Radio station 2GB dodges a defamation bullet (for now) – a win for the media on qualified privilege

In a week that Sydney radio station 2GB’s shock-jock Alan Jones copped a shellacking, the talk-back radio station received a welcome boost last Friday when the High Court handed down its decision in Harbour Radio Pty Ltd v Trad [2012] HCA 44.

The station has been defending a defamation action concerning comments made by a 2GB host around the time of the ugly Cronulla race riots seven years ago.  Last Friday, a High Court majority held that 2GB’s defence of qualified privilege did apply to a number of defamatory imputations arising from the radio broadcast complained of by the plaintiff.  The Court remitted consideration of the nature of other imputations to the NSW Court of Appeal.

Although not an outright success for the radio station, it would no doubt have welcomed the decision in what must have been a difficult week.  The case demonstrates the important role the public interest can play in giving the media a defence to defamation actions in certain situations.  

The facts

In late 2005, in the wake of the Cronulla race riots, Mr Trad attended a rally in Sydney’s Hyde Park.  Mr Trad took to the microphone and placed at least part of the blame for the riots on 2GB.  The next morning, 2GB responded to Mr Trad’s attack with an 11 minute tirade about him, voiced by then 2GB host Jason Morrison.

Mr Trad launched defamation proceedings in the NSW Supreme Court against 2GB.  In its defence, the radio station pleaded the defences of substantial truth and contextual truth under the Defamation Act 1974 (NSW).  It also argued the statements broadcast by 2GB about Mr Trad were broadcast on an occasion protected by qualified privilege, that is, that it had a common law right to reply to Mr Trad’s “attack” on the radio station.

A jury found that 2GB’s broadcast contained a number of imputations that were defamatory of Mr Trad.  At first instance, NSW Supreme Court Chief Justice McClellan found that 2GB had made out the defence of substantial truth finding that the plaintiff had incited acts of violence and racial attitudes.  Further, his Honour held that 2GB’s response was protected by qualified privilege – it was in the public interest for 2GB to be able to make such comments in the relevant circumstances of the case.¹

Mr Trad appealed to the NSW Court of Appeal.  The Court of Appeal found that McClellan CJ erred in upholding the defence of substantial truth, but also found that some of the 2GB-broadcast commentary was defensible on the basis of qualified privilege.²

High Court’s majority decision

Qualified privilege

The High Court held that although a number of the imputations found to have been conveyed by the 2GB-broadcast about Mr Trad were defamatory, those defamatory imputations were subject to and protected by qualified privilege. 

Qualified privilege arises where the law recognises that an identifiable public interest should override a plaintiff’s private interest in protecting his or her reputation.  In this case, the public interest in question lay in the recognised right of a person to respond to a prior attack against it.  The Court referred³ to earlier comment by Dixon J in this regard:⁴

The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect.  In this instance, it is assumed to be the entire public.  The purpose is to prevent the charges operating to his prejudice.  It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion.  If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence.

In the context of Mr Trad having attacked 2GB and its “tabloid journalism”, a majority of the Court found that 2GB’s response was:

…a relevant and reasonable response…to direct attention to the credibility of the attacking by imputing hypocrisy to Mr Trad as one who himself incited people to commit acts of violence and to have racist attitudes, and as one who at the peace rally had stirred up hatred against a 2GB reporter…

Qualified privilege was found to have applied because the nature and content of the matter broadcast by 2GB was commensurate with the attack on the station and its staff by Mr Trad, and it was made bona fide for the purpose of vindicating the station’s reputation.  Six of the eight impugned imputations were held to be protected by qualified privilege.

Substantial and contextual truth defences

On the issue of the defence of substantial truth, the Court considered the NSW Court of Appeal’s finding that the primary judge had erred in not asking the question whether, given Mr Trad’s views, a right thinking member of the Australian community would consider⁵ the imputations of the radio host to be defamatory.

The Court held that the relevant “test” audience for consideration of contextual truth should be that of “ordinary, decent persons”, rather than the “right thinking” members of the community.

In the end, the Court remitted consideration of the contextual truth defence to a number of the imputations back to the Court of Appeal.  Mr Trad may yet succeed on part of his claim.

Lavan Legal comment

Radio station 2GB has not been a stranger to defamation actions.  Its programs have a style and a format that lends it to being provocative and edgy.  It is fair to say it has, and will continue to be, a popular form of broadcasting which offers a different choice in the marketplace and also a different style of journalism which attracts listeners.  Not everyone will agree with what it does, but in its own way 2GB makes a contribution to the fabric of Australia’s democracy.

The High Court’s decision strikes a balance in allowing the freedom for there to be ongoing debate, a lot of it colourful and forceful in this case, on important matters of public interest. 

When the correct ingredients are present, a person will be afforded the right to respond to an attack in a strong fashion to the appropriate audience concerned.  In this case, it is noteworthy that it was a large media outlet that has been afforded the right to broadcast a strong response to a private individual’s attack on that media outlet, though done through the agency of a public rally.