken and acts done in the course of, or for purposes of or incidental to, the business of a House or committee.¹⁰

The protection stops at the chamber door. A member who repeats an allegation at a doorstop, in a press release or on social media is publishing afresh without privilege, and so is a journalist or member of the public who repeats it other than in a fair report. That is exactly what happened in Leyonhjelm v Hanson-Young: the remark in the Senate could not be sued on, but the media interviews and press release that followed could, and the judgment of $120,000 rested on them.³ The same logic applies to a member who, outside the chamber, confirms or adopts what was said inside. Whether a bare statement that the member “stands by” a speech amounts to effective repetition of its content is a question of fact and degree on which Australian authority is limited.

Section 16(3) also limits what a court can do with parliamentary material. It is not lawful to tender evidence or make submissions about proceedings in parliament for the purpose of questioning or relying on the truth, motive, intention or good faith of anything said there, or of drawing inferences from it.¹⁰ In practice this means a defendant cannot prove truth or malice by pointing to what a politician said in parliament, and a politician cannot rely on a parliamentary speech to prove the defendant’s imputation was false. Evidence of what was said in parliament may be received for limited purposes, such as to identify the remark a later publication referred to, as the Full Court accepted in Leyonhjelm v Hanson-Young.³

The public interest defence

The 2021 reforms added s 29A, which is a defence if the defendant proves that the matter concerns an issue of public interest and that the defendant reasonably believed that publishing it was in the public interest.¹¹ The court may take into account factors including the seriousness of the imputation, the extent to which the matter relates to the performance of the person’s public functions, whether the matter contained the substance of the person’s side of the story or a reasonable attempt was made to obtain it, and the steps taken to verify the information, but no factor is mandatory.¹¹

For reporting on politicians this is the more promising route. The threshold question of public interest is easily met, the factor concerning public functions points in the publisher’s favour, and the test is the reasonableness of the publisher’s belief rather than the stricter Lange inquiry into whether the conduct was reasonable. Both routes still reward the same discipline: verification, a genuine attempt to obtain a response, and a clear distinction between allegation and fact. In Barilaro Google pleaded s 29A and abandoned it at trial; Rares J observed that the defence would have been hopeless in any event because the video did not give Mr Barilaro’s side of the story and mixed allegations, suspicions and facts while conveying serious false imputations.⁸ Section 29A applies only to publications from 1 July 2021 in the jurisdictions that adopted the reforms, and not in Western Australia.

Practical guidance for commentators and campaigners

The law leaves wide room to criticise politicians, provided the criticism is done in a way that fits one of the defences. The following habits are drawn from the cases above rather than from any rule.

• Criticise conduct and policy, which is political matter, rather than private life, which usually is not.
• Make opinion read as opinion, and state the facts it rests on in the same post or article. A link to a reliable source can supply the facts, but the court reads the link with the post, as Bazzi v Dutton shows.⁵
• Do not assert as fact what cannot be proved. Words such as corrupt, bribe, fraud, liar and criminal are allegations of fact unless the context makes them obviously hyperbole.
• Before publishing a serious factual allegation, put it to the politician and report the response. The absence of that step sank the privilege defences in Hockey.⁴
• Do not rely on parliamentary speeches as proof of anything beyond the fact that they were made.
• Hostility towards a politician is permitted, but publishing for an improper purpose is not. Wanting a politician to lose is a legitimate electoral motive, but a campaign whose purpose is humiliation, or which continues after the publisher knows the allegation is false, will be treated as malice.⁶
• Abuse, racial slurs and threats are not political communication and will aggravate damages.⁸

For politicians considering a claim, the same cases cut the other way. Meaning is contested in every case and tweets are read with what they link to; a claim built on a strained imputation can fail on appeal after a win at trial.⁵ The serious harm element applies to politicians as to anyone else, and a well researched piece with a fair right of reply is a difficult target.

Differences between jurisdictions

The Lange privilege is derived from the Constitution and applies in every Australian court to every publication about government and political matter, including matter about state, territory and local government.² The statutory defences use New South Wales numbering: s 27 absolute privilege, s 29A public interest, s 30 statutory qualified privilege and s 31 honest opinion, shared by Queensland, Victoria, Tasmania and South Australia. The ACT and Northern Territory have equivalent provisions under different section numbers. Western Australia has the pre 2021 Act, so there is no s 29A, no serious harm element and no concerns notice requirement, and its statutory qualified privilege retains the longer list of reasonableness factors. Parliamentary privilege for the Commonwealth Parliament is governed by the Parliamentary Privileges Act 1987; each state parliament’s privilege rests on its own constitution, legislation or inherited privileges, and the defamation defence in s 27 covers them all.^{9 10}

Getting advice

Whether a publication about a politician is defensible depends on how the words will be read, which defence fits them, and what evidence of verification, response and purpose exists. Those are questions for a litigation lawyer looking at the particular publication, whether the client wrote it or is described in it. Early advice, before publishing or before sending or responding to a concerns notice, allows the defences to be built in rather than reconstructed later.