Defamation and Freedom of Speech

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Problem 3: Defamation and Freedom of Speech
The committee makes the following recommendations on the proposed programs: The Followers:
* An allegation made by a Western Australian MP, Greg Saunders, in Question Time, that a prominent, unmarried member of the Federal Cabinet is a homosexual. This committee sees no problem in discussing an allegation made by Greg Saunders, MP, in Question Time that a prominent, unmarried member of the Federal Cabinet is a homosexual. This conclusion has been derived from many factors. Firstly, in order for a defamation case to come to light, the defamatory material must likely cause ordinary, reasonable persons to think less of the plaintiff, expose the plaintiff to hatred or contempt, or cause the plaintiff to be shunned. In the current social climate, simply labeling an individual as a homosexual is not sufficient for a defamation case, especially when the individual is unmarried. The same may not be the case where a married individual is involved, where such a comment could imply them cheating on their spouse which may have religious or other connotations. Secondly, as the allegation was made in Question Time, Greg Saunders, MP, is afforded absolute privilege over his comments and is in no way liable under defamation. As long as the discussion surrounding the allegation is honest and a true representation of those comments, the radio broadcasters, although not generally regarded as having a duty to report to the public, may report on court and parliamentary proceedings. Thirdly, as the allegation does not single out an individual, it would be hard for a defamation suit to be brought against the radio broadcasters. Even though all the unmarried members of the Federal Cabinet could potentially bring action, stating that the allegation could be directed at them, the group would be deemed too large, although this could be dependent on the number of married and unmarried members. * A rumour that the Minister for Agriculture, Stephen Fields, took a bribe from a pro-logging group. This committee sees problems with discussing this issue on-air as and suggests the following precautions are taken. The broadcasting of such information is clearly a defamatory remark, made about an individual and published through the understanding of the listeners. As such a defence is essential. Ideally, if proof of the truth in this rumour, and the proof of the imputations implied by the rumour, could be obtained and documented, this would act as solid defence if a defamation suit was brought against the broadcasters. If the truth cannot be proven, the broadcasters would need to rely on presenting the story in the course of “government and political matters” and do everything they can to legitimize the rumour. As this rumour has gross implications to the community and to the Australian Public as a whole, it may be justifiable to deem that the broadcasters have a social and legal obligation to publish this news, as long as it is in serious, non-sensationalised conversation and not in a comedic fashion. The broadcasters must be careful when taking phone calls on this issue that listeners do not blow exaggerate the allegations rumoured to be true and do not overstep the boundary of academic political discussion. In 1986, Justice Michael McHugh, then of the New South Wales Court of Appeal, made the following observations: “Much can be said for the view that it is now reasonable to publish allegations concerning the official conduct of public officials if an ordinary person considering all the circumstances would think that the allegations were ‘probably true ’and needed to be investigated…If the conduct of public institutions and officials is to be properly scrutinized, it is only to be expected that erroneous, hurtful and defamatory statements will be made…Moreover, public officials undoubtedly have greater access to the media than other citizens. They are usually in a position to correct untrue...
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