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Australia – The Truth, The Contextual Truth And Nothing But Its Substance: 2GB Successfully Defends Defamation Claims.

21 May, 2014

 

Legal News & Analysis – Asia Pacific – Australia –  Dispute Resolution

 

Harbour Radio Pty Ltd v Trad [2012] 247 CLR 31
Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477

 

What You Need To Know

 

  • To determine whether an imputation is substantially true, if the imputation relates to an issue of fact, consideration need only be given to uncomplicated issues of fact. 
  • However if the imputation constitutes an evaluative judgment, the correct approach is to ask whether “an audience composed of ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who brought to the question their general knowledge and experience of worldly affairs” would hold that imputation is substantially true (the Chesterton Test) (Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 and Harbour Radio Pty Ltd v Trad [2012] 247 CLR 241). 
  • Where the Chesterton Test applies, the referee of truth need not be “right thinking” rather it must be constituted by “ordinary decent persons”. 
  • When relying on the defence of substantial truth it may be useful to consider whether the imputation relates to an issue of fact or requires an evaluative judgment based on the Chesterton Test. 
 

Background

 
What was to become eight years of contentious proceedings in defamation, through three courts, began at a peace rally in 2005.

 
These proceedings concerned comments made on 2GB by Jason Morrison around the time of the controversial Cronulla race riots. In the wake of the riots, the appellant, Keysar Trad, attended a peace rally in Sydney’s Hyde Park, with approximately 5,000 people, including media representatives. Mr Trad spoke at the rally, and attributed partial blame for the riots to “those racist rednecks in tabloid journalism.” In particular, he spoke of “the racist actions of predominately one radio station”, which was identified by the crowd as Radio 2GB.

 
2GB radio host, Mr Morrison responded the next day on air, with comments addressed to Mr Trad such as “you are a disgraceful individual”, as well as describing Mr Trad as someone well known for “spewing hatred and bile at anyone who did not agree with [his] philosophies”.

 
Procedural History

 
At first instance, a jury in the Supreme Court of NSW found that Mr Morrison’s response conveyed eight imputations which were defamatory of Mr Trad.
Chief Justice McClellan upheld 2GB’s defences in relation to all eight of the defamatory imputations (under the Defamation Act 1974 (NSW)). In addition to upholding defences of substantial truth, the trial judge upheld a defence of qualified privilege, with respect to all of the imputations.

 

The Court also upheld the defence of contextual truth in relation to four imputations. In this case, the further imputations were found not to further injure Mr Trad’s reputation, including that Mr Trad was widely perceived as a pest, and deliberately gave misinformation about the Islamic community.

 
Mr Trad appealed to the NSWCA, which overturned the decision at first instance. The Court of Appeal found that the defence of substantial truth had been determined on a “false basis”, as the primary judge had failed to apply the correct test, by not considering the attitudes and views of the “right thinking” person. On that basis, it held that four imputations could not be justified as substantially true and that three imputations did not fall within the defence of qualified privilege. It followed from the Court’s finding regarding justification that the defence of contextual truth also failed.

 
2GB appealed to the High Court.

 
The High Court’s Clarification Of The Law

 
The High Court’s decision primarily concerned the defence of qualified privilege. It confirmed that qualified privilege could protect a proportional response to an attack, which was made bona fide to vindicate one’s reputation. The High Court held that six of the imputations could be defended on this basis.

 
The High Court also clarified the defence of substantial truth as follows.

 

  • Firstly, the High Court held that in most cases, evaluating the substantial truth of an imputation should involve consideration of whether the imputation is made out on the facts alone. It was found that only one of the eight imputations (that Mr Trad is a “disgraceful individual”) required the further evaluative test. 
  • Secondly, the High Court held that where the evaluative test does apply, the correct test is not, as the NSWCA suggested, with reference to the “right thinking person”. Rather, it must be asked whether “an audience composed of ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who brought to the question their general knowledge and experience of worldly affairs” would hold that the person had been defamed. This confirmed the test from Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, which referenced “general community standards”.

 
NSWCA Proceedings (Present Case On Remittal)

 
The High Court having clarified the law regarding substantial truth, and finding that certain of the imputations were defensible on the basis of qualified privilege, remitted the matter to the Court of Appeal for consideration of the defences of substantial truth and contextual truth.

 
There remained two imputations,

 
(h) he is widely perceived as a pest; and

 
(k) he attacks those people who once gave him a privileged position,

 
to which, if any of the following imputations were substantially true, the defence of contextual truth could apply:

 
(b) he incites people to commit acts of violence;

 
(c) he incites people to have racist attitudes;

 
(d) he is a dangerous individual; and

 
(g) he is a disgraceful individual

 
The Court of Appeal was thus required to consider the defences of substantial truth with respect to imputations (b), (c), (d) and (g) and contextual truth with respect to imputations (h) and (k).

 

A primary issue for the Court of Appeal was the meaning of “incite”, within the context of the imputations (b) and (c). The Court considered that although incitement depends on the perception of the audience, the focus in this case should be on Mr Trad’s intention, and whether he was, at the very least, reckless to the consequences of his words.

 
The Court first considered whether Mr Trad incites people to commit acts of violence and found that Mr Trad saw merit in anti-Semitic material, and incites violence against Jews. On this basis, the Court to held that the imputation that Mr Train “incites” acts of violence and racist attitudes to be substantially true. This conclusion was sufficient for the Court to hold that imputation (c), that Mr Trad incites racist attitudes, was also true. The Court found, in turn, these two imputations rationalised the substantial truth of imputation (d), that Mr Trad is a “dangerous” individual.

 
The only imputation which the High Court deemed warranted evaluative judgment was imputation (g), that Mr Trad is a “disgraceful individual”. The Court of Appeal determined that someone who holds views which are offensive to women and homosexuality, and supports the use of children in terrorist activities would be considered disgraceful on the basis of the Chesterton Test of “ordinary decent persons.”

 
The Court of Appeal went on to hold that the final two imputations not protected by the defence of qualified privilege, imputations (h) and (k) were defensible on the basis of contextual truth, as they did no further harm to Mr Trad’s reputation. As pithily stated by Basten JA, “a pest, on any view, involves a lessor level of opprobrium than being dangerous and disgraceful.”

 
Mr Trad’s appeal from the trial judge was dismissed.

 

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For further information, please contact:

 

Robert Todd, Partner, Ashurst 
robert.todd@ashurst.com

 

Susan Goodman, Ashurst 
susan.goodman@ashurst.com

 

Jordan Clitheroe, Ashurst 
jordan.clitheroe@ashurst.com

 

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