Defamation law seeks to balance the protection of individual reputations with the importance of free speech, particularly in matters of government and politics.
One key aspect of defamation law in Australia is the Lange defence, a constitutionally protected privilege that provides a further protection for publishers of false and defamatory material.
In this blog post, I discuss the origins and principles of the Lange defence, as well as its limitations.
The Lange Defence: Background and Principles
The Lange defence emerged from a line of High Court cases starting with Theophanous v Herald & Weekly Times Ltd (1994) and Stephen v West Australian Newspapers Ltd (1994).
The defence was settled by the unanimous decision of the High Court in Lange v Australian Broadcasting Corporation (1997), where the court recognised the importance of the concept of representative democracy and the dissemination of information about government and political matters to the widest possible audience.
Under the Lange defence, each member of the Australian community has an interest in receiving information, opinions, and arguments concerning government and political matters, and each person has a correlative duty to disseminate such information, opinions, and arguments. This new category of qualified privilege was seen as an extension of the existing categories of qualified privilege.
The Lange Defence: Conditions and Reasonableness
A crucial aspect of the Lange defence is the question of the conditions upon which this extended category of common law qualified privilege should depend.
Just as the traditional categories of qualified privilege are unavailable where a respondent was actuated by malice, the High Court noted that as long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory.
Additionally, in view of the much wider audience that has an interest in receiving discussion about government and political matters, the High Court held that the protection will be lost unless the publisher of the false or defamatory material proves they acted reasonably.
The concept of reasonableness has been the subject of debate and differing interpretations, but it generally encompasses factors such as:
having reasonable grounds for believing the imputation was true,
taking proper steps to verify the accuracy of the material, and
seeking a response from the person defamed.
Limitations and Criticisms of the Lange Defence
Despite the potential importance of the Lange defence in striking a balance between freedom of discussion and protection of reputations, it has been criticised as being "ill-defined" and having limited utility, primarily due to the stringent reasonableness requirement.
Some commentators have even labeled it a "disaster" and called for a reconsideration of the balance between free speech and reasonable protection of individuals involved in government or politics.
In practice, the Lange defence is rarely successful, leading to questions about whether a proper balance is being struck.
Key Take-Aways
The Lange defence represents an important aspect of defamation law in Australia, seeking to balance the competing interests of free speech and protection of individual reputations.
While the defence has its limitations and has been subject to criticism, it remains an essential component of the legal landscape, protecting the communication of government and political matters.