Defamation: Comparative Law and Practice

by Kenyon; Andrew

• ISBN13: 9781844720217
• ISBN10: 1844720217
• Edition: 1st
• Format: Nonspecific Binding
• Copyright: 2006-03-15
• Publisher: Routledge

Summary

Defamation: Comparative Law and Practice offers a timely and original investigation into defamation law and litigation practice in England, Australia and the United States, combining close legal analysis and extensive empirical research to examine central aspects of defamation law.The book centres on two themes: the treatment of a publication's meaning, and the protection of media speech by privilege defences and constitutional doctrines. What role does a publication's meaning play? How is meaning dealt with in defamation law in different jurisdictions? How is media speech protected by qualified privilege in England and Australia and by constitutional rules in the US? How do defamation laws and litigation practices affect the ways in which reputation and free speech are protected in each country? By drawing on substantial research in England, Australia and the US, the book answers these questions and re-evaluates defamation law's most important doctrinal issues.Defamation: Comparative Law and Practice is a groundbreaking contribution to legal knowledge, and will be useful to researchers, academics, students and practitioners working in media and communications law. It will enable lawyers outside the US to make more informed use of US law and commentary and it sets out, in an accessible manner, the intricacies of English and Australian defamation law and practice for US legal readers.

Table of Contents

Preface	v
Table of Cases	xiii
Tables of Statutes and Rules	xxxiv
Short Citations and Abbreviations	xlv
1 INTRODUCTION	1	(22)
I OVERVIEW	1	(8)
A Chapter outline	3	(3)
B Jurisdictional focus	6	(1)
C Procedure and terminology	7	(2)
II EMPIRICAL LEGAL RESEARCH INTO DEFAMATION	9	(11)
A US research	9	(2)
B Australian research	11	(3)
C UK research	14	(3)
D Other research into defamatory meaning	17	(3)
III AN EMPIRICAL AND DOCTRINAL FOCUS	20	(3)
2 IS A DEFAMATORY MEANING CONVEYED? ENGLISH AND AUSTRALIAN LAW	23	(44)
I GENERAL ASPECTS OF MEANING	23	(9)
A Meanings are dealt with as imputations	23	(1)
B Determining meaning: the ordinary recipient	24	(1)
C Manner, occasion and mode of publication	25	(1)
D Role of evidence in determining meaning	26	(1)
E Considering the class of likely recipients	26	(1)
F Roles of judge and jury	27	(2)
G Bane and antidote	29	(1)
H Rumour, repetition and meaning	29	(1)
I Jokes or vulgar abuse	30	(1)
J Reports of criminal charges, suspicions and allegations	31	(1)
K Legal innuendo meanings	31	(1)
II IS THE MEANING DEFAMATORY?	32	(3)
A Common law tests of what is defamatory	33	(1)
B Contemporary standards	34	(1)
C Roles of judge and jury	35	(1)
III QUESTIONS ABOUT MEANING	35	(31)
A Interlocutory determination of 'capable meanings'	36	(3)
B Implications, inferences and speculation	39	(3)
C The stage of a trial for determining meaning	42	(1)
D The single-meaning 'rule'	43	(2)
E Possible relevance of the publisher's apparent intention	45	(3)
F Meaning as general impression, not elaborate analysis	48	(1)
G Legal requirements for pleading meaning	48	(6)
H How parties are bound by pleaded meanings	54	(6)
I The degree of specificity required in pleaded meanings	60	(6)
IV CONCLUSION	66	(1)
3 DEFENCES RELEVANT TO MEANING: ENGLISH AND AUSTRALIAN LAW	67	(34)
I JUSTIFICATION	68	(21)
A General aspects of justification	69	(3)
B Mitigation and justification	72	(2)
