The Challenges in Assessing Damages for Defamation: Striking the Right Balance

Defamation law is an important tool for protecting individuals from damage to their reputation.

In Australia, the assessment of damages for defamation involves ensuring an appropriate and rational relationship between the harm suffered by the plaintiff and the damages awarded.

This can be a complex process, with several inherent challenges.

In this blog post, I discuss these challenges, drawing on relevant cases, including the decision in Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221.

The Appropriate and Rational Relationship Between Harm and Damages

Section 34 of the Defamation Act requires courts to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

The concept of an "appropriate and rational relationship" was discussed in the case of Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, where it was noted that reputation is not a commodity with a market value, making comparisons between awards for defamation difficult.

Furthermore, because the remedy for defamation is damages, courts must have regard to what is allowed as damages for other types of non-economic injury.

The Role of Vindication in Damages Calculations

In assessing damages for defamation, courts must consider three purposes:

• consolation for personal distress and hurt,

• reparation for harm done to the plaintiff's reputation, and

• the vindication of the plaintiff's reputation.

Vindication looks to the attitudes of others and is often considered in tandem with the first two purposes.

The appellants in the Wagner case argued that the size of the final awards was indicative of an excessive allowance for vindication.

They suggested that if a substantial sum is awarded for injury to reputation and hurt feelings, it is unnecessary to add a further sum for vindication, as the substantial sum will serve to vindicate the respondent's reputation.

However, this approach may not necessarily conform to the global assessment of damages usually employed by courts.

Comparing Awards Across Different Cases

The appellants in Wagner did not advance any arguments based on comparison with other awards of damages for non-economic loss in other cases of damages for defamation or possibly relevant awards of damages for personal injuries or false imprisonment.

This highlights the difficulty in comparing awards across different cases, as each case is unique, and there may not be a clear "external standard" against which to measure the required "appropriate and rational relationship."

Key Take-Aways

• Assessing damages for defamation is a complex process, with inherent challenges such as determining the appropriate and rational relationship between harm and damages, comparing awards across different cases, and the role of vindication in damages calculations.

• Courts must balance these factors to ensure a just outcome for both plaintiffs and defendants in defamation cases.

The Significance of a Failure to Apologise in Defamation Law: The Role in Aggravated Damages

In defamation law, the role of a defendant's failure to apologise in assessing damages for non-economic loss, including aggravated damages, can be significant.

This blog post discusses the general importance of an apology in defamation cases and its influence on aggravated damages.

Carson v John Fairfax & Sons Ltd

A starting point for understanding the role of an apology in defamation cases is the 1993 High Court decision in Carson v John Fairfax & Sons Ltd.

In this case, the court found that the absence of an apology does not necessarily aggravate damages, as it does not increase the plaintiff's hurt or widen the area of publication.

However, subsequent case law has contradicted this view, suggesting that the failure to apologise can indeed aggravate damages.

Clark v Ainsworth

In the 1996 case of Clark v Ainsworth, the Court of Appeal of NSW distinguished the passage from Carson, stating that it related to aggravated damages, not ordinary damages.

The court held that the absence of an apology could be taken into account as something that extended the publication's vitality and capability to cause injury to the plaintiff.

Ali v Nationwide News Pty Ltd

The Court of Appeal of NSW in Ali v Nationwide News Pty Ltd further held that failure to apologise can aggravate damages.

It was established that damages for failure to apologise can be awarded as part of general compensatory damages, as the harm from the original publication may be prolonged and intensified by the absence of an apology, or as aggravating compensatory damages.

Trigell v Pheeney and Herald & Weekly Times Ltd v McGregor

In Trigell v Pheeney and Herald & Weekly Times Ltd v McGregor, the relevance of a failure to apologise to aggravated damages was considered.

This cases suggested that the conduct of the defence may be taken into account as improperly aggravating the injury done to the plaintiff if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.

Bauer Media Pty Ltd v Wilson

In Bauer Media Pty Ltd v Wilson, the Court of Appeal of Victoria found that the defendant's failure to apologise was not justifiable or bona fide due to their knowledge of the false imputations conveyed by the articles and their motive for publication.

The failure to apologise from the outset was considered improper and justified an award of aggravated damages.

Conclusion

• Although the mere absence of an apology does not automatically aggravate damages in defamation cases, it can be a factor considered by courts depending on the specific circumstances of each case.

• The failure to apologise can prolong and intensify the harm caused by the defamatory publication and may be taken into account when assessing both general compensatory damages and aggravated damages.

Do You Need a Signature for a Costs Agreement? Criteria for Determining Retainers with Lawyers

As a costs lawyer in Western Australia, I am sometimes asked whether a signature is required for a costs agreement and what criteria apply for determining if a retainer exists with a lawyer.

In this blog post, I address these questions and provide a general understanding of the subject matter.

I rely on the recent decision in Cappello v Homebuilding Pty Ltd [2022] NSWDC 725, which offers useful insights into the issue, while also referencing other relevant cases.

Is a Signature Required for a Costs Agreement?

The short answer is no, a signature is not always required for a costs agreement.

As established in Arjunan v Neighbourhood Associates No DP 285853 [2022] NSWSC 691, a costs agreement that is "unsigned but executed by conduct" is still valid.

Issues arise only when the costs agreement imposes a highly specific requirement for signing and returning the documents, as was the case in O'Neill v Wilson [2011] QSC 220.

Criteria for Determining If a Retainer Exists with a Lawyer

A retainer can exist even without a formal costs agreement, as long as there is evidence of an obligation to pay the lawyer's costs. Here are some key points to consider:

1. A strong presumption of a contract of retainer exists when a solicitor appears on the record for a party, and the party is aware of this (Halliday v SACS Group Pty Ltd [1993] HCA 13; 67 ALJR 678 at [7]).

