‘A Man Must Take Care Not to Defame his Neighbour’: The Origins and Significance of the Defence of Responsible Publication

Abstract

This article (written from an English perspective) explores two relatively overlooked dimensions of the defence of ‘responsible publication on a matter of public interest’ which was recognised by the House of Lords in the 1999 case of Reynolds v Times Newspapers and then put in a statutory form — using obfuscating language — by the Defamation Act 2013 (UK): namely, its origins and its significance in terms of tort theory. On the first point, the roots of the idea of responsible publication, in the sense that there should exist reasonable ground to believe the defamatory matter to be true, are traced into Australian law all the way down to Macintosh v Dun in 1906 and the Defamation (Amendment) Act 1909 of New South Wales. Concerning the second, the emphasis is put on the taking over of large swathes of defamation by what is essentially a negligence standard, historically alien to a cause of action that was entirely controlled by malice (and its rebuttal). Beyond the tort of defamation, this represents a milestone in terms of the unification of the standard of liability across the divide between patrimonial rights and personality rights.

Keywords: defamation, Reynolds privilege, responsible journalism, responsible publication on matter of public interest, malice, Australian law, Defamation Act 1909 (NSW), Macintosh v Dun