Loosening the shackles of the truth defence on free speech: making the truth defence in Australian defamation law more user friendly for media defendants

Joseph Fernandez

Research output: ThesisDoctoral Thesis

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Abstract

Defamation law's truth defence – the oldest, most obvious and principal defence – has failed Australian media defendants. Few who mount the defence succeed. Many, discouraged by the defence‘s onerousness, do not even attempt it. As a consequence the journalistic articulation of matters of public concern is stifled. This thesis argues that the limitations of the Australian truth defence are inconsistent with established freedom of speech ideals and the public interest in having a robust media. As a result society is constrained from enlightened participation in public affairs. This thesis proposes reforms to alleviate the heavy demands of the defence so as to promote the publication of matters of public concern and to strike a more contemporary balance between freedom of speech and the protection of reputation. These reforms employ defamation law's doctrinal calculus to reposition the speech-reputation fulcrum. While defamation law has for decades attracted reform attention, the truth defence has languished by the wayside. This thesis steps into the breech. The cornerstone of this thesis is a proposal to reverse the burden so that the plaintiff bears the burden of proving falsity of the defamatory publication where: the complainant is a public figure; the matter complained about is a matter of public concern; and the suit involves a media defendant. While this proposal is likely to dramatically alter the prevailing Australian freedom of speech/protection of reputation equilibrium, other measures are proposed to serve as a bulwark against the wanton destruction of reputation.
Original languageEnglish
QualificationDoctor of Philosophy
Publication statusUnpublished - 2008

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