An Analysis of Defamation Law, Satire, and Legal Defenses in Media Law

This report delves into the intricacies of privacy and media law, with a specific focus on defamation. It examines the core principles of defamation law, which aims to balance protecting an individual's reputation against the freedom of expression. The report explores various factors considered in determining whether a publication is defamatory, including the perspective of a reasonable person. It also discusses the relevance of satire in defamation cases, analyzing whether it can be used as a defense. Additionally, the report covers relevant legal concepts such as honest opinion, qualified privilege, and triviality. Finally, it highlights the importance of specific provisions within national defamation legislation to address satires appropriately, ensuring that defamation cases involving satire are handled effectively. The report references key cases and legal principles from Australian law.

Running head: PRIVACY AND MEDIA LAW
PRIVACY AND MEDIA LAW
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1PRIVACY AND MEDIA LAW
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.

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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
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.

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Political Rights (ICCPR) on 16th December of 1966. General Comment number 34 gives much
emphasis on the freedom pertaining to expression as well as opinion as the foundation stone for
any free, democratic state and as a significant element for promoting and protecting human
rights. The General Comment number 25 enumerates the freedom of expression in relation to
public affairs along with the right of voting. For ensuring total enjoyment of rights given under
Article 25 free and open communication of ideas information regarding political and public
issues among candidates, citizens and elected representative is required. For this, press and
media must be able to make comments on the public issues without any restraint or censorship12.
In the Australian courts, a well- known principle followed while interpreting the statute is that
the Parliament must not limit fundamental rights of people unless such intention is stated clearly.
Freedom of expression is included under this. Although the Constitution of Australia does not
protect the freedom of expression expressly but it was held by the High Court that implied
freedom is always there in political communication. This was held in Nationwide News Pty Ltd v
Wills (1992) 177 CLR 113 and it was further affirmed in Unions NSW v New South Wales [2013]
HCA 5814.
Satire is an important tool used by the writers, comedians, cartoonists and others to
express their views. Here in this part of the assignment, the legal complications regarding satire
can be assessed in various ways. Whether a satire is defamatory can be decided by considering
various facts that are discussed below. Generally one of the ways is by proving the truthfulness
of the claim which is the disputed matter pertaining to defamation. This is because the reputation
of a person cannot be said to be affected by any statement or publication if it is found to be true.
12 Butler, Desmond A., and Sharon Rodrick. Australian media law. (Thomson Reuters (Professional) Australia
Limited, 2015).
13 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.
14 Unions NSW v New South Wales [2013] HCA 58.

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However satire often contains matters which are exaggerated, false or absurd. Hence it will be
difficult to depend on the defence of truth regarding any satirical comment. Second defence can
be an honest opinion. Another defence that can be claimed by the defendant is by stating the
disputed statement is an honest opinion or fair comment. In order to depend on this defence, the
satirical act must be framed in such a way that it appears to be a statement of opinion both
according to the common law rules and the Defamation Acts. In Seidler v John Fairfax & Sons
Ltd [1983] 2 NSWLR 390, the newspaper was successful to argue on the basis of the honest
opinion15.
In case an opinion is expressed regarding any matter of public importance or interest and
such opinion is made on the basis of true facts, then the allegation of defamation can be set aside.
It has been several years since satire or parody was incorporated as a defence to the defamation
law. In many cases it is seen that a constructive criticism of some entities as well as individuals
are given by satire. Satire is something which is created by an individual and usually has many
elements.
In the same way, another defence that can be availed is the defence of qualified privilege
communication in respect of political discussion. This was given in Lange v Australian
Broadcasting Corporation (1997) 189 CLR 52016. Such defence is based on implied freedom
laid down in Constitution of Australia. Hence this defence can be depended only when the satire
work is related to any political candidate or government. Lastly the defence of triviality can be
used if one can prove that circumstances of the statement or publication is of such a nature that
the plaintiff is unlikely to be harmed. This is relevant where the work is published in relation to a
small number of audience.
15 Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390.
16 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

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Hence satire and defamation are not same. The former is the use of irony, humor or
exaggeration to criticize or expose stupidity or vices of people whereas the latter one is the false
statement of fact liable to cause harm causing material harm. For this reason, the national
defamation legislation must enumerate provisions specifically for dealing with satires so that
defamation cases involving satires can be dealt with properly.

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Bibliography:
Books and journals:
Barendt, Eric. "Defamation Law." (2017): 291-295.
Butler, Desmond A., and Sharon Rodrick. Australian media law. (Thomson Reuters
(Professional) Australia Limited, 2015).
Carroll, Robyn, and Catherine Graville. "Meeting the Potential of Alternative Remedies in
Australian Defamation Law." (2017) NEW DIRECTIONS : 311.
Fernandez, Joseph M. "Defamatory meanings and the hazards of relying on the'ordinary,
reasonable person'fiction." (2017) Pacific Journalism Review 23.1: 207.
Gould, Kim. "Locating a Threshold of Seriousness in the Australian Tests of
Defamation." (2017) Sydney L. Rev. 39: 333.
Gray, Anthony. "Defamation law reform in Australia: the multiple publication rule." (2019) Tort
Law Review 27.1: 3-17.
Cases:
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158.
Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 6) [2013] NSWSC 1651.
CPA Australia Ltd v New Zealand Institute of Chartered Accountants [2015] NZHC 1854.
Opai v Culpan [2016] NZHC 3004.

7PRIVACY AND MEDIA LAW
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460.
Thornton v Telegraph Media Group Ltd [2010] EWHC 1414; [2011] 1 WLR 1985.
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.
Unions NSW v New South Wales [2013] HCA 58.
Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.