C Imputations must be proved true in substance	74	(1)
D Justifying rumours	74	(1)
E Justifying three levels of meaning: guilt, suspicion or grounds to investigate	75	(2)
F Allegations may be narrow or general	77	(1)
G Allegations may be separate and distinct	77	(1)
H Distinct allegations and partial justification	78	(1)
I Distinct allegations and extended justification in England	78	(1)
J Distinct allegations and contextual truth in NSW	79	(1)
K Non-distinct allegations and arguing about meaning: Lucas-Box and Polly Peck	80	(7)
L Pleading and justification	87	(2)
II OPINION DEFENCES	89	(10)
A Opinion rather than fact	90	(1)
B Comment on a matter of public interest	91	(1)
C Comment based on stated, indicated or notorious facts	92	(1)
D Comment based on true facts	92	(1)
E Comment based on privileged facts	93	(1)
F Fairness: possible not reasonable opinion	94	(1)
G No stricter test for comment imputing dishonest motives	94	(1)
H Fairness: objective not subjective test for genuine opinion	95	(2)
I Malice	97	(1)
J Pleading opinion defences	98	(1)
III CONCLUSION	99	(2)
4 MEANING: ENGLISH DEFAMATION PRACTICE	101	(28)
I INTERVIEW SAMPLE AND METHOD	102	(6)
A The sample of lawyers interviewed	102	(1)
B The interviews' style and content	103	(4)
C Interviews provided the best information source	107	(1)
II GENERAL OBSERVATIONS ABOUT ENGLISH DEFAMATION LITIGATION	108	(4)
A The number of claims issued annually	108	(1)
B The types of parties in defamation claims	109	(1)
C The number of meanings pleaded by litigants	110	(2)
III SEVEN LITIGATION ISSUES ABOUT MEANING	112	(13)
A Disputes about pleaded meanings	112	(3)
B Precision in pleaded meanings	115	(1)
C How a party is bound to a pleaded meaning	116	(1)
D Defence pleading of meaning: Lucas-Box and Polly Peck	117	(2)
E Particulars, evidence and defence meanings	119	(1)
F The trial stage for determining meaning: the Marks & Spencer approach	120	(3)
G Presenting the test for defamatory meaning to the jury	123	(2)
IV INTERVIEWEES' VIEWS ABOUT REFORMS	125	(3)
A Summary disposal provisions of the Defamation Act 1996	125	(2)
B Possible roles of judge and jury	127	(1)
C Other approaches to dealing with meaning	127	(1)
V CONCLUSION	128	(1)
5 MEANING: NEW SOUTH WALES DEFAMATION PRACTICE	129	(36)
I RESEARCH SAMPLES AND METHODS	131	(3)
A Court files for defamation claims	131	(1)
B Interviews with specialist lawyers	132	(2)
II INFORMATION FROM THE COURT FILES	134	(18)
A General information	135	(2)
B Examples from the files	137	(15)
III MATERIAL FROM INTERVIEWS	152	(11)
A The defamation list	153	(1)
B The cause of action under s 9	154	(1)
C Defences related to meaning: truth, contextual truth, Lucas-Box, Polly Peck	155	(3)
D Defences related to meaning: comment	158	(1)
E The 7A trial, judge and jury roles	159	(2)
F Reform	161	(1)
G The test for what is defamatory	162	(1)
IV CONCLUSION	163	(2)
6 MEANING: VICTORIAN DEFAMATION PRACTICE	165	(30)
I RESEARCH SAMPLES AND METHODS	166	(3)
A Court files for defamation claims	166	(1)
B Interviews with specialist lawyers	167	(2)
II INFORMATION FROM THE COURT FILES	169	(14)
A General information	169	(3)
B Examples from the files	172	(11)
III MATERIAL FROM INTERVIEWS	183	(10)
A Court lists	183	(1)
B Pleadings, challenges and the common law cause of action	184	(2)
C Defences related to meaning: Lucas-Box, Polly Peck, contextual imputations	186	(2)
D Defences related to meaning: fair comment	188	(1)
E Judge and jury roles	189	(1)
F Other approaches to meaning	190	(1)
G Reform	191	(1)
H The test for what is defamatory	192	(1)
IV CONCLUSION	193	(2)
