RESPONSIBLE JOURNALISM: DEFAMATION LAW AND NEWS PRODUCTION IN AUSTRALIA, THE US AND THE UK

RESPONSIBLE JOURNALISM:
     DEFAMATION LAW AND NEWS
    PRODUCTION IN AUSTRALIA, THE
           US AND THE UK
Andrew Kenyon1, Tim Marjoribanks2

1. Centre for Media and Communications Law, University of Melbourne
2. School of Political Science, Criminology and Sociology, University of Melbourne
                                                                a.kenyon@unimelb.edu.au
                                                                   tkmarj@unimelb.edu.au

ABSTRACT
This paper explores the question of ‘responsible journalism’ in the context of the
relationship between news production practices in newspapers and defamation law in
Australia, the US and the UK. While there have been long standing concerns about the
potential chilling effects of defamation law, UK defamation law has developed in recent
years so that it now protects ‘responsible journalism’ and many other commonwealth
countries have seen similar developments. These changes offer real potential to support
wider public debate, but they also contain great challenges for law to understand and
evaluate journalistic practices. This paper draws on a three year empirical study, funded
by the Australian Research Council, into news production and defamation law in the US,
UK and Australia. It explains the difficult position facing journalism under traditional
defamation law, outlines the key legal developments that aim to support mediated
speech, and analyses how information about news production practices might be
understood by courts.

1    INTRODUCTION
This paper explores the question of ‘responsible journalism’ in the context of the
relationship between news production practices in newspapers and defamation law in
Australia, the US and the UK. Claims by newspaper organizations that they act to
promote accountability from powerful actors through practicing responsible journalism
rest centrally on an ideal of journalists and editors as professionals working to high
standards. Within this discourse, media professionals argue that they are best placed to
decide what constitutes the appropriate standard of responsible journalism in relation to
issues such as news gathering and publication (Schultz 1998). Within the law of
commonwealth countries, however, a different view has often been taken—the fourth
estate has traditionally received little praise from the judicial branch of government, and
there have been limited opportunities to present evidence about news production
practices in court. The juridical inquiry has focussed more often on the truth or falsity of
a critical publication than the process by which it came to be published.

Defamation law is one specific area in which tensions around what constitutes
responsible journalism, and who decides, have long existed. The traditional law left little
room for claims that journalists had acted ‘responsibly’, and arguments of public interest
or responsible news production practices received little sympathy. This has changed in
important ways during the last decade, however, with UK law now protecting ‘responsible
journalism’. Many other commonwealth countries have seen similar developments.

These changes offer real potential to support wider public debate, but they also contain
challenges for law to understand and evaluate journalistic practices.

In exploring the changing relationship between defamation law and news production, we
draw on Simon Cottle’s three dimensional analytic framework which proposes that, to
understand relations in news production processes, there is a need to explore the
interaction of micro-level workplace practices, meso-level organizational cultures, and
macro-contexts of regulatory and technological environments (Cottle 2003). From the
existing literature, two findings of particular significance emerge relevant to this model in
the context of our analysis. First, the emergence of particular micro-level workplace
practices and meso-level organisational cultures around what constitutes responsible
journalism are the outcome, in part, of discursive and organisational boundary contests,
for example between journalists, editors and legal advisors (Aldridge and Evetts 2003,
Schudson 2000). Second, the macro-context of news reporting includes varying forms of
legal regulation, such as defamation law, so that an analysis of responsible journalism
must also engage with such factors (Marjoribanks and Kenyon 2003). In other words,
understandings and practices around responsible journalism are the outcome of social
processes, influenced by the interaction of organisational, cultural, legal and political
contexts. This paper seeks to contribute to specifying further the ways in which these
social processes operate.

The paper engages with two major data sets. First, we analyse changes in defamation
law concerning ‘responsible journalism’ in the UK, ‘reasonable publication’ in Australia,
and the longer established and strong protection for public speech in the US. Second, we
draw on more than 150 interviews conducted with journalists, editors, and in-house and
external legal advisors at media companies in all three countries, in the period 2002-
2005. These interviews explore how key informants perceive defamation law and
interact with it in their everyday organisational practice.

