THE DEFAMATION ORDINANCE 2002

THE DEFAMATION ORDINANCE 2002 [Pakistan]

(Ordinance LVI of 2002)

C O N T E N T S

SECTION HEADING

1. Short title, extent and commencement.

2. Definitions.

3. Defamation.

4. Defamation Actionable.

5. Defences.

6. Absolute privilege.

7. Qualified privilege.

8. Notice of Action.

9. Remedies.

10. Code of Civil Procedure and Qanun-e-Shahadat Order to Apply.

11. Ordinance not to prejudice action for criminal defamation.

12. Limitation of actions.

13. Trial of Cases.

14. Court to decide the cases expeditiously.

15. Appeal.

16. Power to make rules.


[1]THE DEFAMATION ORDINANCE, 2002

(Ordinance. LVI of 2002)

1 October 2002

An Ordinance to make provisions in respect of defamation.

WHEREAS it is expedient to make provisions in respect of defamation and for matters connected therewith or incidental thereto;

AND WHEREAS, the President is satisfied that circumstances exist which render it necessary to take immediate action;

NOW, THEREFORE, in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No.1 of 1999, read with the Provisional Constitution (Amendment) Order No.9 of 1999, and in exercise of all powers enabling him in that behalf, the President of Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance:-

1. Short title, extent and commencement.– (1) This Ordinance may be called the Defamation Ordinance, 2002.

[2][(2) It extends to whole of the Punjab.]

(3) It shall come in to force at once.

2. Definitions.– In this Ordinance, unless there is anything repugnant in the subject or context–

(a) [3][* * *].

(b) “Broadcasting” means the dissemination of writings, signs, signals, pictures and sounds of all kinds, including any electronic device, intended to be received by the public either directly or through the medium of relay stations, by means of–

(i) a form of wireless radio-electric communication utilizing Hertzian waves, including radio telegraph and radiotelephone, or

(ii) cables, computers, wires, fibre-optic linkages or laser beams, and “broadcast” has a corresponding meaning;

[4][(bb) “Court” means the District Court;]

(c) “editor” means a person or operator having editorial or, equivalent responsibility for the content of the statement or the decision to publish or circulate it;

[5][(cc) “Government” means Government of the Punjab;]

[6][(d) “newspaper” means a paper containing public news, intelligence or occurrences or remarks or observations or containing only, or principally, advertisements, printed for distribution to the public and published periodically, or in parts or number, and includes such other periodical works as the Government may, by notification in the official Gazette, declare to be newspaper;]

[7][(dd) “Originator” means the initiator of the defamatory statement or any other defamatory act;]

(e) “Publication” means the communication of the words to at least one person other than the person defamed and includes a newspaper or broadcast through the internet or other media; and

(f) “Publisher” means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of public, who issues material containing the statement in the course of that business.

3. Defamation.– (1) Any wrongful act or publication or circulation of a false statement or representation made orally or in written or visual form which injures the reputation of a person, tends to lower him in the estimation of others or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred shall be actionable as defamation.

(2) Defamation is of two forms, namely:–

(i) Slander; and

(ii) Libel.

(3) Any false oral statement or representation that amounts to defamation shall be actionable as slander.

(4) Any false written, documentary or visual statement or representation made either by ordinary form or expression or by electronic or other modern means of devices that amounts to defamation shall be actionable as libel.

4. Defamation Actionable.– The publication of defamatory matter is an actionable wrong with out proof of special damage to the person defamed and where defamation is proved, damage shall be presumed.

5. Defences.– In defamation proceedings a person has a defence if he shows that–

(a) he was not the author, editor, publisher or printer of the statement complained of;

(b) the matter commented on is fair and in the public interest and is an expression of opinion and not an assertion of fact and was published in good faith;

(c) it is based on truth and was made for the public good;

(d) assent was given for the publication by the plaintiff;

(e) offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff;

(f) an offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff;

(g) the matter complained of was privileged communication such as between lawyer and client or between persons having fiduciary relations; and

(h) the matter is converted by absolute or qualified privilege.

6. Absolute privilege.– Any publication of statement made in the Federal or Provincial Legislatures, reports, papers, notes and proceedings ordered to be published by either House of the Parliament or by the Provincial Assemblies, or relating to judicial proceedings ordered to be published by the court or any report, note or matter written or published by or under the authority of Government, shall have the protection of absolute privilege.

Explanation.– In this section legislature includes a local legislature and Court includes any Tribunal or body exercising the judicial powers.

7. Qualified privilege.– Any fair and accurate publication of parliamentary proceedings, or judicial proceedings which the public may attend and statements made to the proper authorities in order to procure the redress of public grievances shall have the protection of qualified privilege.

8. Notice of Action.– No action lies unless the plaintiff has, within two months after the publication of the defamatory matter has come to his notice or knowledge, given to the defendant, fourteen days notice in writing of his intention to bring an action, specifying the defamatory matter complained of.

9. Remedies.– Where defamation shall be proved to have occurred, the Court may pass order directing the defendant to tender an apology, if acceptable to the plaintiff, and publish the same in similar manner and with the same prominence as the defamatory statement made and pay reasonable compensatory damages as general damages with a minimum of Rs.50,000/- (Rupees fifty thousands) [8][* * *] and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the Court[9][:]

[10][Provided that in case of the originator the minimum compensatory damages as general damages shall be three hundred thousand rupees.]

10. Code of Civil Procedure and Qanun-e-Shahadat Order to Apply.– The Code of Civil Procedure, 1908 (V of 1908) and the Qanun-e-Shahadat Order, 1984 (P.O. No.10 of 1984) shall mutatis mutandis, apply to the proceedings under this Ordinance.

11. Ordinance not to prejudice action for criminal defamation.– Nothing in this Ordinance shall prejudice any action for criminal libel or slander under any law for time being in force.

12. Limitation of actions.– An action against–

(a) an author, editor, proprietor or publisher of a newspaper,

(b) the owner of a broadcasting station,

(c) an officer, servant or employee of the news paper or broadcasting station; or

(d) any other person;

for defamation contained in the newspaper or broadcast from the station or its publication otherwise shall be taken within six months after the publication of the defamatory matter came to the notice or knowledge of the person defamed.

[11][13. Trial of Cases.– The District Court shall have the jurisdiction to try the cases under this ordinance.]

14. Court to decide the cases expeditiously.– The Court shall decide a case under this Ordinance within a period of [12][ninety days].

[13][15. Appeal.– An appeal against the final decision and decree of the Court shall lie to the High Court within thirty days and the High Court shall decide the appeal within sixty days:

Provided that no appeal shall lie against an interlocutory order of the Court.]

16. Power to make rules.– The [14][* * *] Government may, by notification in the official Gazette, make rules to carry out the purpose of this Ordinance.


Foot Notes: 

[1]In pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No.1 of 1999, read with the Provisional Constitution (Amendment) Order No.9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan promulgated this Ordinance which was published in the Gazette of Pakistan, Extraordinary, 1st October, 2002.

This Ordinance was originally in the Federal ambit, however, the subject on which this law was enacted devolved to the provinces by virtue of 18th Amendment in the Constitution, hence it was adapted, with amendments, for the province of the Punjab by the Defamation (Amendment) Act 2012 (VIII of 2012).

[2]Substituted by the Defamation (Amendment) Act 2012 (VIII of 2012).

[3]Omitted by the Defamation (Amendment) Act, 2004 (Federal Act IX of 2004), s.2.

[4]Inserted by the Defamation (Amendment) Act, 2004 (Federal Act IX of 2004), s.2.

[5]Inserted by the Defamation (Amendment) Act 2012 (VIII of 2012).

[6]Substituted ibid.

[7]Inserted by the Defamation (Amendment) Act, 2004 (Federal Act IX of 2004), s.2.

[8]Omitted by the Defamation (Amendment) Act, 2004 (Federal Act IX of 2004), s.3.

[9]Substituted, ibid, for full-stop.

[10]Inserted ibid.

[11]Substituted ibid, s.4

[12]Ibid, s.5.

[13]Ibid., s.6.

[14]The word “Federal” omitted by the Defamation (Amendment) Act 2012 (VIII of 2012).


 

Freedom of press is not absolute, it has to respect public order, decency, privacy of individual and morality [KHC]

(2012) 3 KerLJ 567 : (2012) 3 KLT 824 : (2014) 11 RCR(Criminal) 2489

KERALA HIGH COURT

SINGLE BENCH

( Before : S.S. Satheesachandran, J )

JACOB MATHEW AND ANOTHER — Appellant

Vs.

MANIKANTAN ALIAS G. MANI AND ANOTHER — Respondent

Criminal M.C. No. 663 of 2012

Decided on : 13-07-2012

Criminal Procedure Code, 1973 (CrPC) – Section 482
Penal Code, 1860 (IPC) – Section 34, Section 499, Section 500, Section 501, Section 502

Cases Referred

V. Subair Vs. P.K. Sudhakaran, (1987) CriLJ 736
Counsel for Appearing Parties

Sumathy Dandapani and Millu Dandapani, for the Appellant; B. Mohanlal, T. Prasad, Saiju S. and R. Ranjith, PP, for the Respondent

ORDER

S.S. Satheesachandran, J.—Petitioners are the accused in a pending case on the file of the Judicial First Class Magistrate Court-II, Kollam. That case has arisen on a private complaint filed by the 1st respondent alleging commission of offences under Sections 499, 500, 501 and 502 read with Section 34 of the Indian Penal Code against the accused persons – printer and publisher of a daily and its editor. In the Malayala Manorama daily, in its Kollam Edition, published on 21.08.2008, four photographs over an incident were published, in which, one photograph showed the complainant more or less nude, and, that, publication has caused defamation and harm to him, was the case presented by the complainant to prosecute the printer and publisher and also the editor of the above daily for the offences stated supra. The learned Magistrate, recording the sworn statement of the complainant, ordered summons to the petitioners, the accused persons. Cognizance taken of the offences against them on the complaint is challenged in the petition invoking the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure, for short, the ‘Code’.

2. Annexure A is copy of the complaint and Annexure B, copy of the publication in the daily showing the photographs published, one of which is alleged to have defamed and caused loss of reputation to the complainant. The 1st respondent/complainant is an autorickshaw driver. He claims to be the leader of Autorickshaw Drivers Union. In the Malayala Manorama newspaper of Kollam Edition, on 21.08.2008, four photographs depicting a sequence of events which occurred during a strike conducted by the autorickshaw drivers on the previous day, were published. Those photographs published mainly center around the de facto complainant, is not disputed. The 1st respondent/de facto complainant is shown in the first photograph pelting a stone at an autorickshaw, plying through the public road, presumably, discarding the strike call given by his Union. Second photograph shows the complainant throwing yet another stone at the autorickshaw, which, by then, had passed him. The third photograph shows the complainant caught by the police being taken to a police jeep. The fourth photograph shows the de facto complainant being forcefully pulled out from the police jeep by his associates, presumably, striking autorickshaw drivers, and that being prevented by a policeman sitting in the jeep. That photograph shows the complainant suspended horizontally in midair, with his pants partially removed revealing his buttocks bare and naked, while he was being pulled out from the jeep with both his hands held by his associates, and a policeman sitting in the jeep catching hold of his lower limbs preventing his forcible removal. Publication of that photograph has caused loss of reputation to him, his wife and other family members, is his case. His wife is now made fun of by her colleagues and friends asking her to see that the complainant/her husband leave the house only after wearing an undergarment. He is also made fun of by his friends and associates stating that they would purchase an undergarment for him if he has no money. Publication of the four photographs, referred to above, has defamed the complainant and the members of his family, and so much so, the accused persons are liable to be prosecuted for the offences imputed, is his case.

3. The question emerging for consideration is whether the publication of photographs, in the circumstances under which they were published, with regard to the sequence of events depicted by such publication, would give rise to criminal act/acts constituting the offences imputed against the petitioners, the publisher and printer and also the editor of the daily. What has been depicted in the four photographs as a sequence of events commencing from the pelting of stones at an autorickshaw plying through the road by the petitioner, and, culminating in the forcible removal of accused from police custody in the jeep by his associates – striking autorickshaw drivers – is not at all impeached. When that be so, publication of photographs covering the sequence of events whether it would give rise to prosecution of the accused persons on the case set up by the complainant that he had been defamed by such publication, is the question to be considered. Complainant has no case that the publication of the first three photographs covering the sequence of events had caused him any loss of reputation. He pelted stones at an autorickshaw plying through the public road. While he continued with pelting of stones at the autorickshaw he was caught hold of and taken to a police jeep by the policemen, are the pictures shown in the first three photographs. His associates – striking autorickshaw drivers – forcefully tried to take him out from the police jeep and it was prevented by a policeman. In the course of forcibly pulling him out from the police jeep, with his associates catching hold of both his hands, and a policeman preventing his removal, catching hold of his lower limbs, pants worn by the accused got removed partially. Photograph taken thereof showing his buttocks naked on partial removal of the pants worn by him and published in the newspaper as part of the sequence of events is taken exception to by the complainant to prosecute the accused persons for the offence of defamation. The most essential ingredient to constitute the offence of defamation is that the making of publication of imputations by words, either spoken or intended to be read, or by signs or by visible representations, must have been made with the intention of forming, or with the knowledge or having reason to believe that it will harm the reputation of the person concerned to whom it is made. In the backdrop of the incident that transpired if we examine the sequence of events which were depicted in the four photographs, it can never be stated that the publication of the photographs in the newspaper was with the intention of forming or with knowledge or having reason to believe that it will harm the reputation of the complainant. In publishing the photographs, apparently, what has been done by the daily is only of showing a sequence of events which has newspaper value over an incident that occurred during a strike. The accused persons – the printer and publisher and also the editor of a daily – could not be imputed of having had any intention or knowledge or reason to believe that such publication will harm the reputation of the complainant, when relevant facts relating to the incident that occurred are presented truthfully. The daily, in publishing the photographs, it is seen, has only followed “Pathradharma’ and it can never be taken exception to for the reason that the publication has invited some comments or derision against him, that too, taking exception to his habit of not wearing an undergarment. If we look at the whole incident in a lighter vein, the publication has got newspaper value since in the tussle between the policemen and the associates of the complainant, the pants worn by the complainant got loosened and his private parts were shown as bare and naked. When such an incident took place, having regard to the sequence of events that transpired earlier, it can never be stated that in publishing the fourth photograph, the accused persons have any malice in their mind or any intention or knowledge or having reason to believe that such publication will harm the reputation of the complainant. Complainant did not have the habit of wearing an undergarment led to his being undressed and shown as bare and naked when a tussle took place between his associates and the policeman with him as the object of such tussle. The allegation that somebody made fun of him and also his wife, for his habit of not wearing an undergarment, cannot be taken as a circumstance or a ground to cause any aspersion or imputation against the accused persons of having intentionally or with knowledge caused defamation to him in publishing the photographs in the newspaper.

4. The freedom of press is considered as “the mother of all other liberties” in a free society. The press has not only an active role in such a society but a primary function to provide comprehensive and objective information of all aspects of the country’s political, social, economic and cultural life. The press plays a significant role in mounting public opinion. Mahatma Gandhi in ‘Hind Swaraj or Indian Home Rule’ published in the Gujarat columns of Indian Opinion 11th and 18th December, 1909, in answering to a query of a reader has stated the objects of a newspaper thus:

One of the objects of a newspaper is to understand popular feeling and to give expression to it, another is to arouse among the people certain desirable sentiments, and the third is fearlessly to expose popular defects.

Publication of the photographs in the newspaper, in the present context, has necessarily to be viewed with reference to the sequence of events that transpired when a strike was conducted by an Autorickshaw Union with one among the participants of such strike, the complainant, who claims to be a leader of a Union which spearheaded the strike, indulging in pelting of stones at a moving auto transporting passengers discarding the strike call. Publication of the photographs in the newspaper, under the aforesaid circumstances, is at the most a fair comment or criticism over the events that occurred during the strike and that too for public good.

5. The press should have the right to present anything which it thinks fit for publication. True, the freedom of press is not absolute, unlimited and unfettered. It has no right to intrude into the privacy of an individual and it has to function responsibly respecting public order, decency and morality. A learned Single Judge of this Court, on the role and liberty of press, has stated thus in V. Subair Vs. P.K. Sudhakaran, .

…………….. the liberty of press, by its history and connotation must be deemed to have certain limitations. It has to keep within these bounds, and not transgress frontiers of decency and propriety. Vituperative exercises, or yellow journalism, cannot pass muster under the guise of freedom of press, no more than shilling shockers, or salacious prose can masquerade, as literary works.

In viewing the role of press, its freedom of expression, and, of course, with the limitations thereto, it cannot be lost sight of that what is expected from a newspaper is accurate and impartial presentation of news and dispassionate evaluation of the facts and information received by it in the publication of a news item. News published should be faithful and objective, and not distorted or false.

6. In the given facts of the case, where the photographs published depicted a sequence of events, which, without the last photograph, would have little news value, it cannot be stated that there has been an abuse of freedom of expression by the newspaper in publishing them. In publishing the photographs and, particularly, the last one showing the complainant partially naked, if some injury has been suffered by him, in the given facts of the case, he has primarily to blame himself, and, then his associates who had brazenly dared to remove him forcibly from police custody. Prosecution of the petitioners – printer and publisher of the daily and its editor – on the facts and circumstances presented in the case, for having published some photographs which had some newspaper value, and that too, without any criticism other than a fair comment – ‘Views on a striking day’ looked upon in the backdrop of freedom of press and the duty cast upon the newspaper to present news truthfully, that too, for public good, will not be proper, and more so, not conducive to justice. None of the offences alleged in the complaint could be imputed against the petitioners in the given facts of the case. When that be so, cognizance of the offences taken on the basis of the complaint and criminal proceedings against the petitioners, is an abuse of process of a court and it is liable to be quashed. Criminal proceedings against the petitioners in S.T. No. 3641 of 2010 on the file of the Judicial First Class Magistrate Court-II, Kollam are quashed u/s 482 of the Code.

Crl. M.C. is disposed of.

In controversy as to whether the material complained of is defamatory or not, the Court will first decide, as a question of law [ RHC]

RAJASTHAN HIGH COURT

SINGLE BENCH

( Before : K.S. Sidhu, J. )

SECRETARY, N.C.E.R.T. — Appellant

Vs.

DR. P. D. BHATNAGAR — Respondent

Criminal Misc. Application No. 217 of 1979 Against the order of Judicial Magistrate, Ajmer dated 19-7-1979 passed in case No. 74 of 1979 (77 of 1979)

Decided on : 22-01-1980

Counsel for Appearing Parties

V.S. Dave and A.K. Sharma, Advocates, for the Petitioners; Amrit Kumar, Advocate, for the non-petitioners

JUDGMENT

K. S. Sidhu, J.—The two petitions listed above filed under section 482 Cr. P. C. arise out of two complaints under section 500 I. P. C. pending before two different judicial magistrates, one in the district of Ajmer and the other in Bharatpur. Besides the Secretary, National Council of Educational Research and Training. New Delhi (for short the N. C. E. R. T.), all other petitioners 24 in number including Principal Wanchoo, a Professor and several Readers were members of the Faculty of Regional College of Education, Ajmer, at the material time. The complainant in one case is P. D. Bhatnagar who was himself a Professor in the same college. The complainant in the second case is Shiv Kumar who was a Junior Research Fellow in the said College at the relevant time.

2. P. D. Bhatnagar filed his complaint on the allegations that there were serious differences between him and the petitioners relating to discipline and other College affairs creating bad blood on both sides. Giving instances of matters which created the differences, he mentioned that he did not approve of hosting of drink parties and taking of alcoholic drinks by some of the petitioners at the campus of the college. He had also differences with the petitioners over what he described as bungling in internal assessment and arbitrary stoppage of scholarships of the students. In August, 1977, the students of the college went on a strike. Shri Nathu Singb, a Member of Parliament and Shri Onkar Singh Lakhawat, a lawyer member of the Janta Party visited the college and tried to sort out these problems. The petitioners and some other members of the Faculty published a date wise account of the events of the strike containing what complainant Bhatnagar considers defamatory accusations against him. The passages in the said document to which Bhatnagar has taken particular exception may be reproduced here as follows : –

1. All wrong, deceitful, derogatory and malicious informations were fed to Shri Singh (Nathu Singh) through leading and instigating questions by Dr. Bhatnagar. Students were directed to narrate their demands and grievances. Some of the false and malicious description like drinking parties by staff members with ladies, tape recording and black-mailing of ladies were narrated to him through leading questions asked by Dr. Bhatnagar.

2. He (i.e. Dr. Bhatnagar) was continuously whispering something to the students which instigated them more and they began to shout at Mr. Wanchoo.

…Then Dr. Bhatnagar addressed the students alone. After sometime some outsiders beat some college students on a different issue but Dr. Bhatnagar and Mr. Bhartiya told the students that Mr. Wanchoo had hired outside Gundas to beat the college students.

3. Dr. Bhatnagar warned Principal Wanchoo to get prepared for the worst from his (Dr. Bhatnagar’s) side.

4. The meeting continued against rowdyism aggressive behaviour and abusive languages on the part of the students even in the presence of Dr. Bhatnagar and Shri Bhartiya.

5. Dr. P. D. Bhatnagar & R.K. Bhartiya losing their tempers very often and instigating students.

6. When these people started moving at about 6-00 p. m. there was a cry from behind “Acting Principal” by Dr. P. D. Bhatnagar. There was shout by Dr. P. D. Bhatnagar, “Do not leave him, get hold of him, but M/s Dr. Dave, Dr. Panda. Ramakrishna anu Balbeer Singh ran away. A few blows also fell on the back of Dr. Panda and Shri Ramkrishna.

Thank God that the gate near the PBX was not closed by the students. It was a narrow escape.

3. Bhatnagar filed the complaint against petitioners on July 3, 1979 after a lapse of nearly two years from the date of occurrence. Explaining the delay, he pleaded that it was only on June 28, 1979 when he came to know that the petitioners were the authors of the objectionable documents which had been submitted by them to the authorities in N. C. E. R. T. and other important people under their own signatures. He mentioned in passing that a departmental enquiry had been instituted against him by the N. C. E. R. T. on the basis of the said document and that the Inquiry Officer had supplied to him, along with the charge-sheet, a true copy of that document on June 28, 1979. That is how he came to know that the petitioners had published this document.

4. Shiv Kumar filed his complaint against the same petitioners on August 3, 1979. He mentioned there in that the petitioners had animosity against him because he opposed drinking parties and taking of alcoholic drinks by them on the campus of the college. He also stated that he had been the leader of the striking students who opposed what he described as bundling in internal assessment marks and arbitrary stoppage of scholarships of the students. His complaint in respect of the aforementioned signed document, containing a date-wise account of the events of the strike is confined to the following passages : –

1. During their talk, the students led by Shri Shiv Kumar, J. R. F. stormed-into the office of the Principal with the students. These students were forcibly taken out of their classes by the said J. R. F. In the presence of the honourable guest they (including Shiv Kumar) began to abuse the Principal and accuse him of various injustices……………

2. At one stage students like Subhash Sangwan, Gunvir Singh, Hiralal, Lakhmi Cant and JRF Shiv Kumar jumped at Mr. S. P. Ram, the Senior Most Reader of the college using the most abusive and offensive language. Because of the presence of some staff members he was saved. All this goondaism took place in the presence of Dr. Bhatnagar and Shri Bhartiya.

3. Inspite of Mr. (Onkar Singh) Lakhawat’s requests, the students under the leadership of Shiv Kumar left the room shouting slogans in abusive languages.

Another document to which he took exception is said to have been issued by the petitioners, under the “Unacademic and restrictive Activities of Dr.P.D, Bhatnagar on September 14, 1977. The alleged objectionable passage may be reproduced here : –

1. That during 1975-76 above mentioned Shiv Kumar was admitted to one year B. Ed. Science. Another Shiv Kumar of Hapur (U. P.) gave legal notice to the Principal, Relational College and Vice Chancellor Rajasthan University stating that this Shiv Kumar (J. R. F.) had impersonated him in 1975 July, and got admitted to the Regional College. The test mark sheets reached Shiv Kumar of Hapur. There appears to have been sufficient evidence with the college to this effect.

2. That on 5.9.77 he alongwith Shiv Kumar (J. R. F.) and A. S. Bedi student were seen standing at three exit doors of Rajasthan Vidhan Sabha Jaipur and distributing an unsigned cyclostyled paper to the Vidhayaks. The cyclostyled paper contained false and fabricated statements and show an ideal exercise in Yellow Journalism.

3. That Dr. P. D. Bhatnagar, J. R. F. Shiv Kumar and student A. S. Bhati were seen standing at the exit doors of Jaipur Vidhan Sabha and distributing an unsigned Hindi cyclostyle sheet an ideal exercise in Yellow Journalism to the Vidhayuks as and when they emerged out on behalf of H. C. F. student.

It is alleged that the petitioners sent the aforementioned defamatory documents to Shri Bachani and Shri Tara Chand, M. L. C. These documents were also delivered to Shri Pradumusan and Shri Daulat Ram Sharma, residents of Bharatpur. According to Shiv Kumar the imputation contained in these documents brought him down in the esteem of residents of Bharatpur.

5. Like P. D. Bhatnagar the other complainant, Shiv Kumar pleaded that he could not take legal action against the petitioners earlier in the absence of a signed copy being made available to him. P. D. Bhatnagar met Shiv Kumar at Bharatpur on August 2, 1979 and brought to his notice a photostat copy of the signed document containing the alleged defamatory material.

6. After examining the complainant and recording the statement of one Hari Singh by way of inquiry, the learned Judicial Magistrate, Ajmer passed an order dated July 19, 1979 issuing process against all the 25 petitioners summoning them to face proceedings in his court under section 500 I. P. C. Similarly, the Bharatpur Magistrate, who took cognizance of the complaint of Shiv Kumar passed an order dated August 17, 1979 issuing process against as many as 20 members of the Faculty summoning them to stand trial under section 500 I. P. C.

7. Most of the accused in both the complaints are common. They filed the present petition under section 482 Cr. P. C. challenging the process issued against them by the Judicial Magistrate, Ajmer and Judicial Magistrate, Bharatpur vide orders dated July 19, 1979 and August 17, 1979 respectively. This Court admitted these petitions on September 19, 1979 and further directed that the proceedings in both the courts below shall remain stayed till further orders.

8. Section 482 Cr. P. C., under which these two petitions purport to have been filed deals with the inherent powers of the High Court. It lays down inter alia that nothing contained in the said Code, shall be deemed to limit or affect the inherent powers of the High Court to prevent the abuse of the process of any court, or otherwise to secure the ends of justice. I have examined the record and heard learned counsel on both sides at considerable length with a view to ascertaining, if by issue of process against the petitioners the learned Magistrates have permitted abuse of the process of their courts resulting in manifest failure of justice and therefore warranting interference by this Court in the exercise of its inherent powers under section 482 Cr. P. C. I am constrained to say that this question must be answered in the affirmative. The impugned orders, issuing process against the petitioners under section 204 Cr. P. C. therefore, deserve to be quashed and, instead, the two complainant deserve to be dismissed under section 203 Cr. P. C. Reasons for this opinion may be stated as follows : –

9. Section 499 I. P. C. which deals with the offence of defamation defies the offence with the aid of four Explanations and ten Exceptions with more Explanations and Illustrations appended to the Exceptions. We may read here the main definition and Explanation 4 which are relevant for decision of these petitions. They are as under:

499 Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Explanation – 4 : No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person or lowers the character of that person in respect of his caste or of his calling or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

The essential ingredients of the offence of defamation therefore, are : – (1) making or publishing any imputation concerning any person (2) such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations and (3) such imputation must have been made with the intention to harm or with the knowledge or having reason to believe that it will harm the reputation of that person. The first and foremost question which a court dealing with criminal prosecution involving the offence of defamation must, therefore, answer is whether the alleged material described as defamatory amounts to imputation within the meaning of this expression as used in Section 499. Imputation ordinarily implies an accusation. Imputation or accusation alone will not suffice. To constitute the offence of defamation, the prosecutor will have to prove that the imputation or accusation was made with an intention or knowledge or belief as mentioned in ingredient 3 above. A person is not guilty of defamation by making the imputation or accusation unless he intends to harm or knows or has reason to believe that thereby he would harm the reputation of another person. In other words an imputation or accusation simplicity without proof of requisite intention, knowledge or belief as covered by ingredient 3 of the definition will not constitute the offence of defamation.

10. The question whether an imputation or accusation is defamatory or not is a mixed question of law and fact. If there is a controversy as to whether the material complained of is defamatory or not, the Court will first have to decide, as a question of law. as to whether the said material is capable of being understood in a defamatory sense. If the court decides this question in the affirmative, it will then, and then only, proceed to determine whether, the said material containing a defamatory potential had in fact harmed the reputation of the complainant, within the ambit of the definition of such harm as given in Explanation 4. If the material is defamatory parse, for example, where the accused imputed commission of a felonious crime to the complainant, there is no difficulty in deciding the question of law mentioned above. The court will at once answer it saying that the imputation of commission of felony by the defendant is capable of being understood in no other but a defamatory sense. In such a situation, the court would be justified in straight away taking the parties to evidence with a view to determining as a question of fact, whether the said imputation had harmed the reputation of the complainant within the four corners of Explanation 4. If on the other hand, the words of the alleged imputation are ambiguous, it becomes a question of some difficulty for the court to decide whether those words are capable of being understood in a defamatory sense. If the court decides in the context of a particular complaint that the words in question are reasonably capable of bearing a defamatory meaning, it is only thereafter that it will address itself to the question of fact regarding harm to the reputation of the complainant.

11. In issuing process against the petitioners on the complaints of P. D. Bhatnagar and Shiv Kumar, respectively, the learned Magistrates appear to have been influenced mainly by the evidence of certain witnesses who appeared before them in the inquiry under Section 202 Cr. P. C. and gave evidence to the effect that the publications in question had harmed the reputation of the complainants in their estimation. Before considering the question as to whether the publications in question had in fact harmed the reputation of the complainants in the estimation of others, it was incumbent upon the learned Magistrates to determine, as a question of law, as to whether the said publications were capable at all of being understood in a defamatory sense by the right thinking members of the society. The learned Magistrates did not approach and appreciate the problem from that angle. They did not consider this question at all, much less answer it.

12. Let us, therefore, find out as to whether the publications in question were capable of being understood in a defamatory sense by reasonable members of the society generally. As already stated, the complainants themselves admitted in the text of their complaints that there were serious difference between them on one side and the petitioners on the other relating to discipline and other college affairs. Such difference had created bad blood on both sides. They mentioned in this context that they opposed drinking parties and taking of alcoholic drinks by some of the petitioner on the campus of the college. Shiv Kumar, the complainant in the second complaint, even admitted that he had led the students to strike over what he described as bungling in assessment marks and arbitrary stoppage of scholarships of the students. P. D. Bhatanagar, who is the complainant in the first complaint, admitted that, on a complaint being made by the petitioners to the authorities in the N.C.E.R.T. a departmental inquiry was instituted against him by the s aid authorities on the basis of the allegations contained in the said complaint. The enquiry was still pending when he rushed to file the criminal complaint against the petitioners, describing the allegations in the petitioners’ complaint against him to the N. C. E. R. T. authorities as defamatory. Now, if we size up the petitioners’ complaint in the back ground of the complainants’ allegations to the effect that some of the petitioners were guilty taking alcoholic drinks in the company of lady members of the Faculty on the campus of the college and also of bungling in the assessment of marks, the petitioners’ complaint will emerge as a relatively restrained and disciplined effort on their part in vindication of Their own conduct as member of the Faculty vis-a-vis the conduct of the complainants as such. For example, P. D. Bhatnagar, complaints that the petitioners used snarl words like “wrong, deceitful, derogatory and malicious'” m relation to the leading questions which Bhatnagar is alleged to have out to the striking students in the presence of Shri Nathu Singh, Member of Parliament, to convince the latter that some of the petitioners were in the habit of taking alcoholic drinks and hosting drink parties with lady members of the Faculty as guest on the campus of the college. This material could not be understood by any right thinking man in a defamatory sense. A person who knows that the complaints have been opposed to the petitioners because the former do not approve of the alleged taking of alcoholic drinks and hosting of drink parties by the petitioners on the campus of the college is not likely to hold the complainants in any lover esteem by reason of the fact that they tried to expose the petitioners by putting leading questions to the students about such parties in the presence of Shri Nathu Singh.

13. Similarly imputations produced at Nos. 2, 3, 4, 5 and 6 in paragraph 2 of this judgment are not reasonably capable of being construed in a defamatory sense in the context of the situation of contention between the complainants on one side and the petitioners on the other in the Regional College of Education, Ajmer, brought about by the complainants themselves. It must be remembered that in every case the court is required to decide whether or not such words are reasonably capable of bearing defamatory meaning in the particular circumstances in which they have been published. Having regard to the fact that both the complainants have tried to justify the strike by the students in the Regional College of Education, Ajmer, by blaming it on the petitioners, the court cannot possibly adjudge the allegations of the complainants contained in Nos. 2, 3, 4,5, and 6 aforementioned as reasonably capable of bearing a defamatory meaning.

14. The observations made above in relation to the complaint of P. D. Bhatnagar apply with equal force to the complaint of Shiv Kumar against the petitioners. Shiv Kumar made an allegation in his complaint that he was compelled to lead the striking students because he opposed the drinking parties and taking of alcoholic drinks by the petitioners on the campus of the college and he did not like what he described as bungling in internal assessment of marks and arbitrary stoppage of scholarships of the students. It these are his own accusations against the petitioners, he cannot be heard complaining if the petitioners tried to defend themselves by complaining to the authorities in the N. C. E. R. T. that the complainant had stormed into the office of the Principal, along with the students, and abused the Principal. The allegation of the petitioners in their complaint to the authorities in the N. C. E. R.T. that acts of gundaism took plea in the college in the presence of complainants cannot by any means be described as defamatory. The petitioners’ allegation that one Shiv Kumar of Hapur, a name-shake of complainant Shiv Kumar, had served a legal notice on the Principal of the Regional College of Education, Ajmer, and the Vice Chancellor of the Rajasthan University, Jaipur, stating that complainant Shiv Kumar had impersonated him in the year 1975 and thus got admission to the Regional College, Ajmer, is also not defamatory. It is whit maybe described as a bare statement of fact If some one has served a baseless of bogus notice on the Principal of the College and the Vice Chancellor of the University of Rajasthan, it cannot possibly defend Shiv Kumar in the estimation of those, who know that he is not an impostor. It is significant to note that Shiv Kumar himself has not committed in any manner as to whether the notice is bogus, baseless or what.

15. The other material alleged to be defamatory in Shiv Kumar’s complaint is also of similar nature. The petitioners who are members of the Faculty of the Regional College of Education, Ajmer, were placed in such a difficult situation as a result of the allegations made against them by the two complainants that they were left with no option but to bring the whole matter to the notice of the authorities in N. C. E. R. T. for rectification of the situation and redressal of their grievances against the complainants. It is obvious that when they wrote to the N. C. E. R. T. authorities under their own signatures their only purpose, as they explained in their covering letter to the said authorities, was to bring the facts to their notice so that the sanctity of the cause of education and norms of discipline, decorum and decency of academic life could be protected. No defamatory intention knowledge or belief can reasonably be attributed to the petitioners from the communications complained of as defamatory.

16. For all these reasons, I have no hesitation in holding that none of the publications complained of is reasonably capable of bearing a defamatory meaning in the particular circumstances in which they were published. That .being so, it would-quite clearly amount to an abuse of process of the court if the complainants are permitted to subject as many as 25 members of the Faculty of the Regional College of Education, Ajmer to the inconvenience and expenses of what is bound to be a long and tortuous trial. I must therefore interfere in the matter in the exercise of the inherent powers of this Court to rectify the error committed by the learned Magistrate in issuing the process against the petitioners. Consequently, allow the two petitions set said the impugned orders and instead dismiss the two complaints under section 283 Cr. P. C.


(1980) 5 RajCriC 392

SAHIB SINGH MEHRA Vs. STATE OF UTTAR PRADESH

SUPREME COURT OF INDIA JUDGMENTS

A Public Prosecutor can file a complaint in writing in the Court of Session directly with respect to an offence u/s 500 I.P.C. committed against a public servant in respect of his conduct in the discharge of his public functions. Sub-section (3) of section 198B provides that no complaint under sub-section (1) shall be made by the Public Prosecutor except with the previous sanction of the Government concerned for the filing of complaint u/s 500 I.P.C.

(1965) AIR(SC) 1451 : (1966) MLJ(Criminal) 222 : (1965) SCD 600 : (1966) 1 SCJ 294 : (1965) 2 SCR 823 : (1965) 1 SCWR 571

SUPREME COURT OF INDIA

DIVISION BENCH

( Before : Raghubar Dayal, J; J. R. Madholkar, J )

SAHIB SINGH MEHRA — Appellant

Vs.

STATE OF UTTAR PRADESH — Respondent

Decided on : 22-01-1965

Criminal Procedure Code, 1898 (CrPC) – Section 198, Section 198B, Section 198B(1), Section 198B(3)
Penal Code, 1860 (IPC) – Section 499, Section 500

JUDGMENT

Raghubar Dayal, J.—Sahib Singh Mehra, appellant in this appeal by special leave, published an article in his paper ‘Kaliyug’ of Aligarh, dated September 12, 1960, under the heading “Ulta Chor Kotwal Ko Dante” which means that a thief reprimanded the Kotwal, a police officer, though the right thing would be the other way. The article contained the following expressions, as translated :

“How the justice stands at a distance as a helpless spectator of the show as to the manner in which the illicit bribe money from plaintiffs and defendants enters into the pockets of public prosecutors and assistant public prosecutors and the extent to which it reaches and to which use it is put.”

2. The Public Prosecutor and the eleven Assistant Public Prosecutors at Aligarh requested the Superintendent of Police for obtaining the sanction of the Government for filing a complaint by the District Government Counsel in the Court of the Sessions Judge u/s 500 I.P.C. The Government was duly approached through proper channel and, ultimately, the Home Secretary, U.P. Government, wrote to the Inspector General, U.P. on March 1, 1961 :

“I am directed to convey the sanction of the State Government u/s 198B(c) of the Code of Criminal Procedure to the filing of a complaint u/s 500 Indian Penal Code in a Court of Sessions, against the Editor and Publisher of the Newspaper ‘Kaliyug’ of District Aligarh which published a news item under the caption ‘Ulta Chor Kotwal Ko Dante’ in its issue, dated September 12, 1960 containing defamatory remarks against the Assistant Public Prosecutor Sri R. K. Sharma of District Aligarh and other police prosecuting staff of the Government in respect of their conduct in the discharge of public functions.”

3. Thereafter, the Public Prosecutor of Aligarh filed the complaint in the Court of Session, Aligarh, praying for the summoning of the accused and for his trial according to law for the offence u/s 500 I.P.C.

4. The appellant admitted before the Sessions Judge the publication of the impugned article and stated that he never had any evil intention. He further stated that he had published the news items for the good of the public and that he had published it in most general terms to bring bad things to the notice of the Government and the authorities for the public good.

5. The Sessions Judge convicted him of the offence u/s 500 I.P.C. holding that the aforesaid statements in the article were defamatory and that the appellant was not protected by exceptions 3 and 9 to section 499 I.P.C. He sentenced the appellant to simple imprisonment for six months and a fine of Rs. 200. His appeal against the conviction was dismissed by the High Court.

