ABC v O'Neill

Yesterday the High Court of Australia handed down its decision Australian Broadcasting Corporation v O'Neill [2006] HCA 46.  The case involved the principles relevant to the discretionary remedy of granting an interlocutory injunction in a defamation action.  The facts involved whether the ABC could broadcast a documentary that claimed to identify a key suspect in the 1966 disappearance of South Australia's Beaumont children.  The High Court held, by a 4-2 majority, that the interlocutory injunction against the ABC should be removed, thereby allowing the appeal.

This decision was welcomed in the print media today (especially in the Fairfax papers).  For example:

• The Age: "The decision will make it hard for individuals to stop broadcasts and publication of potentially defamatory material." (my emphasis)
• The Sydney Morning Herald: "The High Court has lifted an injunction ... a move which is being interpreted as a significant win for freedom of speech." (again, my emphasis)

What I intend to do is look at the judgment and give some preliminary thoughts as to whether this is "a significant win for freedom of speech". 

There were two sets of judgments in the majority - Gleeson CJ and Crennan J, and then Gummow and Hayne JJ.  Kirby J and Heydon J delivered separate dissents.  I intend to look at each of them, highlighting key components of their reasoning, especially in so far as they discuss free speech.  But as I intend to do this by extracting large parts of the judgments (which are not only fascinating to read, but are the best insight into the judge's reasoning), here is a quick summary.

Summary (the dot point version)

• Gleeson CJ and Crennan J allowed the appeal on the basis that the primary judge failed to take proper account of the significance of the value of free speech in considering the question of prior restraint of publication, and failed to take proper account of the possibility that, if publication occurred and was found to involve actionable defamation, only nominal damages might be awarded.
• Gummow and Hayne JJ allowed the appeal on the basis that the primary misunderstood the form and substance of the relevant test and accordingly gave insufficient consideration to the policy of the law respecting prior restraint of publication of allegedly defamatory matter. 
• Kirby J dissented contending that value of free speech had been respected by both the primary judge and the Full Court, and that appellate judges who might disagree with where the balance of convenience lay in this case, cannot substitute their evaluations for that of the primary judge unless an error of principle or approach is shown.
• Heydon J dissented arguing that none of the errors he identified from the majority opinions as to why they allowed the appeal were indeed errors.
• Overall, any principle to come away from this decision appears to be limited as the majority opinions carefully limited their conclusions to the specific factual scenario before the Court.  However, I do take comfort that all justices place great value on free speech - the difficulty is finding the right balance in Australian law.  And this was never going to be the case to find such a balance.

Now onto the longer version ...

[Note (1) I have removed all references and footnotes; (2) any emphasis in bold is mine.]

Gleeson CJ and Crennan J

After discussing the factual background, Gleeson CJ and Crennan J begin by commenting on the leading case on prior restraint of publication in defamation (at [16]-[17]):

In his widely quoted judgment in Bonnard v Perryman, in which Lord Esher MR, and Lindley, Bowen and Lopes LJJ concurred, Lord Coleridge CJ explained why "the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong" and why, when there is a plea of justification, it is generally wiser, in all but exceptional cases, to abstain from interference until the trial and determination of the plea of justification. First, there is the public interest in the right of free speech. Secondly, until the defence of justification is resolved, it is not known whether publication of the matter would invade a legal right of the plaintiff. Thirdly, a defence of justification is ordinarily a matter for decision by a jury, not by a judge sitting alone as in an application for an injunction. Fourthly, the general character of the plaintiff may be an important matter in the outcome of a trial; it may produce an award of only nominal damages.

In one respect, what Lord Coleridge CJ said, in its application to this case, requires qualification. His Lordship was dealing with a context in which truth of itself amounted to justification. Here, in the state of the law at the time of the proceedings before Crawford J and the Full Court, the appellant needed the added element of public benefit. Subject to that significant matter, what his Lordship said is directly in point. The general public interest in free speech is involved.

