Section 18C and the law of defamation

Liability criteria

The tendency of a statement to convey a defamatory meaning is judged objectively according to the standards judicially attributed to the hypothetical reasonable member of the (unified multicultural) Australian community.

The law divides defamatory meanings into those which, judged objectively, are presented as fact and those which are presented as opinion.

By contrast, s 18C is concerned with public acts, "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people" where the act is done because of the race, colour or ethnic or national origin of the other person or of some or all of the people in the group.

As interpreted by the Federal Court, under s 18C the tendency of a statement to offend, insult etc is also judged objectively, but according its effect on the feelings of the hypothetical reasonable member of the relevant racial, national or ethnic group in the Australian community.

Defences/Exemptions

As a general rule, the plaintiff in a defamation case loses if the defendant proves, on the balance of probabilities, that a defamatory meaning presented as a statement of fact is substantially true.

The rationale is a matter of common sense. The truth trumps all.

In the case of a defamatory meaning presented as a comment, the plaintiff loses if the defendant proves, on the balance of probabilities, that the comment was honestly held, relates to a matter of public interest and is based on facts which are truly stated or indicated, or are notorious.

By contrast, although s 18C of the RDA is cut down by s 18D which refers to "a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment" (my underlining), the prefatory words in s 18D, "anything said or done reasonably and in good faith", impose a burden on the defendant which does not confront a defendant pleading honest comment in a defamation case.

Lawyers familiar with the concept of reasonableness, especially those who are familiar with the law of defamation, will know that there is a world of difference between, on the one hand, acting reasonably and in good faith, and, on the other, acting honestly (or, what is probably the same, "genuinely").

The defamation defence protects all opinions that can be honestly held, however offensively, insultingly, humiliatingly, intimidatingly or "unreasonably" expressed including what, according to the ordinary meaning of the word, would be called "bigoted" opinions.

Its purpose is to expand to the outermost limits, individual freedom to discuss controversial matters of public interest such as race, colour or national or ethnic origin.

Again, the rationale is a matter of common sense. If the audience is given or has the facts, then its members can decide for themselves whether they agree or disagree with the commentator. This is the antithesis of the scheme for compelled respect, dignity and "moderate" public discussion embodied in ss 18C and 18D.