6. Of the points sought to be urged for the appellant, we did not allow one to be urged. It was that there was no proof that the Government had sanctioned the lodging of the complaint. This point had not been taken in the Courts below and was not even taken in the petition for special leave. What was urged in the petition for special leave was that one of the questions of law which arose in the case for consideration was whether the charge framed was the one for which sanction was granted or the requisite complaint was filed. This question is very much different from the question whether the Government did grant the sanction or whether the granting of the sanction by the Government had been duly proved in the case.

7. The other points urged are : (1) that the sanction granted was a general sanction and not with respect to the defamation of any particular Public Prosecutor or Assistant Public Prosecutor and that such sanction was not contemplated by law; (2) that it is not proved that the appellant had any intention to harm the reputation of any particular Public Prosecutor or Assistant Public Prosecutor; (3) that there was no evidence that the remarks were defamatory of any particular group; (4) that the prosecution did not lead any evidence to establish that the defamed group had any reputation which could be harmed and (5) that the remarks for public good.

8. Before dealing with the contentions raised for the appellant, we may refer to the provisions of law which enable a Public Prosecutor to file a complaint for an offence u/s 500 I.P.C. committed against a public servant. Section 198 Cr. P.C. provides inter alia that no Court shall take cognizance of an offence falling under Chapter XXI (which contains sections 499 and 500 I.P.C.) except upon complaint made by some person aggrieved by such offence. Section 198B, however, is an exception to the provisions of section 198 and provides that notwithstanding anything contained in the Code, when any offence falling under Chapter XXI of the Indian Penal Code other than the offence of defamation by spoken words is alleged to have been committed against any public servant, employed in connection with the affairs of a State, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence without the accused being committed to if for trial, upon a complaint in writing made by the Public Prosecutor. It is thus that a Public Prosecutor can file a complaint in writing in the Court of Session directly with respect to an offence u/s 500 I.P.C. committed against a public servant in respect of his conduct in the discharge of his public functions. Sub-section (3) of section 198B provides that no complaint under sub-section (1) shall be made by the Public Prosecutor except with the previous sanction of the Government concerned for the filing of complaint u/s 500 I.P.C. The sanction referred to above, in this case, and conveyed by the Home Secretary to the Inspector-General of Police, was a sanction for making a complaint u/s 500 I.P.C. against the appellant with respect to the article under the heading ‘Ulta Chor Kotwal Ko Dante’, in the issue of ‘Kaliyug’, dated September 12, 1960, containing defamatory remarks against the Assistant Public Prosecutor, R. K. Sharma, of Aligarh, and other prosecuting staff of the Government in respect of their conduct in the discharge of public functions. The sanction was therefore with respect to defamation of two persons (i) R. K. Sharma, Assistant Public Prosecutor, Aligarh; and (ii) the other police prosecuting staff of Government of Uttar Pradesh, which would be the entire prosecuting staff in the State. There was thus nothing wrong in the form of the sanction.

9. The case did not proceed with respect to the defamation of R. K. Sharma, Assistant Public Prosecutor, as such. We may, however, here indicate in brief this reference to the defamation of R. K. Sharma. The appellant published sometime in May 1960 something which was defamatory of R. K. Sharma. R. K. Sharma filed a complaint about it in September 1960. The impugned article had stated, prior to the remarks to which objection has been taken, the publication of the earlier article and the news reaching the Editor that R. K. Sharma was contemplating taking action in a Court of law and then expressed that the Editor welcomed the news and would show how the bribe money reaches the Public Prosecutors, how it is utilised and how justice sees all this show from a distance. The Public Prosecutor, however, in his complaint, restricted it to be defamation of R. K. Sharma and other police prosecuting staff of the U.P. Government at Aligarh. It is not possible to say that he was not competent to do so, when the sanction by the Government could be taken to be sanction for the defamation of the entire prosecuting staff in the State of Uttar Pradesh, there being no such express statement in the article as to restrict the imputation to the staff at Aligarh alone and when the remarks could be properly taken to be with reference to the prosecuting staff at Aligarh in the context of ‘Kaliyug’ being a local weekly and the desire of the Editor to make public all these matters in a Court in proceedings to be started by R. K. Sharma in view of certain matter published about him in an earlier issue of the paper. We therefore do not consider that the sanction suffered from any defect.

10. The next question to determine is whether it is essential for the purpose of an offence u/s 500 I.P.C. that the person defamed must be an individual and that the prosecuting staff at Aligarh or of the State of Uttar Pradesh could not be said to be a ‘person’ which could be defamed. Section 499 I.P.C. defines ‘defamation’ and provides inter alia that whoever makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputations will harm, them reputation of such person, is said, except in cases covered by the exceptions to the Section, to defame that person. Explanation 2 provides that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. It is clear therefore that there could be defamation of an individual person and also of a collection of persons as such. The contention for the appellant then reduces itself to the question whether the prosecuting staff at Aligarh can be considered to be such a collection of persons as is contemplated by Explanation 2. The language of Explanation 2 is general and any collection of persons would be covered by it. Of course, that collection of persons must be identifiable in the sense that one could, with certainty, say that this group of particular people has been defamed, as distinguished from the rest of the community. The prosecuting staff of Aligarh or, as a matter of fact, the prosecuting staff in the State of Uttar Pradesh, is certainly such an identifiable group or collection of persons. There is nothing indefinite about it. This group consists of all members of the prosecuting staff in the service of the Government of Uttar Pradesh. Within this general group of Public Prosecutors of U.P. there is again an identifiable group of prosecuting staff, consisting of Public Prosecutors and Assistant Public Prosecutors, at Aligarh. This group of persons would be covered by Explanation 2 and could therefore be the subject of defamation.

11. We have not been referred to any case relating to section 499 I.P.C. is support of the contention for the appellant that the Public Prosecutor and Assistant Public Prosecutors at Aligarh could not from such a body of persons as would be covered by Explanation 2 to section 499 I.P.C.

12. The impugned remarks are per se defamatory of the group of persons referred to. It is no defence – and it had not been urged as defence – that the remarks were true. The defence in the Courts below was that they were for public good and the appellant was protected under Exceptions 3 and 9, of section 499 I.P.C. The tenor of the article does not indicate that the purpose of the appellant in publishing these remarks was ‘public good’. According to the article, the appellant would have welcomed the opportunity that would be offered by the case contemplated against him by R. K. Sharma, to make public the impugned matters. His remarks therefore could have the tendency to dissuade R. K. Sharma from instituting the proceedings for fear of giving greater currency to untrue allegations which be not favorable to him or to the prosecuting staff at Aligarh or in the State, and by themselves could not render any public good. No enquiry could have been started by the Government on such a publication implying the passing of money from the pockets of certain set of people to the pockets of the prosecuting staff. The impugned remarks could certainly lead the renders of the article to believe or suspect that the prosecuting staff is corrupt in the discharge of its duties as public prosecutors, and are thus bound to affect the reputation of the prosecuting staff adversely. Unless proved otherwise, the presumption is that every person has a good reputation. In this case, the Public Prosecutor and Assistant Public Prosecutor had deposed that they are corrupt, and according to their knowledge, none at Aligarh, is corrupt in the discharge of his duty. There is no evidence to the contrary.

13. Exception 3 to section 499 I.P.C. comes into play when some defamatory remark is made in good faith. Nothing has been brought on the record to establish that those defamatory remarks were made by the appellant after due care and attention and so, in good faith.

14. Exception 9 gives protection to imputations made in good faith for the protection of the interest of the person making it or of any other person or for the public good. The appellant has not established his good faith and, as we have said above, the imputations could not have been said to have been made for the public good.

15. We are therefore of opinion that the appellant has been rightly held to have committed the offence u/s 500 I.P.C. by defaming the Public Prosecutor and Assistant Public Prosecutors at Aligarh.

16. It is urged for the appellant that the sentence is severe and be reduced to the period of imprisonment already undergone. We do not see any justification for reducing the sentence. The Press has great power in impressing the minds of the people and it is essential that persons responsible for publishing anything in newspapers should take good care before publishing anything which tends to harm the reputation of a person. Reckless comments are to be avoided. When one is proved to have made defamatory comments with an ulterior notice and without the least justification motivated by self-interest, he deserves a deterrent sentence.

17. We dismiss the appeal. The appellant will surrender to his bail.

18. Appeal dismissed.

Vituperative exercises or yellow journalism cannot pass muster under the guise of freedom of press [KHC]

In a free society, the press enjoys an important position and plays a vital role. It may articulate the yearnings and aspirations of the inarticulate and give voice and visage to them. A muffled or muted media cannot discharge the trust that it holds. But, the liberty of press, by its history and connotation must be deemed to have certain limitations. It has to keep within these bounds, and not transgress frontiers of decency and propriety. The freedom of press is no more important, than the good name of the press. It must set the right tune.

(1987) 1 AICLR 668 : (1987) CriLJ 736 : (1987) 2 Crimes 548 : (1987) 1 KLT 291

KERALA HIGH COURT

SINGLE BENCH

( Before : Chettur Sankaran Nair, J )

V. SUBAIR — Appellant

Vs.

P.K. SUDHAKARAN — Respondent

Decided on : 06-02-1987

Penal Code, 1860 (IPC) – Section 499, Section 501
Cases Referred

Sahib Singh Mehra Vs. State of Uttar Pradesh, AIR 1965 SC 1451 : (1965) CriLJ 434 : (1965) 2 SCR 823
Sewakram Sobhani Vs. R.K. Karanjia Chief Editor, Weekly Blitz and Others, AIR 1981 SC 1514 : (1981) CriLJ 894 : (1981) 1 SCALE 851 : (1981) 3 SCC 208 : (1981) SCC(Cri) 698 : (1981) 3 SCR 627
Raman Namboodiri, Chumaramkandathu Mana Vs. Govindan Nair, (1963) CriLJ 535

ORDER

Chettur Sankaran Nair, J.—The Courts below, concurrently found the petitioner guilty of the offence punishable u/s 501, I.P.C. and sentenced him to pay a fine of Rs. 300/-, in default to undergo simple imprisonment for 3 months, The petitioner is the Editor, Printer and Publisher of a daily, ‘Al Ameen’. The issue of the newspaper dt. 25-8-78 carried a reportfrom Chokly (Ext. Pl(a)), that a young lady of the locality consulted a local medical practitioner for an ailment of her child, and that the physician wanted to examine her. Despite her protestations that she was in no need for medical attention, and had no money to pay for the same, she was persuaded to submit to a clinical examination. It turned to be such, that the woman had to flee from the physician to save her honour. The report goes on to say, that the medical practitioner, who was rendering free treatment on Saturdays had a weakness for comely woman and that as a result of his attentions, a woman patient was put to the necessity of an abortion. The complainant,P.W. 1 avers that the reference though veiled, is unmistakably to him, and that the readers of Ext. Pl(a) thought so. He says, his portrayal as a lecherous person, lowered his moral character and that he fell in the estimation of those who read Ext. PI (a). His professional standing was also tarnished. To prove the charges, besides the complainant (P. W. 1), P.W. 2 was also examined.

2. The trial Court found the petitioner guilty of the charge, and convicted and sentenced him as aforesaid. The Court of Session affirmed the conviction and sentence. The Courts below relied on the evidence of P. Ws. 1 and 2, to find the charge.

3. Counsel for petitioner argues that neither the medical practitioner, nor the woman was named in the report and that there are other doctors at Chokli who answer the description in the report.

4. On the contrary, the respondent’s counsel would say that the publication soon after the complaint by Nabeesu, the close resemblance between Nabeesu’s complaint and the contents of the report, the reference to the medical practitioner giving free treatment, and the setting in which the report was made, unfailingly suggest to a reasonable mind, that it related to P. W. 1. The Courts below for this reason found that the charge was proved. I do not think that the finding on evidence, is vitiated by any irregularity, illegality or impropriety.

5. Relying on Raman Namboodiri, Chumaramkandathu Mana Vs. Govindan Nair, counsel for petitioner contends that the identity of the complainant should be established. The proposition is beyond reproach. But, it is not always necessary to name the person. If the description and attendant circumstances suggest with fair-certainty the identity of the person intended, that is sufficient to attract the offence. Explanation 3 to Section 499 states that an imputation in the form of an alternative or expression ironically, may also amount to defamation. Defamation by innuendo is well known. Hicks’ case is illustrative in this regard. Gatley on Libel and Slander, 8th Edition (para 281) states:

To succeed in an action of defamation it must not only be proved that the defendant published the words and that they are defamatory: He must also identify himself as the person defamed. No writing whatsoever, is to be esteemed a libel unless it reflects upon some particular person: It is not necessary that the words should refer by name.

The reference need not be explicit. If the description is such that a reasonable person in the context in which it is made, will understand it as a reference to a particular person, it would suffice. It is not always that a libellous statement is made with directness, nor, does it mean that as long as it is not by specific reference, so long it is not libel. A degree of indirectness or innuendo is noticed in such attempts, and is to be expected. To defame is an offence, and it is reasonable to think that he who defames is not anxious to invite legal consequences. Satire or lampoons are instances of reference by innuendo. Limericks also sometimes make veiled references, not altogether complementary. To a point, they may justify themselves. But, transgression beyond, would attract penal consequences. The thin twilight zone is often the subject of controversy. But, it can be said with assurance that even without specific or explicit reference, by innuendo, defamation can arise. Gatley has noticed cases, where libel was found by reference to initial letters, by asterisks or even blanks,, and reference to fictitious or fanciful names, even where there was ‘no peg or pointer for identification in the words complained of.’

6. In Morgan v. Odhama Press Ltd. (1972) 1 WLR 1239 (HL) it is stated:

It is the circumstances in which a statement is made which give it colour, meaning and thrust; they may combine to make a statement, seemingly innocuous in itself, an infamous defamation of a person who is caught and pointed to by those circumstances.

Thus viewed, it must be held that the complainant would be identified, as the doctor in Chokli in Ext. Pl(a), by those who knew of Nabeesu’s complaint and of his rendering free medical aid.

7. Counsel for petitioner urged faintly  not taking the responsibility for the publication that the Editor of a publication had a duty to reveal certain matters because the press was beholden to enlightening public opinion and upholding public weal. True. In the words of Madison:

It is better to leave a few of its noxious branches to their luxuriant growth, than by pruning them away to injure the vigour of those yeilding the proper fruits.

But, that is not to say that journalists are in a privileged or special position. The law in this regard has been stated by Lord Shaw with pellucid clarity:

The freedom of the journalist is an ordinary part of the freedom of the subject. His privilege is no other and no higher”. (Arnold v. King Emperor AIR 1914 PC 116 : 1914 Cri LJ 309)

The Supreme Court affirmed the position in Sewakram Sobhani Vs. R.K. Karanjia Chief Editor, Weekly Blitz and Others, :

Journalists are no better than any other person. Even the truth of an allegation does not permit a justification under first exception unless it is proved to be in the public good.

In Sahib Singh Mehra Vs. State of Uttar Pradesh, the Supreme Court has cautioned that “reckless comments are to be avoided”. In a free society, the press enjoys an important position and plays a vital role. It may articulate the yearnings and aspirations of the inarticulate and give voice and visage to them. A muffled or muted media cannot discharge the trust that it holds. But, the liberty of press, by its history and connotation must be deemed to have certain limitations. It has to keep within these bounds, and not transgress frontiers of decency and propriety. Vituperative exercises, or yellow journalism, cannot pass muster under the guise of freedom of press, no more than shilling shookers, or salacious press can masquerade, as literary works. The freedom of press is no more important, than the good name of the press. It must set the right tune.

8. These considerations are however academic for purposes of the present case because, the accused did not take the stand that the article was authored by him or plead a specific defence. A vague defence of generality, now put forward cannot rescue the petitioner. The publication by the petitioner is proved and the innuendo, is unmistakable. It caricatures the complainant as a person of low moral character and as a professional debauching patients. Either way, it is highly defamatory. In Jones v. Jones (1916) 1 KB 351 (360) it was held that picturing a medical practitioner, as misbehaving with female patients, defamed him as a professional man. Such intemperate exercises, cannot be assented to.

The Courts below, are right in their conclusion. The conviction and sentence are confirmed, and the revision petition is dismissed.

ELMER GERTZ v. ROBERT WELCH, INC.

Gertz v Robert Welch, Inc [1974] USSC 144; 418 U.S. 323; 94 S.Ct. 2997; 41 L.Ed.2d 789; No. 72—617 (25 June 1974)

The principal issue, in this case, is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements.

United States Supreme Court

Elmer GERTZ, Petitioner,
v.
ROBERT WELCH, INC.

No. 72—617.

Argued Nov. 14, 1973.

Decided June 25, 1974.

Syllabus

A Chicago policeman named Nuccio was convicted of murder. The victim’s family retained petitioner, a reputable attorney, to represent them in civil litigation against Nuccio. An article appearing in respondent’s magazine alleged that Nuccio’s murder trial was part of a Communist conspiracy to discredit the local police, and it falsely stated that petitioner had arranged Nuccio’s ‘frameup,’ implied that petitioner had a criminal record, and labeled him a ‘Communist-fronter.’ Petitioner brought this diversity libel action against respondent. After the jury returned a verdict for petitioner, the District Court decided that the standard enunciated in New York Times Co. v. Sullivan, [1964] USSC 40; 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, which bars media liability for defamation of a public official absent proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth, should apply to this suit. The court concluded that that standard protects media discussion of a public issue without regard to whether the person defamed is a public official as in New York Times Co. v. Sullivan, supra, or a public figure, as in Curtis Publishing Co. v. Butts, [1967] USSC 200; 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094. The court found that petitioner had failed to prove knowledge of falsity or reckless disregard for the truth and therefore entered judgment n.o.v. for respondent. The Court of Appeals affirmed. Held:

1. A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability for defamation on the ground that the defamatory statements concern an issue of public or general interest. Pp. 339—348.

(a) Because private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation. Because they have not voluntarily exposed themselves to increased risk of injury from defamatory falsehoods, they are also more deserving of recovery. The state interest in compensating injury to the reputation of private individuals is therefore greater than for public officials and public figures. Pp. 343—345.

(b) To extend the New York Times standard to media defamation of private persons whenever an issue of general or public interest is involved would abridge to an unacceptable degree the legitimate state interest in compensating private individuals for injury to reputation and would occasion the additional difficulty of forcing courts to decide on an ad hoc basis which publications and broadcasts address issues of general or public interest and which do not. Pp. 345—346.

(c) So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood which injures a private individual and whose substance makes substantial danger to reputation apparent. Pp. 347—348.

2. The States, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury. Pp. 348—350.

3. Petitioner was neither a public official nor a public figure. Pp. 351—352.

(a) Neither petitioner’s past service on certain city committees nor his appearance as an attorney at the coroner’s inquest into the death of the murder victim made him a public official. P. 351.

(b) Petitioner was also not a public figure. Absent clear evidence of general fame or notoriety in the community and pervasive involvement in ordering the affairs of society, an individual should not be deemed a public figure for all aspects of his life. Rather, the public-figure question should be determined by reference to the individual’s participation in the particular controversy giving rise to the defamation. Petitioner’s role in the Nuccio affair did not make him a public figure. Pp. 351—352.

7 Cir.[1973] USCA7 65; , 471 F.2d 801, reversed and remanded.

ADVOCATES:

Wayne B. Giampietro, Chicago, Ill., for petitioner.

Clyde J. Watts, Oklahoma City, Okl., for respondent.

JUDGMENT

Mr. Justice POWELL delivered the opinion of the Court.

1
This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort. We granted certiorari to reconsider the extent of a publisher’s constitutional privilege against liability for defamation of a private citizen. 410 U.S. 925, 93 S.Ct. 1355, 35 L.Ed.2d 585 (1973).

2
* In 1968 a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio.

3
Respondent publishes American Opinion, a monthly outlet for the views of the John Birch Society. Early in the 1960’s the magazine began to warn of a nationwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a Communist dictatorship. As part of the continuing effort to alert the public to this assumed danger, the managing editor of American Opinion commissioned an article on the murder trial of Officer Nuccio. For this purpose he engaged a regular contributor to the magazine. In March 1969 respondent published the resulting article under the title ‘FRAME-UP: Richard Nuccio And The War On Police.’ The article purports to demonstrate that the testimony against Nuccio at his criminal trial was false and that his prosecution was part of the Communist campaign against the police.

4
In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner’s inquest into the boy’s death and initiated actions for damages, but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding petitioner’s remote connection with the prosecution of Nuccio, respondent’s magazine portrayed him as an architect of the ‘frame-up.’ According to the article, the police file on petitioner took ‘a big, Irish cop to lift.’ The article stated that petitioner had been an official of the ‘Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government.’ It labeled Gertz a ‘Leninist’ and a ‘Communist-fronter.’ It also stated that Gertz had been an officer of the National Lawyers Guild, described as a Communist organization that ‘probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention.’

5
These statements contained serious inaccuracies. The implication that petitioner had a criminal record was false. Petitioner had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the 1968 demonstrations in Chicago. There was also no basis for the charge that petitioner was a ‘leninist’ or a ‘Communist-fronter.’ And he had never been a member of the ‘Marxist League for Industrial Democracy’ or the ‘Intercollegiate Socialist Society.’ The managing editor of American Opinion made no effort to verify or substantiate the charges against petitioner. Instead, he appended an editorial introduction stating that the author had ‘conducted extensive research into the Richard Nuccio Case.’ And he included in the article a photograph of petitioner and wrote the caption that appeared under it: ‘Elmer Gertz of Red Guild harasses Nuccio.’ mespondent placed the issue of American Opinion containing the article on sale at newsstands throughout the country and distributed reprints of the article on the streets of Chicago.

6
Petitioner filed a diversity action for libel in the United States District Court for the Northern District of Illinois. He claimed that the falsehoods published by respondent injured his reputation as a lawyer and a citizen. Before filing an answer, respondent moved to dismiss the complaint for failure to state a claim upon which relief could be granted, apparently on the ground that petitioner failed to allege special damages. But the court ruled that statements contained in the article constituted libel per se under Illinois law and that consequently petitioner need not plead special damages. 306 F.Supp. 310 (1969).

7
After answering the complaint, respondent filed a pretrial motion for summary judgment, claiming a constitutional privilege against liability for defamation.1 It asserted that petitioner was a public official or a public figure and that the article concerned an issue of public interest and concern. For these reasons, respondent argued, it was entitled to invoke the privilege enunciated in New York Times Co. v. Sullivan, [1964] USSC 40; 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Under this rule respondent would escape liability unless petitioner could prove publication of defamatory falsehood ‘with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ Id., at 279 280, 84 S.Ct., at 726. Respondent claimed that petitioner could not make such a showing and submitted a supporting affidavit by the magazine’s managing editor. The editor denied any knowledge of the falsity of the statements concerning petitioner and stated that he had relied on the author’s reputation and on his prior experience with the accuracy and authenticity of the author’s contributions to American Opinion.

8
The District Court denied respondent’s motion for summary judgment in a memorandum opinion of September 16, 1970. The court did not dispute respondent’s claim to the protection of the New York Times standard. Rather, it concluded that petitioner might overcome the constitutional privilege by making a factual showing sufficient to prove publication of defamatory falsehood in reckless disregard of the truth. During the course of the trial, however, it became clear that the trial court had not accepted all of respondent’s asserted grounds for applying the New York Times rule to this case. It thought that respondent’s claim to the protection of the constitutional privilege depended on the contention that petitioner was either a public official under the New York Times decision or a public figure under Curtis Publishing Co. v. Butts, [1967] USSC 200; 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), apparently discounting the argument that a privilege would arise from the presence of a public issue. After all the evidence had been presented but before submission of the case to the jury, the court ruled in effect that petitioner was neither a public official nor a public figure. It added that, if he were, the resulting application of the New York Times standard would require a directed verdict for respondent. Because some statements in the article constituted libel per se under Illinois law, the court submitted the case to the jury under instructions that withdrew from its consideration all issues save the measure of damages. The jury awarded $50,000 to petitioner.

9
Following the jury verdict and on further reflection, the District Court concluded that the New York Times standard should govern this case even though petitioner was not a public official or public figure. It accepted respondent’s contention that that privilege protected discussion of any public issue without regard to the status of a person defamed therein. Accordingly, the court entered judgment for respondent notwithstanding the jury’s verdict.2 This conclusion anticipated the reasoning of a plurality of this Court in Rosenbloom v. Metromedia, Inc., [1971] USSC 120; 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971).

10
Petitioner appealed to contest the applicability of the New York Times standard to this case. Although the Court of Appeals for the Seventh Circuit doubted the correctness of the District Court’s determination that petitioner was not a public figure, it did not overturn that finding.3 It agreed with the District Court that respondent could assert the constitutional privilege because the article concerned a matter of public interest, citing this Court’s intervening decision in Rosenbloom v. Metromedia, Inc., supra. The Court of Appeals read Rosenbloom to require application of the New York Times standard to any publication or broadcast about an issue of significant public interest, without regard to the position, fame, or anonymity of the person defamed, and it concluded that respondent’s statements concerned such an issue.4 After reviewing the record, the Court of Appeals endorsed the District Court’s conclusion that petitioner had failed to show by clear and convincing evidence that respondent had acted with ‘actual malice’ as defined by New York Times. There was no evidence that the managing editor of American Opinion knew of the falsity of the accusations made in the article. In fact, he knew nothing about petitioner except what he learned from the article. The court correctly noted that mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a “high degree of awareness of . . . probable falsity.” St. Amant v. Thompson, [1968] USSC 79; 390 U.S. 727, 731[1968] USSC 79; , 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968); accord, Beckley Newspapers Corp. v. Hanks, [1967] USSC 225; 389 U.S. 81, 84—85[1967] USSC 225; , 88 S.Ct. 197, 199 200[1967] USSC 225; , 19 L.Ed.2d 248 (1967); Garrison v. Louisiana, [1964] USSC 217; 379 U.S. 64, 75 76[1964] USSC 217; , 85 S.Ct. 209, 212, 216—217[1964] USSC 217; , 13 L.Ed.2d 125 (1964). The evidence in this case did not reveal that respondent had cause for such an awareness. The Court of Appeals therefore affirmed[1973] USCA7 65; , 471 F.2d 801 (1972). For the reasons stated below, we reverse.

11

II

12
The principal issue, in this case, is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. The Court considered this question on the rather different set of facts presented in Rosenbloom v. Metromedia, Inc., [1971] USSC 120; 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). Rosenbloom, a distributor of nudist magazines, was arrested for selling allegedly obscene material while making a delivery to a retail dealer. The police obtained a warrant and seized his entire inventory of 3,000 books and magazines. He sought and obtained an injunction prohibiting further police interference with his business. He then sued a locl radio station for failing to note in two of its newscasts that the 3,000 items seized were only ‘reportedly’ or ‘allegedly’ obscene and for broadcasting references to ‘the smut literature racket’ and to ‘girlie-book peddlers’ in its coverage of the court proceeding for injunctive relief. He obtained a judgment against the radio station, but the Court of Appeals for the Third Circuit held the New York Times privilege applicable to the broadcast and reversed. [1969] USCA3 293; 415 F.2d 892 (1969).

13
This Court affirmed the decision below, but no majority could agree on a controlling rationale. The eight Justices5 who participated in Rosenbloom announced their views in five separate opinions, none of which commanded more than three votes. The several statements not only reveal disagreement about the appropriate result in that case, they also reflect divergent traditions of thought about the general problem of reconciling the law of defamation with the First Amendment. One approach has been to extend the New York Times test to an expanding variety of situations. Another has been to vary the level of constitutional privilege for defamatory falsehood with the status of the person defamed. And a third view would grant to the press and broadcast media absolute immunity from liability for defamation. To place our holding in the proper context, we preface our discussion of this case with a review of the several Rosenbloom opinions and their antecedents.

14
In affirming the trial court’s judgment in the instant case, the Court of Appeals relied on Mr. Justice Brennan’s conclusion for the Rosenbloom plurality that ‘all discussion and communication involving matters of public or general concern,’ 403 U.S., at 44, 91 S.Ct., at 1820, warrant the protection from liability for defamation accorded by the rule originally enunciated in New York Times Co. v. Sullivan, [1964] USSC 40; 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There this Court defined a constitutional privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation. The Times ran a political advertisement endorsing civil rights demonstrations by black students in Alabama and impliedly condemning the performance of local law-enforcement officials. A police commissioner established in state court that certain misstatements in the advertisement referred to him and that they constituted libel per se under Alabama law. This showing left the Times with the single defense of truth, for under Alabama law neither good faith nor reasonable care would protect the newspaper from liability. This Court concluded that a ‘rule compelling the critic of official conduct to guarantee the truth of all his factual assertions’ would deter protected speech, id., at 279, 84 S.Ct., at 725, and announced the constitutional privilege designed to counter that effect:

15
‘The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ Id., at 279—280, 84 S.Ct. at 726.6

16
Three years after New York Times, a majority of the Court agreed to extend the constitutional privilege to defamatory criticism of ‘public figures.’ This extension was announced in Curtis Publishing Co. v. Butts and its companion, Associated Press v. Walker, [1967] USSC 200; 388 U.S. 130, 162[1967] USSC 200; , 87 S.Ct. 1975, 1995, 18 L.Ed.2d 1094 (1967). The first case involved the Saturday Evening Post’s charge that Coach Wally Butts of the University of Georgia had conspired with Coach ‘Bear’ Bryant of the University of Alabama to fix a football game between their respective schools. Walker involved an erroneous Associated Press account of former Major General Edwin Walker’s participation in a University of Mississippi campus riot. Because Butts was paid by a private alumni association and Walker had resigned from the Army, neither could be classified as a ‘public official’ under New York Times. Although Mr. Justice Harlan announced the result in both cases, a majority of the Court agreed with Mr. Chief Justice Warren’s conclusion that the New York Times test should apply to criticism of ‘public figures’ as well as ‘public officials.’7 The Court extended the constitutional privilege announced in that case to protect defamatory criticism of nonpublic persons who ‘are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.’ Id., at 164, 87 S.Ct., at 1996 (Warren, C.J., concurring in result).

17
In his opinion for the plurality in Rosenbloom v. Metromedia, Inc., [1971] USSC 120; 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), Mr. Justice Brennan took the New York Times privilege one step further. He concluded that its protection should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest. He abjured the suggested distinction between public officials and public figures on the one hand and private individuals on the other. He focused instead on society’s interest in learning about certain issues: ‘If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved.’ Id., at 43, 91 S.Ct., at 1819. Thus, under the plurality opinion, a private citizen involuntarily associated with a matter of general interest has no recourse for injury to his reputation unless he can satisfy the demanding requirements of the New York Times test.

18
Two members of the Court concurred in the result in Rosenbloom but departed from the reasoning of the plurality. Mr. Justice Black restated his view, long shared by Mr. Justice Douglas, that the First Amendment cloaks the news media with an absolute and indefeasible immunity from liability for defamation. Id., at 57, 91 S.Ct., at 1826. Mr. Justice White concurred on a narrower ground. Ibid. He concluded that ‘the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view.’ Id., at 62, 91 S.Ct., at 1829. He therefore declined to reach the broader questions addressed by the other Justices.

19
Mr. Justice Harlan dissented. Although he had joined the opinion of the Court in New York Times, in Curtis Publishing Co. he had contested the extension of the privilege to public figures. There he had argued that a public figure who held no governmental office should be allowed to recover damages for defamation ‘on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.’ 388 U.S., at 155, 87 S.Ct., at 1991. In his Curtis Publishing Co. opinion Mr. Justice Harlan had distinguished New York Times primarily on the ground that defamation actions by public officials ‘lay close to seditious libel . . .’ Id., at 153, 87 S.Ct., at 1990. Recovery of damages by one who held no public office, however, could not ‘be viewed as a vindication of governmental policy.’ Id., at 154, 87 S.Ct., at 1991. Additionally, he had intimated that, because most public officials enjoyed absolute immunity from liability for their own defamatory utterances under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), they lacked a strong claim to the protection of the courts.

20
In Rosenbloom Mr. Justice Harlan modified these views. He acquiesced in the application of the privilege to defamation of public figures but argued that a different rule should obtain where defamatory falsehood harmed a private individual. He noted that a private person has less likelihood ‘of securing access to channels of communication sufficient to rebut falsehoods concerning him’ than do public officials and public figures, 403 U.S., at 70, 91 S.Ct., at 1833 and has not voluntarily placed himself in the public spotlight. Mr. Justice Harlan concluded that the States could constitutionally allow private individuals to recover damages for defamation on the basis of any standard of care except liability without fault.

21
Mr. Justice Marshall dissented in Rosenbloom in an opinion joined by Mr. Justice Stewart. Id., at 78, 91 S.Ct., at 1836. He thought that the plurality’s ‘public or general interest’ test for determining the applicability of the New York Times provilege would involve the courts in the dangerous business of deciding ‘what information is relevant to self-government.’ Id., at 79, 91 S.Ct., at 1837. He also contended that the plurality’s position inadequately served ‘society’s interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation.’ Ibid. Mr. Justice Marshall therefore reached the conclusion, also reached by Mr. Justice Harlan, that the States should be ‘essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State’s need,’ so long as the States did not impose liability without fault. Id., at 86, 91 S.Ct., at 1841. The principal point of disagreement among the three dissenters concerned punitive damages. Whereas Mr. Justice Harlan thought that the States could allow punitive damages in amounts bearing ‘a reasonable and purposeful relationship to the actual harm done . . .,’ id., at 75, 91 S.Ct., at 1835, Mr. Justice Marshall concluded that the size and unpredictability of jury awards of exemplary damages unnecessarily exacerbated the problems of media self-censorship and that such damages should therefore be forbidden.

22

III

23
We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.8 But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues. New York Times Co. v. Sullivan, 376 U.S., at 270, 84 S.Ct., at 721. They belong to that category of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ Chaplinsky v. New Hampshire, [1942] USSC 50; 315 U.S. 568, 572[1942] USSC 50; , 62 S.Ct. 766, 769[1942] USSC 50; , 86 L.Ed. 1031 (1942).

24
Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: ‘Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.’ 4 J. Elliot, Debates on the Federal Constitution of 1787, p. 571 (1876). And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times Co. v. Sullivan, supra, 376 U.S., at 279, 84 S.Ct., at 725: ‘Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.’ The First Amendment requires that we protect some falsehood in order to protect speech that matters.

25
The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times Co. v. Sullivan, supra, at 293, 84 S.Ct., at 733 (Black, J., concurring); Garrison v. Louisiana, 379 U.S., at 80, 85 S.Ct., at 218 (1964) (Douglas, J., concurring); Curtis Publishing Co. v. Butts, 388 U.S., at 170, 87 S.Ct., at 1999 (opinion of Black, J.). Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation.

26
The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as Mr. Justice Stewart has reminded us, the individual’s right to the protection of his own good name

27
‘reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.’ Rosenblatt v. Baer, [1966] USSC 25; 383 U.S. 75, 92[1966] USSC 25; , 86 S.Ct. 669, 679[1966] USSC 25; , 15 L.Ed.2d 597 (1966) (concurring opinion).

28
Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury. As Mr. Justice Harlan stated, ‘some antithesis between freedom of speech and press and libel actions persists, for libel remains premised on the content of speech and limits the freedom of the publisher to express certain sentiments, at least without guaranteeing legal proof of their substantial accuracy.’ Curtis Publishing Co. v. Butts, supra, 388 U.S., at 152, 87 S.Ct., at 1990. In our continuing effort to define the proper accommodation between these competing concerns, we have been especially anxious to assure to the freedoms of speech and press that ‘breathing space’ essential to their fruitful exercise. NAACP v. Button, [1963] USSC 9; 371 U.S. 415, 433[1963] USSC 9; , 83 S.Ct. 328, 338[1963] USSC 9; , 9 L.Ed.2d 405 (1963). To that end this Court has extended a measure of strategic protection to defamatory falsehood.

29
The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this substantial abridgment of the state law right to compensation for wrongful hurt to one’s reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures. New York Times Co. v. Sullivan, supra; Curtis Publishing Co. v. Butts, supra. We think that these decisions are correct, but we do not find their holdings justified solely by reference to the interest of the press and broadcast media in immunity from liability. Rather, we believe that the New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons. For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.

30
Theoretically, of course, the balance between the needs of the press and the individual’s claim to compensation for wrongful injury might be struck on a case-by-case basis. As Mr. Justice Harlan hypothesized, ‘it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values transcend the legitimate state interest in protecting the particular plaintiff who prevailed.’ Rosenbloom v. Metromedia, Inc., 403 U.S., at 63, 91 S.Ct., at 1829 (footnote omitted). But this approach would lead to unpredictable results and uncertain expectations, and it could render our duty to supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at stake in each particular case is not feasible, we must lay down broad rules of general application. Such rules necessarily treat alike various cases involving differences as well as similarities. Thus it is often true that not all of the considerations which justify adoption of a given rule will obtain in each particular case decided under its authority.

31
With that caveat we have no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victime of defamation is self-help—using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements then private individuals normally enjoy.9 Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correstpondingly greater.

32
More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society’s interest in the officers of government is not strictly limited to the formal discharge of official duties. As the Court pointed out in Garrison v. Louisiana, 379 U.S., at 77, 85 S.Ct., at 217, the public’s interest extends to ‘anything which might touch on an official’s fitness for office. . . . Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.’

33
Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

34
Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a rpivate individual. He has not accepted public office or assumed an ‘influential role in ordering society.’ Curtis Publishing Co. v. Butts, 388 U.S., at 164, 87 S.Ct., at 1996 (Warren, C.J., concurring in result). He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.

35
For these reasons we conclude that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual. The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of ‘general or public interest’ and which do not—to determine, in the words of Mr. Justice Marshall, ‘what information is relevant to self-government.’ Rosenbloom v. Metromedia, Inc., 403 U.S., at 79, 91 S.Ct., at 1837. We doubt the wisdom of committing this task to the conscience of judges. Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error. The ‘public or general interest’ test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons. On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions. And liability may far exceed compensation for any actual injury to the plaintiff, for the jury may be permitted to presume damages without proof of loss and even to award punitive damages.

36
We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.10 This approach provides a more equitable boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. At least this conclusion obtains where, as here, the substance of the defamatory statement ‘makes substantial danger to reputation apparent.’11 This phrase places in perspective the conclusion we announce today. Our inquiry would involve considerations somewhat different from those discussed above if a State purported to condition civil liability on a factual misstatement whose content did not warn a reasonably prudent editor or broadcaster of its defamatory potential. Cf. Time, Inc. v. Hill, [1967] USSC 11; 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). Such a case is not now before us, and we intimate no view as to its proper resolution.

37
IV

38
Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation. But this countervailing state interest extends no further than compensation for actual injury. For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.

39
The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.

40
We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define ‘actual injury,’ as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.

41
We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.

V

42
Notwithstanding our refusal to extend the New York Times privilege to defamation of private individuals, respondent contends that we should affirm the judgment below on the ground that petitioner is either a public official or a public figure. There is little basis for the former assertion. Several years prior to the present incident, petitioner had served briefly on housing committees appointed by the mayor of Chicago, but at the time of publication he had never held any remunerative governmental position. Respondent admits this but argues that petitioner’s appearance at the coroner’s inquest rendered him a ‘de facto public official.’ Our cases recognized no such concept. Respondent’s suggestion would sweep all lawyers under the New York Times rule as officers of the court and distort the plain meaning of the ‘public official’ category beyond all recognition. We decline to follow it.

43
Respondent’s characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.

44
Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen’s participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.

45
In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner’s inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome. We are persauded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.

46
We therefore conclude that the New York Times standard is inapplicable to this case and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion.