Their Honours then went on to look at public interest and public benefit in the case at hand, by focusing on the primary judge's central proposition that "it is not for the public benefit, and is contrary to the public interest, for there to be 'trial by media'." (at [25])  After unpacking that conclusion, their Honours said (at [31]-[32]):

The public interest in free speech goes beyond the public benefit that may be associated with a particular communication. The failure to recognise this was an error of principle on the part of the judges who found in favour of the respondent. As Auld LJ pointed out in Holley v Smyth, Blackstone, in his Commentaries, as long ago as 1769 distinguished between prior restraint of publication and subsequent legal consequences: "The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity" (emphasis in original). What lay behind Blackstone's remarks was the conclusion in the late 17th century of the controversy between Parliament and the Crown over free speech and freedom of the press. From Tudor times, the House of Commons appreciated that its role in public life would be seriously curtailed without such freedoms. This explains the House's repeated assertions, over the century, of a "liberty" to "speak freely their consciences without check or controlment". This liberty found its way into The Bill of Rights, 1689. The "check or controlment" complained about came from the Crown or its councillors. A freedom to speak on behalf of the commons became a freedom, as Blackstone notes of "[e]very freeman". Hand in hand with these developments went the dismantling of the Crown's control, or censorship, of the press, first asserted generally by Ordinance in 1534, and requiring all manuscripts to be scrutinised and licensed by the Stationers' Company. Decrees in Star Chamber reinforced that control or censorship in respect of both printers and books. ... [T]he dismantling of the licensing system was effectively completed by 1695. The public interest in free speech is explained not least by reference to the fact that freedom of speech and freedom of the press were important aspects of the constitutional struggles which came to rest with the Act of Settlement of 1701. Subsequently, courts of equity were not willing to enjoin publication of defamatory matter, not only because that would usurp the authority of juries, but also because they were most reluctant to be asked "to exercise the powers of a censor". This latter consideration remains important in our democracy.

It is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech. It is another matter for a court to interfere with the right of free speech by prior restraint. In working out the consequences of abuse of such freedom, the law strikes a balance between competing interests, which include an individual's interest in his or her reputation. When, however, a court is asked to intervene in advance of publication wider considerations are involved. This is the main reason for the "exceptional caution" with which the power to grant an interlocutory injunction in a case of defamation is approached. It is not reflected in the reasoning of [the primary judge], or the majority of the Full Court.

Their Honours concluded that (at [34]):

The primary judge, and the majority in the Full Court, erred in principle in two respects in their approach to the exercise of the discretionary power to grant an interlocutory injunction in the special circumstances of a defamation case. They failed to take proper account of the significance of the value of free speech in considering the question of prior restraint of publication, and they failed to take proper account of the possibility that, if publication occurred and was found to involve actionable defamation, only nominal damages might be awarded. The appeal should be allowed.   

Gummow and Hayne JJ

Gummow and Hayne JJ begin with a brief recount of the facts ([40]-[47]) and then some interesting observations about the jurisdiction of the Tasmanian Supreme Court to make injunctive relief in defamation matters ([54]-[64]) as well as on the law relating to interlocutory injunctions more generally, and Beecham Group Ltd v Bristol Laboratories Pty Ltd in particular ([65]-[72]).  Once their Honours turn to defamation and interlocutory injunctions, Bonnard v Perryman is again the starting point.  The focus of their Honours discussion then turned to the body of case law in Australia dealing with what was said in Bonnard as if interlocutory injunction applications in defamation actions occupy a field of their own.  This body of case law turns on whether the relevant rules of practice are "rigid" or "flexible" rules.  This interesting discussion about the history of these two approaches is relevant only in so far as the primary judge rejected the "rigid" approach and concluded (as requoted at [84]):

"My view is that, in general, it is not for the public benefit that the media should publicly allege that a person has committed crimes of which he or she has not been convicted, whether or not there are currently proceedings afoot with respect to the crimes. It is instead in the public interest that such allegations should usually be made to the public only as a result of charges and subsequent conviction. That the media on occasions makes such allegations is often referred to as 'trial by media', of which it appears the plaintiff complained to the Mercury. However, so far as concerns the imputation that the accused is a multiple killer of children, a more appropriate description in this case would be 'conviction by media' ... There will, of course, be cases when in the light of prior public statements by the person who is being defamed, or the public conduct of that person, it will be for the public benefit to publish allegations of that kind to the general public, but I have difficulty seeing that this is such a case. It is sufficient to say that the claim of the defendants to 'public benefit' may well be unsuccessful." 

