With reference to your letter (87103) dated 31st October, 1947, requesting my advice (inter alia) as ‘to what extent, if at all, the Commission’s position as broadcaster is equivalent to that of the newspapers’, I am of the opinion that the Commission’s position in regard to the publication by way of broadcasting of defamatory statements is different from that of the publisher of a newspaper.

(2)  A defamatory statement published in a newspaper constitutes a libel which, in all cases, is actionable per se, but the publication of defamatory matter by broadcasting has been held (Meldrum v. Australian Broadcasting Co. Ltd. (1932) A.L.R. 432) to constitute the publication of a slander, and slander is (save in special cases which I do not think are relevant to this matter) actionable only on proof of actual damage.

(3)  The liability of the Commission in respect of defamatory statements published by means of broadcasting would be confined to statements made by a servant of the Commission in the course of his employment. In such circumstances the Commission and the Commission’s servant would be jointly and severally liable for the whole amount of the damage and the person damaged may sue either of them separately for the full amount of the damage, or he may sue each of them jointly in the same action. The extent of the liability undoubtedly would depend on the circumstances surrounding the broadcast and it is quite likely the liability of the Commission could be infinitesimal.

(4)  I do not think that there would be any cause of action against the Commission in respect of defamatory statements broadcast from the National Broadcasting Stations by persons who are not servants of the Commission.

(5)  With regard to the further request contained in your letter under reference that I cover the general question of absolute privilege and qualified privilege, I assume your request has relation to the news service of the Commission and my advice herein is based upon that assumption.

(6)  With regard to absolute privilege, this principle of the law of defamation applies to statements made in judicial, parliamentary, and certain other similar proceedings, but I am unable to imagine any class of defamatory statement which the Commission may make by broadcasting to which the defence of absolute privilege could be raised.

(7)  With regard to qualified privilege, this principle applies to the publication of certain statements which, although false and defamatory, are not actionable without proof of malice. Section 29 of the Defamation Act 1912 (N.S.W.) particularises the class of statements to which, in respect of the publication thereof in newspapers, is granted qualified privilege, and in view of the distinction in the law of defamation between written and spoken statements as stated in paragraph 2 hereof, qualified privilege will, in my opinion, the more strongly apply to the same class of statement made by broadcasting.

(8)  Section 29 of the Defamation Act 1912–1940 is as follows:

29. (1) No criminal proceeding or civil action shall be maintainable against any person or corporation in respect of the printing or publishing in good faith for the information of the public in any newspaper of any of the following matters, provided they are not blasphemous, seditious, or obscene—

(a)  a fair and accurate report of the proceedings of either House of Parliament of the Commonwealth, or of the Parliament of any State of the Commonwealth, or

(b)  a fair and accurate report of the proceedings of any Committee of any such House;

(c)  a copy of, or an extract from or abstract of, any report, paper, votes, or proceedings published by order or under the authority of either House of any such Parliament as aforesaid;

(d)  a fair and accurate report of the public proceedings of any court of justice, whether such proceedings are preliminary or interlocutory or final, unless, in the case of proceedings which are not final, the publication has been prohibited by the Court: Provided that matter of a defamatory nature ruled to be inadmissible by the Court shall not be deemed to be part of the public proceedings of such Court as aforesaid;

(e)  a copy or an abstract of any judgment, or of the entries relative to any judgment, which are recorded in any books kept in the office of any court of justice;

(f)  a fair and accurate report of the proceedings of any inquiry held under the authority of any Act, or under the authority of His Majesty, or of the Governor-General-in-Council, or of the Governor-in-Council, or an extract from or abstract of any such proceedings, or a copy of, or an extract from, or abstract of, any official report made by the person by whom the inquiry was held;

(g)  any notice or report issued by an Government office or department, officer of State or officer of police, for the information of the public, published with the consent of such office, department, or officer;

(h)  a fair and accurate report of the proceedings of any local authority, board, or body of trustees, or other persons, duly constituted under the provisions of any Act for the discharge of public functions so far as the matter published relates to matters of public concern, except where neither the public nor any newspaper reporter is admitted.

A publication is said to be made in good faith for the information of the public if the person or corporation by whom it is made is not actuated in making it by ill-will to the person defamed, or by any other improper motive, and if the manner of the publication is such as is ordinarily and fairly used in the case of the publication of news.

In the case of the publication of a report of proceedings referred to in paragraphs (b) (f) (g) and (h), it is evidence of a want of good faith if the proprietor, publisher, or editor has been requested by the person defamed to publish in the newspaper a reasonable letter or statement, by way of contradiction or explanation of the defamatory matter, and has refused to neglected to publish the same.

(2)  In any civil action in respect of the printing or publishing in any newspaper of any defamatory matter, any matter of defence under this section may be pleaded specially with a plea of not guilty, or any other plea, without the leave of a judge.

[Vol. 80, p. 1528]