47
It is ordered.

48
Reversed and remanded.

49
Mr. Justice BLACKMUN, concurring.

50
I joined Mr. Justice Brennan’s opinion for the plurality in Rosenbloom v. Metromedia, Inc., [1971] USSC 120; 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). I did so because I concluded that, given New York Times Co. v. Sullivan, [1964] USSC 40; 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny (noted by the Court, ante, at 334—336, n. 6), as well as Curtis Publishing Co. v. Butts, and Associated Press v. Walker, [1967] USSC 200; 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the step taken in Rosenbloom, extending the New York Times doctrine to an event of public or general interest, was logical and inevitable. A majority of the Court evidently thought otherwise, as is particularly evidenced by Mr. Justice White’s separate concurring opinion there and by the respective dissenting opinions of Mr. Justice Harlan and of Mr. Justice Marshall joined by Mr. Justice Stewart.

51
The Court today refuses to apply New York Times to the private individual, as contrasted with the public official and the public figure. It thus withdraws to the factual limits of the pre-Rosenbloom cases. It thereby fixes the outer boundary of the New York Times doctrine and says that beyond that boundary, a State is free to define for itself the appropriate standard of media liability so long as it does not impose liability without fault. As my joinder in Rosenbloom’s plurality opinion would intimate, I sense some illogic in this.

52
The Court, however, seeks today to strike a balance between competing values where necessarily uncertain assumptions about human behavior color the result. Although the Court’s opinion in the present case departs from the rationale of the Rosenbloom plurality, in that the Court now conditions a libel action by a private person upon a showing of negligence, as contrasted with a showing of willful or reckless disregard, I am willing to join, and do join, the Court’s opinion and its judgment for two reasons:

53
1. By removing the specters of presumed and punitive damages in the absence of New York Times malice, the Court eliminates significant and powerful motives for self-censorship that otherwise are present in the traditional libel action. By so doing, the Court leaves what should prove to be sufficient and adequate breathing space for a vigorous press. What the Court has done, I believe, will have little, if any, practical effect on the functioning of responsible journalism.

54
2. The Court was sadly fractionated in Rosenbloom. A result of that kind inevitably leads to uncertainty. I feel that it is of profound importance for the Court to come to rest in the defamation area and to have a clearly defined majority position that eliminates the unsureness engendered by Rosenbloom’s diversity. If my vote were not needed to create a majority, I would adhere to my prior view. A definitive ruling, however, is paramount. See Curtis Publishing Co. v. Butts, 388 U.S., at 170, 87 S.Ct., at 1999 (Black, J., concurring); Time, Inc. v. Hill, [1967] USSC 11; 385 U.S. 374, 398[1967] USSC 11; , 87 S.Ct. 534, 547[1967] USSC 11; , 17 L.Ed.2d 456 (1967) (Black, J., concurring); United States v. Vuitch, [1971] USSC 79; 402 U.S. 62, 97[1971] USSC 79; , 91 S.Ct. 1294, 1311, 28 L.Ed.2d 601 (1971) (separate statement).

55
For these reasons, I join the opinion and the judgment of the Court.

56
Mr. Chief Justice BURGER, dissenting.

57
The doctrines of the law of defamation have had a gradual evolution primarily in the state courts. In New York Times Co. v. Sullivan, [1964] USSC 40; 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny this Court entered this field.

58
Agreement or disagreement with the law as it has evolved to this time does not alter the fact that it has been orderly development with a consistent basic rationale. In today’s opinion the Court abandons the traditional thread so far as the ordinary private citizen is concerned and introduces the concept that the media will be liable for negligence in publishing defamatory statements with respect to such persons. Although I agree with much of what Mr. Justice WHITE states, I do not read the Court’s new doctrinal approach in quite the way he does. I am frank to say I do not know the parameters of a ‘negligence’ doctrine as applied to the news media. Conceivably this new doctrine could inhibit some editors, as the dissents of Mr. Justice DOUGLAS and Mr. Justice BRENNAN suggest. But I would prefer to allow this area of law to continue to evolve as it has up to now with respect to private citizens rather than embark on a new doctrinal theory which has no jurisprudential ancestry.

59
The petitioner here was performing a professional representative role as an advocate in the highest tradition of the law, and under that tradition the advocate is not to be invidiously identified with his client. The important public policy which underlies this tradition—the right to counsel—would be gravely jeopardized if every lawyer who takes an ‘unpopular’ case, civil or criminal, would automatically become fair game for irresponsible reporters and editors who might, for example, describe the lawyer as a ‘mob mouthpiece’ for representing a client with a serious prior criminal record, or as an ‘ambulance chaser’ for representing a claimant in a personal injury action.

60
I would reverse the judgment of the Court of Appeals and remand for reinstatement of the verdict of the jury and the entry of an appropriate judgment on that verdict.

61
Mr. Justice DOUGLAS, dissenting.

62
The Court describes this case as a return to the struggle of ‘defin(ing) the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment.’ It is indeed a struggle, once described by Mr. Justice Black as ‘the same quagmire’ in which the Court ‘is now helplessly struggling in the field of obscenity.’ Curtis Publishing Co. v. Butts, [1967] USSC 200; 388 U.S. 130, 171[1967] USSC 200; , 87 S.Ct. 1975, 2000, 18 L.Ed.2d 1094 (concurring opinion). I would suggest that the struggle is a quite hopeless one, for, in light of the command of the First Amendment, no ‘accommodation’ of its freedoms can be ‘proper’ except those made by the Framers themselves.

63
Unlike the right of privacy which, by the terms of the Fourth Amendment, must be accommodated with reasonable searches and seizures and warrants issued by magistrates, the rights of free speech and of a free press were protected by the Framers in verbiage whose prescription seems clear. I have stated before my view that the First Amendment would bar Congress from passing any libel law.1 This was the view held by Thomas Jefferson2 and it is one Congress has never challenged through enactment of a civil libel statute. The sole congressional attempt at this variety of First Amendment muzzle was in the Sedition Act of 1798—a criminal libel act never tested in this Court and one which expired by its terms three years after enactment. As President, Thomas Jefferson pardoned those who were convicted under the Act, and fines levied in its prosecution were repaid by Act of Congress.3 The general consensus was that the Act constituted a regrettable legislative exercise plainly in violation of the First Amendment.4

64
With the First Amendment made applicable to the States through the Fourteenth,5 I do not see how States have any more ability to ‘accommodate’ freedoms of speech or of the press than does Congress. This is true whether the form of the accommodation is civil or criminal since ‘(w)hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.’ New York Times Co. v. Sullivan, [1964] USSC 40; 376 U.S. 254, 277[1964] USSC 40; , 84 S.Ct. 710, 724[1964] USSC 40; , 11 L.Ed.2d 686. Like Congress, States are without power ‘to use a civil libel law or any other law to impose damages for merely discussing public affairs.’ Id., at 295, 84 S.Ct., at 734 (Black, J., concurring).6

65
Continued recognition of the possibility of state libel suits for public discussion of public issues leaves the freedom of speech honored by the Fourteenth Amendment a diluted version of First Amendment protection. This view is only possible if one accepts the position that the First Amendment is applicable to the States only through the Due Process Clause of the Fourteenth, due process freedom of speech being only that freedom which this Court might deem to be ‘implicit in the concept of ordered liberty.’7 But the Court frequently has rested state free speech and free press decisions on the Fourteenth Amendment generally8 rather than on the Due Process Clause alone. The Fourteenth Amendment speaks not only of due process but also of ‘privileges and immunities’ of United States citizenship. I can conceive of no privilege or immunity with a higher claim to recognition against state abridgment than the freedoms of speech and of the press. In our federal system we are all subject to two governmental regimes, and freedoms of speech and of the press protected against the infringement of only one are quite illusory. The identity of the oppressor is, I would think, a matter of relative indifference to the oppressed.

66
There can be no doubt that a State impinges upon free and open discussion when it sanctions the imposition of damages for such discussion through its civil libel laws. Discussion of public affairs is often marked by highly charged emotions, and jurymen, not unlike us all, are subject to those emotions. It is indeed this very type of speech which is the reason for the First Amendment since speech which arouses little emotion is little in need of protection. The vehicle for publication in this case was the American Opinion, a most controversial periodical which disseminates the views of the John Birch Society, an organization which many deem to be quite offensive. The subject matter involved ‘Communist plots,’ ‘conspiracies against law enforcement agencies,’ and the killing of a private citizen by the police. With any such amalgam of controversial elements pressing upon the jury, a jury determination, unpredictable in the most neutral circumstances, becomes for those who venture to discuss heated issues, a virtual roll of the dice separating them from liability for often massive claims of damage.

67
It is only the hardy publisher who will engage in discussion in the face of such risk, and the Court’s preoccupation with proliferating standards in the area of libel increases the risks. It matters little whether the standard be articulated as ‘malice’ or ‘reckless disregard of the truth’ or ‘negligence,’ for jury determinations by any of those criteria are virtually unreviewable. This Court, in its continuing delineation of variegated mantles of First Amendment protection, is, like the potential publisher, left with only speculation on how jury findings were influenced by the effect the subject matter of the publication had upon the minds and viscera of the jury. The standard announced today leaves the States free to ‘define for themselves the appropriate standard of liability for a publisher or broadcaster’ in the circumstances of this case. This of course leaves the simple negligence standard as an option, with the jury free to impose damages upon a finding that the publisher failed to act as ‘a reasonable man.’ With such continued erosion of First Amendment protection, I fear that it may well be the reasonable man who refrains from speaking.

68
Since in my view the First and Fourteenth Amendments prohibit the imposition of damages upon respondent for this discussion of public affairs, I would affirm the judgment below.

69
Mr. Justice BRENNAN, dissenting.

70
I agree with the conclusion, expressed in Part V of the Court’s opinion, that, at the time of publication of respondent’s article, petitioner could not properly have been viewed as either a ‘public official’ or ‘public figure’; instead, respondent’s article, dealing with an alleged conspiracy to discredit local police forces, concerned petitioner’s purported involvement in ‘an event of ‘public or general interest.” Rosenbloom v. Metromedia, Inc., [1971] USSC 120; 403 U.S. 29, 31—32[1971] USSC 120; , 91 S.Ct. 1811, 1814, 29 L.Ed.2d 296 (1971); see ante, at 331—332 n. 4. I cannot agree, however, that free and robust debate—so essential to the proper functioning of our system of government—is permitted adequate ‘breathing space,’ N A A C P v. Button, [1963] USSC 9; 371 U.S. 415, 433[1963] USSC 9; , 83 S.Ct. 328, 338[1963] USSC 9; , 9 L.Ed.2d 405 (1963), when, as the Court holds, the States may impose all but strict liability for defamation if the defamed party is a private person and ‘the substance of the defamatory statement ‘makes substantial danger to reputation apparent.” Ante, at 348.1 I adhere to my view expressed in Rosenbloom v. Metromedia, Inc., supra, that we strike the proper accommodation between avoidance of media self-censorship and protection of individual reputations only when we require States to apply the New York, Times Co. v. Sullivan, [1964] USSC 40; 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), knowing-or-reckless-falsity standard in civil libel actions concerning media reports of the involvement of private individuals in events of public or general interest.

71
The Court does not hold that First Amendment guarantees do not extend to speech concerning private persons’ involvement in events of public or general interest. It recognizes that self-governance in this country perseveres because of our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ Id., at 270, 84 S.Ct., at 721 (emphasis added). Thus, guarantees of free speech and press necessarily reach ‘far more than knowledge and debate about the strictly official activities of various levels of government,’ Rosenbloom v. Metromedia, Inc., supra, 403 U.S., at 41, 91 S.Ct., at 1818 for ‘(f)reedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ Thornhill v. Alabama, [1942] USSC 81; 310 U.S. 88, 102[1942] USSC 81; , 60 S.Ct. 736, 744[1942] USSC 81; , 84 L.Ed. 1093 (1940).

72
The teaching to be distilled from our prior cases is that, while public interest in events may at times be influenced by the notoriety of the individuals involved, ‘(t)he public’s primary interest is in the event (,) . . . the conduct of the participant and the content, effect, and significance of the conduct . . .’ Rosenbloom, supra, 403 U.S. at 43, 91 S.Ct. at 1819. Matters of public or general interest do not ‘suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved.’ Ibid. See Time, Inc. v. Hill, [1967] USSC 11; 385 U.S. 374, 388[1967] USSC 11; , 87 S.Ct. 534, 542[1967] USSC 11; , 17 L.Ed.2d 456 (1967).

73
Although acknowledging that First Amendment values are of no less significance when media reports concern private persons’ involvement in matters of public concern, the Court refuses to provide, in such cases, the same level of constitutional protection that has been afforded the media in the context of defamation of public persons. The accommodation that this Court has established between free speech and libel laws in cases involving public officials and public figures—that defamatory falsehood be shown by clear and convincing evidence to have been published with knowledge of falsity or with reckless disregard of truth—is not apt, the Court holds, because the private individual does not have the same degree of access to the media to rebut defamatory comments as does the public person and he has not voluntarily exposed himself to public scrutiny.

74
While these arguments are forcefully and eloquently presented, I cannot accept them, for the reasons I stated in Rosenbloom:

75
‘The New York Times standard was applied to libel of a public official or public figure to give effect to the (First) Amendment’s function to encourage ventilation of public issues, not because the public official has any less interest in protecting his reputation than an individual in private life. While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not ‘hot’ news, and rarely receive the prominence of the original story. When the public official or public figure is a minor functionary, or has left the position that put him in the public eye . . ., the argument loses all of its force. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex factor on which the ability of a private individual depends: the unpredictable event of the media’s continuing interest in the story. Thus the unproved, and highly improbable, generalization that an as yet (not fully defined) class of ‘public figures’ involved in matters of public concern will be better able to respond through the media than private individuals also involved in such matters seems too insubstantial a reed on which to rest a constitutional distinction.’ 403 U.S., at 46—47, 91 S.Ct., at 1821.

76
Moreover, the argument that private persons should not be required to prove New York Times knowing-or-reckless falsity because they do not assume the risk of defamation by freely entering the public arena ‘bears little relationship either to the values protected by the First Amendment or to the nature of our society.’ Id., at 47, 91 S.Ct., at 1822. Social interaction exposes all of us to some degree of public view. This Court has observed that ‘(t)he risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.’ Time, Inc. v. Hill, 385 U.S., at 388, 87 S.Ct., at 543. Therefore,

77
‘(v)oluntarily or not, we are all ‘public’ men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern. See . . . Griswold v. Connecticut, [1965] USSC 128; 381 U.S., 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Thus, the idea that certain ‘public’ figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of ‘public figures’ that are not in the area of public or general concern.’ Rosenbloom, supra, 403 U.S., at 48, 91 S.Ct., at 1822 (footnote omitted).

78
To be sure, no one commends publications which defame the good name and reputation of any person: ‘In an ideal world, the responsibility of the press would match the freedom and public trust given it.’ Id., at 51, 91 S.Ct., at 1823.2 Rather, as the Court agrees, some abuse of First Amendment freedoms is tolerated only to insure that would-be commentators on events of public or general interest are not ‘deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.’ New York Times Co. v. Sullivan, 376 U.S., at 279, 84 S.Ct., at 725. The Court’s holding and a fortiori my Brother WHITE’s views, see n. 1, supra, simply deny free expression its needed ‘breathing space.’ Today’s decision will exacerbate the rule of self-censorship of legitimate utterance as publishers ‘steer far wider of the unlawful zone,’ Speiser v. Randall, [1958] USSC 154; 357 U.S. 513, 526[1958] USSC 154; , 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958).

79
We recognized in New York Times Co. v. Sullivan, supra, 376 U.S. at 279, 84 S.Ct., at 725, that a rule requiring a critic of official conduct to guarantee the truth of all of his factual contentions would inevitably lead to self-censorship when publishers, fearful of being unable to prove truth or unable to bear the expense of attempting to do so, simply eschewed printing controversial articles. Adoption, by many States, of a reasonable-care standard in cases where private individuals are involved in matters of public interest—the probable result of today’s decision—will likewise lead to self-censorship since publishers will be required carefully to weigh a myriad of uncertain factors before publication. The reasonable-care standard is ‘elusive,’ Time, Inc. v. Hill, supra, 385 U.S. at 389, 87 S.Ct. at 543; it saddles the press with ‘the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.’ Ibid. Under a reasonable-care regime, publishers and broadcasters will have to make prepublication judgments about juror assessment of such diverse considerations as the size, operating procedures, and financial condition of the newsgathering system, as well as the relative costs and benefits of instituting less frequent and more costly reporting at a higher level of accuracy. See The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 228 (1971). Moreover, in contrast to proof by clear and convincing evidence required under the New York Times test, the burden of proof for reasonable care will doubtless be the preponderance of the evidence.

80
‘In the normal civil suit where (the preponderance of the evidence) standard is employed, ‘we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor.’ In re Winship[1970] USSC 77; , 397 U.S. 358, 371[1970] USSC 77; , 90 S.Ct. 1068, 1076[1970] USSC 77; , 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement . . . but the possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate.’ Rosenbloom, 403 U.S., at 50, 91 S.Ct. at 1823.

81
And, most hazardous, the flexibility which inheres in the reasonable-care standard will create the danger that a jury will convert it into ‘an instrument for the suppression of those ‘vehement, caustic, and sometimes unpleasantly sharp attacks,’ . . . which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.’ Monitor Patriot Co. v. Roy, [1971] USSC 32; 401 U.S. 265, 277[1971] USSC 32; , 91 S.Ct. 621, 628[1971] USSC 32; , 28 L.Ed.2d 35 (1971).

82
The Court does not discount altogether the danger that jurors will punish for the expression of unpopular opinions. This probability accounts for the Court’s limitation that ‘the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.’ Ante, at 348. But plainly a jury’s latitude to impose liability for want of due care poses a far greater threat of suppressing unpopular views than does a possible recovery of presumed or punitive damages. Moreover, the Court’s broad-ranging examples of ‘actual injury,’ including impairment of reputation and standing in the community, as well as personal humiliation, and mental anguish and suffering, inevitably allow a jury bent on punishing expression of unpopular views a formidable weapon for doing so. Finally, even a limitation of recovery to ‘actual injury’—however much it reduces the size or frequency of recoveries—will not provide the necessary elbowroom for First Amendment expression.

83
‘It is not simply the possibility of a judgment for damages that results in self-censorship. The very possibility of having to engage in litigation, an expensive and protracted process, is threat enough to cause discussion and debate to ‘steer far wider of the unlawful zone’ thereby keeping protected discussion from public cognizance. . . . Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be ‘actual’ or ‘punitive.” Rosenbloom, supra, 403 U.S., at 52—53, 91 S.Ct. at 1824.

84
On the other hand, the uncertainties which the media face under today’s decision are largely avoided by the New York Times standard. I reject the argument that my Rosenbloom view improperly commits to judges the task of determining what is and what is not an issue of ‘general or public interest.’3 I noted in Rosenbloom that performance of this task would not always be easy. Id., at 49 n. 17, 91 S.Ct., at 1822. But surely the courts, the ultimate arbiters of all disputes concerning clashes of constitutional values, would only be performing one of their traditional functions in undertaking this duty. Also, the difficulty of this task has been substantially lessened by that ‘sizable body of cases, decided both before and after Rosenbloom, that have employed the concept of a matter of public concern to reach decisions in . . . cases dealing with an alleged libel of a private individual that employed a public interest standard . . . and . . . cases that applied Butts to the alleged libel of a public figure.’ Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation: Predictability and the New Synthesis, 70 Mich.L.Rev. 1547, 1560 (1972). The public interest is necessarily broad; any residual self-censorship that may result from the uncertain contours of the ‘general or public interest’ concept should be of far less concern to publishers and broadcasters than that occasioned by state laws imposing liability for negligent falsehood.

85
Since petitioner failed, after having been given a full and fair opportunity, to prove that respondent published the disputed article with knowledge of its falsity or with reckless disregard of the truth, see ante, at 329—330 n. 2, I would affirm the judgment of the Court of Appeals.

86
Mr. Justice WHITE, dissenting.

87
For some 200 years—from the very founding of the Nation—the law of defamation and right of the ordinary citizen to recover for false publication injurious to his reputation have been almost exclusively the business of state courts and legislatures. Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule. Given such publication, general damage to reputation was presumed, while punitive damages required proof of additional facts. The law governing the defamation of private citizens remained untouched by the First Amendment because until relatively recently, the consistent view of the Court was that libelous words constitute a class of speech wholly unprotected by the First Amendment, subject only to limited exceptions carved out since 1964.

88
But now, using that Amendment as the chosen instrument, the Court, in a few printed pages, has federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States. That result is accomplished by requiring the plaintiff in each and every defamation action to prove not only the defendant’s culpability beyond his act of publishing defamatory material but also actual damage to reputation resulting from the publication. Moreover, punitive damages may not be recovered by showing malice in the traditional sense of ill will; knowing falsehood or reckless disregard of the truth will not be required.

89
I assume these sweeping changes will be popular with the press, but this is not the road to salvation for a court of law. As I see it, there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves. I do not suggest that the decision is illegitimate or beyond the bounds of judicial review, but it is an ill-considered exercise of the power entrusted to this Court, particularly when the Court has not had the benefit of briefs and argument addressed to most of the major issues which the Court now decides. I respectfully dissent.

90
* Lest there be any mistake about it, the changes wrought by the Court’s decision cut very deeply. In 1938, the Restatement of Torts reflected the historic rule that publication in written form of defamatory material—material tending ‘so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him’1 subjected the publisher to liability although no special harm to reputation was actually proved.2 Restatement of Torts § 569 (1938).3 Truth was a defense, and some libels were privileged; but, given a false circulation, general damage, to reputation was presumed and damages could be awarded by the jury, along with any special damages such as pecuniary loss and emotional distress. At the very least, the rule allowed the recovery of nominal damages for any defamatory publication actionable per se and thus performed

91
‘a vindicatory function by enabling the plaintiff publicly to brand the defamatory publication as false. The salutary social value of this rule is preventive in character since it often permits a defamed person to expose the groundless character of a defamatory rumor before harm to the reputation has resulted therefrom.’ Id., § 569, comment b, p. 166.

92
If the defamation was not libel but slander, it was actionable per se only if it imputed a criminal offense; a venereal or loathsome and communicable disease; improper conduct of a lawful business; or unchastity by a woman. Id., § 570. To be actionable, all other types of slanderous statements required proof of special damage other than actual loss of reputation or emotional distress, that special damage almost always being in the form of material or pecuniary loss of some kind. Id., § 575 and comment b, pp. 185—187.

93
Damages for libel or slander per se included ‘harm caused thereby to the reputation of the person defamed or in the absence of proof of such harm, for the harm which normally results from such a defamation.’ Id., § 621. At the heart of the libel-and-slander-per-se damage scheme lay the award of general damages for loss of reputation. They were granted without special proof because the judgment of history was that the content of the publication itself was so likely to cause injury and because ‘in many cases the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed.’ Id., § 621, comment a, p. 314.4 Proof of actual injury to reputation was itself insufficient proof of that special damage necessary to support liability for slander not actionable per se. But if special damage in the form of material or pecuniary loss were proved, general damages for injury to reputation could be had without further proof. ‘The plaintiff may recover not only for the special harm so caused, but also for general loss of reputation.’ Id., § 575, comment a, p. 185.5 The right to recover for emotional distress depended upon the defendant’s otherwise being liable for either libel or slander. Id., § 623. Punitive damages were recoverable upon proof of special facts amounting to express malice. Id., § 908 and comment b, p. 555.

94
Preparations in the mid-1960’s for Restatement (Second) of Torts reflected what were deemed to be substantial changes in the law of defamation, primarily a trend toward limiting per se libels to those where the defamatory nature of the publication is apparent on its face, i.e., where the defamatory innuendo is apparent from the publication itself without reference to extrinsic facts by way of inducement.’ Restatement (Second) of Torts § 569, p. 29 (Tent. Draft No. 12, Apr. 27, 1966). Libels of this sort and slanders per se continued to be recognized as actionable without proof of special damage or injury to reputation.6 All other defamations would require proof of special injury in the form of material or pecuniary loss. Whether this asserted change reflected the prevailing law was heavily debated,7 but it was unquestioned at the time that there are recurring situations in which libel and slander are and should be actionable per se.

95
In surveying the current state of the law, the proposed Restatement (Second) observed that ‘(a)ll courts except Virginia agree that any libel which is defamatory upon its face is actionable without proof of damage . . ..’ Restatement (Second) of Torts § 569, p. 84 (Tent.Draft No. 11, Apr. 15, 1965). Ten jurisdictions continued to support the old rule that libel not defamatory on its face and whose innuendo depends on extrinsic facts is actionable without proof of damage although slander would not be. Twenty-four jurisdictions were said to hold that libel not defamatory on its face is to be treated like slander and thus not actionable without proof of damage where slander would not be. Id., § 569, p. 86. The law in six jurisdictions was found to be in an unsettled state but most likely consistent with the Restatement (Second). Id., § 569, p. 88. The law in Virginia was thought to consider libel actionable without proof of special damage only where slander would be regardless of whether the libel is defamatory on its face. Id., § 569, p. 89. All States, therefore, were at that time thought to recognize important categories of defamation that were actionable per se.8 Nor was any question apparently raised at that time that upon proof of special damage in the form of material or pecuniary loss, general damages to reputation could be recovered without further proof.

96
Unquestionably, state law continued to recognize some absolute, as well as some conditional, privileges to publish defamatory materials, including the privilege of fair comment in defined situations. But it remained true that in a wide range of situations, the ordinary citizen could make out a prima facie case without proving more than a defamatory publication and could recover general damages for injury to his reputation unless defeated by the defense of truth.9

97
The impact of today’s decision on the traditional law of libel is immediately obvious and indisputable. No longer will the plaintiff be able to rest his case with proof of a libel defamatory on its face or proof of a slander historically actionable per se. In addition, he must prove some further degree of culpable conduct on the part of the publisher, such as intentional or reckless falsehood or negligence. And if he succeeds in this respect, he faces still another obstacle: recovery for loss of reputation will be conditioned upon ‘competent’ proof of actual injury to his standing in the community. This will be true regardless of the nature of the defamation and even though it is one of those particularly reprehensible statements that have traditionally made slanderous words actionable without proof of fault by the publisher or of the damaging impact of his publication. The Court rejects the judgment of experience that some publications are so inherently capable of injury, and actual injury so difficult to prove, that the risk of falsehood should be borne by the publisher, not the victim. Plainly, with the additional burden on the plaintiff of proving negligence or other fault, it will be exceedingly difficult, perhaps impossible, for him to vindicate his reputation interest by securing a judgment for nominal damages, the practical effect of such a judgment being a judicial declaration that the publication was indeed false. Under the new rule the plaintiff can lose, not because the statement is true, but because it was not negligently made.

98
So too, the requirement of proving special injury to reputation before general damages may be awarded will clearly eliminate the prevailing rule, worked out over a very long period of time, that, in the case of defamations not actionable per se, the recovery of general damages for injury to reputation may also be had if some form of material or pecuniary loss is proved. Finally, an inflexible federal standard is imposed for the award of punitive damages. No longer will it be enough to prove ill will and an attempt to injure.

99
These are radical changes in the law and severe invasions of the prerogatives of the States. They should at least be shown to be required by the First Amendment or necessitated by our present circumstances. Neither has been demonstrated.

100
Of course, New York Times Co. v. Sullivan, [1964] USSC 40; 376 U.S. 254, 84 S.Ct., 710, 11 L.Ed.2d 686 (1964); Rosenblatt v. Baer, [1966] USSC 25; 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), and Curtis Publishing Co. v. Butts and Associated Press v. Walker, [1967] USSC 200; 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), have themselves worked major changes in defamation law. Public officials and public figures, if they are to recover general damages for injury to reputation, must prove knowing falsehood or reckless disregard for the truth. The States were required to conform to these decisions. Thereafter in Rosenbloom v. Metromedia, Inc., [1971] USSC 120; 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), three Members of the Court urged that the same standard be applied whenever the publication concerned an event of public or general concern. But none of these cases purported to foreclose in all circumstances recovery by the ordinary citizen on traditional standards of liability, and until today, a majority of the Court had not supported the proposition that, given liability, a court or jury may not award general damages in a reasonable amount without further proof of injury.

101
In the brief period since Rosenbloom was decided, at least 17 States and several federal courts of appeals have felt obliged to consider the New York Times constitutional privilege for liability as extending to, in the words of the Rosenbloom plurality, ‘all discussion and communication involving matters of public or general concern.’ Id., at 44, 91 S.Ct., at 1820.10 Apparently, however, general damages still remain recoverable once that standard of liability is satisfied. Except where public officials and public figures are concerned, the Court now repudiates the plurality opinion in Rosenbloom and appears to espouse the liability standard set forth by three other Justices in that case. The States must now struggle to discern the meaning of such ill-defined concepts as ‘liability without fault’ and to fashion novel rules for the recovery of damages. These matters have not been briefed or argued by the parties and their workability has not been seriously explored. Nevertheless, yielding to the apparently irresistible impulse to announce a new and different interpretation of the First Amendment, the Court discards history and precedent in its rush to refashion defamation law in accordance with the inclinations of a perhaps evanescent majority of the Justices.

102
II

103
The Court does not contend, and it could hardly do so, that those who wrote the First Amendment intended to prohibit the Federal Government, within its sphere of influence in the Territories and the District of Columbia, from providing the private citizen a peaceful remedy for damaging falsehood. At the time of the adoption of the First Amendment, many of the consequences of libel law already described had developed, particularly the rule that libels and some slanders were so inherently injurious that they were actionable without special proof of damage to reputation. As the Court pointed out in Roth v. United States, [1957] USSC 100; 354 U.S. 476, 482[1957] USSC 100; , 77 S.Ct. 1304, 1307, 1 L.Ed.2d 1498 (1957), 10 of the 14 States that had ratified the Constitution by 1792 had themselves provided constitutional guarantees for free expression, and 13 of the 14 nevertheless provided for the prosecution of libels. Prior to the Revolution, the American Colonies had adopted the common law of libel.11 Contrary to some popular notions, freedom of the press was sharply curtailed in colonial America.12 Seditious libel was punished as a contempt by the colonial legislatures and as a criminal offense in the colonial courts.13

104
Scant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers. On the contrary,

105
‘(i)t is conceded on all sides that the common-law rules that subjected the libeler to responsibility for the private injury, or the public scandal or disorder occasioned by his conduct, are not abolished by the protection extended to the press in our constitutions.’ 2 T. Cooley, Constitutional Limitations 883 (8th ed. 1927).

106
Moreover, consistent with the Blackstone formula,14 these common-law actions did not abridge freedom of the press. See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 247—248 (1960); Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, 376 (1969); Hallen, Fair Comment, 8 Tex.L.Rev. 41, 56 (1929). Alexander Meiklejohn, who accorded generous reach to the First Amendment, nevertheless acknowledged:

107
‘No one can doubt that, in any well-governed society, the legislature has both the right and the duty to prohibit certain forms of speech. Libelous assertions may be, and must be, forbidden and punished. So too must slander. . . . All these necessities that speech be limited are recognized and provided for under the Constitution. They were not unknown to the writers of the First Amendment. That amendment, then, we may take it for granted, does not forbid the abridging of speech. But, at the same time, it does forbid the abridging of the freedom of speech. It is to the solving of that paradox, that apparent self-contradiction, that we are summoned if, as free men, we wish to know what the right of freedom of speech is.’ Political Freedom, The Constitutional Powers of the People 21 (1965).

108
See also Leflar, The Freeness of Free Speech, 15 Van.L.Rev. 1073, 1080—1081 (1962).

109
Professor Zechariah Chafee, a noted First Amendment scholar, has persuasively argued that conditions in 1791 ‘do not arbitrarily fix the division between lawful and unlawful speech for all time.’ Free Speech in the United States 14 (1954).15 At the same time, however, he notes that while the Framers may have intended to abolish seditious libels and to prevent any prosecutions by the Federal Government for criticism of the Government,16 ‘the free speech clauses do not wipe out the common law as to obscenity, profanity, and defamation of individuals.’17

110
The debates in Congress and the States over the Bill of Rights are unclear and inconclusive on any articulated intention of the Framers as to the free press guarantee.18 We know that Benjamin Franklin, John Adams, and William Cushing favored limiting freedom of the press to truthful statements, while others such as James Wilson suggested a restatement of the Blackstone standard.19 Jefferson endorsed Madison’s formula that ‘Congress shall make no law . . . abridging the freedom of speech or the press’ only after he suggested:

111
The people shall not be deprived of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty or reputation of others . . ..’ F. Mott, Jefferson and the Press 14 (1943).20

112
Doubt has been expressed that the Members of Congress envisioned the First Amendment as reaching even this far. Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, §§ 379—380 (1969).

113
This Court in bygone years has repeatedly dealt with libel and slander actions from the District of Columbia and from the Territories. Although in these cases First Amendment considerations were not expressly discussed, the opinions of the Court unmistakably revealed that the classic law of libel was firmly in place in those areas where federal law controlled. See e.g., Washington Post Co. v. Chaloner, [1919] USSC 186; 250 U.S. 290, 39 S.Ct. 448, 63 L.Ed. 987 (1919); Baker v. Warner, [1913] USSC 300; 231 U.S. 588, 34 S.Ct. 175, 58 L.Ed. 384 (1913); Nalle v. Oyster, [1913] USSC 239; 230 U.S. 165, 33 S.Ct. 1043, 57 L.Ed. 1439 (1913); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904); Pollard v. Lyon, [1875] USSC 133; 91 U.S. 225, 23 L.Ed. 308 (1876); White v. Nicholls, [1845] USSC 34; 3 How. 266, 11 L.Ed. 591 (1845).

114
The Court’s consistent view prior to New York Times Co. v. Sullivan, [1964] USSC 40; 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), was that defamatory utterances were wholly unprotected by the First Amendment. In Patterson v. Colorado, ex rel. Attorney General, [1907] USSC 100; 205 U.S. 454, 462[1907] USSC 100; , 27 S.Ct. 556, 558[1907] USSC 100; , 51 L.Ed. 879 (1907), for example, the Court said that although freedom of speech and press is protected from abridgment by the Constitution, these provisions ‘do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.’ This statement was repeated in Near v. Minnesota, ex rel. Olson, [1931] USSC 154; 283 U.S. 697, 714[1931] USSC 154; , 51 S.Ct. 625, 630[1931] USSC 154; , 75 L.Ed. 1357 (1931), the Court adding:

115
‘But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the commonlaw rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our Constitutions.’ Id., at 715, 51 S.Ct. at 630.

116
Chaplinsky v. New Hampshire, [1942] USSC 50; 315 U.S. 568, 571—572[1942] USSC 50; , 62 S.Ct. 766, 769[1942] USSC 50; , 86 L.Ed. 1031 (1942) (footnotes omitted), reflected the same view:

117
‘There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’

118
Beauharnais v. Illinois, [1952] USSC 75; 343 U.S. 250, 254—257[1952] USSC 75; , 72 S.Ct. 725, 729—731[1952] USSC 75; , 96 L.Ed. 919 (1952) (footnotes omitted), repeated the Chaplinsky statement, noting also that nowhere at the time of the adoption of the Constitution ‘was there any suggestion that the crime of libel be abolished.’ And in Roth v. United States, 354 U.S., at 483, 77 S.Ct., at 1308 (footnote omitted), the Court further examined the meaning of the First Amendment:

119
‘In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, [1952] USSC 75; 343 U.S. 250, 266[1952] USSC 75; , 72 S.Ct. 725, 735[1952] USSC 75; , 96 L.Ed. 919. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press.’21

120
The Court could not accept the generality of this historic view in New York Times Co. v. Sullivan, supra. There the Court held that the First Amendment was intended to forbid actions for seditious libel and that defamation actions by public officials were therefore not subject to the traditional law of libel and slander. If these officials (and, later, public figures occupying semiofficial or influential, although private, positions) were to recover, they were required to prove not only that the publication was false but also that it was knowingly false or published with reckless disregard for its truth or falsity. This view that the First Amendment was written to forbid seditious libel reflected one side of the dispute that reged at the turn of the nineteenth century22 and also mirrored the views of some later scholars.23

121
The central meaning of New York Times, and for me the First Amendment as it relates to libel laws, is that seditious libel criticism of government and public officials—falls beyond the police power of the State. 376 U.S., at 273—276, 84 S.Ct., at 722 724.24 In a democratic society such as ours, the citizen has the privilege of criticizing his government and its officials. But neither New York Times nor its progeny suggests that the First Amendment intended in all circumstances to deprive the private citizen of his historic recourse to redress published falsehoods damaging to reputation or that, contrary to history and precedent, the Amendment should now be so interpreted. Simply put, the First Amendment did not confer a ‘license to defame the citizen.’ W. Douglas, The Right of the People 36 (1958).

122
I do not labor the foregoing matters to contend that the Court is foreclosed from reconsidering prior interpretations of the First Amendment.25 But the Court apparently finds a clean slate where in fact we have instructive historical experience dating from long before the first settlors, with their notions of democratic government and human freedom, journeyed to this land. Given this rich background of history and precedent and because we deal with fundamentals when we construe the First Amendment, we should proceed with care and be presented with more compelling reasons before we jettison the settled law of the States to an even more radical extent.26

123
III

124
The Court concedes that the dangers of self-censorship are insufficient to override the state interest in protecting the reputation of private individuals who are both more helpless and more deserving of state concern than public persons with more access to the media to defend themselves. It therefore refuses to condition the private plaintiff’s recovery on a showing of intentional or reckless falsehood as required by New York Times. But the Court nevertheless extends the reach of the First Amendment to all defamation actions by requiring that the ordinary citizen, when libeled by a publication defamatory on its face, must prove some degree of culpability on the part of the publisher beyond the circulation to the public of a damaging falsehood. A rule at least as strict would be called for where the defamatory character of the publication is not apparent from its face. Ante, at 348.27 Furthermore, if this major hurdle to establish liability is surmounted, the Court requires proof of actual injury to reputation before any damages for such injury may be awarded.

125
The Court proceeds as though it were writing on tabula rasa and suggests that it must mediate between two unacceptable choices on the one hand, the rigors of the New York Times rule which the Court thinks would give insufficient recognition to the interest of the private plaintiff, and, on the other hand, the prospect of imposing ‘liability without fault’ on the press and others who are charged with defamatory utterances. Totally ignoring history and settled First Amendment law, the Court purports to arrive at an ‘equitable compromise,’ rejecting both what it considers faultless liability and New York Times malice, but insisting on some intermediate degree of fault. Of course, the Court necessarily discards the contrary judgment arrived at in the 50 States that the reputation interest of the private citizen is deserving of considerably more protection.

126
The Court evinces a deep-seated antipathy to ‘liability without fault.’ But this catch-phrase has no talismanic significance and is almost meaningless in this context where the Court appears to be addressing those libels and slanders that are defamatory on their face and where the publisher is no doubt aware from the nature of the material that it would be inherently damaging to reputation. He publishes notwithstanding, knowing that he will inflict injury. With this knowledge, he must intend to inflict that injury, his excuse being that he is privileged to do so—that he has published the truth. But as it turns out, what he has circulated to the public is a very damaging falsehood. Is he nevertheless ‘faultless’? Perhaps it can be said that the mistake about his defense was made in good faith, but the fact remains that it is he who launched the publication knowing that it could ruin a reputation.

127
In these circumstances, the law has heretofore put the risk of falsehood on the publisher where the victim is a private citizen and no grounds of special privilege are invoked. The Court would now shift this risk to the victim, even though he has done nothing to invite the calumny, is wholly innocent of fault, and is helpless to avoid his injury. I doubt that jurisprudential resistance to liability without fault is sufficient ground for employing the First Amendment to revolutionize the law of libel, and in my view, that body of legal rules poses no realistic threat to the press and its service to the public. The press today is vigorous and robust. To me, it is quite incredible to suggest that threats of libel suits from private citizens are causing the press to refrain from publishing the truth. I know of no hard facts to support that proposition, and the Court furnishes none.