Gummow and Hayne JJ make several points about this conclusion (at [85]-[89]):

First, the issue was not whether to deny the plaintiff interlocutory relief would be to encourage "trial by media" or an outcome identified by some other evidently pejorative description. The issue differed in form and substance. It was whether, having regard to the nature of the rights asserted, including the special considerations, well rooted in Australian law, which caution equitable intervention to impose a prior restraint upon publication, and other relevant matters including the apparent weakness or strength of the proposed defence under s 15 of the 1957 Act, the plaintiff's case appeared sufficiently strong to pass on to the second inquiry, respecting the balance of convenience. The pursuit of these two inquiries by a court of equity in the circumstances of the particular case is hindered, not advanced, by the taking of the apparent refuge offered by such terms as "rigid" and "flexible".

Secondly, the ABC correctly submits that the primary judge conflated the requirement of "public benefit" in s 15 of the 1957 Act with the more general, and more profound, issue involved in the policy of the law respecting prior restraint of publication of allegedly defamatory matter.

The stance taken by the courts against prior restraint was not adopted in innocence of the malign influence, on occasion, which may be exerted by media of mass communication. Indeed, in R v Shipley, Lord Mansfield, after speaking of the liberty to print without previous licence, continued:

"The licentiousness of the press is Pandora's Box, the source of every evil. Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State."

As in other fields, the policy of the law struck here represents a particular balance between competing interests. With respect to tortious liability to be determined at trial, that balance for this case is struck by statute, the 1957 Act. With respect to interlocutory restraint by injunction, attention must be paid to the case law as analysed in these reasons.

...

There is a further matter. ... [T]he general character of Mr O'Neill may well assume such importance at a trial as to be followed by an award of no more than nominal damages. That prospect is a powerful factor in considering the balance of convenience to favour the denial of interlocutory relief.

Accordingly, Gummow and Hayne JJ also allowed the appeal.

A Brief Comment on the Majority Opinions

What is significant in both sets of reasons (that is, those Gleeson CJ and Crennan J, and Gummow and Hayne JJ) is not they are in some expanding the importance of free speech, they were saying it was simply not considered in the way that it should have been.  And both sets of reasons seemed very comforted in their conclusion by their view that Mr O'Neill would most likely receive only nominal damages at trial.

Kirby J

Towards the beginning of his Honour's dissent, Kirby J makes these observations about free speech in Australia (at [110]-[115]):

In this case, unlike Lenah Game Meats, the ABC did not seek to invoke the implied constitutional freedom of communication recognised by this Court. By inference, both parties accepted that this was not a case where the intended broadcast could be characterised as one in respect of governmental and political matters of the type impliedly protected in the Constitution.

Upon this basis, the issues in this appeal must be decided without the complication of any claimed reliance on constitutional imperatives. This feature of Australian decisions, concerning the availability of interlocutory injunctions to restrain the exercise of freedom of speech and freedom of the press, distinguishes the case law in this country from that decided in the courts of the United States of America. Because of the language of the First Amendment to the United States Constitution, and the way that its provisions have been interpreted by the Supreme Court, pre-publication injunctions are extremely rare in that country. Thus it has been said that even "the most repulsive speech enjoys immunity provided it falls short of deliberate or reckless untruth".

In the United States, if the allegedly defamatory statements are directed at a "public figure" (a phrase widely defined) actual malice must be proved by clear and convincing evidence to establish a legal right sounding in damages. This is not what the Constitution, statute law or the common law, provide in Australia. Unlike the United States, in Australia there is no constitutional presumption against prior injunctive relief. Whilst free speech and the free press are important values in Australian law, they must find their expression and operation in a way that is harmonious with other legal values, including the protection of reputation, individual honour, privacy and the fair trial of legal proceedings.