2     DISCUSSION
2.1     DEFAMATION LAW AND RESPONSIBLE JOURNALISM
A traditional common law approach to defamation requires the plaintiff to prove only
three things: the defendant published material, which identified the plaintiff, and which
would harm the plaintiff’s reputation. Once these elements are established, the material
must be defended by proving it to be true, to be a matter of honest opinion or comment
based on true facts, to be published on an occasion of qualified privilege—such as a fair
report of what was said in parliament or in court—or by some other defences which have
less application to media publications. The defendant need not have intended any harm,
nor need the defendant have been careless in publishing. In addition, damages are
presumed to flow from defamatory publications and need not be proven by plaintiffs.
Publishers’ liability is strict. The common law rationale is that publishers should research
before publication and err on the side of caution.

It is not a defence under traditional defamation law for the publisher to show that it was
not careless, or that publishing the material served some wider public interest. This
approach to defamation law makes it easy for critical publications to convey defamatory
meanings and for publishers to face liability. Traditional defamation law is often seen to
protect reputation at the expense of open debate about matters of public interest,
resulting in a ‘chilling effect’. It does not sit comfortably with common, even if idealized,
ideas about the media’s role as a fourth estate in liberal democracies.

The defamation law of the UK broadly follows the above outline. During the last decade,
however, it has developed a wider form of privilege defence, in recognition that the
traditional law was too restrictive of speech. The defence can apply to material that
cannot be proven true where it was published as a result of ‘responsible journalism’
about a matter of public interest. It is commonly known as the Reynolds defence, after

the first House of Lords case in which the defence was set out (Reynolds 2001). Later
court judgments have emphasized the breadth and strength of the defence (Jameel
2006) and the way in which it can apply to some reportage of serious allegations, even
where no attempt has been made to verify those allegations. In such situations, the
public interest lies in the fact that the allegations were made, rather than whether they
were true; the publication merely reports that fact, it does not adopt the allegations as
true (Roberts 2007). In most situations, however, the responsible journalism protected
by Reynolds requires news producers to investigate material—and do so more carefully if
the material contains seriously defamatory charges—to have appropriate sources, and to
attempt to contact the subject of the planned publication and include their view of the
situation.

Australian defamation law followed the traditional model, but has developed a broader
privilege defence for ‘reasonable’ publication in recent years. During the 1990s, that
defence developed in relation to ‘political’ speech (Lange 1997), which appeared to be
limited to publications about politicians and candidates (and some related matters which
a court would think should properly influence voters). This was a narrow, institutional
vision of the political, and an effect of the Lange defence’s narrowness was that few
publications lay within it. From the start of 2006, however, all Australian jurisdictions
have introduced largely uniform defamation statutes, which provide for a defence for
reasonable publication on any matter of public interest, which at least has the potential
to be interpreted in a similar manner to the Reynolds defence in the UK (Kenyon 2006).

The US approach to defamation offers a strong contrast to these approaches. It can be
called the ‘Sullivan rules’ (Chesterman 2000), having been developed in a series of cases
since the 1964 Supreme Court Sullivan decision. The Sullivan rules require plaintiffs to
prove the three elements mentioned above: publication, identification and defamatory
meaning. Plaintiffs must also prove that the publication conveys material of a factual
quality—rather than being a matter of opinion—that is actually false.          This limits
defamation to harmful factual allegations that are proven to be false. In US law, matters
of opinion that do not imply the existence of a false fact cannot form the basis for a
defamation claim (Murchison 2007). Further, plaintiffs who are public officials or public
figures must also prove the defendant published with ‘actual malice’. The plaintiff must
prove that the publisher actually believed the material was false at the time of
publication, or at least that the publisher had a ‘high degree of awareness’ of the
publication’s ‘probable falsity’ and recklessly disregarded that danger (St Amant 1968:
731). The Sullivan rules also require the plaintiff to establish actual malice with
‘convincing clarity’, a standard of proof substantially higher than the usual standard in
civil litigation in the US. The Sullivan rules are seen to support the country’s ‘profound
national commitment to the principle that debate on public issues should be uninhibited,
robust and wide-open’ (Sullivan 1964: 270).

Compared to the US, defamation law in the UK and Australia is much more restrictive of
media speech, and much more protective of reputation. In both the UK and Australia,
however, the notable changes in defamation law in the Reynolds defence and Australian
statutes have potentially significant outcomes for understandings of news production
practices and ‘responsible’ journalism.