128
The communications industry has increasingly become concentrated in a few powerful hands operating very lucrative businesses reaching across the Nation and into almost every home.28 Neither the industry as a whole nor its individual components are easily intimidated, and we are fortunate that they are not. Requiring them to pay for the occasional damage they do to private reputation will play no substantial part in their future performance or their existence.

129
In any event, if the Court’s principal concern is to protect the communications industry from large libel judgments, it would appear that its new requirements with respect to general and punitive damages would be ample protection. Why it also feels compelled to escalate the threshold standard of liability I cannot fathom, particularly when this will eliminate in many instances the plaintiff’s possibility of securing a judicial determination that the damaging publication was indeed false, whether or not he is entitled to recover money damages. Under the Court’s new rules, the plaintiff must prove not only the defamatory statement but also some degree of fault accompanying it. The publication may be wholly false and the wrong to him unjustified, but his case will nevertheless be dismissed for failure to prove negligence or other fault on the part of the publisher. I find it unacceptable to distribute the risk in this manner and force the wholly innocent victim to bear the injury; for, as between the two, the defamer is the only culpable party. It is he who circulated a falsehood that he was not required to publish.

130
It is difficult for me to understand why the ordinary citizen should himself carry the risk of damage and suffer the injury in order to vindicate First Amendment values by protecting the press and others from liability for circulating false information. This is particularly true because such statements serve no purpose whatsoever in furthering the public interest or the search for truth but, on the contrary, may frustrate that search and at the same time inflict great injury on the defenseless individual. The owners of the press and the stockholders of the communications enterprises can much better bear the burden. And if they cannot, the public at large should somehow pay for what is essentially a public benefit derived at private expense.

131
IV

A.

132
Not content with escalating the threshold requirements of establishing liability, the Court abolishes the ordinary damages rule, undisturbed by New York Times and later cases, that, as to libels or slanders defamatory on their face, injury to reputation is presumed and general damages may be awarded along with whatever special damages may be sought. Apparently because the Court feels that in some unspecified and unknown number of cases, plaintiffs recover where they have suffered no injury or recover more than they deserve, it dismisses this rule as an ‘oddity of tort law.’ The Court thereby refuses in any case to accept the fact of wide dissemination of a per se libel as prima facie proof of injury sufficient to survive a motion to dismiss at the close of plaintiff’s case.

133
I have said before, but it bears repeating, that even if the plaintiff should recover no monetary damages, he should be able to prevail and have a judgment that the publication is false. But beyond that, courts and legislatures literally for centuries have thought that in the generality of cases, libeled plaintiffs will be seriously shortchanged if they must prove the extent of the injury to their reputations. Even where libels or slanders are not on their face defamatory and special damage must be shown, when that showing is made, general damages for reputation injury are recoverable without specific proof.29

134
The Court is clearly right when at one point it states that ‘the law of defamation is rooted in our experience that the truth rarely catches up with a lie.’ Ante, at 344 n. 9. But it ignores what that experience teaches, viz., that damage to reputation is recurringly difficult to prove and that requiring actual proof would repeatedly destroy and chance for adequate compensation. Eminent authority has warned that

135
‘it is clear that proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact.’ W. Prosser, Law of Torts § 112, p. 765 (4th ed. 1971).30

136
The Court fears uncontrolled awards of damages by juries, but that not only denigrates the good sense of most jurors—it fails to consider the role of trial and appellate courts in limiting excessive jury verdicts where no reasonable relationship exists between the amount awarded and the injury sustained.31 Available information tends to confirm that American courts have ably discharged this responsibility.32

137
The new rule with respect to general damages appears to apply to all libels or slanders, whether defamatory on their face or not, except, I gather, when the plaintiff proves intentional falsehood or reckless disregard. Although the impact of the publication on the victim is the same, in such circumstances the injury to reputation may apparently be presumed in accordance with the traditional rule. Why a defamatory statement is more apt to cause injury if the lie is intentional than when it is only negligent, I fail to understand. I suggest that judges and juries who must live by these rules will find them equally incomprehensible

138
B

139
With a flourish of the pen, the Court also discards the prevailing rule in libel and slander actions that punitive damages may be awarded on the classic grounds of common-law malice, that is, “(a)ctual malice’ in the sense of ill will or fraud or reckless indifference to consequences.’ C. McCormick, Law of Damages § 118, p. 431 (1935); see also W. Prosser, supra, § 113, p. 772; 1 A. Hanson, Libel and Related Torts 163, p. 133 (1969); Note, Developments in the Law Defamation, 69 Harv.L.Rev. 875, 938 (1956); Cal.Civ.Code § 48a(4)(d) (1954). In its stead, the Court requires defamation plaintiffs to show intentional falsehood or reckless disregard for the truth or falsity of the publication. The Court again complains about substantial verdicts and the possibility of press self-censorship, saying that punitive damages are merely ‘private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.’ Ante, at 350. But I see no constitutional difference between publishing with reckless disregard for the truth, where punitive damages will be permitted, and negligent publication where they will not be allowed. It is difficult to understand what is constitutionally wrong with assessing punitive damages to deter a publisher from departing from those standards of care ordinarily followed in the publishing industry, particularly if common-law malice is also shown.

140
I note also the questionable premise that ‘juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused.’ Ibid. This represents an inaccurate view of established practice, ‘another of those situations in which judges, largely unfamiliar with the relatively rare actions for defamation, rely on words without really going behind them . . ..’33 While a jury award in any type of civil case may certainly be unpredictable, trial and appellate courts have been increasingly vigilant in ensuring that the jury’s result is ‘based upon a rational consideration of the evidence and the proper application of the law.’ Reynolds v. Pegler, 123 F.Supp. 36, 39 (S.D.N.Y.1954), aff’d[1955] USCA2 355; , 223 F.2d 429 (CA2), cert. denied, 350 U.S. 846, 76 S.Ct. 80, 100 L.Ed. 754 (1955). See supra, nn. 31—32. Moreover, some courts require that punitive damages bear a reasonable relation to the compensatory damages award.34 Still others bar common-law punitive damages or condition their award on a refusal to print a retraction.35

141
‘The danger . . . of immoderate verdicts, is certainly a real one, and the criterion to be applied by the judge in setting or reducing the amount is concededly a vague and subjective one. Nevertheless the verdict may be twice submitted by the complaining defendant to the common sense of trained judicial minds, once on motion for new trial and again on appeal, and it must be a rare instance when an unjustifiable award escapes correction.’ C. McCormick, supra, § 77, p. 278.

142
The Court points to absolutely no empirical evidence to substantiate its premise. For my part, I would require something more substantial than an undifferentiated fear of unduly burdensome punitive damages awards before retooling the established common-law rule and depriving the States of the opportunity to experiment with different methods for guarding against abuses.

143
Even assuming the possibility that some verdicts will be ‘excessive,’ I cannot subscribe to the Court’s remedy. On its face it is a classic example of judicial overkill. Apparently abandoning the salutary New York Times policy of case-by-case “independent examination of the whole record’ . . . so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression,’36 the Court substitutes an inflexible rule barring recovery of punitive damages absent proof of constitutional malice. The First Amendment is a majestic statement of a free people’s dedication to ‘uninhibited, robust, and wide-open’ debate on public issues,37 but we do it a grave disservice when we needlessly spend its force.38 For almost 200 years, punitive damages and the First Amendment have peacefully coexisted. There has been no demonstration that state libel laws as they relate to punitive damages necessitate the majority’s extreme response. I fear that those who read the Court’s decision will find its words inaudible, for the Court speaks ‘only (with) a voice of power, not of reason.’ Mapp v. Ohio, [1961] USSC 142; 367 U.S. 643, 686[1961] USSC 142; , 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting).

144
V

145
In disagreeing with the Court on the First Amendment’s reach in the area of state libel laws protecting nonpublic persons, I do not repudiate the principle that the First Amendment ‘rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.’ Associated Press v. United States, [1945] USSC 133; 326 U.S. 1, 20[1945] USSC 133; , 65 S.Ct. 1416, 1425, 89 L.Ed. 2013 (1945); see also Miami Herald Publishing Co. v. Tornillo, [1974] USSC 147; 418 U.S. 241, at 260[1974] USSC 147; , 94 S.Ct. 2831, at 2840[1974] USSC 147; , 41 L.Ed.2d 730 (White, J., concurring). I continue to subscribe to the New York Times decision and those decisions extending its protection to defamatory falsehoods about public persons. My quarrel with the Court stems from its willingness ‘to sacrifice good sense to a syllogism’39—to find in the New York Times doctrine an infinite elasticity. Unfortunately, this expansion is the latest manifestation of the destructive potential of any good idea carried out to its logical extreme.

146
Recovery under common-law standards for defamatory falsehoods about a private individual, who enjoys no ‘general fame or notoriety in the community,’ who is not ‘pervasive(ly) involve(d) in the affairs of society,’ and who does not ‘thrust himself into the vortex of (a given) public issue . . . in an attempt to influence it outcome,’40 is simply not forbidden by the First Amendment. A distinguished private study group put it this way:

147
‘Accountability, like subjection to law, is not necessarily a net subtraction from liberty.’ ‘The First Amendment was intended to guarantee free expression, not to create a privileged industry.’ Commission on Freedom of the Press, A Free and Responsible Press 130, 81 (1947).

148
I fail to see how the quality or quantity of public debate will be promoted by further emasculation of state libel laws for the benefit of the news media.41 If anything, this trend may provoke a new and radical imbalance in the communications process. Cf. Barron, Access to the Press—A New First Amendment Right, 80 Harv.L.Rev. 1641, 1657 (1967). It is not at all inconceivable that virtually unrestrained defamatory remarks about private citizens will discourage them from speaking out and concerning themselves with social problems. This would turn the First Amendment on its head. Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 Yale L.J. 642, 649 (1966); Merin, 11 Wm. & Mary L.Rev., at 418. David Riesman, writing in the midst of World War II on the fascists’ effective use of defamatory attacks on their opponents, commented: ‘Thus it is that the law of libel, with its ecclesiastic background and domestic character, its aura of heart-balm suits and crusading nineteenth-century editors, becomes suddenly important for modern democratic survival.’ Democracy and Defamation: Fair Game and Fair Comment I, 42 Col.L.Rev. 1085, 1088 (1942).

149
This case ultimately comes down to the importance the Court attaches to society’s ‘pervasive and strong interest in preventing and redressing attacks upon reputation.’ Rosenblatt v. Baer, 383 U.S. at 86, 86 S.Ct. at 676. From all that I have seen, the Court has miscalulated and denigrates that interest at a time when escalating assaults on individuality and personal dignity counsel otherwise.42 At the very least, the issue is highly debatable, and the Court has not carried its heavy burden of proof to justify tampering with state libel laws.43

150
While some risk of exposure ‘is a concomitant of life in a civilized community,’ Time, Inc. v. Hill, [1967] USSC 11; 385 U.S. 374, 388[1967] USSC 11; , 87 S.Ct. 534, 542 (1967), the private citizen does not bargain for defamatory falsehoods. Nor is society powerless to vindicate unfair injury to his reputation.

151
‘It is a fallacy . . . to assume that the First Amendment is the only guidepost in the area of state defamation laws. It is not. . . .

152
‘The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.’ Rosenblatt v. Baer, supra, 383 U.S., at 92, 86 S.Ct., at 679 (Stewart, J., concurring).

153
The case against razing state libel laws is compelling when considered in light of the increasingly prominent role of mass media in our society and the awesome power it has placed in the hands of a select few.44 Surely, our political ‘system cannot flourish if regimentation takes hold.’ Public Utilities Comm’n v. Pollak, [1952] USSC 69; 343 U.S. 451, 469[1952] USSC 69; , 72 S.Ct. 813, 824[1952] USSC 69; , 96 L.Ed. 1068 (1952) (Douglas, J., dissenting). Nor can it survive if our people are deprived of an effective method of vindicating their legitimate interest in their good names.45

154
Freedom and human dignity and decency are not antithetical. Indeed, they cannot survive without each other. Both exist side-by-side in precarious balance, one always threatening to over-whelm the other. Our experience as a Nation testifies to the ability of our democratic institutions to harness this dynamic tension. One of the mechanisms seized upon by the common law to accommodate these forces was the civil libel action tried before a jury of average citizens. And it has essentially fulfilled its role. Not because it is necessarily the best or only answer, but because

155
‘the juristic philosophy of the common law is at bottom the philosophy of pragmatism. Its truth is relative, not absolute. The rule that functions well produces a title deed to recognition.’ B. Cardozo, Selected Writings 149 (Hall ed.1947).

156
In our federal system, there must be room for allowing the States to take diverse approaches to these vexing questions. We should ‘continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems . . ..’ Mapp v. Ohio, 367 U.S. at 681, 81 S.Ct. at 1706 (Harlan, J., dissenting); see also Murnaghan, From Figment to Fiction to Philosophy—The Requirement of Proof of Damages in Libel Actions, 22 Cath.U.L.Rev. 1, 38 (1972). Cf. Younger v. Harris, [1883] USSC 85; 401 U.S. 37, 44—45[1883] USSC 85; , 91 S.Ct. 746, 750—751[1883] USSC 85; , 27 L.Ed.2d 669 (1971). Whether or not the course followed by the majority is wise, and I have indicated my doubts that it is, our constitutional scheme compels a proper respect for the role of the States in acquitting their duty to obey the Constitution. Finding no evidence that they have shirked this responsibility, particularly when the law of defamation is even now in transition, I would await some demonstration of the diminution of freedom of expression before acting.

157
For the foregoing reasons, I would reverse the judgment of the Court of Appeals and reinstate the jury’s verdict.

1
Petitioner filed a cross-motion for summary judgment on grounds not specified in the record. The court denied petitioner’s cross-motion without discussion in a memorandum opinion of September 16, 1970.

2
322 F.Supp. 997 (1970). Petitioner asserts that the entry of judgment n.o.v. on the basis of his failure to show knowledge of falsity or reckless disregard for the truth constituted unfair surprise and deprived him of a full and fair opportunity to prove ‘actual malice’ on the part of respondent. This contention is not supported by the record. It is clear that the trial court gave petitioner no reason to assume that the New York Times privilege would not be available to respondent. The court’s memorandum opinion denying respondent’s pretrial motion for summary judgment does not state that the New York Times standard was inapplicable to this case. Rather, it reveals that the trial judge thought it possible for petitioner to make a factual showing sufficient to overcome respondent’s claim of constitutional privilege. It states in part:

‘When there is a factual dispute as to the existence of actual malice, summary judgment is improper.

‘In the instant case a jury might infer from the evidence that (respondent’s) failure to investigate the truth of the allegations, coupled with its receipt of communications challenging the factual accuracy of this author in the past, amounted to actual malice, that is, ‘reckless disregard’ of whether the allegations were true or not. New York Times (Co.) v. Sullivan, [1964] USSC 40; (376 U.S. 254,) 279—280 [1964] USSC 40; (84 S.Ct. 710, 726[1964] USSC 40; , 11 L.Ed.2d 686 (1964)).’ Mem.Op., Sept. 16, 1970.

Thus, petitioner knew or should have known that the outcome of the trial might hinge on his ability to show by clear and convincing evidence that respondent acted with reckless disregard for the truth. And this question remained open throughout the trial. Although the court initially concluded that the applicability of the New York Times rule depended on petitioner’s status as a public figure, the court did not decide that petitioner was not a public figure until all the evidence had been presented. Thus petitioner had every opportunity, indeed incentive, to prove ‘reckless disregard’ if he could, and he in fact attempted to do so. The record supports the observation by the Court of Appeals that petitioner ‘did present evidence of malice (both the ‘constitutional’ and the ‘ill will’ type) to support his damage claim and no such evidence was excluded . . ..’ [1973] USCA7 65; 471 F.2d 801, 807 n. 15 (1972).

3
The court stated:

‘(Petitioner’s) considerable statute as a lawyer, author, lecturer, and participant in matters of public import undermine(s) the validity of the assumption that he is not a ‘public figure’ as that term has been used by the progeny of New York Times. Nevertheless, for purposes of decision we make that assumption and test the availability of the claim of privilege by the subject matter of the article.’ Id., at 805.

4
In the Court of Appeals petitioner made an ingenious but unavailing attempt to show that respondent’s defamatory charge against him concerned no issue of public or general interest. He asserted that the subject matter of the article was the murder trial of Officer Nuccio and that he did not participate in that proceeding. Therefore, he argued, even if the subject matter of the article generally were protected by the New York Times privilege, under the opinion of the Rosenbloom plurality, the defamatory statements about him were not. The Court of Appeals rejected this argument. It noted that the accusations against petitioner played an integral part in respondent’s general thesis of a nationwide conspiracy to harass the police:

‘(W)e may also assume that the article’s basic thesis is false. Nevertheless, under the reasoning of New York Times Co. v. Sullivan, even a false statement of fact made in support of a false thesis is protected unless made with knowledge of its falsity or with reckless disregard of its truth or falsity. It would undermine the rule of that case to permit the actual falsity of a statement to determine whether or not its publisher is entitled to the benefit of the rule.

‘If, therefore, we put to one side the false character of the article and treat it as though its contents were entirely true, it cannot be denied that the comments about (petitioner) were integral to its central thesis. They must be tested under the New York Times standard.’ 471 F.2d at 806.

We think that the Court of Appeals correctly rejected petitioner’s argument. Its acceptance might lead to arbitrary imposition of liability on the basis of an unwise differentiation among kinds of factual misstatements. The present case illustrates the point. Respondent falsely portrayed petitioner as an architect of the criminal prosecution against Nuccio. On its face this inaccuracy does not appear defamatory. Respondent also falsely labeled petitioner a ‘Leninist’ and a ‘Communist-fronter.’ These accusations are generally considered defamatory. Under petitioner’s interpretation of the ‘public or general interest’ test, respondent would have enjoyed a constitutional provilege to publish defamatory falsehood if petitioner had in fact been associated with the criminal prosecution. But this would mean that the seemingly innocuous mistake of confusing petitioner’s role in the litigation against Officer Nuccio would destroy the privilege otherwise available for calling petitioner a Communist-fronter. Thus respondent’s privilege to publish statements whose content should have alerted it to the danger of injury to reputation would hinge on the accuracy of statements that carried with them no such warning. Assuming that none of these statements was published with knowledge of falsity or with reckless disregard for the truth, we see no reason to distinguish among the inaccuracies.

5
Mr. Justice Douglas did not participate in the consideration or decision of Rosenbloom.

6
New York Times and later cases explicated the meaning of the new standard. In New York Times the Court held that under the circumstances the newspaper’s failure to check the accuracy of the advertisement against news stories in its own files did not establish

reckless disregard for the truth. 376 U.S., at 287—288, 84 S.Ct., at 729—730. In St. Amant v. Thompson, [1968] USSC 79; 390 U.S. 727, 731[1968] USSC 79; , 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), the Court equated reckless disregard of the truth with subjective awareness of probable falsity: ‘There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ In Beckley Newspapers Corp. v. Hanks, [1967] USSC 225; 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967), the Court emphasized the distinction between the New York Times test of knowledge of falsity or reckless disregard of the truth and ‘actual malice’ in the traditional sense of ill-will. Garrison v. Louisiana, [1964] USSC 217; 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), made plain that the new standard applied to criminal libel laws as well as to civil actions and that it governed criticism directed at ‘anything which might touch on an official’s fitness for office.’ Id., at 77, 85 S.Ct., at 217. Finally, in Rosenblatt v. Baer, [1966] USSC 25; 383 U.S. 75, 85[1966] USSC 25; , 86 S.Ct. 669, 676[1966] USSC 25; , 15 L.Ed.2d 597 (1966), the Court stated that ‘the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct or governmental affairs.’

In Time, Inc. v. Hill, [1967] USSC 11; 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), the Court applied the New York Times standard to actions under an unusual state statute. The statute did not create a cause of action for libel. Rather, it provided a remedy for unwanted publicity. Although the law allowed recovery of damages for harm caused by exposure to public attention rather than by factual inaccuracies, it recognized truth as a complete defense. Thus, nondefamatory factual errors could render a publisher liable for something akin to invasion of privacy. The Court ruled that the defendant in such an action could invoke the New York Times privilege regardless of the fame or anonymity of the plaintiff. Speaking for the Court, Mr. Justice Brennan declared that this holding was not an extension of New York Times but rather a parallel line of reasoning applying that standard to this discrete context:

‘This is neither a libel action by a private individual nor a statutory action by a public official. Therefore, although the First Amendment principles pronounced in New York Times guide our conclusion, we reach that conclusion only by applying these principles in this discrete context. It therefore serves no purpose to distinguish the facts here from those in New York Times. Were this a libel action, the distinction which has been suggested between the relative opportunities of the public official and the private individual to rebut defamatory charges might be germane. And the additional state interest in the protection of the individual against damage to his reputation would be involved. Cf. Rosenblatt v. Baer, [1966] USSC 25; 383 U.S. 75, 91[1966] USSC 25; , 86 S.Ct. 669, 15 L.Ed.2d 597 (Stewart, J., concurring).’ 385 U.S., at 390—391, 87 S.Ct., at 543.

7
Professor Kalven once introduced a discussion of these cases with the apt heading, ‘You Can’t Tell the Players without a Score Card.’ Kalven, The Reasonable Man and the First Amendment: Hill, Butts, and Walker, 1967 Sup.Ct.Rev. 267, 275. Only three other Justices joined Mr. Justice Harlan’s analysis of the issues involved. In his concurring opinion, Mr. Chief Justice Warren stated the principle for which these cases stand—that the New York Times test reaches both public figures and public officials. Mr. Justice Brennan and Mr. Justice White agreed with the Chief Justice on that question. Mr. Justice Black and Mr. Justice Douglas reiterated their view that publishers should have an absolute immunity from liability for defamation, but they acquiesced in the Chief Justice’s reasoning in order to enable a majority of the Justices to agree on the question of the appropriate constitutional privilege for defamation of public figures.

8
As Thomas Jefferson made the point in his first Inaugural Address: ‘If there be any among us who would wish to dissolve this Union or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.’

9
Of course, an opportunity for rebuttal seldom suffices to undo harm of defamatory falsehood. Indeed, the law of defamation is rooted in our experience that the truth rarely catches up with a lie. But the fact that the self-help remedy of rebuttal, standing alone, is inadequate to its task does not mean that it is irrelevant to our inquiry.

10
Our caveat against strict liability is the prime target of Mr. Justice WHITE’S dissent. He would hold that a publisher or broadcaster may be required to prove the truth of a defamatory statement concerning a private individual and, failing such proof, that the publisher or broadcaster may be held liable for defamation even though he took every conceivable precaution to ensure the accuracy of the offending statement prior to its dissemination. Post, at 388—392. In Mr. Justice WHITE’s view, one who publishes a statement that later turns out to be inaccurate can never be ‘without fault’ in any meaningful sense, for ‘(i)t is he who circulated a falsehood that he was not required to publish.’ Post, at 392 (emphasis added).

Mr. Justice WHITE characterizes New York Times Co. v. Sullivan, [1964] USSC 40; 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), as simply a case of seditious libel. Post, at 387. But that rationale is certainly inapplicable to Curtis Publishing Co. v. Butts, [1967] USSC 200; 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), where Mr. Justice White joined four other Members of the Court to extend the knowing-or-reckless-falsity standard to media defamation of persons identified as public figures but not connected with the Government. Mr. Justice WHITE now suggests that he would abide by that vote, post, at 398, but the full thrust of his dissent—as we read it—contradicts that suggestion. Finally, in Rosenbloom v. Metromedia, Inc., [1971] USSC 120; 403 U.S. 29, 57[1971] USSC 120; , 91 S.Ct. 1811, 1827, 29 L.Ed.2d 296 (1971), Mr. Justice White voted to apply the New York Times privilege to media defamation of an individual who was neither a public official nor a public figure. His opinion states that the knowing-or-reckless-falsity standard should apply to media ‘comment upon the official actions of public servants,’ id., at 62, 91 S.Ct, at 1829 including defamatory falsehood about a person arrested by the police. If adopted by the Court, this conclusion would significantly extend the New York Times privilege.

Mr. Justice WHITE asserts that our decision today ‘trivializes and denigrates the interest in reputation,’ Miami Herald Publishing Co. v. Tornillo, 418 U.S., at 262, 94 S.Ct., at 2842 (concurring opinion), that it ‘scuttle(s) the libel laws of the States in . . . wholesale fashion’ and renders ordinary citizens ‘powerless to protect themselves.’ Post, at 370. In light of the progressive extension of the knowing-or-reckless-falsity requirement detailed in the preceding paragraph, one might have viewed today’s decision allowing recovery under any standard save strict liability as a more generous accommodation of the state interest in comprehensive reputational injury to private individuals than the law presently affords.


11. Curtis Publishing co. v. Butts, supra, 388 U.S., at 155, 87 S.Ct., at 1991.

1. ee, e.g., Rosenblatt v. Baer, [1966] USSC 25; 383 U.S. 75, 90[1966] USSC 25; , 86 S.Ct. 669, 678[1966] USSC 25; , 15 L.Ed.2d 597 (concurring).

2 . In 1798 Jefferson stated:

‘(The First Amendment) thereby guard(s) in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violates either, throws down the sancturary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. . . .’ 8 The Works of Thomas Jefferson 464—465 (Ford ed. 1904) (emphasis added).

3 . See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep.No.86, 26th Cong., 1st Sess. (1840).

4. Senator Calhoun in reporting to Congress assumed the invalidity of the Act to be a matter ‘which no one now doubts.’ Report with Senate Bill No. 122, S.Doc. No. 118, 24th Cong., 1st Sess., 3 (1836).

5. See Stromberg v. California, [1931] USSC 132; 283 U.S. 359, 368—369[1931] USSC 132; , 51 S.Ct. 532, 535—536[1931] USSC 132; , 75 L.Ed. 1117.

6 . Since this case involves a discussion of public affairs, I need not decide at this point whether the First Amendment prohibits all libel actions. ‘An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.’ New York Times Co. v. Sullivan, [1964] USSC 40; 376 U.S. 254, 297[1964] USSC 40; , 84 S.Ct. 710, 735[1964] USSC 40; , 11 L.Ed.2d 686 (Black, J., concurring) (emphasis added). But ‘public affairs’ includes a great deal more than merely political affairs. Matters of science, economics, business, art, literature, etc., are all matters of interest to the general public. Indeed, any matter of sufficient general interest to prompt media coverage may be said to be a public affair. Certainly police killings, ‘Communist conspiracies,’ and the like qualify.

‘A more regressive view of free speech has surfaced but it has thus far gained no judicial acceptance. Solicitor General Bork has stated:

‘Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law.’ Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 20 (1971).

According to this view, Congress, upon finding a painting aesthetically displeasing or a novel poorly written or a revolutionary new scientific theory unsound could constitutionally prohibit exhibition of the painting, distribution of the book or discussion of the theory. Congress might also proscribe the advocacy of the violation of any law, apparently without regard to the law’s constitutionality. Thus, were Congress to pass a blatantly invalid law such as one prohibiting newspaper editorials critical of the Government, a publisher might be punished for advocating its violation. Similarly, the late Dr. Martin Luther King, Jr., could have been punished for advising blacks to peacefully sit in the front of buses or to ask for service in restaurants segregated by law.

7 .See Palko v. Connecticut, [1937] USSC 174; 302 U.S. 319, 325[1937] USSC 174; , 58 S.Ct. 149, 152[1937] USSC 174; , 82 L.Ed. 288. As Mr. Justice Black has noted, by this view the test becomes ‘whether the government has an interest in abridging the right involved and, if so, whether that interest is of sufficient importance, in the opinion of a majority of the Supreme Court, to justify the government’s action in doing so. Such a doctrine can be used to justify almost any government suppression of First Amendment freedoms. As I have stated many times before, I cannot subscribe to this doctrine because I believe that the First Amendment’s unequivocal command that there shall be no abridgement of the rights of free speech shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field.’ H. Black, A Constitutional Faith 52 (1969).

8 . See, e.g., Bridges v. California, [1941] USSC 148; 314 U.S. 252, 263 n. 6[1941] USSC 148; , 62 S.Ct. 190, 194[1941] USSC 148; , 86 L.Ed. 192 (Black, J.); Murdock v. Pennsylvania, [1943] USSC 91; 319 U.S. 105, 108[1943] USSC 91; , 63 S.Ct. 870, 872[1943] USSC 91; , 87 L.Ed. 1292 (Douglas, J.); Saia v. New York, [1948] USSC 80; 334 U.S. 558, 560[1948] USSC 80; , 68 S.Ct. 1148, 1149[1948] USSC 80; , 92 L.Ed. 1574 (Douglas, J.); Talley v. California, [1960] USSC 34; 362 U.S. 60, 62[1960] USSC 34; , 80 S.Ct. 536, 537[1960] USSC 34; , 4 L.Ed.2d 559 (Black, J.); DeGregory v. Attorney General of New Hampshire, [1966] USSC 65; 383 U.S. 825, 828[1966] USSC 65; , 86 S.Ct. 1148, 1150[1966] USSC 65; , 16 L.Ed.2d 292 (Douglas, J.); Elfbrandt v. Russell, [1966] USSC 69; 384 U.S. 11, 18[1966] USSC 69; , 86 S.Ct. 1238, 1241, 16 L.Ed.2d 321 (Douglas, J.); Mills v. Alabama, [1966] USSC 96; 384 U.S. 214, 218[1966] USSC 96; , 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (Black, J.); United Mine Workers v. Illinois State Bar Ass’n, [1967] USSC 250; 389 U.S. 217, 221—222 and n. 4[1967] USSC 250; , 88 S.Ct. 353, 355—356[1967] USSC 250; , 19 L.Ed.2d 426 (Black, J.).

1.
A fortiori I disagree with my Brother WHITE’S view that the States should have free rein to impose strict liability for defamation in cases not involving public persons.

2
A respected commentator has observed that factors other than purely legal constraints operate to control the press:

‘Traditions, attitudes, and general rules of political conduct are far more important controls. The fear of opening a credibility gap, and thereby lessening one’s influence, holds some participants in check. Institutional pressures in large organizations, including some of the press, have a similar effect; it is difficult for an organization to have an open policy of making intentionally false accusations.’ T. Emerson, The System of Freedom of Expression 538 (1970).

Typical of the press’ own ongoing self-evaluation is a proposal to establish a national news council, composed of members drawn from the public and the journalism profession, to examine and report on complaints concerning the accuracy and fairness of news reporting by the largest newsgathering sources. Twentieth Century Fund Task Force Report or a National News Council, A Free and Responsive Press (1973). See also Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation: Predictability and the New Synthesis, 70 Mich.L.Rev. 1547, 1569—1570 (1972).

3
The Court, taking a novel step, would not limit application of First Amendment protection to private libels involving issues of general or public interest, but would forbid the States from imposing liability without fault in any case where the substance of the defamatory statement made substantial danger to reputation apparent. As in Rosenbloom v. Metromedia, Inc., [1971] USSC 120; 403 U.S. 29, 44 n. 12, 48—49, n. 17[1971] USSC 120; , 91 S.Ct. 1811, 1820, 1822—1823 (1971). I would leave open the question of what constitutional standard, if any, applies when defamatory falsehoods are published or broadcast concerning either a private or public person’s activities not within the scope of the general or public interest.

Parenthetically, my Brother WHITE argues that the Court’s view and mine will prevent a plaintiff—unable to demonstrate some degree of fault—from vindicating his reputation by securing a judgment that the publication was false. This argument overlooks the possible enactment of statutes, not requiring proof of fault, which provide for an action for retraction or for publication of a court’s determination of falsity if the plaintiff is able to demonstrate that false statements have been published concerning his activities. Cf. Note, Vindication of the Reputation of a Public Official, 80 Harv.L.Rev. 1730, 1739—1747 (1967). Although it may be that questions could be raised concerning the constitutionality of such statutes, certainly nothing I have said today (and, as I read the Court’s opinion, nothing said there) should be read to imply that a private plaintiff, unable to prove fault, must inevitably be denied the opportunity to secure a judgment upon the truth or falsity of statements published about him. Cf. Rosenbloom v. Metromedia, Inc., supra, at 47 and n. 15, 91 S.Ct., at 1821.


1 Restatement of Torts § 559 (1938); see also W. Prosser, Law of Torts § 111, p. 739 (4th ed. 1971); 1 A. Hanson, Libel and Related Torts 14, pp. 21—22 (1969); 1 F. Harper & F. James, The Law of Torts § 5.1, pp. 349—350 (1956).

2 The observations in Part I of this opinion as to the current state of the law of defamation in the various States are partially based upon the Restatement of Torts, first published in 1938, and Tentative Drafts Nos. 11 and 12 of Restatement of Torts (Second), released in 1965 and 1966, respectively. The recent transmittal of Tentative Draft No. 20, dated April 25, 1974, to the American Law Institute for its consideration has resulted in the elimination of much of the discussion of the prevailing defamation rules and the suggested changes in many of the rules themselves previously found in the earlier Tentative Drafts. This development appears to have been largely influenced by the draftsmen’s ‘sense for where the law of this important subject should be thought to stand.’ Restatement (Second) of Torts, p. vii (Tent. Draft No. 20, Apr. 25, 1974). It is evident that, to a large extent, these latest views are colored by the plurality opinion in Rosenbloom v. Metromedia, Inc., [1971] USSC 120; 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). See, e.g., Restatement (Second) of Torts (Second), supra, at xiii, §§ 569, 580, 581A, 581B, 621. There is no indication in the latest draft, however, that the conclusions reached in Tentative Drafts Nos. 11 and 12 are not an accurate reflection of the case law in the States in the mid-1960’s prior to the developments occasioned by the plurality opinion in Rosenbloom. See infra, at 374—375.

3 See also W. Prosser, supra, n. 1, § 112, p. 752 and n. 85; Murnaghan, From Figment to Fiction to Philosophy—The Requirement of Proof of Damages in Libel Actions, 22 Cath.U.L.Rev. 1, 11—13 (1972).

4 Proof of the defamation itself established the fact of injury and the existence of some damage to the right of reputation, and the jury was permitted, even without any other evidence, to assess damages that were considered to be the natural or probable consequences of the defamatory words. Restatement of Torts § 621, comment a, p. 314 (1938); see also C. Gatley, Libel and Slander 1004 (6th ed. 1967); M. Newell, Slander and Libel § 721, p. 810 (4th ed. 1924; see generally C. McCormick, Law of Damages § 116, pp. 422—430 (1935). In this respect, therefore, the damages were presumed because of the impossibility of affixing an exact monetary amount for present and future injury to the plaintiff’s reputation, wounded feelings and humiliation, loss of business, and any consequential physical illness or pain. Ibid.

5 See also Prosser, supra, n. 1, § 112, p. 761; Harper & James, supra, n. 1, § 5.14, p. 388; Note, Developments in the Law Defamation, 69 Harv.L.Rev. 875, 939—940 (1956).

6 Also actionable per se were those libels where the imputation, although not apparent from the material itself, would have been slander per se if spoken rather than written.

7 Restatement (Second) of Torts § 569, pp. 29—45, 47—48 (Tent. Draft No. 12, Apr. 27, 1966); see also Murnaghan, supra, n. 3.

8 Applying settled Illinois law, the District Court in this case held that it is libel per se to label someone a Communist. 306 F.Supp. 310 (N.D.Ill.1969).

9 This appears to have been the law in Illinois at the time Gertz brought his libel suit. See, e.g., Brewer v. Hearst Publishing Co., [1951] USCA7 13; 185 F.2d 846 (CA7 1950); Hotz v. Alton Telegraph Printing Co., 324 Ill.App. 1, 57 N.E.2d 137 (1944); Cooper v. Illinois Publishing & Printing Co., 218 Ill.App. 95 (1920).

10 See, e.g., West v. Northern Publishing Co., 487 P.2d 1304, 1305—1306 (Alaska 1971) (article linking owners of taxicab companies to illegal liquor sales to minors); Gallman v. Carnes, 254 Ark. 987, 992, 497 S.W.2d 47, 50 (1973) (matter concerning state law school professor and assistant dean); Belli v. Curtis Publishing Co., 25 Cal.App.3d 384, 102 (Cal.Rptr. 122 (1972) (article concerning attorney

with national reputation); Moriarty v. Lippe, 162 Conn. 371, 378 379, 294 A.2d 326, 330—331 (1972) (publication about certain police officers); Firestone v. Time, Inc., 271 So.2d 745, 750—751 (Fla.1972) (divorce of prominent citizen not a matter of legitimate public concern); State v. Snyder, 277 So.2d 660, 666 668 (La.1973) (criminal defamation prosecution of a defeated mayoral candidate for statements made about another candidate); Twohig v. Boston Herald-Traveler Corp., 362 Mass. 807, 291 N.E.2d 398, 400—401 (1973) (article concerning a candidate’s votes in the legislature); Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118, 271 N.E.2d 628 (1971) (article about an architect commissioned by a town to build a school); Harnish v. Herold-Mail Co., Inc., 264 Md. 326, 334—336, 286 A.2d 146, 151 (1972) (article concerning a substandard rental property owned by a member of a city housing authority); Standke v. B. E. Darby & Sons, Inc., 291 Minn. 468, 476—477, 193 N.W.2d 139, 145 (1971) (newspaper editorial concerning performance of grand jurors); Whitmore v. Kansas City Star Co., 499 S.W.2d 45, 49 (Mo.Ct.App.1973) (article concerning a juvenile officer, the operation of a detention home, and a grand jury investigation); Trails West, Inc. v. Wolff, 32 N.Y.2d 207, 214—218, 344 N.Y.S.2d 863, 867—871, 298 N.E.2d 52, 55 58 (1973) (suit against a Congressman for an investigation into the death of schoolchildren in a bus accident); Twenty-Five East 40th Street Restaurant Corp. v. Forbes, Inc., 30 N.Y.2d 595, 331 N.Y.S.2d 29, 282 N.E.2d 118 (1972) (magazine article concerning a restaurant’s food); Kent v. City of Buffalo, 29 N.Y.2d 818, 327 N.Y.S.2d 653, 277 N.E.2d 669 (1971) (television station film of plaintiff as a captured robber); Frink v. McEldowney, 29 N.Y.2d 720, 325 N.Y.S.2d 755, 275 N.E.2d 337 (1971) (article concerning an attorney representing a town); Mead v. Horvitz Publishing Co. (9th Dist. Ohio Ct.App. June 13, 1973) (unpublished), cert. denied, 416 U.S. 985, 94 S.Ct. 2388, 40 L.Ed.2d 762 (1974) (financial condition of participants in the development of a large apartment complex involving numerous local contractors); Washington v. World Publishing Co., 506 P.2d 913 (Okl.1973) (article about contract dispute between a candidate for United States Senate and his party’s county chairman); Matus v. Triangle Publications, Inc., 445 Pa. 384, 395—399, 286 A.2d 357, 363—365 (1971)

(radio ‘talk show’ host’s discussion of gross overcharging for snow-plowing a driveway not considered an event of public or general concern); Autobuses Internacionales S. De R.L., Ltd. v. El Continental Publishing Co., 483 S.W.2d 506 (Tex.Ct.Civ.App.1972) (newspaper article concerning a bus company’s raising of fares without notice and in violation of law); Sanders v. Harris, 213 Va. 369, 372—373, 192 S.E.2d 754, 757—758 (1972) (article concerning English professor at a community college); Old Dominion Branch No. 496 v. Austin, 213 Va. 377, 192 S.E.2d 737 (1972), rev’d[1974] USSC 146; , 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (plaintiff’s failure to join a labor union considered not an issue of public or general concern); Chase v. Daily Record, Inc., 83 Wash.2d 37, 41, 515 P.2d 154, 156 (1973) (article concerning port district commissioner); Miller v. Argus Publishing Co., 79 Wash.2d 816, 827, 490 P.2d 101, 109 (1971) (article concerning the backer of political candidates); Polzin v. Helmbrecht, 54 Wis.2d 578, 586, 196 N.W.2d 685, 690 (1972) (letter to editor of newspaper concerning a reporter and the financing of pollution control measures).

