Privacy and Media Law

Running head: PRIVACY AND MEDIA LAW
PRIVACY AND MEDIA LAW
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PRIVACY AND MEDIA LAW1
The law related to defamation is designed to ensure protection to all the Australians from
damaging or false statements that are made in order to harm their professional or personal
reputation1. It helps those who are defamed so that they can seek compensation for financial or
any other kind of losses that have resulted due to the defamatory statement or publication. The
main objective behind the defamation law is balancing the protection of the individual’s
reputation with freedom of expression. Defamation laws are developed over various centuries for
providing recourse to those people whose reputation is harmed or can be harmed by publication
of wrong information about them2. The main objective behind the defamation laws is to balance
protection of reputation of the individuals regarding freedom of speech. This article mainly deals
with defamation law, what are the interests it attempts to balance and whether satirizing the
plaintiff can be claimed as a defence by the defendant3.
Whether any kind of publication will be considered as defamatory usually depends on the
following factors; whether such publication or statement will lower the concerned person’s
reputation in reasonable person’s eyes of the community; whether it will instigate people to
avoid, despise or ridicule such person or whether it will injure or affect the reputation of such
person in any business, profession or trade. To ascertain whether any publication or statement is
likely to affect the reputation of such person in any of the manners discussed above, the situation
is judged from the point of view of a reasonable person4. In this regard, who is ‘an ordinary
reasonable person’ has to be discussed. Here an ordinary as well as reasonable person is one who
1 Gray, Anthony. "Defamation law reform in Australia: the multiple publication rule." (2019) Tort Law Review 27.1:
3-17.
2 Barendt, Eric. "Defamation Law." (2017): 291-295.
3 Carroll, Robyn, and Catherine Graville. "Meeting the Potential of Alternative Remedies in Australian Defamation
Law." (2017) NEW DIRECTIONS : 311.
4 Fernandez, Joseph M. "Defamatory meanings and the hazards of relying on the'ordinary, reasonable
person'fiction." (2017) Pacific Journalism Review 23.1: 207.

PRIVACY AND MEDIA LAW2
has average intelligence and who is not perverse or avid for scandal, morbid. This was given in
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 1585.
This article also throws light on issue like whether defamation tests has similar threshold
like the Thornton threshold given under the common law test6. The main element to bring an
action of defamation is determining whether the publication in issue is defaming. However the
word ‘defamatory’ has not been given in any of the legislation related to defamation and thus its
interpretation is done by adhering to the common law as observed in Born Brands Pty Ltd v Nine
Network Australia Pty Ltd (No 6) [2013] NSWSC 16517.
In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 4608, it was
held by the Australian High Court that the general test used in case of defamation is whether the
matter published can lead a reasonable person to think like or less than the affected person.
However this does not necessarily exclude the common law tests. In Thornton v Telegraph
Media Group Ltd [2010] EWHC 1414; [2011] 1 WLR 19859, the ‘threshold of seriousness’
found in English common law test pertaining to defamation was identified by the judge.
Recently, in CPA Australia Ltd v New Zealand Institute of Chartered Accountants [2015] NZHC
185410, the High Court judges of New Zealand accepted that the common law tests have
limitations. Similar observation was found in Opai v Culpan [2016] NZHC 300411.
In this regard, the freedom of speech pertaining to any individual must be considered.
The United Nations General Assembly adopted the International Covenant on Civil and Political
5 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158.
6 Gould, Kim. "Locating a Threshold of Seriousness in the Australian Tests of Defamation." (2017) Sydney L.
Rev. 39: 333.
7 Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 6) [2013] NSWSC 1651.
8 Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460.
9 Thornton v Telegraph Media Group Ltd [2010] EWHC 1414; [2011] 1 WLR 1985.
10 CPA Australia Ltd v New Zealand Institute of Chartered Accountants [2015] NZHC 1854.
11 Opai v Culpan [2016] NZHC 3004.