2.2     ‘RESPONSIBLE    JOURNALISM’                           AS          CONTESTED
        ORGANIZATIONAL PRACTICE
Two key themes emerging from our fieldwork reveal that understandings of responsible
journalism are highly contested at the organizational level of everyday news production
practice, and involve significant concerns about defamation law.

2.2.1 THEME 1: PERCEIVED EFFECTS OF DEFAMATION LAW
From our research, people working in the media across all three countries perceive that
defamation law can have a ‘chilling effect’ on journalism, in that journalists and editors

will either not pursue stories, or will pursue stories in a modified fashion, in certain
circumstances for fear of being liable under defamation law (which supports the earlier
Barendt et al 1997, Weaver et al 2006). Perception of a ‘chilling effect’ was particularly
notable in the Australian context, but also existed in the UK and to a lesser extent in the
US. For example, journalists and editors in all three countries acknowledged that there
were certain individuals or organizations with a reputation for being ready to sue if they
were written about. When such people or organizations were known, extra precautions
were taken, including weighing up the benefits of publishing a story for one issue
compared with the potential legal and personal costs of being involved in lengthy legal
proceedings. One respondent noted that:

     One thing we’re aware of—and this is just a reality—some people are
     going to be more inclined to sue than somebody else. We looked at a
     story last year about a person of fairly high prominence and there were
     sensitive things and the reporter was on the phone with him a lot, and
     he kept saying ‘well, you can print that, I’ll see you in court’ and we had
     no reason to doubt that he wouldn’t sue us if we didn’t get it right. But
     we spent a lot of time talking to our lawyer about that and made sure
     we had all those things nailed down because we knew that if we didn’t
     get it right, he would sue and that doesn’t mean we don’t try to get it
     right with everything else but we know that some people are more
     prone to do that than others. (US, editor)

Many respondents had similar experiences, reflecting the situation that defamation law is
part of the everyday experience of media workers. While there was a strong recognition
among journalists and editors that they have a responsibility to protect the reputations of
people they write about, particularly outside the US there was also a concern that
defamation law operated too strongly to protect reputation at the expense of the media’s
ability to report and to promote wider public debate.

Such concerns were closely connected to journalists’ perceptions of the role of legal
advisors. Many journalists were concerned about whether their legal advisors considered
their role to be to protect journalistic practice or to protect the media company. While
journalists and editors valued the contribution of lawyers to their work, a tension
emerged around who was controlling the boundaries of journalistic practice and
ultimately what constitutes responsible journalism. This was seen particularly in the UK
and Australian contexts, where lawyers were more frequently involved at the production
stage.

Even with major cases during the last decade that appear to hold great promise for the
media, concerns still exist among journalists and others working in media that
defamation law can impact negatively on the practice of responsible journalism where it
restricts the range of people or organizations that journalists are able to write about, or
the way they are able to be written about. Issues related to financial and personal costs
were also crucial, and were interpreted as an important part of the potential ‘chilling’
effect of defamation law. This concern is exacerbated when we turn to concerns around
the relationship between standards of journalistic practice and defamation law.

2.2.2 THEME 2: JOURNALISTIC AND LEGAL STANDARDS
In almost all cases, those we interviewed were keen to argue that while they were aware
of the standards required by defamation law, in everyday practice the self-proclaimed
journalistic standards of responsible journalism were in fact dominant and directed them
to high standard practice.      This was particularly evident in the US, which was
unsurprising given the different legal tests for defamation liability that exist under US
law. One would expect that, if they follow commonly articulated journalistic standards,
journalists would not publish factual material they believe to be false and so would meet
the US legal test. The US interviews supported this position, and to give just one
example:

I honestly don’t think we think about it [the role of the law] much until we
     have to. I think it’s viewed by journalists as running on a parallel track.
     We’re aware of it, I mean, obviously the principles of what we do-
     fairness, dictate, but how the law will intersect with us isn’t on our minds
     until it does…Their journalistic principles are driving them, not legal
     principles. (US, journalist/editor)

It is important to note that such views were also evident among participants working in
the UK and Australian contexts, indicating that even where the legal burdens are far less
supportive of media speech, media workers look to professional standards. This is
related to boundary contests over who is competent to regulate news standards, with
journalists and editors making a discursive claim that they are best positioned to decide
the appropriate standards of responsible journalism.