The following United States Courts of Appeals have adopted the plurality opinion in Rosenbloom: Cantrell v. Forest City Publishing Co., [1973] USCA6 601; 484 F.2d 150 (CA6 1973), cert. pending, No. 75 5520 (article concerning family members of the victim of a highly publicized bridge disaster not actionable absent proof of actual malice); Porter v. Guam Publications, Inc., [1973] USCA9 184; 475 F.2d 744, 745 (CA9 1973) (article concerning citizen’s arrest for theft of a cash box considered an event of general or public interest); Cervantes v. Time, Inc., 464 F.2d 986, 991 (CA8 1972) (article concerning mayor and alleged organized crime connections conceded to be a matter of public or general concern); Firestone v. Time, Inc., [1972] USCA5 603; 460 F.2d 712 (CA5 1972) (magazine article concerning prominent citizen’s use of detectives and electronic surveillance in connection with a divorce); Davis v. National Broadcasting Co., [1971] USCA5 1284; 447 F.2d 981 (CA5 1971), aff’g 320 F.Supp. 1070 (E.D.La.1970) (television report about a person caught up in the events surrounding the assassination of President Kennedy considered a matter of public interest). However, at least one Court of Appeals, faced with an appeal from summary judgment in favor of a publisher in a diversity libel suit brought by a Philadelphia retailer, has expressed ‘discom-

fort in accepting the Rosenbloom plurality opinion as a definitive statement of the appropriate law . . ..’ Gordon v. Random House, Inc., [1973] USCA3 798; 486 F.2d 1356, 1359 (CA3 1973).

As previously discussed in n. 2, supra, the latest proposed draft of Restatement (Second) of Torts substantially reflects the views of the Rosenbloom plurality. It also anticipates ‘that the Supreme Court will hold that strict liability for defamation is inconsistent with the free-speech provision of the First Amendment . . ..’ Restatement (Second) of Torts § 569, p. 59 (Tent. Draft No. 20, Apr. 25, 1974), as well as the demise of pre-Rosenbloom damages rules. See id., § 621, pp. 285—288.

11 Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, 373 (1969).

12 A. Sutherland, Constitutionalism in America: Origin and Evolution of Its Fundamental Ideas 118—119 (1965).

13 See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960).

14 The men who wrote and adopted the First Amendment were steeped in the common-law tradition of England. They read Blackstone, ‘a classic tradition of the bar in the United States’ and ‘the oracle of the common law in the minds of the American Framers . . ..’ J. Hurst, The Growth of American Law: The Law Makers 257 (1950); Levy, supra, 7. 13, at 13; see also Sutherland, supra, m. 12, at 124—125; Schick v. United States, [1904] USSC 158; 195 U.S. 65, 69[1904] USSC 158; , 24 S.Ct. 826, 827[1904] USSC 158; , 49 L.Ed. 99 (1904). From him they learned that the major means of accomplishing his speech and press was to prevent prior restraints, the publisher later being subject to legal action if his publication was injurious. 4 W. Blackstone, Commentaries *150—153.

15 See also Meiklejohn, The First Amendment Is An Absolute, 1961 Sup.Ct.Rev. 245, 264:

‘First, the Framers initiated a political revolution whose development is still in process throughout the world. Second, like most revolutionaries, the Framers could not foresee the specific issues which would arise as their ‘novel idea’ exercised its domination over the governing activities of a rapidly developing nation in a rapidly and fundamentally changing world. In that sense, the Framers did not know what they were doing. And in the same sense, it is still true that, after two centuries of experience, we do not know what they were doing, or what we ourselves are now doing.

‘In a more abstract and more significant sense, however, both they and we have been aware that the adoption of the principle of self-government by ‘The People’ of this nation set loose upon us and upon the world at large an idea which is still transforming men’s conceptions of what they are and how they may best be governed.’

16 See Beauharnais v. Illinois, [1952] USSC 75; 343 U.S. 250, 272[1952] USSC 75; , 72 S.Ct. 725, 738[1952] USSC 75; , 96 L.Ed. 919 (1952) (Black, J., dissenting). Brant, who interprets the Framers’ intention more liberally than Chafee, nevertheless saw the free speech protection as bearing upon criticism of government and other political speech. I. Brant, The Bill of Rights 236 (1965).

17 Z. Chafee, Free Speech in the United States 14 (1954).

18 See 1 Annals of Cong. 729—789 (1789). See also Brant, supra, m. 16, at 224; Levy, supra, n. 13, at 214, 224.

19 Merin, supra, n. 11, at 377. Franklin, for example, observed:

‘If by the Liberty of the Press were understood merely the Liberty of discussing the Propriety of Public Measures and political opinions, let us have as much of it as you please: But if it means the Liberty of affronting, calumniating, and defaming one another, I, for my part, own myself willing to part with my Share of it when our Legislators shall please so to alter the Law, and shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abus’d myself.’ 10 B. Franklin, Writings 38 (Smyth ed. 1907).

20 Jefferson’s noted opposition to public prosecutions for libel of government figures did not extend to depriving them of private libel actions. Moot, supra, at 43. There is even a strong suggestion that he favored state prosecutions. E. Hudon, Freedom of Speech and Press in America 47—48 (1963).

21 For further expressions of the general proposition that libels are not protected by the First Amendment, see Konigsberg v. State Bar of California, [1961] USSC 73; 366 U.S. 36, 49—50 and n. 10[1961] USSC 73; , 81 S.Ct. 997, 1005—1007[1961] USSC 73; , 6 L.Ed.2d 105 (1961); Times Film Corp. v. City of Chicago, [1961] USSC 15; 365 U.S. 43, 48[1961] USSC 15; , 81 S.Ct. 391, 394[1961] USSC 15; , 5 L.Ed.2d 403 (1961); Pennekamp v. Florida, [1946] USSC 101; 328 U.S. 331, 348—349[1946] USSC 101; , 66 S.Ct. 1029, 1038 1039[1946] USSC 101; , 90 L.Ed. 1295 (1946); cf. Paris Adult Theatre I v. Slaton, [1973] USSC 191; 413 U.S. 49, 67[1973] USSC 191; , 93 S.Ct. 2628, 2640[1973] USSC 191; , 37 L.Ed.2d 446 (1973); Stanley v. Georgia, [1969] USSC 73; 394 U.S. 557, 561 n. 5[1969] USSC 73; , 89 S.Ct. 1243, 1245, 22 L.Ed.2d 542 (1969).

22 See Levy, supra, n. 13, at 247—248.

23 See, e.g., Abrams v. United States, [1919] USSC 206; 250 U.S. 616, 630[1919] USSC 206; , 40 S.Ct. 17, 22[1919] USSC 206; , 63 L.Ed. 1173 (1919) (Holmes, J., dissenting).

24
Kalven, The New York Times Case: A Note on ‘The Central Meaning of the First Amendment,’ 1964 Sup.Ct.Rev. 191, 208—209.

25 ‘The language of the First Amendment is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. . . . As in the case of every other provision of the Constitution that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument.’ Dennis v. United States, 341 U.S. 494, 523[1951] USSC 72; , 71 S.Ct. 857, 873, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring).

26 ‘(T)he law of defamation has been an integral part of the laws of England, the colonies and the states since time immemorial. So many actions have been maintained and judgments recovered under the various laws of libel that the Constitutional validity of libel actions could be denied only by a Court willing to hold all of its predecessors were wrong in their interpretation of the First Amendment and that two hundred years of precedents should be overruled.’ Rutledge, The Law of Defamation: Recent Developments, 32 Alabama Lawyer 409, 410 (1971).

The prevailing common-law libel rules in this country have remained in England and the Commonwealth nations. Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L.Q. 581, 583—584 (1964). After many years of reviewing the English law of defamation, the Porter Committee concluded that ‘though the law as to defamation requires some modification, the basic principles upon which it is founded are not amiss.’ Report of the Committee on the Law of Defamation, Cmd. No. 7536, 222, p. 48 (1948).

27 If I read the Court correctly, it clearly implies that for those publications that do not make ‘substantial danger to reputation apparent,’ the New York Times actual-malice standard will apply. Apparently, this would be true even where the imputation concerned conduct or a condition that would be per se slander.

28 A recent study has comprehensively detailed the role and impact of mass communications in this Nation. See Note, Media and the First Amendment in a Free Society, 60 Geo.L.J. 867 (1972). For example, 99% of the American households have a radio, and 77%  hear at least one radio newscast daily. In 1970, the yearly average home television viewing time was almost six hours per day. Id., at 883 n. 53.

‘Sixty years ago, 2,442 newspapers were published daily nationwide, and 689 cites had competing dailies. Today, in only 42 of the cities served by one of the 1,748 American daily papers is there a competing newspaper under separate ownership. Total daily circulation has passed 62 million copies, but over 40 percent of this circulation is controlled by only 25 ownership groups.

‘Newspaper owners have profited greatly from the consolidation of the journalism industry. Several of them report yearly profits in the tens of millions of dollars, with after tax profits ranging from seven to 14 percent of gross revenues. Unfortunately, the owners have made their profits at the expense of the public interest in free expression. As the broad base of newspaper ownership narrows, the variation of facts and opinions received by the public from antagonistic sources is increasingly limited. Newspaper publication is indeed a leading American industry. Through its evolution in this direction, the press has come to be dominated by a select group whose prime interest is economic.

‘The effect of consolidation within the newspaper industry is magnified by the degree of intermedia ownership. Sixty-eight cities have a radio station owned by the only local daily newspaper, and 160 television stations have newspaper affiliations. In 11 cities diversity of ownership is completely lacking with the only television station and newspaper under the same control.’ Id., at 892—893 (footnotes omitted).

See also Congress, FCC Consider Newspaper Control of Local TV, 32 Cong.Q. 659—663 (1974).

29 Having held that the defamation plaintiff is limited to recovering for ‘actual injury,’ the Court hastens to add:

‘Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.’ Ante, at 350.

It should be pointed out that under the prevailing law, where the defamation is not actionable per se and proof of ‘special damage’ is required, a showing of actual injury to reputation is insufficient; but if pecuniary loss is shown, general reputation damages are recoverable. The Court changes the latter, but not the former, rule. Also under present law, pain and suffering, although shown, do not warrant damages in any defamation action unless the plaintiff is otherwise entitled to at least nominal damages. By imposing a more difficult standard of liability and requiring proof of actual damage to reputation, recovery for pain and suffering, though real, becomes a much more remote possibility.

30 ‘The harm resulting from an injury to reputation is difficult to demonstrate both because it may involve subtle differences in the conduct of the recipients toward the plaintiff and because the recipients, the only witnesses able to establish the necessary causal connection, may be reluctant to testify that the publication affected their relationships with the plaintiff. Thus some presumptions are necessary if the plaintiff is to be adequately compensated.’ Note, Developments in the Law—Defamation, 69 Harv.L.Rev. 875, 891—892 (1956).

31 ‘On questions of damages, the judge plays an important role. It is, of course, for him to determine and instruct the jury as to what matters may be taken into consideration by them in arriving at a verdict since such questions are clearly matters of substantive law. But the judge also may and frequently does exercise a judgment as to the amount of damages the plaintiff may recover. His function here is primarily to keep the jury within bounds of reason and common sense, to guard against excessive verdicts dictated by passion and prejudice and to see to it that the amount of the verdict has some reasonable relation to the plaintiff’s evidence as to his loss or the probability of loss. Thus, the trial judge may grant a new trial or the appellate court may reverse and remand the case for a new trial because of excessive damages or, as is more frequently the case, a remittitur may be ordered, the effect of which is that the plaintiff must accept a specified reduction of his damages or submit to a new trial on the issue of liability as well as damages.’ 1 F. Harper & F. James, The Law of Torts § 5.29, p. 467 (1956) (footnote omitted).

32 See Pedrick, supra, n. 26, at 587 n. 23.

33 Murnaghan, supra, n. 3, at 29.

34 Note, Developments in the Law—Defamation, 69 Harv.L.Rev., supra, at 875, 938 and n. 443.

35 Id., at 939, 941—942. See, e.g., Cal.Civ.Code § 48a(2) (1954).

36 376 U.S., at 285, 84 S.Ct., at 1708.

37 Id., at 270[1964] USSC 40; , 84 S.Ct. 710.

38 Judicial review of jury libel awards for excessiveness should be influenced by First Amendment considerations, but it makes little sense to discard an otherwise useful and time-tested rule because it might be misapplied in a few cases.

39 O. Holmes, The Common Law 36 (1881).

40 Ante, at 351, 352.

41 Cf. Pedrick, supra, n. 26, at 601—602:

‘A great many forces in our society operate to determine the extent to which men are free in fact to express their ideas. Whether there is a privilege for good faith defamatory misstatements on matters of public concern or whether there is strict liability for such statements may not greatly affect the course of public discussion. How different has life been in those states which heretofore followed the majority rule imposing strict liability for misstatements of fact defaming public figures from life in the minority states where the good faith privilege held sway?’

See also T. Emerson, The System (of Freedom of Expression 519 (1970) (footnote omitted): ‘(O)n the whole the role of libel law in the system of freedom of expression has been relatively minor and essentially erratic.’

42 ‘The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones; his feelings, being openly exhibited, tend to lose their quality of unique personal warmth and to become the feelings of every man. Such a being, although sentient, is fungible; he is not an individual.’ Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L.Rev. 962, 1003 (1964).

43 With the evisceration of the common-law libel remedy for the private citizen, the Court removes from his legal arsenal the most effective weapon to combat assault on personal reputation by the press establishment. The David and Goliath nature of this relationship is all the more accentuated by the Court’s holding today in Miami Herald Publishing Co. v. Tornillo, [1974] USSC 147; 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730, which I have joined, that an individual criticized by a newspaper’s editorial is precluded by the First Amendment from requiring that newspaper to print his reply to that attack. While that case involves an announced candiate for public office, the Court’s finding of a First Amendment barrier to government ‘intrusion into the function of editors,’ supra, at 258, 94 S.Ct., at 2839, does not rest on any distinction between private citizens or public officials. In fact, the Court observes that the First Amendment clearly protects from governmental restraint ‘the exercise of editorial control and judgment,’ i.e., ‘(t)he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials whether fair or unfair . . ..’ Ibid. (Emphasis added.)

We must, therefore, assume that the hapless ordinary citizen libeled by the press (a) may not enjoin in advance of publication a story about him, regardless of how libelous it may be, Near v. Minnesota ex rel. Olson, [1931] USSC 154; 283 U.S. 697, 151 S.Ct. 625, 75 L.Ed. 1357 (1931); (b) may not compel the newspaper to print his reply; and (c) may not force the newspaper to print a retraction, because a judicially compelled retraction, like a ‘remedy such as an enforceable right of access,’ entails ‘governmental coercion’ as to content, which ‘at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years.’ Miami Herald Publishing Co. v. Tornillo, 418 U.S., at 254, 94 S.Ct., at 2838; but cf. this case, ante, at 368 n. 3 (Brennan, J., dissenting).

My Brother BRENNAN also suggests that there may constitutionally be room for ‘the possible enactment of statutes, not requiring proof of fault, which provide . . . for publication of a court’s determination of falsity if the plaintiff is able to demonstrate that false statements have been published concerning his activities.’ Ibid. The Court, however, does not even consider this less drastic alternative to its new ‘some fault’ libel standards.

44 See n. 28, supra.

45 ‘No democracy, . . . certainly not the American democracy, will indefinitely tolerate concentrations of private power irresponsible and strong enough to thwart the aspirations of the prople. Eventually governmental power will be used to break up private power, or governmental power will be used to regulate private power—if private power is at once great and irresponsible.’ Commission on Freedom of the Press, A Free and Responsible Press 80 (1947).

Random House Australia Pty Ltd v Abbott [1999] FCA 1538

Dated: 10 November 1999

FEDERAL COURT OF AUSTRALIA  

Random House Australia Pty Ltd v Abbott [1999] FCA 1538

DEFAMATION – meaning of publication – natural and ordinary – false innuendo – whether particulars of meaning required to be pleaded as imputations or false innuendos – whether publication conveyed imputations as pleaded – whether imputation of lacking personal integrity defamatory – whether imputation of shallow political commitment defamatory – whether imputation of being of weak and unreliable character defamatory – whether trial judge erred in reading “sexually promiscuous” as meaning “guilty of unchastity” – whether publication bore an imputation of unchastity – whether imputation of sexual promiscuity defamatory – whether imputation of unchastity defamatory – whether imputation of low moral standards defamatory – whether imputation of being a political manipulator was defamatory.

DEFAMATION – procedural fairness – whether the appellant was denied natural justice when trial judge found an imputation not pleaded was conveyed by the publication.

DEFAMATION – damages – whether award of damages excessive – whether failure to apologise justified an award of ordinary compensatory damages – whether failure to apologise gives rise to aggravated damages – whether respondent received double compensation for failure to apologise in award for ordinary compensatory damages and aggravated compensatory damages.

John Fairfax v Punch [1980] FCA 100; (1980) 31 ALR 624 referred to

Alexander v Jenkins [1892] 1 QB 797 cited

Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 considered

Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 considered

Lewis v Daily Telegraph Ltd (1964) AC 234 cited

Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 cited

Fletcher v Autocar and Transporters Limited [1968] 2 QB 322 cited

Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 referred to

Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027 considered

Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 cited

Coyne v Citizen Finance Limited [1991] HCA 10; (1991) 172 CLR 211 referred to

Humphries v TWT Ltd [1993] FCA 577; (1994) 120 ALR 693 considered

Australian Broadcasting Commission v Comalco Ltd (1986) 68 ALR 259 cited

David Syme & Co Ltd v Grey [1992] FCA 479; (1992) 115 ALR 247 cited

Hadzel v De Waldorf (1970) 16 FLR 174 cited

Cairns & Morosi v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 considered

Maisel v Financial Times Ltd (No 1) (1915) 84 LJKB 2145 cited

Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 cited

Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 cited

Clark v Ainsworth (1996) 40 NSWLR 463 considered

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 cited

Cooke and The Australian Liquor, Hospitality and Miscellaneous Workers’ Union v Wood, unreported, Ormiston, Charles and Batt JJA, 11 December 1997, considered

Fleming, The Law of Torts, 9th ed. 1998

Gatley on Libel and Slander, 8th ed. 1981

McDonald, Irish Law of Defamation, 2nd ed. 1989

Defamation and Related Action in Scots Law, 1st ed. 1995

The Macquarie Dictionary, 2nd and 3rd eds.

The Oxford English Dictionary, 2nd ed.

 

RANDOM HOUSE AUSTRALIA PTY LIMITED V THE HON ANTHONY JOHN ABBOTT AND MARGARET VERONICA ABBOTT

A 23 OF 1999

RANDOM HOUSE AUSTRALIA PTY LIMITED V THE HON PETER HOWARD COSTELLO AND TANYA PAMELA COSTELLO

A 24 of 1999

JUDGES: BEAUMONT, MILES & DRUMMOND JJ.

DATE: 10 November 1999

PLACE: SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

NO. A 23 OF 1999

NO. A 24 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: RANDOM HOUSE AUSTRALIA PTY LIMITED

Appellant

AND: THE HON ANTHONY JOHN ABBOTT

First Respondent

MARGARET VERONICA ABBOTT

Second Respondent

BETWEEN: RANDOM HOUSE AUSTRALIA PTY LIMITED

Appellant

AND: THE HON PETER HOWARD COSTELLO

First Respondent

TANYA PAMELA COSTELLO

Second Respondent

JUDGES: BEAUMONT, MILES & DRUMMOND JJ.
DATE OF ORDER: 10 NOVEMBER 1999
WHERE MADE: SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT: Appeals dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY NO. A 23 OF 1999

NO. A 24 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: RANDOM HOUSE AUSTRALIA PTY LIMITED

Appellant

AND: THE HON ANTHONY JOHN ABBOTT

First Respondent

MARGARET VERONICA ABBOTT

Second Respondent

BETWEEN: RANDOM HOUSE AUSTRALIA PTY LIMITED

Appellant

AND: THE HON PETER HOWARD COSTELLO

First Respondent

TANYA PAMELA COSTELLO

Second Respondent

JUDGES: BEAUMONT, MILES & DRUMMOND JJ.
DATE: 10 NOVEMBER 1999
PLACE: SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1 These are appeals from a judgment and orders of a Judge of the Supreme Court of the Australian Capital Territory (Higgins J) awarding damages in defamation actions brought by the present respondents, Mr and Mrs Abbott, and by Mr and Mrs Costello against the appellant, Random House Australia Pty Limited (“Random House”). Both actions, and the appeals, were heard together. His Honour’s reasons for judgment are now reported (see [1999] ACTSC 13; (1999) 137 ACTR 1). In order to understand the issues on the appeals, it will be necessary to refer, in some detail, to the claims made by Mr and Mrs Abbott and Mr and Mrs Costello in the pleadings at first instance, and to the trial Judge’s findings and conclusions on their claims.

2 By their writ of summons dated 3 April 1997, Mr and Mrs Abbott claimed damages from Random House for the publication of defamatory material of and concerning them by Random House in a book entitled “Goodbye Jerusalem: Night Thoughts of a Labor Outsider” (“the book”) written by Mr Bob Ellis.

3 By their statement of claim, Mr and Mrs Abbott alleged the following:

* Mr Abbott is, and was at all material times, the Commonwealth Parliamentary Secretary to the Minister for Employment, Education, Training and Youth Affairs, and the Member for the Commonwealth electorate of Warringah.

* Random House was the publisher of the book.

* The book was, in or about March 1997, published widely throughout Australia.

* The “matter complained of” in the book (appearing at 472 – 473) was as follows:

“We all of us have our big brother figures, or our father figures, discuss. If Mr Lang is in the lobby will he please contact a Mr Paul Keating. And so on. So it goes. At the launch [of a book written by another author] also was Tony Abbott, the Liberal thinker (hah!) and he greeted me as a fellow monarchist (carefully lying, I nodded) and though of another party `a fellow partaker of the comradeship of the trenches’. I liked him of course, the way one does, and determined to destroy him, the way one does, and remembered with pleasure Rodney Cavalier’s gutsy account of history.

`Abbott and Costello’, said Rodney Cavalier, pacing up and down his baronial mansion after serving me for dinner as was his custom bread and water, `they’re both in the Right Wing of the Labor Party till the one woman fucked both of them and married one of them and inducted them into the Young Liberals’.

`Abbott and Costello?’ I said, laughing.

`That’s what I said’, said Rodney. `Why are you laughing?’

Rodney was a monarchist too, and an Anglophile, and a fan of Asquith and Harold Nicolson and Maynard Keynes.

`What are the arguments for monarchism?’ I asked him.

`There aren’t any’, he said. `You must never argue for something that is intellectually unsustainable.’

`Why believe in it then?’

`Because the alternative’, he said with ferocity, `is UNTHINKABLE.’

Diaries, September 1994.”

4 Mr and Mrs Abbott made several alternative claims of defamation as follows:

5 First, they said that the matter was defamatory of each of them in its natural and ordinary meaning.

6 Particulars of this claim by Mr Abbott (“imputation A”) were as follows:

A. PARTICULARS OF NATURAL AND ORDINARY MEANINGS IN RESPECT TO [MR ABBOTT](i) [Mr Abbott] so lacked personal integrity that, in return for sexual favours, he was willing to change his political allegiance.

(ii) [Mr Abbott’s] political commitment was so shallow that for sexual favours he was willing to abandon his principles for sex.

(iii) [Mr Abbott] was to be suspected of being of weak and unreliable character who allowed his political decisions to be dictated by his wife.”

7 Particulars of this claim by Mrs Abbott (“imputation B”) were:

B. PARTICULARS OF NATURAL AND ORDINARY MEANINGS IN RESPECT TO [MRS ABBOTT](i) [Mrs Abbott] was to be suspected of being sexually promiscuous.

(ii) [Mrs Abbott] by virtue of having married [Mr Abbott] was to be suspected of being a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance.

(iii) [Mrs Abbott] by virtue of having married [Mr Abbott] was to be suspected of being a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party.

(iv) [Mrs Abbott] by virtue of having married [Mr Abbott] was to be suspected of so lacking respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs.”

8 Secondly, Mr and Mrs Abbott claimed that, to the extent to which it may be held that any of the defamatory meanings claimed does not arise as a natural and ordinary meaning, then that meaning is “a true innuendo” which arises by reason of facts and matters (“the extrinsic facts”) known to readers of the matter complained of. Particulars of the extrinsic facts alleged were:

“(i) [Mrs Abbott] married [Mr Abbott] in 1988 and has been married to him ever since.(ii) [Mr Abbott] joined the Liberal Party after his marriage to [Mrs Abbott].”

9 Thirdly, Mr and Mrs Abbott claimed that, by reason of facts and matters known to readers (i.e. the extrinsic facts, above), the matter complained of conveyed meanings, which are true innuendos, defamatory of them. Particulars of the innuendos alleged (“imputation D”) were:

D. PARTICULARS OF TRUE INNUENDOS(i) [Mr Abbott] was a person of weak and unreliable character whose political decisions were dictated by his wife.

(ii) [Mrs Abbott] was sexually promiscuous.

(iii) [Mrs Abbott] was a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance.

(iv) [Mrs Abbott] was a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party.

(v) [Mrs Abbott] was so lacking in respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs.”

10 Mr and Mrs Costello made similar claims in their proceedings. Mr Costello is, and was at all material times, the Commonwealth Treasurer, the Deputy Leader of the Commonwealth Parliamentary Liberal Party and the Member for the electorate of Higgins. The “extrinsic facts” pleaded by them were:

“(i) [Mrs Costello] married [Mr Costello] in January 1982 and has been married to him ever since.(ii) [Mrs Costello] at the University of Sydney and thereafter was known publicly as an active supporter of the Liberal Party; and

(iii) [Mrs Costello] was the daughter of the Leader of the New South Wales Liberal Party and was a supporter of the Liberal Party prior to her first meeting … Mr Costello and Mr … Abbott.

(iv) [Mrs Costello] was acquainted with [Mr] Abbott at Sydney University prior to meeting her husband, [Mr] Costello.”

11 The trial was conducted upon the footing, unequivocally acknowledged by Random House at the trial, that Mr Ellis’ story was false. Of this, his Honour said (at 6):

The story is falseIt is important to record … that [Random House] did not attempt to assert the truth of the facts asserted in this passage. The plaintiffs’ evidence that it was false, so far as it referred to them, or, in the case of Mrs Abbott, might be believed to refer to her, was not challenged.

Accordingly, … the following findings should be firmly stated:

1. Neither Mr Abbott nor Mr Costello were ever members of the Labor Party, whether in the right wing or otherwise.

2. Mr Abbott has, at no time, had any kind of sexual relationship with Mrs Costello (nee Coleman).

3. Mrs Costello did not induce either Mr Abbott or Mr Costello to join the Young Liberals or, indeed, the Liberal Party, whether by means of sexual favours, expectation of sexual favours or even friendship.

4. Mr Cavalier did not recount to the author the statements attributed to him, nor does he support in any way the truth of the apocryphal story.

In other words, the story about Mr Abbott, Mr Costello and Mrs Costello (or Mrs Abbott if she is taken to be referred to), is untrue, has no foundation in fact …”

12 Random House did not seek to justify its publication.

13 His Honour found that the following (but no other) imputations arose:

(i) That Mr Costello’s and Mr Abbott’s political commitment was so shallow that, in return for sexual favours, they were willing to abandon their principles (i.e. imputation A(ii)) (at 10).

(ii) That Mrs Costello and Mrs Abbott were guilty of unchastity (cf. imputation B(i)) (at 10 – 11).

(iii) That Mrs Costello and Mrs Abbott, by virtue of having married their husbands, were to be suspected of being people of such low moral standards that they were even prepared to use sexual relations to get others to change their political allegiance (i.e. imputation B(ii)) (at 11).

14 Higgins J then held (at 13) that the publication was defamatory of Mr Costello, and of Mr Abbott, as the ordinary reasonable reader would, in fact, conclude, first, that the anecdote does in fact convey the imputation of shallow political commitment; and, secondly, that such a story, if true, would rebound to their disadvantage. His Honour further held (at 17) that the publication was defamatory of Mrs Costello and Mrs Abbott, in so far as it accused one or other of them of unchastity.

15 The primary Judge awarded compensatory and aggravated damages as follows:

Mrs Abbott Mr Abbott Mrs Costello Mr Costello
$ $ $ $
(i) Injury to reputation 30,000 40,000 40,000 40,000
(ii) Injury to feelings 10,000 15,000 30,000 20,000
(iii) Aggravated damages 5,000 7,500 15,000 10,000
Total: 45,000 62,500 85,000 70,000

 

RANDOM HOUSE’S GROUNDS OF APPEAL

16 Random House now appeals from the whole of his Honour’s judgment on the following grounds.

17 On the issue of liability, Random House contends that the primary Judge should not have found that imputation A(ii) arose, or was defamatory. (It will be recalled that A(ii) was that Mr Costello’s (and Mr Abbott’s) “political commitment was so shallow that for sexual favours he was willing to abandon his principles”.) Random House further contends that his Honour should not have found that imputation B(i) arose. (By this imputation, Mrs Costello (and Mrs Abbott) “was to be suspected of being sexually promiscuous”.) Then Random House says that his Honour erred in finding that it was open to read the phrase “sexually promiscuous” in imputation B(i) as meaning “guilty of unchastity”. Random House also argues that the primary Judge erred in finding that the matter complained of was capable of bearing, and did in fact bear, an imputation to the effect either (a) that Mrs Costello and Mrs Abbott were to be suspected of being guilty of unchastity; or (b) that they were guilty of unchastity. The appellant further contends that the trial Judge should not have found that imputation B(i), as pleaded, or as his Honour formulated it, was defamatory of Mrs Costello and Mrs Abbott. Next, Random House argues that the trial Judge should not have found that imputation B(ii) arose either as pleaded or as otherwise expressed by his Honour. (By imputation B(ii), Mrs Costello and Mrs Abbott, “by virtue of having married [Mr Costello and Mr Abbott] was to be suspected of being a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance”.)

18 Random House then contends that it was denied natural justice when his Honour found that the following imputation was conveyed by the matter complained of, and was defamatory: that Mrs Costello (and Mrs Abbott) was to be suspected of being, or was guilty of unchastity. Random House contends that such an imputation was not an issue at trial and no opportunity was afforded to Random House to meet it.

19 Random House also contends that the damages awarded were excessive and that the plaintiffs should not have been awarded any sum for aggravated damages.

 

MR AND MRS ABBOTT’S AND MR AND MRS COSTELLO’S NOTICE OF CONTENTION

20 For their part, Mr and Mrs Abbott and Mr and Mrs Costello contend that his Honour’s judgment should be upheld, for the reasons he gives, and for the following additional reasons:

* Imputation A(i) is capable of arising, and does arise, from the matter complained of, and is defamatory of Mr Abbott and Mr Costello. (A(i) is that Mr Abbott (and Mr Costello) “so lacked personal integrity that, in return for sexual favours, he was willing to change his political allegiance”.)

* Imputation A(iii) is capable of arising, and does arise, and is defamatory of Mr Abbott and Mr Costello. (A(iii) is that Mr Abbott (and Mr Costello) “was to be suspected of being of weak and unreliable character who allowed his political decisions to be dictated by his wife”.)

* Imputation B(ii), which his Honour found to arise, is defamatory of Mrs Abbott and Mrs Costello. (B(ii) is that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott and Mr Costello] was to be suspected of being a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance”.)

* Imputation B(iii) is capable of arising, and does arise, and is defamatory of Mrs Abbott and Mrs Costello. (B(iii) is that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott and Mr Costello] was to be suspected of being a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party”.)

* Imputation B(iv) is capable of arising, and does arise, and is defamatory of Mrs Abbott and Mrs Costello. (B(iv) is that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott and Mr Costello] was to be suspected of so lacking respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs”.)

* Imputation D(i) is capable of arising, and does arise, as a true innuendo, by reason of the extrinsic facts pleaded, and is defamatory of Mr Abbott and Mr Costello. (D(i) is that Mr Abbott (and Mr Costello) “was a person of weak and unreliable character who allowed his political decisions to be dictated by his wife”.)

* Imputation D(ii) is capable of arising, and does arise, as a true innuendo, by reason of the extrinsic facts, and is defamatory of Mrs Abbott and Mrs Costello. (D(ii) is that Mrs Abbott (and Mrs Costello) “was sexually promiscuous”.)

* Imputation D(iii) is capable of arising, and does arise, as a true innuendo, by reason of the extrinsic facts, and is defamatory of Mrs Abbott and Mrs Costello. (D(iii) is that Mrs Abbott (and Mrs Costello) “was a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance”.)

* Imputation D(iv) is capable of arising, and does arise, as a true innuendo, by reason of the extrinsic facts, and is defamatory of Mrs Abbott and Mrs Costello. (D(iv) is that Mrs Abbott (and Mrs Costello) “was a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party”.)

* Imputation D(v) is capable of arising, and does arise, as a true innuendo, by reason of the extrinsic facts, and is defamatory of Mrs Abbott and Mrs Costello. (D(v) is that Mrs Abbott (and Mrs Costello) “was so lacking in respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs”.)

21 Although they rely on the matters raised in their notice of contention on the issue of liability, Mr and Mrs Abbott and Mr and Mrs Costello do not seek any increase in the damages awarded at first instance.

 

CONCLUSIONS ON THE APPEALS – LIABILITY ISSUES

22 The test for what may be defamatory at common law is well established. A publication, without justification or lawful excuse, exposing a person to hatred, contempt or ridicule, calculated to injure that person’s reputation, is a libel. But this is not to be taken as an exhaustive statement. A person may be defamed by an imputation of a disability in the performance of the functions of his or her office, although the imputation does not expose him or her to hatred, contempt or ridicule. A false statement about a person to his or her discredit is defamatory. Thus to attribute to a person a want of capacity as the holder of an office will be defamatory. The mere imputation of a lack of ability to discharge the duties of that office is sufficient. It is not necessary that there should be an imputation of immoral or disgraceful conduct (per Brennan J in John Fairfax v Punch [1980] FCA 100; (1980) 31 ALR 624 at 632 – 633 citing Lord Herschell in Alexander v Jenkins [1892] 1 QB 797 at 800). Thus, the substantive legal issue here may be expressed as whether the material complained of was defamatory of the plaintiffs in that it was to his or her “discredit … [tended] to lower him [or her] in the estimation of others … to expose him [or her] to hatred, contempt or ridicule, or to injure his [or her] reputation in his [or her] trade or profession” (see Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 per Gaudron and Gummow JJ at 545 quoting Gatley on Libel and Slander, 8th ed. (1981), par 31).

23 Yet, as has been seen, both at first instance and on appeal, Random House raised questions that had adjectival as well as substantive aspects; that is, Random House argued that his Honour’s conclusions amounted to an impermissible, substantial departure from the plaintiffs’ pleading and thus a denial of natural justice. In order to understand the adjectival issues that arise here, reference should be made to the rules, at least of practice, in this area.

24 A defamatory imputation may be made by reliance upon the natural and ordinary meaning of the words published, or by innuendo (per Brennan J (Gibbs CJ, Stephen, Murphy and Wilson JJ agreeing) in Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 (at 505)). Where no (true) innuendo is pleaded, and the published words clearly relate to the plaintiff, the issue of libel or no libel, can be determined by asking whether hypothetical referees (described in the authorities as “reasonable” persons or “right-thinking members of society generally” or “ordinary (persons) not avid for scandal”) would understand the words in a defamatory sense. Two elements are involved here: (1) the meaning of the words used (the imputation); and (2) the defamatory character of the imputation. In their understanding, the hypothetical referees are taken (a) to have a uniform view of the meaning of the language used; and (b) to share standards, moral or social, by which they evaluate the imputation they understand to have been made, those being standards common to society generally (per Brennan J at 505 – 506). These moral or social standards are not amenable to evidentiary proof. Rather, it is pre-eminently a matter for the trier of fact to give effect to a standard which he or she considers to accord with the attitude of society generally (per Brennan J at 506). The basic question then is whether the matter complained of would tend to lower the subject in the estimate of the ordinary, reasonable, member of society (per Kirby J in Chakravarti at 573).

25 A related, and presently relevant, question is the effect of a plaintiff’s pleading, or failing to plead, an imputation by way of a false innuendo. In strictness, there is no rule which expressly requires a plaintiff to give particulars when the plaintiff relies simply on the “ordinary meaning” of the publication on which the claim is based. But, statute apart, the reason why a court may, in the management of a defamation case, require a plaintiff to provide particulars, even where the plaintiff intends to rely on ordinary meaning, is the need to define issues when more than one meaning may be inferred from the words. Sometimes, it is not necessary to go beyond the words themselves to understand their “natural and ordinary” meaning, as where the plaintiff is called a thief or a murderer. Yet more often the sting is not so much in the words themselves, as in what the ordinary person will infer from them, and that is also regarded as part of their ordinary and natural meaning (per Brennan CJ and McHugh J in Chakravarti (at 530 – 532) citing Lord Reid in Lewis v Daily Telegraph Ltd (1964) AC 234 (at 258)). Thus, it is said that the courts require plaintiffs to plead false innuendos, if needed to define the issues (per Brennan CJ and McHugh J at 532).

26 A plaintiff who pleads a false innuendo thereby confines the meanings relied on, and cannot seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis (per Brennan CJ and McHugh J at 532). However, form should not be sacrificed to substance, and minute differences from the meaning pleaded should not be elevated to the status of a substantial defence. A different nuance of meaning from the meaning pleaded may be permitted, provided it is not unfair to the defendant to allow the plaintiff so to depart from the meaning pleaded. The critical consideration is whether it is prejudicial, disadvantageous or unfair to the defendant, to allow a plaintiff to seek a verdict on the basis that the matter complained of bears a meaning different from that previously relied on (per Brennan CJ and McHugh J at 532; per Gaudron and Gummow JJ at 546; per Kirby J at 580 – 581).

27 It should be borne in mind, for present purposes, that the pleading of a particular meaning or meanings is no more (and no less) than a statement of the case to be made at trial. Pressures on court time and the cost of litigation ordinarily require that, at trial, a party (including a plaintiff in a defamation action) be held to those parts of the pleadings which specify the case to be made, if departure would occasion delay or disadvantage the other side. But words do not mean what parties choose them to mean and, at least ordinarily, the defamatory material will, itself, sufficiently identify and, thus, confine the meanings on which they rely; it would be most unlikely that the parties would fail to hit upon, at least approximately, all the reasonably open meanings (per Gaudron and Gummow JJ at 545).

28 In my opinion, these last observations are pertinent in the present case; that is, in my view, the matter complained of did, itself, sufficiently identify the meaning relied on by the plaintiffs. In other words, it was not, I think, necessary here for the plaintiffs to state their particulars or imputations. It was sufficient to identify the matter complained of. In my view, a reasonable reading of that material would convey the meaning relied on by the plaintiffs at the trial.

29 This emerges, clearly I think, from the following analysis of the material:-

* The matter complained of opens, and ends, with references, made in mocking overtones, to some well-known Australian and English political and public figures and their ideas. Particular emphasis is given to whether a person was seen, or claimed, to be a monarchist or an Anglophile or Right Wing.