7 QUALIFIED PRIVILEGE: ENGLISH AND AUSTRALIAN LAW AND PRACTICE	195	(44)
I INTRODUCTION	195	(3)
A Traditional defamation law and 1990's developments	195	(2)
B Chapter outline	197	(1)
II DEVELOPMENTS IN QUALIFIED PRIVILEGE	198	(24)
A The traditional defence	198	(2)
B Australian code defences	200	(2)
C England—Reynolds privilege	202	(10)
D Australia—Lange privilege	212	(9)
E Comparing the English and Australian law	221	(1)
III ENGLISH AND AUSTRALIAN PRACTICE	222	(14)
A Fieldwork	222	(1)
B English interviews	223	(8)
C Australian interviews	231	(5)
V CONCLUSION	236	(3)
8 US DEFAMATION LAW AND PRACTICE	239	(42)
I OUTLINE OF US DEFAMATION LAW	240	(13)
A Traditional law to the Sullivan rules	240	(1)
B Public plaintiffs	241	(3)
C Private plaintiffs	244	(2)
D The treatment of opinion	246	(1)
E State and federal courts	247	(1)
F Interlocutory hearings and appeals	248	(4)
G Judges, juries and post-trial appellate review	252	(1)
II INTERVIEW SAMPLE AND METHOD	253	(3)
A The sample of lawyers interviewed	253	(3)
B The interviews' style and content	256	(1)
III GENERAL OBSERVATIONS ABOUT US DEFAMATION LITIGATION	256	(7)
A The number of claims against the media	257	(2)
B Expertise in defamation litigation	259	(1)
C Multiple causes of action	260	(1)
D Pre-trial motions not trials	260	(1)
E Preferred courts	261	(1)
F Legal fees and settlement	261	(2)
IV ISSUES ABOUT MEANING AND THE SULLIVAN RULES	263	(16)
A Meaning and pleading	264	(2)
B Meaning and implication	266	(2)
C Meaning and substantial truth	268	(1)
D Meaning and mitigation	269	(2)
E Motions to dismiss	271	(1)
F Discovery and depositions	271	(3)
G Motions for summary judgment	274	(1)
H Motions to strike	275	(1)
I Actual malice and the plaintiff's status	275	(2)
J Actual injury	277	(1)
K Burden of proving falsity	278	(1)
V CONCLUSION	279	(2)
9 LUCAS-BOX AND POLLY PECK IN AUSTRALIA	281	(46)
I THE CHAKRAVARTI JUDGMENTS	283	(3)
II THE JUDGMENT OF BRENNAN CJ AND MCHUGH J	286	(7)
A Bremridge v Latimer	287	(3)
B Watkin v Hall	290	(1)
C Templeton v Jones	291	(2)
III IMPLICATIONS FROM THE EMPIRICAL RESEARCH	293	(2)
IV MODIFICATION OF LUCAS-BOX AND POLLY PECK	295	(29)
A Victorian decisions	296	(16)
B Western Australian decisions	312	(8)
C Other Australian decisions	320	(1)
D English examples	321	(2)
E Australia and Polly Peck	323	(1)
V CONCLUSION	324	(3)
10 COMPARATIVE DEFAMATION LAW AND PRACTICE	327	(66)
I COMPARATIVE LESSONS ABOUT MEANING	329	(43)
A Changes in NSW practice	330	(6)
B Possible changes to NSW legislation: the imputation-based cause of action	336	(8)
C Possible changes to NSW legislation: the limited jury role	344	(4)
D Further implications for the common law: England and Australia	348	(13)
E Uniform Australian defamation law and meaning	361	(11)
II REYNOLDS AND LANGE PRIVILEGE	372	(8)
A Scope, strength and litigation practicality	372	(2)
B Developing Lange and s 22?	374	(3)
C Australian uniform defamation law and privilege?	377	(3)
III US DEFAMATION LAW AND PRACTICE	380	(9)
A Meaning in US defamation	380	(2)
B Defamation litigation's usual steps	382	(1)
C Lawyers' experience	382	(1)
D Plaintiff status not subject matter	382	(1)
E Common complexity?	383	(4)
F Future US and comparative research	387	(2)
IV CONCLUSION	389	(4)
APPENDIX EMPIRICAL METHODOLOGY AND RESEARCH SAMPLES	393	(10)
I THE PROJECT HAS TWO TYPES OF EMPIRICAL SOURCE	393	(2)
II THE MECHANICS OF THE FIELDWORK AND INITIAL ANALYSIS	395	(2)
III QUALITATIVE AND QUANTITATIVE METHODS	397	(1)
IV THE STATUS OF THE INFORMATION AND ITS ANALYSIS	398	(5)
Bibliography	403	(20)
Index	423