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11. The Public Figure Test
There any many problems with the introduction of a public figure test;
rather than list them here, we suggest that the Committee members read
Strossen, "A Defence of the Aspirations - but not the Achievements - of
the US Rules Limiting Defamation Actions by Public Figures" (1986) 15
Melbourne University Law Review 419. Who a public figure is, when a
person starts or stops being a public figure and what "actual malice"
really means, have been the subject of proceedings costing millions of
dollars of legal fees in the United States. Nevertheless, many sections
of the Australian media continue to agitate for this reform, believing
it will result in a reduction of defamation actions or, at least, fewer
damages awards. We submit that if the Committee really is interested in
reforming the law, it should look beyond the limited (and largely
procedural) reforms in the Bill to other reforms proposed, such as the
public figure test.
There are real problems with the adaptation of foreign "reforms" such as
the public figure test. Just as the introduction of the cane toad to
Queensland had unforeseen problems, the "cut-n-paste" approach to
legislative reform of tacking on good bits from other countries is not
necessarily likely to work. In America the public figure test is
"balanced out" by the tort of privacy, which the High Court of Australia
has said (albeit 2-2 and obiter only, in
Victoria Park Racing
Co -v-
Taylor (1937) 58 CLR 479) does not exist in Australia.
The public figure test in America is based on the constitutional
protection of free speech. (There is no equivalent to this in the
Australian Constitution). The rationale is that public figures enjoy
significantly greater access to the media and have a more realistic
opportunity to reply, and that they have voluntarily exposed themselves
to the risk (Gertz -vRobert Welch Inc 418 US 323 and 345). The first
reason shows a touching faith in the availability of the media, while
the second runs counter to the repugnance implicit in Australian law for
claims of 'volenti' arguments. How can it be said that a person
voluntarily exposes themselves to the risk of being defamed by becoming
a schoolteacher or a public servant?
Another problem is that three kinds of public figures have been
identified: all-purpose, limited-purpose, and involuntary (Gertz at p
344-8). In Gerts, the plaintiff was not classified as an all-purpose
public figure, although well-known in some circles, because no
prospective juror recognised his name. The problem categories have
always been the limited purpose and involuntary categories.
The public figure test sounds convincing in theory, largely because of
its catchy name. Its introduction in Australia would probably only
further complicate an already complex area of the law.
Nevertheless, there is force in the argument that journalists do not
feel free to tell the truth about corruption and mismanagement because
they fear being the target of so-called "stop writs". "Stop writs" do
not prevent publication of further material, but they do have what is
called a "chilling" factor. If a politician is known to be quick-
writted, journalists may be reluctant to publish articles critical of
him.
The main problem with the American public figure test is that it has
gone too far. A person thrust into the public eye by ill-fortune or
persondl tragedy ought not to suffer the additional humiliation of being
unable to rectify the situation by seeking legal redress.
However, if the test could be limited to public officials such as
politicians, senior public servants and the like, and be restricted to
comments made about their fitness for office (in mdtters of public
interest), the test may give journalists in the political sphere a
greater degree of latitude. The argument that public servants (above a
certain level) should be accountable without fear of suit has some moral
basis; whether amateur sportsmen, small-time actresses, closet
homosexuals and the Prime Minister's children should lose their right to
sue is another matter.
A 'public figure' defence (really a 'public official' test) could be
drafted along the following lines:
"(l) It shall be a defence to an action for defamation that the
statements were published of a person who was at the time of
publication:
(a) a candidate for public office;
(b) an elected public official;
(c) the occupant of any position above Class 4 in any branch of
government who exercises any public function;
(d) law enforcement officials of commissioned rank and above;
(e) retained to perform government service deamed to be of importance
to the public;
(f) holding judicial office;
(g) a director of a company which is a public company or which is a
company listed on the Stock Exchange or Futures Market for the
purpose of trading in shares;
(h) holding or administering pursuant to a trust of any kind
provided that the statements relate to his/her official conduct or touch
upon his/her fitness for office and relate to matters of public
interest.
(2) Where the statements are published with actual malice, the defence
will fail
(3) The burden of proving actual malice lies upon the plaintiff."
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