* Focus is first concentrated upon Mr Abbott, who is introduced as “the Liberal thinker”, but with the addition of the derisory “(hah)!”.

* The contact between Mr Ellis and Mr Abbott is then described, including Mr Ellis’ apparently easy deception of Mr Abbott into believing that Mr Ellis was a “fellow monarchist”.

* Mr Ellis next states his determination to destroy Mr Abbott remembering “with pleasure” Rodney Cavalier’s “gutsy account of history”. (It will be recalled that Mr Cavalier is later described by Mr Ellis as a monarchist, and an Anglophile.)

* The sting in the passage complained of follows. Reference is made to Mr Abbott and Mr Costello together, and one or other of their wives in these derisory, contemptuous and mocking terms:

“Abbott and Costello … they’re both in the Right Wing of the Labour Party till the one woman fucked both of them and married one of them and inducted them into the Young Liberals.”

* Mr Ellis’ stated response to this piece of “history” was again derisory –

” `Abbott and Costello?’ I said, laughing.”

* Next, as has been noted, the references to monarchists, Anglophiles etc. follow.

30 In my opinion, a reasonable reader would react to this “story” with the response that the plaintiffs’ reputations for honour, honesty and integrity had been discredited and that the professional and official reputations of Mr Abbott and Mr Costello had also been discredited, with the consequence that members of the community generally would have thought less of the plaintiffs. It follows, in my opinion, that on a natural and ordinary reading, the matter complained of defamed the plaintiffs.

31 On behalf of Random House, it was contended, in essence, that the passage in question could not defame because (a) it should be read as no more than two independent statements: (1) that the plaintiffs engaged in pre-marital sex; and (2) that the male plaintiffs changed their political allegiances; and (b) as a question of law, or mixed fact and law, such statements could not discredit the plaintiffs. As has been seen, I cannot accept the argument. The statements sued on must be viewed in their context. So viewed, as the above analysis shows, the statements were not independent. On the contrary, they were integral parts of an attack upon the plaintiffs which made effective use of the weapon of ridicule to seriously discredit the plaintiffs in the eyes of reasonable members of the community.

32 That being so, it is strictly not necessary that I consider the matter by reference to the particulars or imputations actually pleaded. However, since we heard full argument on them, I will consider them.

33 It will be convenient to consider the arguments on the appeals by reference to the imputations in the sequence pleaded. In doing so, I bear in mind, as has been said, that defamation is not limited to aspersions upon an individual’s private character – his or her reputation for honour, honesty or integrity – but embraces also disparagements of his or her reputation in trade, business, profession or office (see Fleming, The Law of Torts, 9thed. (1998) at 582). Both are, in my view, involved here. Moreover, defamation can be conveyed in any number of styles. What matters is the tendency of the utterance, not its form. Ridicule, for example, is a familiar weapon for attacking reputation (see Fleming, op. cit. at 584). This weapon, in my opinion, was effectively employed here to belittle Mr Abbott and Mr Costello, and to besmirch Mrs Abbott and Mrs Costello.

Imputation A(i) (that Mr Abbott (and Mr Costello) “so lacked personal integrity that, in return for sexual favours, he was willing to change his political allegiance”).

34 In holding that this imputation did not arise from the matter complained of, his Honour said (at 9 – 10):

“A(i) It is not necessary that the precise imputation be conveyed. However, to make out this imputation it requires an inference to be drawn of some sort of bargaining process having been undertaken with sex being offered for political defection. That inference, to my mind, is sheer speculation. It does not arise from the matter complained of.”

35 Mr Abbott and Mr Costello now contend that this imputation does, in fact, arise.

36 With all respect to the trial Judge, there is, in my view, substantial force in their contention. I think that the ordinary reader would read the matter complained of in the sense explained in A(i), which is, in truth, no more than a paraphrase. The ordinary reader would not, in my view, interpret the matter complained of so as to indicate, as his Honour thought, that a kind of bargaining process took place. In my opinion, A(i) is no more than a paraphrase of the central thrust of the passage complained of. As such, the imputation does arise.

37 The next question is whether such an imputation was defamatory. In my opinion, it was, for the reasons I have previously given; that is, such a statement would cast aspersions upon the private characters of Mr Abbott and Mr Costello, and would also disparage their professional and official reputations. Such a statement would discredit them and lower them in the estimation of others, and expose them to contempt or ridicule.

Imputation A(ii) (that Mr Abbott’s (and Mr Costello’s) “political commitment was so shallow that for sexual favours he was willing to abandon his principles for sex”).

38 As we have seen, Higgins J found that this did arise. Of Mr Abbott, he said (at 10):

“A(ii) This is precisely what the matter complained of means. The anecdote is clearly aimed at Mr Abbott. He is referred to as `the Liberal thinker’ – a person intellectually committed to that party or, at least, so regarded by his colleagues and the public. The anecdote is apparently perceived by the author as effective `to destroy him’; that is, to destroy the perception of Mr Abbott as a person intellectually and deeply committed to the Liberal Party. Instead, he is said to be a person who, as a result of a sexual liaison with a woman connected with the Young Liberals, or to facilitate that liaison, abandons his membership of the Labor Party and defects to the Young Liberals.The suggestion of `shallow political commitment’ is, in my view, one which does arise from the matter complained of, though I would read `for’ as meaning `by reason of’.”

39 Of Mr Costello, his Honour said (at 10):

“Although the primary target of the author’s anecdote is Mr Abbott, the imputation that strikes him, equally strikes Mr Costello. Imputation A(ii) therefore arises in respect of him, though neither of the other two does.”

40 In holding this imputation to be defamatory, Higgins J went on to say (at 13):

“In this case, the reader was positively invited by the preamble to the anecdote to assume that the anecdote relayed by the author would be to the discredit of Mr Abbott. It would `destroy him’ (exaggeration perhaps) as a `Liberal thinker’. Indeed the author appears to suggest that such a description, is, in any event, an oxymoron.I conclude, having regard to that consideration as well as the reasonable inference that might be drawn from the anecdote itself, that it does in fact convey the imputation of shallow political commitment. I further conclude, as the author invites the reader to do, that such a story, if true, would rebound to the disadvantage of Mr Abbott. I agree that the ordinary reasonable reader would, in fact, so conclude. It follows, it seems to me, that it equally rebounds in a similar manner to the disadvantage of Mr Costello. To hold them up, falsely, as persons of shallow political commitment would be libellous of them irrespective of their political profiles.”

41 Random House now appeals from each of these findings.

42 I agree with his Honour that this imputation did arise. Again, it is no more than a paraphrase of the central passage.

43 I also agree with the opinion of Higgins J that the imputation was defamatory, for the reasons his Honour gave.

Imputation A(iii) (that Mr Abbott (and Mr Costello) “was to be suspected of being of weak and unreliable character who allowed his political decisions to be dictated by his wife”).

44 His Honour refused to find that this arose, saying (at 10):

“A(iii) I have already noted that the anecdote does not imply any bargain or ultimatum so far as the woman is concerned. The remainder of the imputation is already contained within A(ii).This imputation does not arise as a separate inference from the matter complained of.”

45 Mr Abbott and Mr Costello now challenge this finding.

46 In my view, this imputation is a fair paraphrase of the text, and thus does arise.

47 I am further of the opinion that such an imputation was defamatory, essentially for the reasons given in respect of A(i) and (ii). The story would expose Mr Abbott and Mr Costello to contempt or ridicule, and their personal and official characters would be damaged in the eyes of ordinary reasonable members of the community.

Imputation B(i) (that Mrs Abbott (and Mrs Costello) “was to be suspected of being sexually promiscuous”).

48 In finding that this imputation arose, Higgins J said (at 11):

“Although the term used in this imputation is `promiscuous’, it only refers to two episodes of premarital sex. I have no difficulty in accepting that as an allegation of unchastity. Even with the use, in the matter published, of the word `fuck’ rather than `had sexual relations with’ or `made love to’, it does not impute the kind of serial conduct which seems to me to be properly described as promiscuity.Nevertheless, unchastity is necessarily conveyed both by the pleading and the matter complained of. I find that imputation is conveyed by the matter complained of. It is of lesser seriousness than that which is expressly pleaded. While not, perhaps, permissible in New South Wales (see Anderson v Mirror Newspapers Ltd (No. 2) (1986) 5 NSWLR 735), it can be regarded in this jurisdiction as a meaning relied on by the plaintiff in substance. It seems to me, therefore, that so to find does not offend against the principle of holding the plaintiff to her (or their) pleadings referred to in Hadzel v De Waldorf (1970) 16 FLR 174 at 181-2.

It was the defendant’s concession [but the making of the concession was disputed by Random House on appeal] that an inference of premarital sex was conveyed. It did not seek to justify that inference. It conceded that the same was untrue. It contended merely that to say of Mrs Abbott and Mrs Costello that they engaged in premarital sex was not defamatory. I conclude that there is no unfairness in finding that imputation B(i) is conveyed in relation to Mrs Abbott, though reading `sexually promiscuous’ as meaning `guilty of unchastity’ in the circumstances conveyed by the matter complained of.”

49 His Honour, then finding the allegation in the book defamatory, said (at 16):

“In the present case, the author of the book certainly does not take a censorious attitude to extramarital sex, no more than he does to drunkenness.However, while to say that society condemns such behaviour is perhaps to put too high a point upon it, it would, in the absence of explanation or some reason proffered to except it from the general rule, be regarded, if not with derision or contempt, then, at least, with disappointment.

The author himself invites the reader to treat the persons the subject of the anecdote with derision. That is partly because they are depicted not only as manipulative or manipulated, but also because they are falling below the preferred societal standard concerning extramarital sex.”

50 Higgins J went on to say (at 17):

“There is no doubt that the form and content of the publication may, as Hutley JA speculated in Cairns/Morosi, though alleging sexual misconduct, so present the occasion or circumstances of it that the reputation of the participants is positively enhanced. It may enhance one party to it but not another. It cannot, however, seriously be contended, in my view, that any such enhancement of reputation or standing has occurred in this case. The degree of offence, outrage, derision or contempt will vary. To some persons, it would be highly offensive, even outrageous, that a woman would be guilty of lack of chastity. Others might take the view that such conduct, while not ideal, is fairly commonplace. There would be some, perhaps, who would adopt the slogan, `if it feels good, do it’ and applaud such conduct.However, I have to abide by my view of the attitude, not of persons at either extreme, but of the ordinary reasonable reader generally. Even given the Labor bias likely among readers of the author’s works, there is every reason to suppose that such persons would predominantly adhere to what Mr Alfred Doolittle in My Fair Lady (a film based on the play, Pygmalion, by George Bernard Shaw) described as `middle class morality’.

Those persons would find nothing in the context of the anecdote to take away the view that the `woman’ had behaved immorally, surrendering her chastity not only to her future husband but also to another person.”

51 Random House now challenges each of these findings, submitting also that it was denied natural justice in the process.

52 In my opinion, there is substantial force in Random House’s argument that this imputation did not arise.

53 The Macquarie Dictionary (2nd ed.) definition of “promiscuous” offers the following meanings:

1. characterised by or involving indiscriminate mingling or association, esp. indulging in sexual intercourse with a number of partners. 2. consisting of parts, elements, or individuals of different kinds brought together without order. 3. indiscriminate; without discrimination. 4. casual; without particular plan or reason.”

54 Thus, all the ordinary meanings of the word reflect a notion of indiscriminate behaviour or conduct without any particular reason. But, in my view, an ordinary reader would reasonably interpret the matter complained of quite differently: the sting is in the suggestion that either Mrs Abbott or Mrs Costello planned, through the use of sexual relations, to manoeuvre or manipulate both Mr Abbott and Mr Costello into switching their political allegiances. This was not indiscriminate conduct. On the contrary, it was manipulative as his Honour found (at 16). It was not sexually promiscuous behaviour.

55 That being so, in my view, no issue of defamation, or of adjectival departure in that connection, arises.

Imputation (B(ii) (that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott (and Mr Costello)] was to be suspected of being a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance”).

56 His Honour, in finding that this did arise, said (at 11):

“B(ii) The reference to `by virtue of having married [Mr Abbott]’ is not part of the imputation. It is the pleader’s explanation as to why the imputation is suspected to apply to her. Mere `low moral standards’ are already imputed by B(i). The additional matter is the suggestion of the `use of’ sexual relations to get others to change their political allegiance.The true imputation is that the woman exploited the sexual liaison, or the prospect of it, to achieve the result of changing the man’s political allegiance. In that sense, it seems to me that the imputation as pleaded arises from the matter complained of.”

57 However, Higgins J went on (at 13 – 14) to conclude that this was not defamatory:

“So far as Mrs Abbott or Mrs Costello is concerned, whichever of them is to be regarded as `the woman’, she is not directly stated to have used the occasion of the sexual liaison to entice the men to the Young Liberals. That she did so depends upon the drawing of an inference that she misused the occasion of their liaison to induce the men to join the Young Liberals.The question is whether that is defamatory of the woman in question. In my view it is not. The fact that a woman is committed politically and is persuasive, albeit to a weak-willed and sexually driven male, does not, I believe, cause the woman to be regarded less highly. It may be otherwise if the sexual liaison was commenced for that purpose but I have concluded that that inference does not arise.

It follows that while the inference arises that the woman used the occasion in question to promote the Young Liberals to her then partner, that inference would be taken by the average reasonable reader not to reflect adversely upon the woman. It is not defamatory.”

58 Mrs Abbott and Mrs Costello now challenge this conclusion.

59 I agree with the primary Judge that B(ii) is a fair paraphrase of the publication.

60 However, with respect, I cannot agree that such an imputation was not defamatory. An ordinary reasonable reader would react to this story as an aspersion upon the private characters of Mrs Abbott and Mrs Costello, specifically upon their honour, honesty and integrity and would think less of them accordingly.

61 His Honour did, at this stage, refer to a scenario that “a woman is committed politically and is persuasive, albeit to a weak-willed and sexually driven male …”. But, as has been noted, the primary Judge went on to find (at 16), correctly in my view, that the women “are depicted … as manipulative …”. To attribute this manipulative character to Mrs Abbott and Mrs Costello would discredit them by damaging their reputations in the eyes of ordinary reasonable members of the community.

Imputation B(iii) (that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott (and Mr Costello)] was to be suspected of being a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party”).

62 Holding that this did not arise, his Honour said (at 11):

“B(iii) This adds to the former imputation an allegation of deliberation. That is, that the woman sought out sexual partners with a view to inducting them into the Young Liberals. That is, to my mind, a forced or strained interpretation, capable of being held only by a process of speculation rather than by inference.”

63 Mrs Abbott and Mrs Costello now challenge this finding.

64 There is, in my view, substantial force in their challenge. The imputation does, I think, amount to a fair paraphrase of the passage.

65 Is the imputation defamatory? In my opinion, it is, for reasons similar to those given in respect of B(ii).

Imputation B(iv) (that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott (and Mr Costello)] was to be suspected of so lacking respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs”).

66 Higgins J held that this did not arise. He said (at 9):

“It is important to distinguish between inferences which the ordinary reasonable reader would draw from the matter published and speculation such as a reader might, even probably, engage in. …It is for that reason that I conclude that the matter published does not convey the meaning that `the one woman’ married Mr Abbott or Mr Costello before their alleged defection or so as to induce it. It is not clear whether the alleged defection is supposed to have followed the marriage or preceded it.”

67 His Honour went on to say (at 11):

“B(iv) I have already noted that any inference that the change of political beliefs was caused by, or followed, the marriage referred to, can only be derived by a process of speculation rather than reasonable inference.”

68 Mrs Abbott and Mrs Costello now dispute this conclusion, but I agree with it, for the reasons given by Higgins J.

Imputations D(i) to D(v)

69 His Honour found (at 7 – 8) that no “true innuendo” case arose here. The primary Judge said (at 8):

“I should say, at the outset, that this does not seem to me to be a case in which a true innuendo, in fact, arises. The matter complained of does not convey to me that the marriage of the `one woman’ to `one of them’ took place before the induction of Messrs Abbott and Costello into the Young Liberals. Thus the fact that Mr Abbott joined the Liberal Party after marrying Mrs Abbott would not assist the reader to identify, or not, Mrs Abbott with the woman referred to.Further, attendance or otherwise at the University of Sydney is not a matter referred to in the matter complained of. Whether the alleged sexual relations occurred during or before the parties completed their education seems also irrelevant. It is true that knowing that Mrs Abbott, a New Zealander, did not come to Australia until 1983 and did not have any prior connection with the Young Liberals or the Liberal Party would exclude the identification of her as the woman referred to. However, to those persons, the matter would not convey any of the pleaded imputations concerning her. It would, in fact, deny them.

So far as Mrs Costello is concerned, knowing that she had been a Liberal activist and had met, and was acquainted with, and, indeed, had joined in student politics with, each of Mr Abbott and Mr [ ]Costello, could assist in identifying her as the woman referred to, rather than Mrs Abbott. However, that does no more than the matter itself does in conveying the imputation that she had wooed both Mr Abbott and Mr Costello away from the Labor Party and towards the Liberal side of politics. Needless to say, there is no need for any extrinsic fact to convey whatever imputations arise in relation to either Mr Abbott or Mr Costello.”

70 Mr Abbott and Mr Costello now challenge this conclusion, but again I agree with Higgins J, for the reasons he gives.

___________

71 Overall, however, for the reasons I have previously stated, I would dismiss the appeal on the issue of liability.

CONCLUSIONS ON THE APPEALS – DAMAGES ISSUES

72 As has been mentioned, Random House challenges each of the awards of damages as excessive.

73 It will be convenient to consider the issues that now arise on the measure of damages in the order dealt with by his Honour.

(a) Ordinary compensatory damages

(i) Mrs Abbott

74 In awarding a sum of $30,000, his Honour said (at 44):

“Mrs Abbott was a case of collateral damage. It is likely that most readers would have assumed that `the woman’ was Mrs Costello. Most readers would have been persons interested in politics. Nevertheless, some would not have done so. The story appeared aimed at Mr Abbott. That could have led to a conclusion that he had been so besotted by `the woman’ as to not only leave the Labor Party for the Young Liberals, but also to marry her.There is no imputation of infidelity, of dishonesty or criminal conduct. The damages should be enough to be vindicatory without being extravagant, having regard to the defendant’s efforts, such as they were, to mitigate the harm.”

75 I agree with these conclusions. Moreover, in my view, his Honour’s award of this amount in vindication of Mrs Abbott’s reputation, was clearly within an appropriate range. In my opinion, no serious case for appellate interference here has been demonstrated.

(ii) Mr Abbott

76 Mr Abbott’s award was $40,000. Higgins J said (at 44):

“He was the target: `I determined to destroy him.’ Obviously, the author meant `destroyed’ as a serious political thinker. Mr Abbott was to be an object of ridicule. That can be a devastating political weapon. The accusation against him was of a submission to a political conversion for less than intellectually persuasive reasons. Of course, it may have been politically damaging to the plaintiff to have it suggested that, as a prominent Liberal, he had once been a Labor Party member. That is not, however, defamatory. It is the suggestion of the change being for reasons of personal pleasure, not genuine conviction, that is defamatory.In his case, I also note the early withdrawal of the book and the publicity given to it in mitigation.”

77 I agree with these conclusions. Further, an award of this amount was plainly open to his Honour. It is not excessive.

(iii) Mrs Costello

78 In awarding a sum of $40,000, the primary Judge said (at 45):

“Her position, so far as ordinary compensatory damages are concerned, is similar to that of Mrs Abbott. However, as I have noted, more readers would have assumed that she was the person referred to than would have suspected one or the other equally, or have assumed Mrs Abbott to be the one.”

79 I agree with his Honour’s approach. No real case for interference with this assessment has been made out. It is not excessive.

(iv) Mr Costello

80 His Honour was of the opinion, “on balance”, that $40,000 was “appropriate”, saying (at 45):

“His position is similar to Mr Abbott. On the one hand, I accept that he enjoyed a higher profile and reputation. His political prospects were at risk of greater damage. On the other hand, the author was clearly to be seen as aiming at Mr Abbott’s career prospects. The largest single group of book sales was in New South Wales.”

81 I agree with these conclusions. They could not be seriously challenged. In my opinion, this award was within range, and clearly open to the trial Judge.

(b) Injury to feelings

(i) Mrs Costello

82 In making an award of $30,000, Higgins J said (at 45):

“In the present case, I consider Mrs Costello to have been the most seriously wounded in her feelings. I found her to be a deeply religious woman, who would see herself, quite reasonably, as doing good for others. She is able and intelligent. I have no doubt that increased her perception of the harm that might follow and the outrage concerning it.”

83 His Honour’s approach was clearly justified by the evidence, which was not seriously challenged. This award was plainly within an acceptable range.

(ii) Mr Costello

84 His Honour assessed Mr Costello’s damages at $20,000, saying (at 45):

“The next most injured, I consider, was Mr Costello. His reaction was more controlled fury than emotional devastation. Much of his anger and outrage was that a political attack was made on him (and Mr Abbott) through his wife, accusing her of conduct of which she was entirely innocent. I do not feel obliged to consider that latter reaction irrelevant because it arises from the slur cast on Mrs Costello. That, to me, would be entirely artificial.”

85 I agree with his Honour’s approach. Again, no basis for appellate interference with the award here has been shown: it is not excessive.

(iii) Mr Abbott

86 In awarding $15,000, Higgins J said (at 45):

“Mr Abbott was angry. Part of his outrage was, as he said, that the relationship between him, a senior colleague and his wife was called into question and besmirched. His sense of unease and anger were, I accept, heightened when he realised that his wife also was inferentially traduced.I feel, however, that Mr Abbott’s sense of outrage and injury was lessened by the considerable local publicity given to the withdrawal and pulping of the book. No-one would have doubted it was because he had been libelled in it by a false story.

Nevertheless, I consider an additional award of $15,000 appropriate.”

87 His Honour’s inferences were consistent with the evidence, which was not really challenged. This award was clearly within an appropriate range in these circumstances.

(iv) Mrs Abbott

88 In making an award of $10,000, his Honour said (at 45 – 46):

“Mrs Abbott knew it was not her who was aimed at. Indeed, some of her `unease’ was due to the discomfort of knowing that the author had determined `to destroy’ her husband, politically, of course, not physically.It was unpleasant for her. There was the inevitable anxiety of the litigation. I consider an additional award of $10,000 is warranted.”

89 I agree with the approach taken by the primary Judge. Again, no reason for interference with this assessment has been shown.

(c) Aggravated compensatory damages

90 His Honour rejected a claim that Random House had acted with “express malice”, but went on to say (at 47):

“Its lack of proper apology and steps to recall the book might fall short of the ideal, but this was not, I believe, out of a desire to continue or exacerbate the injury to the plaintiffs or to achieve some collateral purpose.”

91 Higgins J found (at 48) that Random House’s failure to check the accuracy of the matter complained of was “negligent” but “not, in itself, reckless”.

92 With respect to the extent and mode of publication, his Honour noted (at 48) that over 3,000 copies of the work still remained “out there”; that, many who have it, or have read it, will now know that the story about the plaintiffs was false in every material particular; that Random House was a large, well-known and well-respected publishing house; and that the book was likely to attract the attention of “the politically aware, the opinion makers, those who have influence, inter alia, over the careers of current politicians”.

93 In regard to Random House’s failure to apologise, his Honour said (at 48 – 49):

“In the present case, though withdrawing the book, having ascertained with a high degree of certainty that the story concerning the plaintiffs was false, the defendant did not itself publicly endorse that finding. It offered no solace to the plaintiffs save an inference that it could not support the truth of the matter complained of. It did not dissociate itself from the occasional defiant rumblings attributed in the press to the author.It had no possible defence to the charge that the matter complained of was false and penned by the author with a view to destroying the reputation for serious political thought of Mr Abbott, and, necessarily, also for Mr Costello. It should have recognised that it cast a slur upon the reputation of the `one woman’.

A complete withdrawal and apology would have cost the defendant nothing. It did not have to concede that the story made defamatory imputations as a matter of law. It did make false imputations and it should have acknowledged that. Common decency demanded a full retraction and apology. It was not given.”

94 With respect to Random House’s conduct of the litigation, his Honour held that the failure to promptly and frankly admit the truth to be “unjustifiable”, saying (at 49):

“The defendant would not, by publishing an apology and retraction, necessarily be taken to admit that the matter complained of was defamatory if it genuinely, though mistakenly, believed otherwise.To quibble as to who should submit first the form of apology strikes me as unwarranted `fencing’. The defendant did the wrong. It should have, at least, started the process by suggesting specifically what it was prepared to do by way of amends.

That reluctance is even more reprehensible, even if contrary to its own interests, when it is recognised that a full apology and payment into court of `a sum of money by way of amends’ is not merely an offer of settlement, but a complete defence: see s 8 of the Defamation Act 1901 (ACT).”

95 Higgins J also held (at 49) that the steps taken by Random House to recall the book from libraries (copies were still held by at least twelve significant libraries) were “seriously inadequate”, and that this “tardiness” added to the plaintiffs’ “concern and frustration”.

96 It will be recalled that his Honour allowed aggravated damages as follows:

Mrs Abbott $5,000

Mr Abbott $7,500

Mrs Costello $15,000

Mr Costello $10,000

97 In my opinion, the factors mentioned by his Honour were appropriate considerations to be taken into account, as a question of principle, in deciding that it was proper to award aggravated damages in this case. With respect to the quantum of the specific awards, the amounts assessed were plainly within an acceptable range. They are not on their face excessive and no error of principle has appeared.

98 Random House further submitted that the primary Judge erred in awarding damages for failure to apologise both in the award for ordinary compensatory damages and the award for aggravated damages, and that this amounts to double compensation. I agree with what Drummond J has written on this question.

99 In my view overall then, the damages appeal also fails.

ORDERS PROPOSED

100 I propose that the appeals be dismissed, with costs.

I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated: 10 November 1999

IN THE FEDERAL COURT OF AUSTRALIA
CANBERRA DISTRICT REGISTRY A 23 OF 1999

A 24 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURTOF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

AND:

RANDOM HOUSE AUSTRALIA PTY LIMITED

Appellant

THE HON ANTHONY JOHN ABBOTT

First Respondent

MARGARET VERONICA ABBOTT

Second Respondent

BETWEEN:

AND:

RANDOM HOUSE AUSTRALIA PTY LIMITED

Appellant

THE HON PETER HOWARD COSTELLO

First Respondent

TANYA PAMELA COSTELLO

Second Respondent

JUDGES: BEAUMONT, MILES & DRUMMOND JJ
DATE: 10 NOVEMBER 1999
PLACE: SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

MILES J:

101 On issues relating to liability, I agree with the statements of principle set out in the judgments of Beaumont J and Drummond J, which I have read in draft form. To the extent that there is a conflict on the conclusions reached by their Honours (which appears to me to arise only in relation to imputation B(i) and innuendoes D(i) to D(v)) I agree, with respect, with those of Drummond J.

102 I wish to add that, in my view, there is considerable force in the reference by Beaumont J to the remarks of Gaudron and Gummow JJ in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 545 that words do not mean what the parties choose them to mean and that ordinarily the defamatory material will, itself, sufficiently identify and, thus, confine the meanings on which they may rely. I agree with Beaumont J that, in the present case, the matter complained of would convey the meaning relied on by the plaintiff at trial without the need for prolix “particulars” of meaning pleaded as imputations or false innuendoes. Furthermore, as Drummond J observes, debate about the meaning of the passage in question has become increasingly remote from the text as the case has moved progressively from pleadings to trial to appeal, so that, in the end, much time and effort has been taken up in concentrating on what the trial judge meant when he recast the imputation of “promiscuity” as one of “unchasteness” when neither word appears in the text at all. Such profitless exercises about the meaning of meanings may be difficult to avoid where the law provides (as it does in New South Wales, one of the places of publication) that each imputation provides a separate cause of action. In common law jurisdictions, such as the Australian Capital Territory, such exercises can and should be avoided.

103 In relation to damages, I agree, in the end, that the appellant has not shown that the award to any plaintiff was outside the range of a sound discretionary (or value) judgment, and for that reason I agree that the appeals against damages must fail. However, I do not agree that substantial issues on damages were not raised by the appellant and, in my view, they deserve attention.

104 The rationale of an award of damages for defamation at common law has been the subject of differing opinions and approaches over a long time. The historical background is explained by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149-151 and by McHugh J in Carson v John Fairfax & Sons Pty Ltd [1993] HCA 31; (1993) 178 CLR 44 at 102-103. At one end of the spectrum is compensation for the plaintiff and at the other is punishment of the defendant, each factor always being present but neither being entirely distinguishable from the other, since compensation for the purposes of defamation is not the same as compensation for the purposes of other, probably most, areas of the law. Compensation in the latter or usual sense is intended to place the plaintiff, as far as money is capable of so doing, in the position that the plaintiff would have been but for the defendant’s wrongdoing, a principle which has become so familiar that Diplock LJ described it as a platitude: Fletcher v Autocar and Transporters Limited [1968] 2 QB 322 at 340. The tort of defamation has a quasi criminal background and the liability of a defendant includes exposure to a monetary remedy which, to a variable extent, is supposed to express social disapproval, even if the defendant’s conduct falls short of warranting the award of exemplary or punitive damages, the latter being specifically directed towards punishment of the defendant and not compensation for the plaintiff.

105 Whatever be the continuing controversy amongst the academic writers and in other parts of the world, the High Court has spoken authoritatively for Australian courts.

106 The majority judgment of the High Court in Carson states at 60-61:

“Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that `the amount of a verdict is the product of a mixture of inextricable considerations’: Uren v John Fairfax & Sons Pty Ltd, per Windeyer J at 150. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation: Carson (1991) 24 NSWLR at 296-299. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant: Uren v John Fairfax & Sons Pty Ltd at 150Coyne (1991) 172 CLR at 216; John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 at 142; McCarey v Associated Newspapers Ltd [No 2] [1965] 2 QB at 107. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. `The gravity of the libel, the social standing of the parties and the availability of alternative remedies’ are all relevant to assessing the quantum of damages necessary to vindicate the appellant: Fleming, Law of Torts, 8th ed (1992) at 595.”

107 It appears that the component of consolation for hurt feelings plays an increasingly important part in defamation litigation. Windeyer J in Uren made it clear at 151 that that element of damages has always been available:

“That defamation may produce indignity and humiliation and that these can attract monetary compensation is no new doctrine. It goes back to the early Middle Ages …”

108 Until Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 the distinction between aggravated compensatory damages and exemplary damages was regarded as of little importance. After the House of Lords decided in Rookes v Barnard that limits should be placed on the classes of cases in which exemplary damages may be awarded, the High Court in Uren declined to follow that decision. In doing so, it brought to bear a focus on the circumstances in which aggravated compensatory damages may be awarded, and made it clear that such damages are attached to and, in addition to, “ordinary” compensatory damages for hurt feelings.

109 Furthermore, in Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027, Lord Diplock lent encouragement to shifting the emphasis from loss of reputation to hurt to feelings. In a short but seminal passage he said at 1125:

“The harm caused to the plaintiff by the publication of a libel upon him often lies in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him.”

110 Although Lord Diplock appeared to confine this aspect of the damages to the plaintiff’s concern about the effect of the libel on others, that is to say indirectly, the damage to reputation, other pronouncements since then have made it clear that the damages under this head encompass a good deal more and extend to the subjective insult felt by the plaintiff who need not necessarily reflect upon what others think at all. For instance, in CarsonBrennan J said at 71 that the consequences of publication are not restricted to the insult publicly inflicted on the plaintiff and its effect on reputation. His Honour added:

“Damages are awarded also for the plaintiff’s injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and all those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors.”

111 Concentration at the trial on hurt to feelings and a failure on the part of juries to appreciate that that component, if substantial, provides vindication, may go to explain the excessive verdicts of juries which have been the subject of comment and concern by appellate courts in recent years. Defamation trials are seldom concerned with proof of damage to reputation. The plaintiff will typically give evidence of the effect on him or her on reading or hearing of the libellous material and witnesses will be called to give evidence of their own observations of the effects it has or had on the plaintiff. That will be followed by cross-examination of the plaintiff as to the genuineness or true cause of the plaintiff’s distress. If the cross-examination is unsuccessful, the plaintiff’s counsel will rely on it as an aggravating factor by virtue of which the damages are likely to be increased. There is a graphic description of evidence of this nature in the judgment of Mahoney A-CJ in Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 190.

112 This shift from loss of reputation to hurt to feelings is not confined to Australia. According to McDonald, Irish Law of Defamation (1989) at 287:

“The estimation which an individual enjoys before others is the pre-eminent value served by the present law of defamation. But it does not seem to be the only one. The relief of emotional distress caused by the publication is becoming increasingly recognised as a further object of the law’s protection. However, this secondary purpose does not rest comfortably with the first. Indeed, it has enveloped the action in such a cloud of uncertainty that now it is open to question just which of the two is the purpose which the action seeks to further.Quite often, from the way a plaintiff and his counsel bemoan his situation in court, and from the sympathetic way which the jury is encouraged to, and often does, respond, and from the fact that the legal presumption of damage to reputation avoids any necessity to show actual damage, it appears that the action is really about satisfying the plaintiff’s hurt feelings, and not vindicating his standing in the community. This suspicion is greatly strengthened by the fact that it is money – and not some rehabilitating redress – which is awarded to a successful plaintiff, and which he can do with as he pleases.”

113 In the United States, where “the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact” the Supreme Court has ruled that “it is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury”: Gertz v Welch [1974] USSC 144; 418 US 323 at 349-350.

114 In Scots law proceedings for hurt to feelings (solatium) were taken in the commissary courts and the element of loss to reputation was dealt with in the civil courts. Despite the merging of jurisdictions, an action for solatium may still lie although there has been publication to no one but the injured party: K Norrie, Defamation and Related Actions in Scots Law (1995) 164.

115 In Australia there has been no attempt judicially or legislatively to restrict or isolate damages for hurt to feelings. The mixture of “inextricable considerations”, which ultimately governs an award of damages for defamation, means, as McHugh J (although dissenting on other matters) put it in Carson at 115:

“The elements of an award of damages in a defamation action are so intangible and the criterion of value so vague that no two persons are likely to agree, even approximately, on what is a proper award for a defamation. This is so even in a case where exemplary damages cannot be awarded.”

116 Thus the assessment of damages by the tribunal of fact is not lightly to be set aside as excessive by a court of appeal. The cases that repeat that principle in relation to jury verdicts are referred to by Toohey J with whom Dawson and McHugh JJ agreed, in Coyne v Citizen Finance Limited [1991] HCA 10; (1991) 172 CLR 211 at 238-239. It is appropriate that a similar approach be taken to an appeal from assessment by a trial judge sitting without a jury unless the trial judge’s reasons reveal error. Nevertheless an appeal court will intervene to correct an award of damages which is manifestly excessive or inadequate although the reasons display no identifiable error. This Court did so in Humphries v TWT Ltd [1993] FCA 577; (1994) 120 ALR 693. In that case the Court said at 700:

“Where it is not shown that the trial judge acted upon a wrong principle of law or misapprehended the facts, the court will infer that the judge’s discretion miscarried only where it is satisfied that the amount is so high or so low as to be a wholly erroneous estimate of the damages to which the party is entitled. Where specific error in principle or fact cannot be identified, Fox J in Mirror Newspapers Ltd v Jools [1985] FCA 153; (1985) 65 ALR 174 at 176 said:`It then becomes a question of what matters his Honour could properly have taken into account in arriving at this amount, and whether, bearing these matters in mind, the award should be disturbed.'”

117 Furthermore, the advantage that the trial judge has in seeing and hearing from the plaintiff (and possibly other witnesses) must be acknowledged, especially where hurt to feelings forms a substantial part of the plaintiff’s claim as it does increasingly in defamation litigation. The present case is a further illustration of that tendency, as the trial judge acknowledged.

118 Because the law presumes harm to reputation from a libellous publication, a plaintiff does not have to prove or call evidence about actual harm. There was very little by way of evidence of damage to reputation in the present case. Much of the trial was taken up by examination and cross-examination of each plaintiff as to his or her reaction, both as to the publication and to the defendant’s conduct. The multiplicity of imputations pleaded contributed to the complexity and length of the trial in this regard. Counsel for the plaintiffs sought, as he was entitled to seek, from the plaintiff being examined, expressions of his or her understanding of the meanings of the words published. To the extent that the understanding more or less coincided with one or more of the imputations, the plaintiff was then able to describe his or her reaction in terms of outrage, affront, hurt, indignity and the like. Witnesses were called to give evidence as to what they had heard the plaintiff say about his or her feelings and what they observed about the plaintiff’s conduct and demeanour as an apparent consequence of the publication. Invariably, perhaps inevitably, such witnesses said that their own previous high opinion of the plaintiff was in no way affected by the defamatory content of the publication. Counsel for the defendant sought in cross-examination to confine the plaintiff’s understanding of the publication to a meaning or meanings least likely to cause substantial hurt, or least likely to be defamatory.

119 There is substance in the submission made on behalf of the appellant that the compensatory component of the award should reflect the likelihood that the reputations of all plaintiffs hardly suffered at all. The statements of claim lead with opening paragraphs declaring that Mr Costello is and was at all material times the Treasurer in the Government of the Commonwealth of Australia, the Deputy Leader of the Liberal Party in the Parliament of the Commonwealth and the Member for the electorate of Higgins, and that Mr Abbott is and was at all material times the Parliamentary Secretary to the Minister for Employment Education and Youth Affairs within the Government of the Commonwealth of Australia and the Member for the electorate of Warringa. During the hearing, Mr Abbott was sworn in as Minister. His Honour was reminded more than once of the need for both plaintiffs to absent themselves from the courtroom from time to time in order to attend to important affairs elsewhere. There could be and was no suggestion that their parliamentary careers had suffered as a result of the publication and there was no direct evidence that, as a result of the publication, anyone had ever questioned their private or public integrity.

120 There is also substance in the further submission that the tone of the matter complained of, in its context within the book, was such that the ordinary reader could hardly be expected to take it seriously. That does not mean that it was not defamatory, nor that being defamatory, it does not open up liability on the part of the publisher for damages under heads other than loss of reputation. But the fact of the matter is that the ordinary reader would come to the offending passage in the book after reading much of what goes before (472 pages of it), and apart from an initial reaction to the offending passage, would not come to any conclusions without reading further and, at least partly, into the remaining 133 pages. The ordinary reader would be aware that the matter complained of is preceded by a sensitive description of the author’s relationship with the poet Les Murray, particularly during the illness of the latter, with a lengthy extract from one of Murray’s poems. The matter complained of is immediately followed by an outrageous account of how Dame Nellie Melba prepared herself for her theatre appearances, an account so preposterous that no reader could begin to believe it, were it not presented as purporting to originate from the historian, Manning Clark, who vouched for its truth to another historian, Ian Turner. The book as a whole, as its subtitle suggests, is an almost structureless series of musings, recollections, anecdotes and the like, in which it appears to be the author’s intention to challenge the reader to distinguish between fact and fiction, reality and dreams, history and myth. The ordinary reader is likely to come away not knowing what to believe. The prurient reader who would read only the matter complained of might be prepared not to disbelieve some of it. In the classic language of defamation law the mud would stick, and the suspicion lurk, and for this the plaintiffs are entitled to damages.

