Defamation in Newspapers and Magazines

Newspapers and magazines are traditional forms of media and have led to numerous cases of defamation.  With the advent of newspapers and magazines using the internet to promote their articles, there has been a new type of defamation matter relating to the use of forums that are open for leaving public comments.

It should be noted that often when a magazine or newspaper article appears, the real grievance of the person, the subject of the article, is a breach of privacy.  The difference between a breach of privacy action and a defamation claim is discussed below.

Many newspaper and magazine companies consult lawyers prior to publication of an article to seek advice as to whether the article is defamatory or not. With the advent of the internet, there are many bloggers working from home and small public relations consultancies that also qualify as publishers who do not have the resources that major media corporations have so they may not have access to pre-publication legal advice.  The “chilling effect” in defamation law refers to the effect of a fear of litigation arising from an article, which may diminish its content.

Defamatory matter in newspapers and magazines include words, pictures, cartoons, or caricatures.

Some Examples of Traditional Newspaper and Magazine Defamation Cases

Queensland Newspapers v Palmer [2011] QCA 286

Mr Palmer instituted proceedings for defamation against Queensland Newspapers for the publication of an article about him in Brisbane’s Courier Mail newspaper. The article appeared in the column called “City Beat” next to a cartoon figure depicting him naked with a section of tubing marked “Palmers Tube Mills” covering his nakedness. The heading of the article was called “Downsized”. In the proceedings, Mr Palmer alleged that the article and the cartoon were defamatory of him as they imputed numerous things including that he was a failed businessman and was an incompetent businessman who made unwise investments and business decisions.  In an application by Queensland Newspapers to strike out parts of the Statement of Claim that included various imputations arising from the article, the Court held that the application failed as those imputations could have arisen from the article.  A final determination on the matter is yet to be made by the Court as at the date that this article was written. It may be that the matter has, in fact, settled by way of private mediation.

McLachlan v Browne & Fairfax Media Publications Pty Ltd; McLachlan v Browne and Australian Broadcasting Corp (No 5) [2018] NSWSC 1976

The popular Australian actor, Craig McLachlan, has commenced defamation proceedings in relation to the publication of newspaper articles accusing him of sexual impropriety. The matter is yet to go to trial as at the date this article was written but there have been interlocutory proceedings in the matter already. The Defendants have pleaded the defences of truth and contextual truth. The trial was delayed because Mr McLachlan was charged with seven counts of indecent assault relating to four women who had worked with McLachlan on The Rocky Horror Show in 2014. He has subsequently been found not guilty of those charges. McLachlan is allegedly seeking damages of $6.5 million for the defamation.

Nationwide News Pty Ltd & Anor v Rush (2020) 380 ALR 432

Well known actor Geoffrey Rush brought defamation proceedings against Nationwide News in relation to articles published in The Daily Telegraph newspaper and a billboard poster. The publications related to Mr Rush’s role as King Lear in the Sydney Theatre Company’s production of King Lear in 2015 and 2016. The Court held that the Defendant had published defamatory matter about Rush, and he was awarded nearly $2.9 million in damages. The defence of substantial truth failed.

Bauer Media Pty Ltd v Wilson (No 2) (2018) 361 ALR 642

This was a defamation claim by yet another well-known Australian actor. In this case the media type was a magazine. It was alleged that the popular Australian women’s magazine “Woman’s Day” published articles stating that the actor was a repetitive liar. It published one article in the “Woman’s Day” magazine and a further seven articles on their various websites. In the Supreme Court of Victoria, Wilson was awarded nearly $4.8 million in damages. The magazine owners appealed the award of damages as being excessive and won that appeal. The damages were reduced to $600,000. It was held that the magazine had acted with malice in defaming Wilson. Bauer Media relied on the defence of truth or substantial truth. Further defences of triviality and qualified privilege were also mounted.  All defences failed.

Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37

The Plaintiff in this case sued Advertiser Newspapers in relation to two newspaper articles which were based on evidence given to the Royal Commission into the investigation of the near collapse of the State Bank of South Australia. The Plaintiff was an executive at Beneficial Finance Ltd, a subsidiary of the State Bank of South Australia. The Plaintiff alleged that the articles defamed him in imputing that he had engaged in civil or criminal misconduct and that he was not a fit and proper person to be or remain in his position or in any other position of trust. The Defendant, newspaper company, alleged that the articles were true in substance and fact and, in any event, were a fair and accurate report of the proceedings of the Royal Commission. The matter was appealed to the High Court which unanimously held that the Plaintiff had been defamed by the newspaper articles.

Action for Breach of Privacy as Opposed to a Defamation Claim

Actions for breach of privacy can be taken in addition to or instead of claims for defamation.  The relevant action is called the tort of invasion of privacy.  The elements of the cause of action are¹:

• A willed act by the Defendant;
• Which intrudes upon the privacy or seclusion of the Plaintiff;
• In a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities;
• And which causes the Plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the Plaintiff from doing an act which he or she is entitled to do.

It should be noted that damages award in defamation matters can be increased due to the invasion of privacy of the Plaintiff.  In Davis v Nationwide News Pty Ltd², the Court held that the Plaintiff’s privacy was a relevant consideration in the assessment of damages for defamation, even though she was a famous actor with a public profile.  The Court noted that she had never courted publicity, was a private person who shunned publicity, and had consistently sought to protect her privacy and that of her family.

Conclusion

Newspapers and magazines publishing defamatory matter is common, especially toward politicians where cartoons and caricatures would illustrate defamation.