In this respect, Australian law appears to reflect more accurately the balance of rights that is found in statements of fundamental rights in international law. Many of the submissions advanced by the ABC, both in the Full Court and in this Court, amounted to a repetition of its arguments of principle against interlocutory relief advocated in Lenah Game Meats. It is therefore necessary to say once again that only in the United States of America is the rule in favour of free speech and freedom of the press as unconfined as the appellant advocated. Under our Constitution, there is no express prohibition equivalent to that in the United States Constitution. Analogous principles have been rejected by this Court, by courts in other common law countries and by law reform bodies asked to review Australian law in this respect.

The uniform defamation law that came into force in Australia after these proceedings were heard, like the Australian law before it, rejects the extreme and semi-absolute protection of free speech and the free press that prevails, for constitutional reasons, in the United States. Unsurprisingly, the Australian law on interlocutory injunctions against publication reflects this different constitutional and decisional setting of the relevant law. None of this is to say that defence of freedom of speech and of a free press are not important values of Australian law. They are. But they are not absolute. In a particular case, they must be given effect in a way consonant with the competing legal values.

The competing values in Australia extend to protecting individuals against gross humiliation, irreparable damage, public and gratuitous harm and other like wrongs. In every case, the court from which relief is sought must weigh the competing interests at stake. It will do so knowing that sometimes media power is abused and, when this happens, that courts are often the only institutions in society with the authority and the will to protect the individual from such abuse of power.

After these interesting (but not directly relevant) comments, Kirby J discusses the "flexible" or "rigid" approach, preferring the flexible approach (at [144]).  His Honour then returns to free speech, arguing that the value of free speech had been respected by both the primary judge and the Full Court, citing instances where both the primary judge and the Full Court considered free speech (at [151]-[153]).  Ultimately, Kirby J concludes (at [156]):

Appellate judges might disagree with this evaluation of where the balance of convenience lay in this case. But unless an error of principle or approach is shown, they are not authorised to substitute their evaluations for that of the primary judge. All that was missing from the reasoning of the primary judge and the majority in the Full Court, which was present in the reasoning of Slicer J [the dissenting judge], was a reference by the latter to the "compelling" character of the value of "freedom of the press". I do not consider that the omission from the reasons of the other judges of such an adjective evidences a lack of appreciation of the need to protect freedom of speech and freedom of the press in our society. Especially so because such values are repeatedly referred to throughout the cases to which extensive mention was made in all of the reasons. Moreover, it was clearly in the mind of, and expressed in terms in the reasons of, Blow J [one of the majority judges]. As Slicer J correctly conceded, while "freedom of the press" is a compelling factor it is not a "trump card".

For those reasons (and others), Kirby J dismissed the appeal.

Heydon J

Heydon J's extraordinary dissenting judgment begins with a clear attack on the majority (at [169]-[170]:

At the hearing of the application for special leave to appeal, counsel for the Australian Broadcasting Corporation ("the Corporation") submitted that the case raised "very important questions about the appropriate principles to be applied"; that the Court would be able to "speak on an issue it has never spoken on before, that is, in what circumstances should an interlocutory injunction [against defamation] go"; and that the Court could deal decisively with the question of how the community interest in free speech on a matter of public interest should manifest itself in the exercise of a judgment as to whether or not an interlocutory injunction to restrain publication of defamatory material should be granted. On the appeal, counsel urged the Court to "adopt a guideline", which it might be appropriate to treat as having "the force of a binding rule" for cases like the present. Counsel advanced various "tests" for the role free speech should play - the "paramountcy of free speech", the "primacy of the role of free speech", the "overriding principle of free speech", free speech as "a predominant consideration", or "dominant" consideration, to be given "special weight", and free speech as an "independent and overriding" factor.

The outcome of this appeal will bitterly disappoint the authors of these doubtlessly sincere asseverations. There is no majority in the Court on any contested point of law. In truth, only one proposition of any importance flows from the appeal. That is that as a practical matter no plaintiff is ever likely to succeed in an application against a mass media defendant for an interlocutory injunction to restrain publication of defamatory material on a matter of public interest, however strong that plaintiff's case, however feeble the defences, and however damaging the defamation.