121 As far as damage to reputation is concerned, the matter complained of appears to strike hardest at Mr Rodney Cavalier. The ordinary reader would be aghast at the idea of anyone telling such a story as the author attributes to Mr Cavalier, unless the story were true, and the ordinary reader, suspecting that the story was not true, would suspect the more that Mr Cavalier was indulging in a cheap, smutty lie at the expense of the plaintiffs. Furthermore, at the end of the litigation, one might note, almost in passing, that the person whose reputation is in tatters is the author. In seeking to “nail the lie” the plaintiffs did not seek an apology or explanation from him and did not sue him. It is a curious feature of the case that the outrage of the plaintiffs is directed against the publisher, Random House, and not against the author. That did not stop their counsel referring to the author in the most disparaging terms at various times during the trial, thereby assisting the process of vindication.

122 It was the conduct of the publisher, not that of the author, on which reliance was placed, successfully, for an award of aggravated damages. Clearly each of the plaintiffs impressed his Honour in giving an account of his or her reaction to learning about and reading the publication, talking about it to members of the family or close associates, or not talking about it as the case may be, and then, as further matters of aggravation, reacting to being told of the various steps in the litigation and the appellant’s conduct in relation to the demands for apologies and in relation to negotiations between the lawyers. His Honour took a very dim view indeed of the appellant’s failure to apologise, of the language in which the appellant’s solicitors conducted the negotiations (“pious cant”), and of what he considered to be desultory efforts to seek out and destroy copies of the book that had found their way into institutional libraries and other matters. His Honour was also less than impressed with the evidence of Ms Funnell, the literary editor of the appellant, who read the manuscript prior to publication with a view to excising anything libellous, and who said that it did not occur to her that the matter complained of was defamatory.

123 It was submitted for the appellant, as I understand it, that the law is that failure to apologise is not a matter that goes to aggravated damages. Reliance was placed on the majority judgment in the High Court in Carsonwhere it was said at 66:

“Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff’s hurt or widen the area of publication. No doubt want of apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff’s injury.”

124 Notwithstanding that passage, as Drummond J points out, the New South Wales Court of Appeal held in Clark v Ainsworth (1996) 40 NSWLR 463 that damages for hurt to feelings may be assessed taking into account the plaintiff’s increased hurt brought about by the failure to apologise, and that aggravated damages may be awarded additionally for the same failure if it involves improper or unjustifiable conduct. That decision has been followed in the Victorian Court of Appeal. This Court in Humphries at 699 stated that a failure to apologise was relevant to general compensatory damages “even in the absence of circumstances of aggravation”. There are other cases impossible to reconcile with the statement in Carson, except upon the basis that failure to apologise is always relevant to subjective hurt to feelings but can be taken into account for the purpose of aggravated damages only if it is part of a pattern of conduct so unmeritorious by objective standards as to warrant increasing the plaintiff’s damages, but always stopping short of awarding damages in order to punish the defendant. On the other hand, if the conduct relied upon goes beyond the failure to apologise, as his Honour clearly thought it did in the present case, then the failure may then be taken into account as part of the overall pattern: but failure to apologise is never, without more, enough to warrant aggravated damages. Upon that basis, no error is shown in his Honour’s approach.

125 His Honour used strong language in his criticism of the appellant and its advisers, describing the latter as betraying “a disappointing moral bankruptcy”. He considered that the appellant and its advisers lacked “the ideals of honesty and accuracy”, which should have commended them to publish an apology. His Honour used colourful terminology in relation to what he considered to be the conflicting “frames of moral reference” of the parties. His Honour concluded that “the author and the defendant have managed to beguile the defendant’s legal advisers into believing that the current norms likely to be applied by this court, are now those of nineteenth century ale houses”. It was submitted that there was no evidence to support these and similar epithets and conclusions. That may well be, but it does not follow that his Honour was wrong in deciding that the conduct of the appellant and its advisers, taken in conjunction with the graphic evidence of the plaintiffs as to their reaction to that conduct, entitled them to aggravated damages. His Honour was clear in distinguishing between conduct which gave rise to aggravated damages and conduct which might have warranted an award of exemplary damages and specifically found (somewhat surprisingly in the light of the strength of his criticism of the appellant) that the conduct was not so serious as to fall within the latter category.

126 Then it was submitted that his Honour did not distinguish between hurt experienced by an individual plaintiff as a result of the libel of that plaintiff in contrast to the outrage resulting from the indignity and humiliation heaped upon that plaintiff’s spouse. The clearest example of this was perhaps in the case of Mr Costello where it was suggested that he was more concerned about the attack on his wife than that upon himself. However, his Honour did consider this aspect and concluded that it would be “artificial” to draw the distinction for the purpose of awarding damages. In any event, the transcript shows that, whilst Mr Costello’s initial concern was for his wife, it changed over time when he came to conclude that he himself was the true target of the publication and that political enemies were using his wife for that purpose. Indeed, both Mr Costello and Mr Abbott spoke at length about their concern for the health of the Australian political system if such publications were allowed to continue. It is highly doubtful whether that particular concern was a proper basis for damages (and it is hardly relevant to anything else) but his Honour appears not to have taken it into account. As a matter of principle, it is correct, as submitted on behalf of the appellant, that a person is not entitled to damages by being outraged at the defamation of somebody else. However, it has not been shown that his Honour proceeded erroneously in this regard.

127 In conclusion, it should be acknowledged that no point was taken on the appeal that his Honour should have made separate awards for each of the causes of action that accrued by publication in each of the States and Territories. The practice of awarding one lump sum for interstate publication appears to be accepted by this Court and was followed in Humphries as well as in Australian Broadcasting Commission v Comalco Ltd (1986) 68 ALR 259, cf David Syme & Co Ltd v Grey [1992] FCA 479; (1992) 115 ALR 247.

128 I agree that the appeals should be dismissed with costs

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles.

Associate:

Dated: 10 November 1999

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 23 OF 1999

A 24 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THEAUSTRALIAN CAPITAL TERRITORY

BETWEEN: RANDOM HOUSE AUSTRALIA PTY LTD

Appellant

AND: THE HON ANTHONY JOHN ABBOTT

First Respondent

MARGARET VERONICA ABBOTT

Second Respondent

BETWEEN: RANDOM HOUSE AUSTRALIA PTY LTD

Appellant

AND: THE HON PETER HOWARD COSTELLO

First Respondent

TANYA PAMELA COSTELLO

Second Respondent

JUDGES: BEAUMONT, MILES AND DRUMMOND JJ
DATE: 10 NOVEMBER 1999
PLACE: SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

DRUMMOND J:

129 These are appeals from a decision of a judge of the Australian Capital Territory Supreme Court sitting without a jury, who held that the publication by the appellant of a short passage in a book written by Mr Bob Ellis was defamatory of each of the four plaintiffs. His Honour awarded damages, including aggravated damages, to each. He declined, however, to award anything by way of exemplary damages.

130 Two actions were heard together by his Honour. In the first, the plaintiffs were Mr and Mrs Costello and, in the second, Mr and Mrs Abbott. At all material times, Mr Costello was the Treasurer in the Federal Government and Deputy Leader of the Parliamentary Liberal Party, while Mr Abbott was a prominent Liberal member of that Government.

131 Mr Ellis’ book is entitled Goodbye Jerusalem: Night Thoughts of a Labor Outsider. The learned primary judge described the book as “a series of reminiscences and stories generally about politics and, as the title implies, from a Labor perspective. The author has his heroes and villains. The latter are most frequently drawn from the conservative side of politics, though some Labor figures are also treated with scorn and derision.”.

132 The plaintiffs’ complaint is about one of these stories. It is set out in each statement of claim as follows:

“At the launch also was Tony Abbott, the Liberal thinker (hah!) and he greeted me as a fellow monarchist (carefully lying, I nodded) and though of another party `a fellow partaker of the comradeship of the trenches’. I liked him of course, the way one does, and determined to destroy him, the way one does, and remembered with pleasure Rodney Cavalier’s gutsy account of history.`Abbott and Costello’, said Rodney Cavalier, pacing up and down his baronial mansion after serving me for dinner as was his custom bread and water, `they’re both in the Right Wing of the Labor Party till the one woman fucked both of them and married one of them and inducted them into the Young Liberals.’

`Abbott and Costello?’ I said, laughing.

`That’s what I said,’ said Rodney. `Why are you laughing?’

Rodney was a monarchist too, and an Anglophile, and a fan of Asquith and Harold Nicolson and Maynard Keynes.

`What are the arguments for monarchism?’ I asked him.

`There aren’t any,’ he said. `You must never argue for something that is intellectually unsustainable.’

`Why believe in it then?’

`Because the alternative,’ he said with ferocity, `is UNTHINKABLE.’

Diaries, September 1994.”

133 It has never been in dispute that the “Abbott and Costello” here referred to are the two male plaintiffs; no criticism was made of the learned primary judge’s finding that “[t]he reader would infer that the `woman’ was the present wife of one of them”, ie, either Mrs Abbott or Mrs Costello.

134 As the learned primary judge noted early in his judgment, what Mr Ellis had to say about Mr Abbott and Mr Costello having once been members of the Labor Party and about there being a sexual relationship between either Mrs Abbott or Mrs Costello and both Mr Abbott and Mr Costello was false; moreover, Mr Abbott has never had any kind of sexual relationship with Mrs Costello. Nor did Mr Cavalier ever say any of the things which Mr Ellis attributes to him or support in any way the truth of the story recounted by Mr Ellis. The appellant now says that, soon after publication, it publicly acknowledged all that: although it did not apologise, it then took some steps to withdraw the book from circulation. A year or so later it took further steps designed to complete that exercise. They were not wholly successful. The appellant’s position at trial and on appeal, however, was that Mr Ellis’ story, though false in all these respects, is not defamatory of any of the plaintiffs.

135 The appellant thus put in issue two of the elements of the plaintiffs’ causes of action: the meaning of the words used and their defamatory character. Both elements depend upon the opinions of the ordinary reasonable reader: what is the meaning that such a reader would give to the words complained of and would that reader consider that the words, so understood, lower the plaintiffs in the estimation of others? See Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 at 505 – 506.

The cases made by Mrs Costello and Mrs Abbott

136 It is convenient to deal first with the appeals against the verdicts for Mrs Costello and Mrs Abbott. In each action, the female plaintiff pleaded by way of false innuendo that the matter complained of in its natural and ordinary meaning was defamatory of her because it conveyed the following imputations:

B. PARTICULARS OF NATURAL AND ORDINARY MEANINGSIN RESPECT TO SECOND NAMED PLAINTIFF

(i) The second named plaintiff was to be suspected of being sexually promiscuous.

(ii) The second named plaintiff by virtue of having married the first named plaintiff was to be suspected of being a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance.

(iii) The second named plaintiff by virtue of having married the first named plaintiff was to be suspected of being a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party.

(iv) The second named plaintiff by virtue of having married the first named plaintiff was to be suspected of so lacking respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs.”

137 In the Costello pleading, Mrs Costello also alleged that, if any of these imputations do not arise as a natural and ordinary meaning, then that meaning is a true innuendo arising by reason of facts and matters known to readers of the passage complained of. She relied on the following as extrinsic facts:

“(i) The second named plaintiff married the first named plaintiff in January 1982 and has been married to him ever since.(ii) The second named plaintiff at the University of Sydney and thereafter was known publicly as an active supporter of the Liberal Party; and

(iii) The second named plaintiff was the daughter of the Leader of the New South Wales Liberal Party and was a supporter of the Liberal Party prior to her first meeting the first plaintiff, Mr Costello and Mr Tony Abbott.

(iv) The second named plaintiff was acquainted with Mr Tony Abbott at Sydney University prior to meeting her husband, Peter Costello.”

138 In the Abbott pleading, Mrs Abbott pleaded a similar true innuendo and relied on the following as the relevant extrinsic facts:

“(i) The second named plaintiff married the first named plaintiff in 1988 and has been married to him ever since.(ii) The first named plaintiff joined the Liberal Party after his marriage to the second named plaintiff.”

139 The female plaintiffs thus pleaded that there were four imputations in the text, both by way of false and true innuendo, that each was to be suspected of having four attributes, including that of being sexually promiscuous. Counsel for the respondents explained the references here to “suspicion” because, by way of example, the text suggested that the woman, whoever she was, was in fact sexually promiscuous, did not name her but, in terms, identified her as the wife of either Mr Abbott or Mr Costello. It thereby raised in the mind of the reader the suspicion that each could be the woman in question. The learned primary judge dealt with these imputations on that basis.

140 In addition to the four imputations of suspicion, both female plaintiffs alleged, in reliance on the same extrinsic facts referred to, that the passage in question conveyed the imputations that each in fact possessed the four deficiencies of character, including sexual promiscuity, of which each was earlier alleged to be “suspected”.

The trial judge’s decision on the cases of the female plaintiffs

141 His Honour found that while the text complained of did not convey the imputation of sexual promiscuity pleaded in B(i), it did convey an imputation of unchastity, which his Honour held was defamatory. It was on these findings that his Honour gave judgment for the female plaintiffs. The learned primary judge refused to find that the text conveyed an imputation of sexual promiscuity about the female plaintiffs because reference was made to only two episodes of pre-marital sex. However, his Honour had no difficulty in accepting that the text was capable of conveying the meaning that each female plaintiff had been “… `guilty of unchastity’ in the circumstances conveyed by the matter complained of”. He justified his conclusion as to the imputation of unchastity, though different from the precise imputation pleaded, “as a meaning relied on by the plaintiff in substance”. He referred here to Fox J’s comments in Hadzel v De Waldorf (1970) 16 FLR 174 at 181 – 182.

142 His Honour also found that the text conveyed the imputation about the woman pleaded in par B(ii), but held that it was not defamatory. He refused to find that the text conveyed the imputations pleaded in pars B(iii) and (iv).

143 The learned primary judge refused to find that their case, in so far as it was based on any of the true innuendoes, was made out. Although the correctness of his Honour’s rejection of this part of their cases was challenged by Mrs Costello and Mrs Abbott in their notices of contention, their counsel did not advance any argument to support the challenge. It can therefore be taken to have been abandoned. It is unnecessary to consider it further.

The appellant’s attack on the decision based on the imputation of unchastity

144 Counsel for the appellant attacked this finding, firstly, on the ground that it was not open to the learned primary judge to make it because the imputation he found was a substantially different imputation from that of promiscuity pleaded: it was said, in effect, that in finding an imputation of unchastity, the learned primary judge found that the article conveyed nothing more about the sexual conduct of the woman than that she had had pre-marital liaisons only with her future husband and one other. Secondly, and as the consequence of finding an imputation different from that pleaded, his Honour caused serious and irremediable procedural unfairness to the appellant.

145 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 shows that both these propositions must be made out if the attack on the learned primary judge’s finding here in question is to succeed. The leading judgment was given by Gaudron and Gummow JJ. Their conclusion as to the correct principle to be applied in determining whether a plaintiff can succeed on the basis of a meaning in the form of a false innuendo different from that specifically pleaded appears at 546; [60]:

“As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings.”

146 Their Honours regarded this as guidance for the “fair and efficient practice” to be followed in the conduct of defamation trials, not as a prescriptive rule: see 544 – 545; [56]. The last sentence in this passage shows that their Honours did not consider that the text complained of becomes irrelevant when the question is: Can the plaintiff rely on a meaning said to be different from that pleaded? Kirby J makes the same point at 579 – 580; [139], where, after referring to this same rule of practice stated by Gaudron and Gummow JJ as, in part, arising “from the entitlement of the tribunal of fact always to examine the entire publication to see the matter complained of in its context”, his Honour said:

“An overly rigid rule, strictly confining a plaintiff to the pleaded imputations, would run the risk that the alleged wrong was forgotten or overlooked. Instead of measuring the damage done by the publication itself, the trial might be diverted to a different document, namely the pleading containing the imputations formulated by lawyers.”

147 Although Brennan CJ and McHugh J expressed agreement with the conclusions of Gaudron and Gummow JJ, and with their reasons generally, they qualified their agreement by putting a different emphasis on how the question whether a plaintiff is entitled to judgment on a meaning different from that specifically pleaded should be resolved. Their Honours, at 532; [18], considered the practice of courts requiring plaintiffs to plead false innuendoes “where the pleading of an innuendo is needed to define the issues for determination” to be well-founded. They also said at 532; [19]:

“A plaintiff who pleads a false innuendo thereby confines the meanings relied on. The plaintiff cannot then seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis.”

148 But, as their Honours made clear, at 534; [24], it is prejudice, not the mere existence of difference in meaning, that justifies holding a plaintiff to the meaning pleaded. Their Honours’ conclusion was:

“If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure – whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict – the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury – as where the plaintiff seeks to rely on a different nuance of meaning or, often times, merely a less serious defamation – the different defamatory meaning may be found by the jury.”

149 They did not, however, accept that there was a mechanical rule that a plaintiff could always succeed on a meaning less serious than that pleaded, because it is still possible for a defendant to be prejudiced, eg, by being denied the opportunity of raising a possibly good answer to a charge of defamation based on the less serious meaning.

150 Although the other member of the Court, Kirby J, considered that the answer to the question whether a plaintiff is entitled to a verdict on a meaning that departs from the meaning pleaded is governed by considerations of fairness, it is apparent from what his Honour said at 578 – 581; [139], that he would give more latitude, particularly to a judge sitting without a jury, than Brennan CJ and McHugh J would allow, “to consider the meaning of the entire matter complained of, notwithstanding the pleaded imputations” and to give judgment accordingly. His Honour’s opinion is close to that of Gaudron and Gummow JJ, who emphasised, in their discussion of the justification of the practice governing the extent to which a plaintiff can rely on meanings different from those pleaded at 545; [57], that the rule of practice is to be applied having regard to the fact that “the legal issue which has to be decided is whether the material complained of is defamatory of the plaintiff … [and that] [t]he pleading of a particular meaning or meanings … was no more than a statement of the case to be made at trial”.

151 Counsel for the appellant, in submitting that the learned primary judge was wrong in finding that the article defamed them, said that it was incapable of conveying anything defamatory of the female plaintiffs because it was concerned only with one woman’s pre-marital sexual experiences – limited, in any event, to just two men, one of whom she later married – and, moreover, it had nothing to do with politics. This submission can only be made because the debate about the meaning of the passage in question has become more and more remote from the text itself as forensic analysis has moved from the text, through the imputations said by the plaintiffs in their statement of claim to be contained in it, to the recasting of this particular imputation by the learned primary judge, and finally to the analysis by counsel on appeal of individual words not appearing in the text – “promiscuity” and “unchastity” – divorced from the literary context that has given rise to the litigation.

152 Authority shows the error in the approach of the appellant to attacking the judgment in so far as it is based on the imputation of unchastity found by the trial judge. It is sufficient to refer to two cases from jurisdictions other than New South Wales (where legislation attaches special significance to pleaded meanings because each imputation there gives rise to a separate cause of action).

153 In Chakravarti, the plaintiff pleaded two false innuendoes. The first imputed that he was involved in criminal or civil misconduct in respect of loans from the company to himself, whilst an executive of that company; the second was an imputation that the plaintiff’s conduct in receiving loans as an executive of a company, which loans were in excess of his entitlement, was such as to render him unfit to be an executive of that company. Neither the words emphasised nor the idea they encapsulate appeared in the article the subject of the complaint.

154 Gaudron and Gummow JJ, at 541 – 542; [48], rejected the defendant’s submission as to the first innuendo that the article imputed only non-actionable suspicion of conduct; they considered that the article imputed actual misconduct with respect to loans from the company, possibly criminal rather than civil in character. They further considered, at 542; [50], that, because the article imputed misconduct of that kind, “the ordinary reader would take the article to carry a distinct innuendo that, by reason of that misconduct, [the plaintiff] was not a fit and proper person to be or remain an executive of Beneficial”. In form, this second innuendo is quite different from the first innuendo pleaded by the plaintiff. Yet their Honours considered that it was necessarily conveyed because of the first imputation in the article. At 546; [61], their Honours said that they considered that “the article bears the first meaning pleaded by [the plaintiff] and a meaning substantially similar to the second [pleaded] …”.

155 At 545 – 546; [59], in a passage to which it is not necessary to refer, they identified one reason why the plaintiff could rely on the innuendo of unfitness they considered was conveyed without the defendant being exposed to relevant disadvantage. But it is apparent from what their Honours said at 542; [50] and from their comment at 546; [61] that they did not think that there was any significant difference between the first imputation of misconduct pleaded, which they considered that the article conveyed, and the imputation of unfitness different from that pleaded, which they also considered the article conveyed to the ordinary reader.

156 This reveals a much broader approach than that urged by the appellant to determining whether differences between imputations pleaded and imputations found to be conveyed are sufficiently substantial to require attention to be given to whether the defendant would be disadvantaged if the plaintiff were permitted to rely upon the latter kind of imputation rather than that pleaded. It also serves to emphasise the importance their Honours placed on the text, as the touchstone for identifying and thus confining at the trial the meanings on which the plaintiff can rely.

157 Brennan CJ and McHugh J expressly agreed, at 534; [25], that the plaintiff was entitled, inter alia, to a favourable finding on these meanings attributed to the article by Gaudron and Gummow JJ. The statements of general principle that all four of their Honours made, need to be understood against the background of their conclusions that none saw any significant difference between the meanings pleaded by the plaintiff in the two imputations he set up or between the meanings of the second of those pleaded imputations and the different imputation found to have been conveyed by the article to the ordinary reader, in the context of the article complained of.

158 So understood, Chakravarti lends no support to the approach upon which the appellant here relies of subjecting expressions in the text complained of and in the imputation pleaded and in that found to be conveyed by the judge to detailed comparative analysis in order to identify differences in meaning, which are then said to be highly significant. The appellant’s approach was one which was deprecated by Kirby J in Chakravarti at 578; [139]; it is also inconsistent with the decision of this Court, on appeal from the Australian Capital Territory Supreme Court in John Fairfax & Sons Ltd v Punch [1980] FCA 100; (1980) 31 ALR 624.

159 There, the plaintiff was the Parliamentary leader of the Country Party in the New South Wales Legislative Assembly. The article in question purported to be a report of a meeting of 250 dairymen-members of the Country Party held on the eve of the State election at which those dairymen called for the resignation of the plaintiff over his attitude to dairy industry restructuring and themselves resigned from the New South Wales Country Party, but were reported to have voted to maintain their affiliation with the Federal Country Party. The trial judge found the article defamatory of the plaintiff because it conveyed the meaning that he was a leader who had, in the eyes of 250 members of his party, exhibited such an incapacity that he was no longer fit to be party leader. That is, he held the report conveyed a meaning not expressed in any of the words appearing in the report, but a meaning nevertheless conveyed by those words. Blackburn and Northrop JJ rejected the attack on this conclusion, saying at 629:

“…In our opinion, it is capable in law of being defamatory to say of a politician who is a leader of his political party that he has lost the confidence of a significant number of members of his party, because that necessarily attributed incompetence to him. It is an essential part of the competence of the leader of a political party to hold the confidence of the members of his party. The imputation that the respondent had lost the confidence of some members of his party arises inescapably from the fact that those members have called for his resignation as leader, and that on the eve of an election.”

160 After making the finding that the article defamed the plaintiff, the trial judge went on to consider the five false innuendoes pleaded by the plaintiff. He held that the article was not capable of conveying the first three, but did convey the other two, viz:

“(iv) That the plaintiff so lacked the confidence of substantial numbers of members of the New South Wales Country Party that they were prepared on the eve of a State election in which that Party was fielding candidates for parliamentary office to embarrass the said Party (a) by calling upon the plaintiff to resign as Leader of the said Party and (b) by themselves resigning from the said Party.(v) That the plaintiff had lost the confidence of substantial numbers of dairymen and members of the New South Wales Country Party who lived and carried on business in New South Wales in relation to the issue of the milk quota system.”

161 Various attacks were made by the defendant’s counsel on appeal on this conclusion by the trial judge. Blackburn and Northrop JJ rejected all of them, saying, at 632:

“Imputations (iv) and (v) are statements that the plaintiff lacked the confidence of a substantial number of members of the party and are thus attacks on the plaintiff’s competence as a politician and party leader. We agree with his Honour’s decision on these imputations.”

162 Brennan J, in a concurring judgment, concluded, at 636:

“The learned trial judge’s finding as to the imputation conveyed by the articles is supported by the terms of the articles understood in the light of the known circumstances. That finding was, in my view, fairly within the ambit of the pleading of imputations (iv) and (v).”

163 Their Honours all held that the report and pleaded imputations (iv) and (v) each imputed incompetence as a political leader to the plaintiff, even though in terms, they made no reference to any such deficiency on his part and that the trial judge was right in finding the report defamatory of the plaintiff because of the aspersion it cast upon his competence as a political leader.

164 Punch, too, demonstrates the error of the appellant in subjecting the text here complained of and the imputations pleaded and those found by the trial judge to an over meticulous scrutiny to identify what are said to be relevant differences.

165 All their Honours in Punch and all the members of the Court in Chakravarti dealt with the question of whether a pleaded false innuendo differs impermissibly from the meaning found by the judge to be conveyed by the text by testing whether the pleaded imputation could be said, in a quite broad way, to have captured the message in the text, ie, the impression the ordinary reader would gather from it, that may have been more accurately described by the judge. If the pleaded imputation does that, the plaintiff will be entitled to rely on the more accurately described meaning found by the judge to be conveyed by the text, even though that meaning departs in much more than a minor way from the imputation pleaded, and it will be difficult for the defendant to persuade the Court that it will be prejudiced if the plaintiff is allowed to rely on that different hearing. Of course, the further the pleaded imputation departs from what the judge thinks is the ordinary meaning conveyed by the text, the easier will it be for the defendant to show relevant disadvantage.

166 A considerable difference in meaning can be conveyed by saying that a woman is promiscuous rather than unchaste: the promiscuous Messalina and the unchaste Heloise have quite different sexual reputations. But the word “unchastity” is capable, depending on the context, of conveying a wide spectrum of meanings. As reference to both The Macquarie Dictionary, 3rd ed, and The Oxford English Dictionary, 2nd ed, show, unchastity is capable of connoting the state of not being chaste or virtuous, but also of connoting sexual behaviour of a much more repugnant kind: it can convey the meaning of lasciviousness or of being marked by lewdness or sexual excess, ie, something not very different from the primary meaning of “promiscuous” in a sexual context, which The Oxford English Dictionary gives as “indiscriminate in sexual relations”. The appellant so argued, though only to emphasise the difference between the notions of unchastity and promiscuity, on the one hand, and the allegedly non-defamatory imputation of limited pre-marital sexual activity, on the other, which it contended was all that the text conveyed and all that the judge found was conveyed about the woman.

167 It is not always clear what his Honour had in mind in holding that the text conveyed an imputation of unchastity though not what he regarded as the more serious imputation pleaded of sexual promiscuity. At various places in the reasons there are statements suggesting that his Honour was concerned with a publication imputing to the woman nothing more by way of her sexual behaviour than involvement in two pre-marital experiences. At other places, he acknowledges that the text is not confined to that but imputes to the woman much grosser sexual behaviour, viz, a preparedness to use her sexual favours to entice two men from one political party to the opposing party.

168 If his Honour did think that the article conveyed nothing more about the woman’s sexual conduct than that she had limited pre-marital sexual experience, he could only have arrived at that conclusion by ignoring the context in which the woman’s two liaisons are described. It is so plain that the article, in referring to the woman, is not directed to recounting pre-marital liaisons with her future husband and one other, but rather to the woman’s manipulative use of her sexual favours with those two men that I am not prepared to accept that the learned primary judge did seriously misread what the text had to say about the woman’s sexual conduct.

169 In my opinion, the better view of the learned primary judge’s reasons is that he did not find that the imputation of unchastity conveyed was that which the appellant conceded, viz, “an inference of pre-marital sex”, but rather a different imputation of much grosser sexual misconduct. He expressly found that “imputation B(i) is conveyed in relation to Mrs Abbott [and to Mrs Costello] through reading `sexually promiscuous’ as meaning `guilty of unchastity’ in the circumstances conveyed by the matter complained of” and that the imputation of unchastity was “a meaning relied on by the plaintiff in substance” in the pleaded imputation of sexual promiscuity. Elsewhere in his reasons, he correctly recognised that the reference in the text to the woman’s sexual conduct was made in a particular context that controlled the way that reference should be understood. He spoke of the ordinary reasonable reader inferring from the article that the woman “used the occasion of her sexual dalliance” with the two men to persuade each to change parties; in dealing with pleaded imputation B(ii), he said “[t]he true imputation is that the woman exploited the sexual liaison, or the prospect of it, to achieve the result of changing the man’s political allegiance”.

170 The sense in which his Honour used the term “unchastity” can also be gathered from his reasons for holding that the imputation of unchastity “in the circumstances conveyed by the matter complained of” was defamatory of the female plaintiffs. In this part of his judgment, he spoke of the woman’s conduct portrayed in the text as being sexually manipulative. He also referred to some comments by Hutley JA in Cairns & Morosi v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 710 to the effect that the form and content of a publication, though alleging sexual misconduct, may so present the occasion of it that the reputation of the participants is enhanced, but said that “[i]t cannot, however, seriously be contended, in my view, that any such enhancement of reputation or standing has occurred in this case”.

171 In saying that the text imputed “unchastity” to the female plaintiffs, his Honour, I think, should be understood as having used that term to describe loose or shameless sexual conduct which did not qualify as promiscuity only because he considered that a woman would have to have more than two sexual partners before she could be said to be promiscuous. When he said pleaded imputation B(ii) expanded upon imputation B(i) because the latter already conveyed the imputation of “[m]ere `low moral standards'”, he was not, I think, using that as an expression synonymous with engaging in limited pre-marital sex, but rather as synonymous with the kind of sexual behaviour that is described as promiscuous. His Honour, in finding the imputation of unchastity in lieu of that of sexual promiscuity, was doing no kindness to the target of the text: he was only holding that, while the text did not convey the imputation of sexual promiscuity, it did convey a meaning of sexual misconduct close enough to promiscuity as not to alter the substance of the imputation pleaded.

172 The appellant’s attack on the verdict in favour of Mrs Costello and Mrs Abbott that was based on imputation B(i) therefore fails at the first hurdle.

173 But the appellant’s complaint that it was prejudiced by the way the learned primary judge resolved this issue is an empty one.

174 Senior counsel, who appeared for the appellant before this Court, asserted, in support of his argument that the learned primary judge found a significantly different imputation in the text from that pleaded, that if an imputation of unchastity based on very limited pre-marital sexual experience had been pleaded, the appellant may have conducted its case differently, both as to the defence it may have raised and on the question of damages.

175 It is not possible to accept that submission. The appellant argued that it was prejudiced in defending because, even though the statement was false in asserting that the woman had pre-marital liaisons with both male plaintiffs, if an imputation of unchastity had been pleaded, a defence of justification may have been available to it. This means that the appellant would or at least might have considered whether it could justify such an imputation of unchastity by proving that the female plaintiffs had each engaged in acts of pre-marital sex with other than the male plaintiffs. If an imputation of unchastity based solely on allegations of pre-marital sex with two named persons had been relied on, then the appellant may have been entitled to justify the defamation, so confined, in the way suggested in argument. The same may be true if an unqualified imputation of unchastity had been pleaded. See Maisel v Financial Times Ltd (No 1) (1915) 84 LJKB 2145.

176 But to deal with the appellant’s submission of prejudice on the basis that the imputation found was of unchastity in the sense of nothing more than a mild kind of unchaste behaviour, would be to consider the matter on a wholly fictitious basis.

177 For the reasons given, the imputation found by his Honour was not of unchastity in the abstract or in general, but unchastity with a quite specific connotation of sexual misconduct much more gross than conduct confined to limited pre-marital sex, ie, of conduct analogous to that which can be described as sexually promiscuous. The appellant had every opportunity, but did not attempt to justify the latter imputation. It has not therefore been deprived by the judge’s finding of unchastity, with the connotation I think he attached to it, of any opportunity that it might, even in theory, have utilised to justify that particular imputation.

178 In any event, the appellant ran its case at trial on the basis that the text conveyed nothing more than the imputation that the woman had limited pre-marital sexual experience before marriage with two men, one of whom she later married, and that imputation was incapable of being defamatory of her: counsel cross-examined and addressed on this basis. The appellant could also, if it wished, have pleaded that the text conveyed only the narrow imputation it relied on at trial and then sought to justify it: Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1. In Chakravarti, Brennan CJ and McHugh J, at 526 – 530; [6] – [13], held that such a course is not open to a defendant. But Gaudron and Gummow JJ, at 543, accepted it as a permissible one. The other member of the Court, Kirby J, did not consider the point. In this state of authority, the appellant could, if it wished, have raised by way of defence and persuaded the trial judge to entertain a plea of “Polly Peck” justification (see Polly Peck (Holdings) Plc v Trelford [1986] QB 1000). It did not attempt to do that.

179 In these circumstances, it is unconvincing for the appellant now to submit that, if only the plaintiffs had pleaded, or if only the judge had given the appellant notice of his intention to find, an imputation of unchastity with this particular narrow connotation, as the appellant says this finding should be understood, it would not have suffered the prejudice it claims to have suffered because of the finding on which the trial judge based his judgment for the female plaintiffs. The appellant can safely to be taken to have elected, from an early stage of the proceedings, not to justify the narrow imputation of unchastity which it so persistently but unsuccessfully sought to persuade the judge was the only one conveyed by the text about those women.

180 Its submission at trial on the quantum of damages was that even if the text was defamatory, the imputations were so inoffensive that no more than modest, compensatory damages only should be awarded to each plaintiff: the appellant at trial ran the very case on damages that it now claims it was deprived of the opportunity to try to make out.

181 The hollowness of the claim of prejudice now made is further exposed by the fact that the appellant conceded early in the trial that the publication was false both in that Mr Cavalier never said what it attributes to him and in that the statements of fact which it puts in Mr Cavalier’s mouth are untrue too. There is therefore no room left for the appellant to say that if an imputation of unchastity had been pleaded, the appellant may have sought to justify the publication, the only new defence mentioned by counsel that might have been raised. All that could have been justified was the truth of what Mr Cavalier is said to have told Mr Ellis. Yet the appellant conceded at the trial that that was false. Its concession, not relevantly qualified in any way, can only be understood as a concession of the falsity of whatever might be the ordinary meaning or meanings conveyed by the statements Mr Ellis put in the mouth of Mr Cavalier. Moreover, the appellant sought an advantage, in mitigating damages, from having made that concession. It is hopeless for it now to suggest that it lost the opportunity to justify the very imputation of mild unchastity, that it has long asserted was all that was capable of being conveyed by the words said to have been uttered by Mr Cavalier, which it deliberately and for its own forensic advantage acknowledged to be untrue.

182 Having held that the text imputed to each of the female plaintiffs unchastity connoting sexual conduct similar in character, though not in quantity to that which can be characterised as promiscuous, his Honour turned to whether that imputation was in fact defamatory of these particular plaintiffs. It appears from his reasons that his Honour found this question not free of difficulty.

183 Appellant’s counsel submitted that the ordinary reasonable Australian reader would not now regard it as defamatory of a woman to say that she was unchaste, in that she had engaged in limited pre-marital sex. But even if that is correct, the passage of text complained of goes far beyond conveying that relatively innocuous imputation.

184 In the course of considering whether the imputation was defamatory, his Honour, at some places in his reasons, seemed to think it necessary to consider whether an imputation of unchastity is defamatory, if all that is said about the woman is that she surrendered “her chastity not only to her future husband but also to another person”. At other places in the course of reasoning to his conclusion that it was defamatory, he makes it clear that he appreciated that the text conveys an imputation of much grosser sexual activity on the part of the woman than that. For example, his Honour said:

“The author himself invites the reader to treat the persons the subject of the anecdote with derision. That is partly because they are depicted not only as manipulative or manipulated, but also because they are falling below the preferred societal standard concerning extramarital sex.”

185 It is only the woman in the article who can be described, quite justly, as manipulative: it is the men who are manipulated. And the only way the article suggests the woman is manipulative is in the way she uses her sexual favours to lead both men into changing from the Labor Party to the Liberal Party.

186 Once the learned primary judge correctly recognised that the article described not just pre-marital sex, but sex being used repeatedly by the woman in this manipulative way, it would, in my opinion, have been perverse of him to have reached any conclusion but that the imputation in the particular sense found by him – that the woman was “`guilty of unchastity’ in the circumstances conveyed by the matter complained of” – was defamatory of each of the female plaintiffs.

Mrs Costello and Mrs Abbott’s Notices of Contention

187 As to the second imputation against each of the women plaintiffs set out in par B(ii) above, his Honour found that the text complained of contained a different imputation in that it was capable of conveying to the reader the meaning “that the woman exploited the sexual liaison, or the prospect of it, to achieve the result of changing the man’s political allegiance”. This is merely a paraphrase of the imputation pleaded; it does not, in my opinion, involve any significant departure from that imputation. It is a meaning conveyed by the text.

188 His Honour, however, held that though the text conveyed the imputation that the woman had “exploited” the sexual liaisons to change the two men’s political allegiances, that was not defamatory of the woman. He considered that it may have been defamatory if she were said to have commenced each liaison for that purpose. But he thought it would involve impermissible speculation to read the text in that way.

189 His Honour appears to have reached his conclusion that this imputation, though it or something very like it was conveyed, was not defamatory on the basis that the ordinary reader would not think less of a woman because she was politically committed and persuasive enough to be able to change two men’s political allegiances. His Honour, with respect, here ignores that which he has already found, viz, that the text identifies her willingness to use her sexual favours as that which made her persuasive: it was that, not the cogency of her arguments about matters of political principle, that she is said to have used to turn the two men from the Left to the Right of politics. If his Honour was prepared to find in the text, correctly in my opinion, an imputation involving the exploitation by the woman of the sexual liaisons in the way referred to, the conclusion that that imputation was defamatory of the woman is inescapable.

190 I would therefore uphold the challenge to this finding raised by the respondents’ notices of contention.

191 As to the imputation against each of the women plaintiffs set out in par B(iii), his Honour said that this added “an allegation of deliberation” to the imputation pleaded in par B(ii). That is, it conveyed that “the woman sought out sexual partners with a view to inducting them into the Young Liberals”. His Honour held that the text did not convey that meaning, which he considered “a forced or strained interpretation, capable of being held only by a process of speculation rather than by inference”. I do not think that there is anything in the imputation in B(iii) which justifies reading it as suggesting that the woman “sought out sexual partners” for any purpose. The allegation here is that the woman in question was “a political manipulator” because she used sex to recruit members of one political party into the other. In my opinion, this imputation is well capable of arising from the text: although the text refers to the woman engaging in only two sexual liaisons, she is said to have used both to recruit two Labor Party members into the Liberal Party. That is conduct well capable of conveying to the ordinary reader the imputation that the woman is a political manipulator.

192 Imputation B(iii) differs, in my view, from imputation B(ii) only in so far as the latter identifies her use of sex to lead men into changing political parties as evidencing the woman’s low moral standards, while the former identifies her use of sex to lead men into changing political parties as evidencing her character as a political manipulator.

193 Once it is accepted that imputation B(iii) is conveyed by the text, it is inescapable that such an imputation must be defamatory of the female plaintiffs.

194 The imputation in B(iv) appears to have been pleaded to cover the conclusion that the text might be read as meaning that both men only became political converts after the woman had married one of them, not before, when the sexual liaisons both occurred. I agree with the learned primary judge’s reasons for refusing to find that this imputation was conveyed: to read the text as suggesting that the defection was caused by, or followed, the marriage would involve impermissible speculation, ie, it would make the appellant liable for a meaning not clearly conveyed by that which it published.

The cases made by Mr Costello and Mr Abbott

195 In each action, the male plaintiff pleaded by way of false innuendo that the matter complained of in its natural and ordinary meaning was defamatory of him because it conveyed the following imputations:

A. PARTICULARS OF NATURAL AND ORDINARY MEANINGSIN RESPECT TO FIRST NAMED PLAINTIFF

(i) The first named plaintiff so lacked personal integrity that, in return for sexual favours, he was willing to change his political allegiance.

