Another judgment in the Rush v Nationwide News litigation
The Federal Court of Australia recently delivered reasons for decision in Rush v Nationwide News Pty Limited (No 9) (click here for the decision), the ninth set of reasons in the proceedings.
Damages – to vindicate reputation - is the main remedy obtained by a successful claimant in a defamation action in Australia.
While the courts have power to order a permanent injunction to restrain future publication, or threatened publication, of the defamatory matter found to have been published by a defendant such power is exercised cautiously due to the countervailing rights of freedom of speech.
The Federal Court had earlier delivered a liability judgment finding that a billboard and various articles published in Sydney’s The Daily Telegraph conveyed various defamatory imputations about actor Geoffrey Rush, and that the newspaper and reporter had not proved the imputations were substantially true.
The final issue for determination was whether a permanent injunction should be made against the newspaper restraining it from republishing the defamatory imputations.
Mr Rush’s lawyers argued a permanent injunction was necessary because there was a “serious risk or apprehension that, unless restrained, Nationwide would continue to publish the imputations”. Mr Rush relied on articles published by Nationwide following the handing down of his Honour’s liability decision. The court heard those articles appeared to disagree with the judgment against the newspaper and contained support for the evidence given by one witness despite criticisms of that evidence by the trial judge in his liability decision.
Nationwide argued there was no risk of republication of the defamatory imputations and argued that the injunction sought was a “blunt instrument” that would unfairly curtail Nationwide’s right to report on the court’s findings.
Another technical argument in support of the application for a permanent injunction was that if Nationwide republished the defamatory imputations then section 23 of NSW Defamation Act (a provision in all the uniform defamation legislation across the country) meant Mr Rush would need the Court’s permission to sue Nationwide again. That section states:
If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.
There are conflicting authorities as to the proper interpretation of this provision.
Justice Wigney noted that the republication of the “matter” as referred to in the section was likely a reference to republication of the actual publications that had previously been sued on rather than the imputations found to have been conveyed by them. His Honour could not envisage a situation in which Nationwide would do so.
His Honour’s view was that an article reporting on the liability judgment and the defamatory imputations would not be held to be “like” the original publications in question and therefore leave would not be required.
However, his Honour stated that he did not reach a concluded view on this point as he viewed it as unnecessary and noted that even if Mr Rush did require leave to proceed against Nationwide, it did not automatically follow that that would be a difficult hurdle.
Justice Wigney ultimately concluded it was not reasonable to grant the permanent injunction, his Honour ruling Mr Rush had failed to show there was a real or appreciable risk that, if not restrained from doing so, Nationwide would repeat or republish the relevant defamatory imputations. His Honour noted at [63] and [89]:
63 [a] media organisation which expresses disagreement with or criticises a court’s finding that a particular defamatory imputation was not proved to be true does not thereby necessarily republish or repeat that defamatory imputation. In most circumstances, the ordinary reasonable reader would read such expressions of disagreement and criticisms for what they undoubtedly are: comments or expressions of opinion.
89 Following the handing down of the liability judgment, Nationwide published articles that expressed disagreement with and criticised the judgment. Properly considered, however, those articles were either reports of the judgment or comprised comment or opinion about it. They did not simply repeat or republish the defamatory imputations. While it is likely that Nationwide will publish similar articles in the future, most likely in the context of the appeal proceedings, it cannot be concluded that any such articles will republish the defamatory imputations. While Nationwide has not given any express assurance or undertaking not to republish the imputations, it has removed the defamatory articles, and a number of other articles, from its websites.
An important factor weighing against ordering injunctive relief was the public interest in the right of free speech.
90 … Nationwide, like any other person, has a right, within limits, to criticise and express disagreement with the liability judgment. There is at least a risk that the injunction sought by Mr Rush might effectively impinge on or restrict that right in a way which is not warranted or justified in all the circumstances.
Mr Rush’s application for the permanent injunction was dismissed.
Lavan comment
It does not automatically follow that if a defendant is found to have published defamatory imputations that that defendant will be restrained by the imposition of an injunction from being able to publish statements on the same topic in the future.
In deciding whether to grant an injunction in defamation proceedings, the Court is likely to take into account whether there is actual evidence of a risk of there being republication of the defamatory imputations found to have been published, and balance that consideration against the public interest of the right of free speech.
At Lavan, Nick Stagg and Jasmine Sims can provide defamation advice if you are concerned about a publication you or your business has made or is intending to make, or if you are concerned about a publication that has been made about you.
