Defaming Politicians: The Not So Common Law

Abstract

expression and the protection of public reputations? These questions or something like them have recently been asked of the highest appellate courts in Australia, New Zealand and Britain. Traditionally, the common law has refused to accept that a defamatory statement, not provably true, could properly be made to the world at large simply because it concerned matters of public interest. Similarly, fair comment demands that defendants show the factual basis of the comment to be true. While qualified privilege is not dependent on the proof of truth, it does require that what is said serve 'the common convenience and welfare of society.'1 What was requisite for the public benefit was narrowly construed. Conventional wisdom denied that there could be a privilege in favour of widespread political dialogue which was honest, albeit erroneous.2 Additionally, the extent of publication had to be appropriate to the occasion and no wider than necessary.3 Each of the cases under review departs from this tradition to some extent. Though they differ significantly, they broadly agree about three matters. Firstly, in modern democratic societies a freedom to communicate widely about the use of political power and other matters of public moment is essential. Secondly, the law must allow the media some margin for factual error if the exercise of that freedom is not to be unduly inhibited by the threat of having to pay substantial damages libel's so-called 'chilling' effect. Thirdly, some form of qualified privilege is the most appropriate method of securing an expanded freedom of expression while continuing to offer suitable protection to reputation.