(ii) The first named plaintiff’s political commitment was so shallow that for sexual favours he was willing to abandon his principles for sex.

(iii) The first named plaintiff was to be suspected of being of weak and unreliable character who allowed his political decisions to be dictated by his wife”.

196 Both these plaintiffs also plead the same imputations as true innuendoes and rely on the same extrinsic facts relied on by the female plaintiffs set out above. Each also pleads, in reliance on those extrinsic facts, a true innuendo that each in fact possessed the character defect which it is said by imputation A(iii) he was to be suspected of having.

The Judge’s decision on the cases of Mr Costello and Mr Abbott

197 His Honour declined to find that the text conveyed imputations A(i) or (iii) for the reason that each could be established only if the reader draws an inference from the text of some sort of bargaining process having been undertaken with sex being offered for political defection. That, his Honour held, would involve impermissible speculation by the reader. His Honour also declined to find that any of the true innuendoes were made out; despite what is said in the notice of contention, it is unnecessary to review his Honour’s rejection of this part of the male plaintiffs’ case: no argument was put to challenge it.

198 But his Honour found imputation A(ii) was conveyed by the text, saying “this is precisely what the matter complained of means”. In making this finding in relation to Mr Abbott, his Honour said:

“The anecdote is apparently perceived by the author as effective `to destroy him’; that is, to destroy the perception of Mr Abbott as a person intellectually and deeply committed to the Liberal Party. Instead, he is said to be a person who, as a result of a sexual liaison with a woman connected with the Young Liberals, or to facilitate that liaison, abandons his membership of the Labor Party and defects to the Young Liberals.”

199 In finding that imputation A(ii) was also made out in Mr Costello’s action, his Honour, while recognising that “the primary target of the author’s anecdote is Mr Abbott”, considered that “the imputation that strikes him, equally strikes Mr Costello”.

200 In making the finding that the pleaded imputation was conveyed by the text, his Honour said that the suggestion of “shallow political commitment” was one which does arise from the matter complained of “though I would read `for’ as meaning `by reason of'”. His Honour’s gloss on the imputation here pleaded may well have followed from his view that imputations A(i) and (iii) were not made out because he considered that they conveyed the suggestion that the defection was the quid pro quo for sex and the text could not be so read. But I do not think this gloss on imputation A(ii) is warranted: to say that the abandonment of principles was “for” sex does not necessarily suggest that the one was the agreed price paid for the other. Such a statement may mean only that the opportunity for a sexual liaison was enough to cause the man to abandon the political principles he hitherto held.

201 The message conveyed by the text about both male plaintiffs is that, although both are now prominent members of the Liberal Party, the political commitment of each is shallow, as is shown by the fact that each was once a member of the opposing party, but changed from the Left of politics to the Right for nothing more important than the opportunity for a sexual liaison. The pleaded imputation succinctly states that meaning. His Honour’s finding here in question was correct, even if his gloss on imputation A(ii) is ignored.

202 His Honour found this imputation defamatory because, in his view, it would subject each plaintiff to derision or ridicule, though not alleging reprehensible conduct. He held that, having regard to the fact that the reader is “positively invited by the preamble to the anecdote” to assume that it would be to the discredit of Mr Abbott as a Liberal thinker and having regard to the reasonable inference that might be drawn from the anecdote, the text “does in fact convey the imputation of shallow political commitment” to the ordinary reasonable reader. His Honour further held the text so understood was defamatory of each because it holds each up: “falsely, as persons of shallow political commitment [something] libellous of them irrespective of their political profiles”.

203 The appellant had conceded the falsity of what was said about both male plaintiffs. But despite his Honour’s reference here to falsity, that does not affect whether the statement complained of is defamatory, something recognised by the learned primary judge in another context in [92] of his reasons. The appellant, however, can get no comfort from this inappropriate reference to falsity.

204 In holding that this imputation was defamatory of both male plaintiffs, his Honour accepted the appellant’s argument that it was not defamatory to say of a person that they have changed their political commitment, even if influenced by their then current sexual partner to do so. His Honour, concentrating on the allegation of change of political commitment and ignoring the reason given for the change in both cases, said that should not lower either plaintiff in the eyes of ordinary members of society: “Many respected political figures have done so”, ie, changed their political allegiances. His Honour said that, while such a change would no doubt lower their reputations in the eyes of their former political colleagues, the ordinary reasonable reader would neither praise nor condemn such a change, which is “neither immoral, deceitful nor otherwise reprehensible”.

205 That may be true if the change is made for reasons which ordinary members of the community are prepared to accept are reasons of principle. It is very likely to provoke a quite different reaction by the general public to the defector in any other circumstances. The learned primary judge treated reference in the text to changing political parties in isolation from the immediate context, which purports to explain why that change occurred. The point of the passage in the text is that both male plaintiffs changed parties not on an issue of principle, but for nothing more than the opportunity for a sexual relationship with the woman.

206 In my opinion, to say of a politician that he changed his political allegiance from one party to the opposing party for a reason as trivial as the opportunity for a sexual liaison with a woman associated with the opposing party is plainly defamatory as tending to hold him up to derision and ridicule and so to lower the politician in the estimate of the ordinary reasonable member of society. The matter complained of is defamatory of both male plaintiffs. The sting is sharper for Mr Abbott because the article invites the reader to recall his reputation as a Liberal thinker – yet he only changed from one party to the opposing party in which he is now an intellectual leader because of the opportunity for sex.

207 His Honour said that the male plaintiffs’ political profiles were relevant only to damages, not to whether the anecdote in question was defamatory of them. I doubt that this is correct: the targets of the anecdote, as men who changed their political allegiance just for sex, are men who are now prominent Liberal politicians, not two nonentities. A person in an important political position would, I think, readily be regarded by the community as an object of ridicule, if not also of contempt, if he was said to have changed, even as a young man, from the opposing party to the party in which he has risen to prominence for a reason as trivial as sex: whether the community would react in the same way to a political unknown said to have made a similar change is less clear.

208 But the respondents did not challenge this particular finding and the learned primary judge did take the plaintiffs’ current political standing into account in assessing damages. The plaintiffs did not plead the political offices now held by the male plaintiffs as extrinsic facts. It is not necessary to express any opinion on whether the fact that both are now prominent members of the Liberal Government is a matter within the general knowledge of the ordinary reader, ie, “the hypothetical referee” referred to in the Reader’s Digest case, and as such a matter that referee would take into account in considering how the article affects the reputations of each.

Mr Costello and Mr Abbott’s Notices of Contention

209 In my opinion, imputation A(ii) does nothing more than draw from the text a more limited reflection on the male plaintiffs than that conveyed by imputation A(i): the latter asserts that the text conveys that the willingness of the men to change political allegiance for sex shows a want of personal integrity. The former asserts that that shows the shallowness of their political commitment. That is but an aspect of the want of personal integrity. Both imputations are conveyed by the text. Imputation A(i) is defamatory of each for the same reason that imputation A(ii) is defamatory of them.

210 Imputation A(iii) is but another manifestation of the shallow political commitment the subject of imputation A(ii). Both meanings are conveyed by the text, something recognised by the learned primary judge. His Honour, however, concluded that imputation A(iii) was not made out because the text does not convey the notion of the woman extracting from the man the political response she required in return for sex: I do not think either the text or imputation A(iii) conveys any such meaning. Once it is accepted that imputation A(iii) arises, its defamatory nature is manifest.

211 I would uphold the complaints made in the notice of contention about the learned primary judge’s rejection of the male plaintiffs’ cases in so far as they were based on imputations A(i) and (iii).

Damages

212 In my opinion, the only issues raised by the appellant that are of any moment are that the learned primary judge was wrong in allowing anything by way of ordinary compensatory damages in respect of the appellant’s failure to apologise and that he was also in error in that he allowed twice over for the appellant’s failure to apologise – once in the awards to each respondent of ordinary compensatory damages and again in the awards to each of aggravated compensatory damages. These two issues apart, I consider that the reasons given by the learned primary judge for his awards show that they are well within the range of damages appropriate to the wrongs done by the appellant to the respondents.

213 In the course of dealing with damages, the learned primary judge examined in detail what the appellant did “by way of apology and mitigation”. He was highly critical of the appellant’s open offer to the respondents to publish not an apology but “an explanatory statement”, against the background of the appellant’s conduct after publication. His Honour concluded that the respondents were entitled to reject this offer as inadequate and that “there was a continued and unreasonable failure to apologise as well as a failure, otherwise, to make amends for the serious wrong done to the plaintiffs”. Nor did his Honour accept that the appellant’s action in recalling, without any relevant public explanation, unsold copies of the book from book sellers and copies from libraries operated to mitigate to any significant degree the damages to which publication of the book exposed the appellant.

214 His Honour took the view that failure to apologise was relevant to both ordinary compensatory damages and to aggravated compensatory damages. He said:

“[304] The other matter relied upon, both as to ordinary compensatory damages, and aggravated damages, is failure to apologise. Whatever may be the case with aggravated damages, to which I will later refer, a plaintiff’s resentment at a failure of a defendant to offer an adequate apology will properly add to the hurt of the plaintiff’s feelings: see Rantzen v Mirror Group Newspapers (1986) Ltd [1993] EWCA Civ 16; [1994] QB 670; Clark v Ainsworth (1996) 40 NSWLR 463. In this case, I am satisfied that the defendant’s failure did add to the hurt of these plaintiffs.”

215 In explaining how he arrived at the awards he made to each respondent by way of ordinary compensatory damages, he did not expressly refer to making an allowance for the failure to apologise. But it is clear enough from the last sentence in this part of his reasons, that his Honour did include such an allowance in this part of his award to each.

216 In the course of assessing the aggravated compensatory damages which he awarded to each respondent, his Honour said:

“[413] A failure to enquire before publication or to apologise after it may also be relied upon as a circumstance of aggravation. However, that consideration may not, as I have said, increase damages beyond the fair limits of compensation. Care must be taken not to doubly compensate a plaintiff. Hurt to feelings, for example, may have been partially compensated for before the question of aggravation arises. It may warrant an increase in damages only insofar as the aggravating conduct lacked justification, propriety or bona fides”.

217 It is clear that one of the several matters which his Honour did consider justified an award to each respondent of aggravated compensatory damages was the appellant’s “Failure properly and promptly to fully apologise”. His Honour said:

“[433] …The failure itself, of course, also forms part of the award of ordinary compensatory damages adding to injury to feelings and, perhaps, to the damage to reputation in some cases.[434] If, in addition to being inadequate or deficient or grudging or belated, the failure fully and unqualifiedly to apologise is `improper, unjustifiable and/or lacking bona fides’, then an additional sum for aggravated damages may be warranted.”

218 His conclusion here, fully justifiable in my opinion, was:

“[438] …I consider that the failure promptly and frankly to admit the truth – that the story was false – whilst no doubt within its legal rights, was, nevertheless, `unjustifiable’.”

219 There is authority for his Honour’s approach in allowing for the respondent’s failure to apologise in both his awards by way of ordinary compensatory damages and of aggravated compensatory damages. In Clark v Ainsworth (1996) 40 NSWLR 463, the Court of Appeal held that an allowance could be made in the award of ordinary compensatory damages for the defendant’s failure to apologise for the reason that “the harm from the original publication may be prolonged and intensified by the absence of apology” (466 and see also 474). The Court also recognised that an additional allowance could properly be made by way of aggravated compensatory damages for the defendant’s failure to apologise, provided such a failure involved conduct by the defendant that lacked bona fides or was otherwise improper or unjustifiable. Ibid at 465 and 473. The Court considered that Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 did not stand in the way of such an approach.Clark v Ainsworth was applied by the Victorian Court of Appeal in Cooke and The Australian Liquor, Hospitality and Miscellaneous Workers’ Union v Wood (unreported, Ormiston, Charles and Batt JJA, 11 December 1997). Charles JA, with whom the other members of the Court agreed, there referred to what Sheller JA said in Clark v Ainsworth at 468 about the circumstances in which both ordinary compensatory damages and aggravated compensatory damages could be awarded in defamation in respect of the defendant’s failure to apologise and said:

“His Honour’s careful examination of the relevant cases, and his conclusions, with all of which I would, with respect, agree, demonstrate first that Cooke’s failure to apologise was a matter that the judge was entitled to take into account as something which extended the vitality and capability of the publication to cause injury to Wood [ie, by way of ordinary compensatory damages]; and, secondly, that, if the failure to apologise was part of the course of conduct on the part of Cooke and the Union, which lacked bona fides or was otherwise improper or unjustifiable, then it was permissible for the judge to take it into consideration on the issue of aggravated damages.”

220 I respectfully agree with these two decisions as correctly stating the law.

221 Nor was there any “doubling up” of damages in respect of the failure to apologise. Although his Honour did allow something in his awards of both ordinary compensatory and aggravated compensatory damages to each respondent for this reason, it is clear from his Honour’s express comments that he was fully alert to the need to avoid giving the respondents double compensation by including in the award of aggravated compensatory damages an excessive allowance for the failure to apologise. The very modest amounts which his Honour allowed by way of aggravated compensatory damages in respect not only of the appellant’s failure to apologise, but a range of other conduct dealt with by the judge, in my opinion, shows that his Honour gave effect to his recognition of the need to avoid any doubling up of damages here.

222 I would dismiss both appeals, with costs.

I certify that the preceding ninety four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 10 November 1999

Counsel for the Appellant: B R McClintock SC and R G McHugh
Solicitor for the Appellant: Phillips Fox
Counsel for the Respondents: T K Tobin QC and P W Gray
Solicitor for the Respondents: Colquhoun Murphy
Date of Hearing: 30 and 31 August 1999
Date of Judgment: 10 November 1999

The Defamation (Operators of Websites) Regulations 2013 [UK]

STATUTORY INSTRUMENTS

2013 No. 3028

DEFAMATION, ENGLAND AND WALES

The Defamation (Operators of Websites) Regulations 2013

Made 2nd December 2013

Coming into force in accordance with regulation 1(1)
The Secretary of State makes the following Regulations in exercise of the powers conferred by section 5 of the Defamation Act 2013(1).

A draft of these Regulations was laid before Parliament in accordance with section 5(9) of that Act and approved by a resolution of each House of Parliament.

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Defamation (Operators of Websites) Regulations 2013 and come into force at the same time as section 5 of the Defamation Act 2013.

(2) In these Regulations—

“the Act” means the Defamation Act 2013; “the operator” means the operator of the website on which the statement complained of in the notice of complaint is posted; “the poster” means the person who posted the statement complained of on the website referred to in the notice of complaint.
(3) In these Regulations, where action is to be taken by the operator within 48 hours of any point in time, any period of time which falls on Saturday, Sunday, Good Friday, Christmas Day or any day which is a bank holiday under the Banking and Financial Dealings Act 1971(2) in England and Wales is to be disregarded.

Notice of complaint: specified information

2. Subject to regulation 4, a notice of complaint must (as well as including the matters referred to in section 5(6)(a) to (c) of the Act)—

(a)specify the electronic mail address at which the complainant can be contacted;
(b)set out the meaning which the complainant attributes to the statement referred to in the notice;
(c)set out the aspects of the statement which the complainant believes are—
(i)factually inaccurate; or
(ii)opinions not supported by fact;
(d)confirm that the complainant does not have sufficient information about the poster to bring proceedings against that person; and
(e)confirm whether the complainant consents to the operator providing the poster with—
(i)the complainant’s name; and
(ii)the complainant’s electronic mail address.
Actions of operator in response to notice of complaint

3. Subject to regulation 4, for the purposes of section 5(3)(c) of the Act the claimant must show that the operator failed to respond to a notice of complaint in accordance with the provisions of the Schedule.

Defective notices to be treated as notice of complaint

4.—(1) Where a notice given to the operator contains a complaint that a statement on the operator’s website is defamatory of the complainant but does not contain all the information required by section 5(6)(a) to (c) of the Act and by regulation 2, that notice is to be treated as a notice of complaint for the purposes of section 5(3)(b) and (c) of the Act.

(2) Where the operator receives a notice which is to be treated as a notice of complaint by virtue of paragraph (1)—

(a)regulation 3 does not apply; and
(b)for the purposes of section 5(3)(c) of the Act the claimant must show that the operator failed to send to the complainant, within 48 hours of receiving the notice, notification in writing—
(i)that the notice does not comply with the requirements set out in section 5(6)(a) to (c) of the Act and regulation 2; and
(ii)what the requirements of those provisions are.
Time limits: court discretion

5. Where in any action for defamation—

(a)an operator relies on the defence in section 5(2) of the Act; and
(b)a question arises as to whether any action required to be taken by the operator in response to a notice of complaint took place within the time limit specified in regulation 4(2)(b) or in the Schedule for taking that action,
the court may, if it considers it in the interests of justice to do so, treat any action taken after the expiry of the time limit as having been taken before the expiry.

Signed by authority of the Secretary of State

McNallyMinister of StateMinistry of Justice
2nd December 2013

Regulation 3
SCHEDULE

Actions to be taken by operator in response to notice of complaint in order to maintain section 5(2) defence

Removal of statements from website

1.—(1) This paragraph applies where a provision of this Schedule provides that an operator must remove a statement from the locations on the website specified in a notice of complaint within a specified period.

(2) The operator is to be taken to have removed the statement concerned from a particular location within that period if, before that period has elapsed, another person has removed the statement from that location.

Response to notice of complaint: initial steps
2.—(1) Unless paragraph 3 or 9 applies, the operator must, within 48 hours of receiving a notice of complaint, send the poster—

(a)a copy of the notice of complaint, altered to conceal the complainant’s name and address if the operator has received confirmation that the complainant does not consent to the operator providing this information to the poster;
(b)notification in writing that the statement complained of may be removed from the locations on the website which were specified in the notice of complaint unless—
(i)the operator receives a response in writing from the poster by midnight at the end of the date specified in the notification as the deadline for responding (which must be the 5th day after the day on which the notification is sent); and
(ii)that response complies with sub-paragraph (2); and
(c)notification in writing that the information mentioned in sub-paragraph (2)(b)(i) or (ii) will not be released to the complainant unless—
(i)the poster consents; or
(ii)the operator is ordered to do so by a court.
(2) To comply with this sub-paragraph the response must—

(a)inform the operator whether or not the poster wishes the statement to be removed from the locations on the website which were specified in the notice of complaint; and
(b)where the poster does not wish the statement to be removed from those locations—
(i)provide the poster’s full name;
(ii)provide the postal address at which the poster resides or carries on business; and
(iii)inform the operator whether the poster consents to the operator providing the complainant with the details mentioned in paragraphs (i) or (ii).
3.—(1) Where the operator has no means of contacting the poster paragraph 2 does not apply and the operator must, within 48 hours of receiving a notice of complaint, remove the statement from the locations on the website which were specified in the notice of complaint.

(2) The operator is not to be taken as having a means of contacting the poster unless the means available to the operator include private electronic communication (for example electronic mail or other means of private electronic messaging).

4.—(1) Unless paragraph 9 applies, the operator must, within 48 hours of receiving a notice of complaint, send the complainant an acknowledgement in writing of the notice.

(2) The acknowledgement must—

(a)where paragraph 2 applies, state that the operator has acted in accordance with that paragraph;
(b)where paragraph 3 applies, inform the complainant that the statement has been removed from the locations on the website which were specified in the notice of complaint.

Response to notice of complaint: poster fails to respond

5.—(1) This paragraph applies where the operator acts in accordance with paragraph 2 in respect of a notice of complaint and the poster fails to respond within the period specified in paragraph 2(1)(b)(i).

(2) Where this paragraph applies the operator must, within 48 hours of the end of that period—

(a)remove the statement from the locations on the website which were specified in the notice of complaint; and
(b)send the complainant notice in writing that the statement has been removed from those locations on the website.

Response to notice of complaint: response does not include all required information

6.—(1) This paragraph applies where—

(a)the operator acts in accordance with paragraph 2 in respect of a notice of complaint;
(b)the poster responds to the operator within the period specified in paragraph 2(1)(b)(i); and
(c)the response does not comply with paragraph 2(2).
(2) Where this paragraph applies the operator must, within 48 hours of receiving the response—

(a)remove the statement from the locations on the website which were specified in the notice of complaint; and
(b)send the complainant notice in writing that the statement has been removed from those locations on the website.
(3) For the purpose of this paragraph a response does not include the information mentioned in paragraph 2(2)(b) if a reasonable website operator would consider the name or postal address provided under paragraph 2(2)(b)(i) or (ii) to be obviously false.

Response to notice of complaint: poster wishes statement to be removed from website locations

7.—(1) This paragraph applies where—

(a)the operator acts in accordance with paragraph 2 in respect of a notice of complaint;
(b)the poster responds to the operator within the period specified in paragraph 2(1)(b)(i); and
(c)the poster wishes the statement to be removed from the locations on the website specified in the notice of complaint.
(2) Where this paragraph applies the operator must, within 48 hours of receiving the response—

(a)remove the statement from the locations on the website which were specified in the notice; and
(b)send the complainant notice in writing that the statement has been removed from those locations.

Response to notice of complaint: poster does not wish statement to be removed from website locations

8.—(1) This paragraph applies where—

(a)the operator acts in accordance with paragraph 2 in respect of a notice of complaint;
(b)the poster responds to the operator within the period specified in paragraph 2(1)(b)(i); and
(c)the poster does not wish the statement to be removed from the locations on the website specified in the notice of complaint.
(2) Where this paragraph applies the operator must, within 48 hours of receiving the response—

(a)inform the complainant in writing—
(i)that the poster does not wish the statement to be removed; and
(ii)that the statement has not been removed from the locations on the website specified in the notice of complaint; and
(b)where the poster—
(i)has consented to the operator providing the poster’s name or address to the complainant, provide that information to the complainant in writing; or
(ii)has not so consented, notify the complainant in writing of that fact.

Response to notice of complaint: persistent re-posting of same or substantially the same material

9.—(1) This paragraph applies where—

(a)a notice of complaint from the same complainant has been received by the operator in relation to a relevant statement on two or more previous occasions;
(b)on each occasion the statement has been removed from the website in accordance with this Schedule;
(c)the operator receives a further notice of complaint in relation to the statement; and
(d)the complainant informs the operator at the same time as sending the notice of complaint that the complainant has sent a notice of complaint to the operator on two or more previous occasions in relation to the statement.
(2) Where this paragraph applies paragraphs 2 to 8 do not apply and the operator must remove the statement from the locations on the website which were specified in the notice of complaint within 48 hours of receiving the notice of complaint.

(3) A statement is a relevant statement for the purposes of this paragraph if—

(a)the statement to which the notice of complaint relates conveys the same or substantially the same imputation as that to which each of the previous notices of complaint referred to in sub-paragraph (1)(a) relate;
(b)it was posted on the same website; and
(c)it was posted on that website by the same person.


EXPLANATORY NOTE

(This note is not part of the Regulations)

Section 5 of the Defamation Act 2013 (“the Act”) (c.26) provides a defence for the operator of a website where a defamation action is brought in respect of a statement posted on that website if it was not the operator who posted the statement. The defence can be defeated if the claimant can show that it was not possible for them to identify the person posting the statement, the claimant gave the operator a notice of complaint in relation to that statement and the operator did not respond to the notice of complaint in accordance with these regulations.

Regulation 1 makes provision in paragraph (3) about the calculation of the time limits which apply to actions which must be taken by the website operator. Its effect is to exclude from the calculation of the 48 hour period any time which occurs on a weekend or public holiday.

Regulation 2 sets out the information which must be contained in a notice of complaint in order for it to be valid. These requirements are additional to the requirements set out in section 5(6)(a) to (c) of the Act.

Regulation 3 and the Schedule provide for the steps which a website operator must take on receiving a valid notice of complaint in order to benefit from the defence provided by section 5 of the Act.

Regulation 4 applies where a website operator receives a notice alleging that a statement on the operator’s website is defamatory but that notice does not comply with section 5(6) of the Act and these regulations. In such a case these provisions provide that, in order to benefit from the defence in section 5 of the Act, the website operator must notify the person making the complaint of the requirements of the Act and these regulations.

Regulation 5 gives the court discretion to treat any action which was taken outside the time required by regulation 4 and the Schedule to be treated as though it was taken within that time limit. The court may exercise this discretion if it considers it in the interests of justice to do so.

Defamation Act 2013 [UK]

CONTENTS
Requirement of serious harm

1 Serious harm

Defences

2 Truth
3 Honest opinion
4 Publication on matter of public interest
5 Operators of websites
6 Peer-reviewed statement in scientific or academic journal etc
7 Reports etc protected by privilege

Single publication rule

8 Single publication rule

Jurisdiction

9 Action against a person not domiciled in the UK or a Member State etc
10 Action against a person who was not the author, editor etc

Trial by jury

11 Trial to be without a jury unless the court orders otherwise
Summary of court judgment
12 Power of court to order a summary of its judgment to be published
Removal, etc of statements
13 Order to remove statement or cease distribution etc

Slander

14 Special damage
General provisions
15 Meaning of “publish” and “statement”
16 Consequential amendments and savings etc
17 Short title, extent and commencement


Defamation Act 2013

2013 CHAPTER 26

An Act to amend the law of defamation.

[25th April 2013]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Requirement of serious harm

  1. Serious harm
    (1)A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
    (2)For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

Defences

2. Truth

(1)It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
(2)Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.
(3)If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.
(4)The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.

3. Honest opinion

(1)It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2)The first condition is that the statement complained of was a statement of opinion.
(3)The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4)The third condition is that an honest person could have held the opinion on the basis of—
(a)any fact which existed at the time the statement complained of was published;
(b)anything asserted to be a fact in a privileged statement published before the statement complained of.
(5)The defence is defeated if the claimant shows that the defendant did not hold the opinion.
(6)Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person (“the author”); and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion.
(7)For the purposes of subsection (4)(b) a statement is a “privileged statement” if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it—
(a)a defence under section 4 (publication on matter of public interest);
(b)a defence under section 6 (peer-reviewed statement in scientific or academic journal);
(c)a defence under section 14 of the Defamation Act 1996 (reports of court proceedings protected by absolute privilege);
(d)a defence under section 15 of that Act (other reports protected by qualified privilege).
(8)The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.

4. Publication on matter of public interest

(1)It is a defence to an action for defamation for the defendant to show that—
(a)the statement complained of was, or formed part of, a statement on a matter of public interest; and
(b)the defendant reasonably believed that publishing the statement complained of was in the public interest.
(2)Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.
(3)If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.
(4)In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.
(5)For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.
(6)The common law defence known as the Reynolds defence is abolished.

5. Operators of websites

(1)This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website.
(2)It is a defence for the operator to show that it was not the operator who posted the statement on the website.
(3)The defence is defeated if the claimant shows that—
(a)it was not possible for the claimant to identify the person who posted the statement,
(b)the claimant gave the operator a notice of complaint in relation to the statement, and
(c)the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.
(4)For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.
(5)Regulations may—
(a)make provision as to the action required to be taken by an operator of a website in response to a notice of complaint (which may in particular include action relating to the identity or contact details of the person who posted the statement and action relating to its removal);
(b)make provision specifying a time limit for the taking of any such action;
(c)make provision conferring on the court a discretion to treat action taken after the expiry of a time limit as having been taken before the expiry;
(d)make any other provision for the purposes of this section.
(6)Subject to any provision made by virtue of subsection (7), a notice of complaint is a notice which—
(a)specifies the complainant’s name,
(b)sets out the statement concerned and explains why it is defamatory of the complainant,
(c)specifies where on the website the statement was posted, and
(d)contains such other information as may be specified in regulations.
(7)Regulations may make provision about the circumstances in which a notice which is not a notice of complaint is to be treated as a notice of complaint for the purposes of this section or any provision made under it.
(8)Regulations under this section—
(a)may make different provision for different circumstances;
(b)are to be made by statutory instrument.
(9)A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(10)In this section “regulations” means regulations made by the Secretary of State.
(11)The defence under this section is defeated if the claimant shows that the operator of the website has acted with malice in relation to the posting of the statement concerned.
(12)The defence under this section is not defeated by reason only of the fact that the operator of the website moderates the statements posted on it by others.

6. Peer-reviewed statement in scientific or academic journal etc

(1)The publication of a statement in a scientific or academic journal (whether published in electronic form or otherwise) is privileged if the following conditions are met.
(2)The first condition is that the statement relates to a scientific or academic matter.
(3)The second condition is that before the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out by—
(a)the editor of the journal, and
(b)one or more persons with expertise in the scientific or academic matter concerned.
(4)Where the publication of a statement in a scientific or academic journal is privileged by virtue of subsection (1), the publication in the same journal of any assessment of the statement’s scientific or academic merit is also privileged if—
(a)the assessment was written by one or more of the persons who carried out the independent review of the statement; and
(b)the assessment was written in the course of that review.
(5)Where the publication of a statement or assessment is privileged by virtue of this section, the publication of a fair and accurate copy of, extract from or summary of the statement or assessment is also privileged.
(6)A publication is not privileged by virtue of this section if it is shown to be made with malice.
(7)Nothing in this section is to be construed—
(a)as protecting the publication of matter the publication of which is prohibited by law;
(b)as limiting any privilege subsisting apart from this section.
(8)The reference in subsection (3)(a) to “the editor of the journal” is to be read, in the case of a journal with more than one editor, as a reference to the editor or editors who were responsible for deciding to publish the statement concerned.

7. Reports etc protected by privilege

(1)For subsection (3) of section 14 of the Defamation Act 1996 (reports of court proceedings absolutely privileged) substitute—
“(3)This section applies to—
(a)any court in the United Kingdom;
(b)any court established under the law of a country or territory outside the United Kingdom;
(c)any international court or tribunal established by the Security Council of the United Nations or by an international agreement;and in paragraphs (a) and (b) “court” includes any tribunal or body exercising the judicial power of the State.”
(2)In subsection (3) of section 15 of that Act (qualified privilege) for “public concern” substitute “ public interest ”.
(3)Schedule 1 to that Act (qualified privilege) is amended as follows.
(4)For paragraphs 9 and 10 substitute—
“9(1)A fair and accurate copy of, extract from or summary of a notice or other matter issued for the information of the public by or on behalf of—
(a)a legislature or government anywhere in the world;
(b)an authority anywhere in the world performing governmental functions;
(c)an international organisation or international conference.
(2)In this paragraph “governmental functions” includes police functions.

10 A fair and accurate copy of, extract from or summary of a document made available by a court anywhere in the world, or by a judge or officer of such a court.”
(5)After paragraph 11 insert—

“11AA fair and accurate report of proceedings at a press conference held anywhere in the world for the discussion of a matter of public interest.”
(6)In paragraph 12 (report of proceedings at public meetings)—
(a)in sub-paragraph (1) for “in a member State” substitute “ anywhere in the world ”;
(b)in sub-paragraph (2) for “public concern” substitute “ public interest ”.
(7)In paragraph 13 (report of proceedings at meetings of public company)—
(a)in sub-paragraph (1), for “UK public company” substitute “ listed company ”;
(b)for sub-paragraphs (2) to (5) substitute—
“(2)A fair and accurate copy of, extract from or summary of any document circulated to members of a listed company—
(a)by or with the authority of the board of directors of the company,
(b)by the auditors of the company, or
(c)by any member of the company in pursuance of a right conferred by any statutory provision.
(3)A fair and accurate copy of, extract from or summary of any document circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company or its auditors.
(4)In this paragraph “listed company” has the same meaning as in Part 12 of the Corporation Tax Act 2009 (see section 1005 of that Act).”
(8)In paragraph 14 (report of finding or decision of certain kinds of associations) in the words before paragraph (a), for “in the United Kingdom or another member State” substitute “ anywhere in the world ”.
(9)After paragraph 14 insert—
“14AA fair and accurate—
(a)report of proceedings of a scientific or academic conference held anywhere in the world, or
(b)copy of, extract from or summary of matter published by such a conference.”
(10)For paragraph 15 (report of statements etc by a person designated by the Lord Chancellor for the purposes of the paragraph) substitute—
“15(1)A fair and accurate report or summary of, copy of or extract from, any adjudication, report, statement or notice issued by a body, officer or other person designated for the purposes of this paragraph by order of the Lord Chancellor.
(2)An order under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.”
(11)For paragraphs 16 and 17 (general provision) substitute—
“16In this Schedule—
“court” includes—
(a)any tribunal or body established under the law of any country or territory exercising the judicial power of the State;
(b)any international tribunal established by the Security Council of the United Nations or by an international agreement;
(c)any international tribunal deciding matters in dispute between States;
“international conference” means a conference attended by representatives of two or more governments;
“international organisation” means an organisation of which two or more governments are members, and includes any committee or other subordinate body of such an organisation;
“legislature” includes a local legislature; and
“member State” includes any European dependent territory of a member State.”

Single publication rule

8. Single publication rule

(1)This section applies if a person—
(a)publishes a statement to the public (“the first publication”), and
(b)subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same.
(2)In subsection (1) “publication to the public” includes publication to a section of the public.
(3)For the purposes of section 4A of the Limitation Act 1980 (time limit for actions for defamation etc) any cause of action against the person for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication.
(4)This section does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication.
(5)In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the matters to which the court may have regard include (amongst other matters)—
(a)the level of prominence that a statement is given;
(b)the extent of the subsequent publication.
(6)Where this section applies—
(a)it does not affect the court’s discretion under section 32A of the Limitation Act 1980 (discretionary exclusion of time limit for actions for defamation etc), and
(b)the reference in subsection (1)(a) of that section to the operation of section 4A of that Act is a reference to the operation of section 4A together with this section.

Jurisdiction

9. Action against a person not domiciled in the UK or a Member State etc
(1)This section applies to an action for defamation against a person who is not domiciled—
(a)in the United Kingdom;
(b)in another Member State; or
(c)in a state which is for the time being a contracting party to the Lugano Convention.
(2)A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.
(3)The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.
(4)For the purposes of this section—
(a)a person is domiciled in the United Kingdom or in another Member State if the person is domiciled there for the purposes of the Brussels Regulation;
(b)a person is domiciled in a state which is a contracting party to the Lugano Convention if the person is domiciled in the state for the purposes of that Convention.
(5)In this section—
“the Brussels Regulation” means [F1Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), as amended from time to time and as applied by virtue of the Agreement made on 19 October 2005 between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ No L 299, 16.11.2005, p62; OJ No L79, 21.3.2013, p4)]
“the Lugano Convention” means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark signed on behalf of the European Community on 30th October 2007.

10. Action against a person who was not the author, editor etc

(1)A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.
(2)In this section “author”, “editor” and “publisher” have the same meaning as in section 1 of the Defamation Act 1996.

Trial by jury

11. Trial to be without a jury unless the court orders otherwise
(1)In section 69(1) of the Senior Courts Act 1981 (certain actions in the Queen’s Bench Division to be tried with a jury unless the trial requires prolonged examination of documents etc) in paragraph (b) omit “libel, slander,”.
(2)In section 66(3) of the County Courts Act 1984 (certain actions in the county court to be tried with a jury unless the trial requires prolonged examination of documents etc) in paragraph (b) omit “libel, slander,”.

Summary of court judgment

12. Power of court to order a summary of its judgment to be published
(1)Where a court gives judgment for the claimant in an action for defamation the court may order the defendant to publish a summary of the judgment.
(2)The wording of any summary and the time, manner, form and place of its publication are to be for the parties to agree.
(3)If the parties cannot agree on the wording, the wording is to be settled by the court.
(4)If the parties cannot agree on the time, manner, form or place of publication, the court may give such directions as to those matters as it considers reasonable and practicable in the circumstances.
(5)This section does not apply where the court gives judgment for the claimant under section 8(3) of the Defamation Act 1996 (summary disposal of claims).

Removal, etc of statements

13. Order to remove statement or cease distribution etc

(1)Where a court gives judgment for the claimant in an action for defamation the court may order—
(a)the operator of a website on which the defamatory statement is posted to remove the statement, or
(b)any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.
(2)In this section “author”, “editor” and “publisher” have the same meaning as in section 1 of the Defamation Act 1996.
(3)Subsection (1) does not affect the power of the court apart from that subsection.

Slander

14. Special damage

(1)The Slander of Women Act 1891 is repealed.
(2)The publication of a statement that conveys the imputation that a person has a contagious or infectious disease does not give rise to a cause of action for slander unless the publication causes the person special damage.

General provisions

15 .Meaning of “publish” and “statement”

In this Act—
“publish” and “publication”, in relation to a statement, have the meaning they have for the purposes of the law of defamation generally;
“statement” means words, pictures, visual images, gestures or any other method of signifying meaning.

16. Consequential amendments and savings etc

(1)Section 8 of the Rehabilitation of Offenders Act 1974 (defamation actions) is amended in accordance with subsections (2) and (3).
(2)In subsection (3) for “of justification or fair comment or” substitute “ under section 2 or 3 of the Defamation Act 2013 which is available to him or any defence ”.
(3)In subsection (5) for “the defence of justification” substitute “ a defence under section 2 of the Defamation Act 2013 ”.
(4)Nothing in section 1 or 14 affects any cause of action accrued before the commencement of the section in question.
(5)Nothing in sections 2 to 7 or 10 has effect in relation to an action for defamation if the cause of action accrued before the commencement of the section in question.
(6)In determining whether section 8 applies, no account is to be taken of any publication made before the commencement of the section.
(7)Nothing in section 9 or 11 has effect in relation to an action for defamation begun before the commencement of the section in question.
(8)In determining for the purposes of subsection (7)(a) of section 3 whether a person would have a defence under section 4 to any action for defamation, the operation of subsection (5) of this section is to be ignored.

17. Short title, extent and commencement

(1)This Act may be cited as the Defamation Act 2013.
(2)Subject to subsection (3), this Act extends to England and Wales only.
(3)The following provisions also extend to Scotland—
(a)section 6;
(b)section 7(9);
(c)section 15;
(d)section 16(5) (in so far as it relates to sections 6 and 7(9));
(e)this section.
(4)Subject to subsections (5) and (6), the provisions of this Act come into force on such day as the Secretary of State may by order made by statutory instrument appoint.
(5)Sections 6 and 7(9) come into force in so far as they extend to Scotland on such day as the Scottish Ministers may by order appoint.
(6)Section 15, subsections (4) to (8) of section 16 and this section come into force on the day on which this Act is passed.


 

Crime of Defamation in India

Section 499 of the I.P.C. defines the `Defamation’, whereas Section 500 thereof provides the punishment for the offence. The same read as under:

499. Defamation. – Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the case hereinafter excepted, to defame that person.

Explanation 1. – It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2. – It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3. – an imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4. – No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

500. Punishment for defamation. – Whoever defames another shall be punished with simple imprisonment for a terms which may extend to two years, or with fine, or with both.

 The word “defamation” has not been defined in the I.P.C. This has derived its form from word “defame”. As per the Chambers Dictionary (Delux Edition), the word “defame” has the following meanings:

to take away or destroy the good fame or reputation of; to say malicious things about; to speak evil of; to charge falsely.”

While enumerating the meanings of “defame”, the word “defamation” has been defined as “the act of defaming; calumny; slander or libel.

According to Lord Atkin, to ascertain whether a defamation has been made, the test for that is to see “whether the words tend to lower the complainant in estimation of the right thinking members of the society generally.”

 The essence of the offence of defamation as given in Section 499 of the I.P.C. is that the imputation must have been made either with the intention of causing harm or knowing or having reason to believe that such imputation would cause harm to a person.

The first explanation to the offence of defamation as given in the I.P.C. is “it is not defamation to impute anything which is true concerning any person if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.