His Honour then makes some preliminary obligations (at [172]-[187]) before delving into a lengthy explanation of the history of the power to grant interlocutory injunctions to restrain the publication of defamatory material (at [188]-[279]), resulting in this conclusion (at [280]-[281]):

If it were desirable and necessary to do so, the Court could consider whether Bonnard v Perryman should be departed from. Many things would have to be taken into account. The points made by Callinan J in the passage just quoted and elsewhere in the same judgment would be relevant. Another relevant question would be whether principles directed to tyrants, or at least to the Tudor, Stuart and Hanoverian monarchs, should control the modern law of Australia in its attempts to deal with defamatory statements by large corporations about ordinary citizens. Attention could be given to the significance of changed social conditions - to the fact that the judges who decided the cases which culminated in Bonnard v Perryman had just finished living through an era when the leading political journalists were Robert Cecil and Walter Bagehot; the name of Harmsworth was unknown; there were no relatively cheap mass circulation newspapers operated by large publicly owned companies; and no radio or television outlets were operated by those companies and by the state. Consideration could be given to whether those favoured children of equity should, in the light of past experience, become less favoured. Have changes which have affected other groups in society passed the mass media by to some degree? Was Baroness O'Neill of Bengarve right to say in the fifth of her Reith Lectures in 2002, under the title "License to Deceive", "The media ... while deeply preoccupied with others' untrustworthiness - have escaped demands for accountability"? Another question is whether she was also right to say:

"We may use twenty-first century communication technologies, but we still cherish nineteenth century views of freedom of the press, above all those of John Stuart Mill. The wonderful image of a free press speaking truth to power and that of investigative journalists as tribunes of the people belong to those more dangerous and heroic times. In democracies the image is obsolescent: journalists face little danger (except on overseas assignments) and the press do not risk being closed down. On the contrary, the press has acquired unaccountable power that others cannot match."

More particularly, attention would have to be given to whether the very narrow capacity of plaintiffs to obtain urgent relief against the publication of defamatory material should be widened in view of the fact, if it is a fact, that it is not only the scale and power of the media which has increased, but its penetration, its pervasiveness, and its capacity to do harm also. Those who decided Bonnard v Perryman had lived through a time when there was no electronic media and no problem of cross-media ownership; the print organs were much more fragmented than now, were directed to a population with much lower literacy than now, were much less able to reach most of the adult population, and were much less able speedily to disseminate defamatory material. In short, attention would have to be directed to whether in modern conditions the mass media are more able to inflict harm which is not also grave but irreparable, and if so, whether it ought to be less difficult for plaintiffs to obtain urgent interlocutory relief to prevent such harm. These and other relevant matters have not been debated in argument.

In this case it is not desirable to decide whether the law should depart from Bonnard v Perryman because it is not necessary to do so. It is not necessary to consider whether the law should become less restrictive in its approach to the grant of interlocutory injunctions to restrain publication of defamatory matter because ... this case as seen by the primary judge falls within the areas in which Bonnard v Perryman permits an injunction to be granted. There are clear imputations of a highly defamatory kind; it is unlikely that any defences will be established; it is unlikely that damages will be nominal. Nor is it necessary to consider whether the law should depart from Bonnard v Perryman by becoming more restrictive: the Corporation did not distinctly argue for this outcome.

Heydon J then goes through the five arguments he has identified from the majority opinions as to why they allowed the appeal, and counters each one of them (at [282]-[303]).

Concluding Comments

At the outset of this post, I asked this is "a significant win for freedom of speech"?  There is no doubt it is a win for the ABC in this specific case, but unlike Heydon J's forecast of doom, I do read the majority's opinion as meaning free speech will always trump the granting of an interlocutory injunction.  The majority opinions merely require that when considering whether or not to grant an interlocutory injunction in such a case, it must be done so with the measure of caution that is required by the need to uphold the legal values of free speech and freedom of the press.

Also, I do take comfort that all justices place great value on free speech in their reasons.  The challenge for the Court in this case, and in others to come, is in finding the appropriate weight to place upon free speech against other rights and obligations, especially in the absence of any constitutional or governmental guidance.