Page 25 - Week 01 - Tuesday, 14 February 2006
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footballer Andrew Ettingshausen, who got a very substantial payout too. I am not too sure if that was in the ACT or New South Wales; I think it might have been in New South Wales. He was photographed in a shower and that photo was splashed about. He took offence to that, and rightly so.
Mr Stanhope: Is that defamatory, though, Bill?
MR STEFANIAK: Well, I thought it was an interesting case, Chief Minister, but the court certainly thought so. What we must ask is: what is the public benefit?
Mr Stanhope: Would you sue if you were photographed in the shower, Bill?
MR STEFANIAK: That would not be in the public interest. It would be a very ugly sight, Jon.
But certainly there is a public benefit in that, and there are some very real concerns in terms of what things can be, quite wrongfully, just dredged up and, because they are true, or substantially true, it is okay. Out of probably all the areas in relation to defamation law reform, this is a very, very important one. It is a shame that the model legislation has gone away from this particular standard of proof and adopted just the defence of truth alone. This is one where there is some very strong opposition from, again, practising lawyers, and the Law Society itself has taken a strong position on it. I will quote their position:
1. The Law Society has always supported the ACT requirement that truth alone is not a sufficient defence. Publication should also be for the public benefit. (Arguably a narrower concept than the public interest.)
2. The requirement that publication must not only be true, but also be for the public benefit, prevents the publication of stale or irrelevant criminal convictions or of youthful indiscretions. Public figures are entitled to such protection, and it is an important difference between us, and the excessively intrusive US press.
3. Publishers should not be allowed to dredge up material irrelevant to the public discussion, of a matter of public interest, even if it happens to be true. A person who has been convicted of some relatively minor offence 30 years earlier, and who has lived a blameless life since, could find a report of those offences splashed across the national media.
4. Latterly TV has made a habit of discussing the details of acrimonious divorces, concerning private individuals, and there is an industry of pursuing the private lives of minor celebrities. Requiring truth and public benefit exercises some proper control over invasions of privacy, and prevents spurious truth defences being used to justify what was always unethical journalists invading privacy.
That is a fairly strong view there from the Law Society, who largely are quite happy with this model legislation, which, as the attorney has indicated, is largely based on what we have already as a result of the significant reforms made in the late nineties and in 2000 and 2001.
In this area there are some very real human rights concerns—the rights of individuals to reasonable privacy, the rights of individuals to not have things unfairly splashed across
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