There was also recognition through the interviews of the responsibility held by
journalists, given their position as members of the ‘fourth estate’. According to an editor
in Australia:

     Journalists have an enormous privilege, you know, to do what they do,
     because they are set up as sort of critics and judges and all sorts of
     things. It’s a process of making…choices, and those choices are in their
     copy…So in return for that privilege, there has to be a certain amount of
     obligation, and the obligation, I think, is to get things right and to be
     fair. (Australia, editor).

This illustrative comment suggests an approach which sits uneasily with traditional
commonwealth defamation law. In many situations, that law required journalists ‘to get
things right’—that is, publish material that could be proven true in court—and it offered
little room for arguments that a journalist had been ‘fair’ or that the publication
amounted to responsible journalism about something of public interest. The newer
defences, in particular Reynolds in the UK and the statutory defence for reasonable
publication in Australia, offer real scope for journalistic standards to have greater traction
within defamation law.

3    CONCLUSIONS
Important insights into the relationships between defamation law and journalism can be
gained by exploring the relationships of micro, meso and macro factors in the news
production process. As this paper reveals, defamation law is a significant feature of
social processes of news production, influencing the development and practice of
responsible journalism. While recent cases such as Reynolds, Jameel and Roberts
indicate an increasing awareness within law about the significance of responsible
journalism, and about the need for the law to provide a context in which such journalism
is allowed to flourish, it is also evident that these legal developments are not experienced
uniformly at the organizational level of news journalism. Indeed, as our research
reveals, a key site of tension within news organizations relates to the ways in which
defamation law is experienced and negotiated in everyday practice. As such, a critical
challenge for future legal developments concerns developing greater capacity to
comprehend and evaluate journalistic practices.

4    ACKNOWLEDGEMENTS
We acknowledge the support of the ARC Discovery Grant scheme (DP0343258), and the
research work of Chris Dent and Jason Bosland.

5    REFERENCES
Aldridge, M and Evetts, J (2003) ‘Rethinking the Concept of Professionalism: the Case of
       Journalism’, British Journal of Sociology 54(4): 547-564

Barendt, E, Lustgarten, L, Norrie, K, and Stephenson, H (1997), Libel and the Media: The
      Chilling Effect, Oxford: Clarendon Press.

Chesterman, M (2000), Freedom of Speech in Australian Law: A Delicate Plant,
      Aldershot: Ashgate.

Cottle, S (ed) (2003), Media Organisation and Production, London, Sage.

Jameel (2006), Jameel v Wall Street Journal Europe Sprl [2006] 3 WLR 64.

Lange (1997), Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

Kenyon, A.T. (2006), Defamation: Comparative Law and Practice, Abingdon: University
      College London Press.

Marjoribanks, T and Kenyon, A.T. (2003) ‘Negotiating news: Journalistic practice and
       defamation law in Australia and the US’, Australian Journalism Review 25(2): 31-
       49.

Murchison, B. (2007), ‘The Fact-Conjecture Framework in US Libel Law: Four Problems’,
       paper presented at CMCL—Centre for Media and Communications Law seminar,
       ‘Defamation and Opinion under US and Anglo-Australian Law’, Sydney 17 July
       2007 and Melbourne 19 July 2007.

Reynolds (2001), Reynolds v Times Newspapers [2001] 2 AC 127 (decided in 1999).

Roberts (2007), Roberts v Gable [2007] EWCA Civ 721 (21 July 2007).

St Amant (1968), St Amant v Thompson, 390 US 727.

Schudson, M. (2000), ‘The Sociology of News Production Revisited (Again)’, in James
      Curran and Michael Gurevitch (eds), Mass Media and Society, third edition,
      London: Arnold.

Schultz, J. (1998), Reviving the Fourth Estate: Democracy, Accountability and the Media,
       Cambridge: Cambridge University Press.

Sullivan (1964), New York Times v Sullivan, 376 US 254.

Weaver, R.L., Kenyon, A.T., Partlett, D.F., and Walker, C.P. (2006), The Right to Speak
      Ill: Defamation, Reputation and Free Speech, Durham, NC: Carolina Academic
      Press.