The concept of reasonableness in the context of the Lange defence in defamation law has been a subject of debate and evolving interpretation.
This article discusses the concept of reasonableness and its application to the Lange defence, based on the decision in Palmer v McGowan (No 5) [2022] FCA 893.
I explore the three potential approaches to reasonableness outlined in the case and examine the implications for balancing freedom of speech and reputation protection.
Three Potential Approaches to Reasonableness
1. Eschewing the reasonableness requirement
The first approach argues that in specific situations, such as when a communication meets the duty and interest components of common law qualified privilege, the reasonableness criterion may not apply. This perspective aligns with the High Court's decision in Lange, which introduced reasonableness as an additional condition for mass media publications that could potentially cause more significant harm to one's reputation.
However, this method has faced criticism as it seems to overlook the fact that in Lange, reasonableness replaced the reciprocity requirement rather than being added to it. Moreover, this approach could be perceived as granting an unrestricted exemption for particular statements without carefully considering the balance between free speech and protecting one's reputation.
2. Adapting the concept of reasonableness
The second approach proposes that the concept of reasonableness should be adapted or more stringently defined to prevent the imposition of an undue burden on the implied freedom of speech.
This perspective has arisen in reaction to how reasonableness has been interpreted under Lange, often incorporating judicial interpretations of reasonableness from defamation legislation, such as the Defamation Act.
Critics assert that this method has resulted in a detailed examination of pre-publication conduct, imposing a burden on both litigants and decision-makers.
Instead, proponents of this approach recommend that reasonableness should be addressed with greater flexibility, taking into account "all of the circumstances of the case," as expressed in Lange.
3. Revisiting the reasonableness criterion
The third approach advocates for revisiting and potentially removing the reasonableness criterion as part of the Lange defence. However, this view has faced challenges, as seen in the refusal of special leave to reopen Lange in The Herald & Weekly Times Ltd v Popovic [2004] HCATrans 180.
The approach taken in Palmer v McGowan (No 5) [2022] FCA 893
Section 30 of the Defamation Act outlines a statutory defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that:
(a) the recipient has an interest or apparent interest in having information on some subject;
(b) the matter is published to the recipient in the course of giving them information on that subject; and
(c) the conduct of the defendant in publishing the matter is reasonable in the circumstances.
Despite nuances like these, courts have generally equated the reasonableness requirement in Lange to that in Section 30 of the Act.
However, this has led to the Lange defence losing its practical utility.
Commentators have criticized the defence as "ill-defined" and "about as hopeless as you can get," with some even calling it a "disaster." Such strong critiques emphasize the need to reevaluate and clarify the reasonableness requirement in Lange.
Striking a Balance
The reasonableness requirement in the Lange defence has been criticized for being too onerous and hindering the proper balance between freedom of speech and reputation protection. The need to strike a balance between these interests was a key rationale behind the High Court's decision in Lange.
Although the Lange defence is rarely successful, primarily due to the stringent reasonableness requirement, it is important to consider whether the current approach to reasonableness adequately balances free speech and reputation protection. A more evaluative approach to reasonableness, free from the constraints imposed by authorities, may be necessary to strike the appropriate balance.
Key Take-Aways
The concept of reasonableness in the Lange defence remains a complex and evolving area of defamation law.
While the approaches outlined in Palmer v McGowan (No 5) provide potential avenues for reevaluating reasonableness, it is essential to consider the overarching goal of striking a balance between freedom of speech and reputation protection.