2. Proof of a retainer can be implied from conduct (Shaw v Yarranova Pty Ltd [2011] VSCA 55 at [17]).

3. A party claiming under a party/party costs order needs only to provide enough evidence to infer that they were obliged to pay their solicitor's costs (Grundmann v Georgeson [2000] QCA 394 at [6] and [9]).

4. Courts generally accept the existence of a retainer when a solicitor has performed work on behalf of a person with their knowledge and assent, in circumstances consistent with that person being the solicitor's client (Shaw v Yarranova Pty Ltd [2011] VSCA 55 at [19]).

5. The onus of proving the absence of a retainer lies with the party who challenges its existence (Halliday v SACS Group Pty Ltd [1993] HCA 13; 67 ALJR 678 at [7]).

6. To displace the rule, a party against whom a costs order has been made (i.e. the opposing party in a party-party taxation of costs) must prove that under no circumstances does the client (their opponent, to whom they have been ordered to party-party costs) have any liability to pay costs to their solicitors (Shaw v Yarranova Pty Ltd [2011] VSCA 55 at [20]; Davies v Taylor (No 2) [1974] AC 225).

7. In the absence of a costs agreement, a solicitor can still recover costs from a client on a "fair and reasonable" basis, under a type of statutory quantum meruit (see, by analogy, s 319 of the Legal Profession Act 2004).

Conclusion

• In summary, a signature is not always required for a costs agreement, and a retainer can exist even without a formal costs agreement.

• The key is to look at the conduct of the parties involved and whether there is an implied obligation to pay the lawyer's costs. It is important to be aware of these factors when dealing with costs agreements and retainers in a legal context.

Understanding Special Costs Orders: When Are They Made?

In certain complex and important legal matters, special costs orders can be made to address the inadequacy of the costs allowable under the applicable costs determinations.

In this blog post, I discuss the legal principles surrounding special costs orders and the circumstances under which they may be granted, with reference to the case of BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 5) [2023] WASC 116.

Legal Principles

The power to make special costs orders is found in sub-section 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA). This section replaced section 280(1) of the Legal Profession Act 2008 (WA) but is relevantly identical, meaning that authorities dealing with the previous section remain applicable.

As per the Court of Appeal decision in Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2) [2017] WASCA 76 (S), special costs orders may be made if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity, or importance of the matter. These orders are considered special and are only made if specified conditions are met.

Two Essential Components

To exercise the power to make a special costs order, the court must form an opinion that has two components:

1. The court must form the view that the maximum amount allowable under the relevant scale item is inadequate, in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount greater than the limit imposed by the relevant cost determination.

2. The court must also form the opinion that the inadequacy of the costs allowable under a costs determination arises because of the "unusual difficulty, complexity or importance of the matter."

Establishing a Fairly Arguable Case

A fairly arguable case will not be established merely because a party incurred greater costs than those allowable under the relevant determination.

However, if a party has applied significantly greater legal resources to each step in the litigation than those for which allowance is made under the relevant determinations, and this is viewed in the context of the difficulty, complexity, or importance of the matter, the conclusion that there is a fairly arguable case may be sustained.

The term "unusual" in this context qualifies only the "difficulty" of the matter, and not its "complexity" or "importance." It means unusual when compared to the usual run of civil cases determined in the court.

Case Example: BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 5) [2023] WASC 116

In this case, the court was satisfied that the Freezing Orders Proceedings were complex and important, justifying the special costs orders.

The nature and importance of the proceedings led the court to conclude that Bayan was justified in engaging counsel with greater experience and expertise in commercial litigation than in the usual run of civil cases, as well as solicitors who charged more than the scale rates.

Key Take-Aways

• Special costs orders are made in cases of unusual difficulty, complexity, or importance when the maximum amount allowable under the relevant scale item is inadequate.

• These orders are not made lightly, and the court must be satisfied that there is a fairly arguable case that the amount of costs allowable is inadequate because of the specific nature of the matter.

At what stage should the question of Serious Harm be considered in defamation cases under the Uniform Defamation Laws?

The recent decision in GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63 provides an insightful look into when the issue of serious harm is addressed in defamation cases under the uniform defamation laws. (Note: the serious harm test does not yet apply in Western Australia).

Serious Harm: A Key Element in Defamation Cases

As a result of amendments that took effect on 1 July 2021, proof of serious harm is a necessary element in the cause of action in defamation cases in New South Wales (Wilks v Qu (Ruling) [2022] VCC 620 at [40]–[4] and Wilks v Qu (Ruling 2) [2022] VCC 1503 at [6]–[11]).

The purpose of establishing serious harm is to discourage the bringing of cases likely to result in modest awards where the costs are out of proportion to the damages (Newman v Whittington [2022] NSWSC 249 at [30]–[46]).

Timing and Determination of Serious Harm

Under the uniform defamation laws, the question of serious harm must be determined early in the litigation unless there are “special circumstances” (s 10A(5)).

Special circumstances, as outlined in GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63 at [48], include situations where:

1. The nature of the publications (e.g., slanders in a foreign language) requires the trial judge to hear the evidence and manner of publication before determining serious harm.

2. Serious harm cannot be disentangled from other trial issues, such as financial loss or the grapevine effect.

3. The determination of serious harm could take a significant amount of time, requiring many witnesses to give evidence twice, which would result in additional costs, emotional burdens, and time constraints for the court.

The court also relied on guidance from English decisions, such as Ames v The Spamhaus Project Ltd [2015] EWHC 127 (QB), where it was determined that the proceedings were "not ripe" for a preliminary hearing on serious harm, as the facts deserved further examination.

Where the burden lies

The burden of satisfying the court that there are special circumstances justifying the postponement of the determination of serious harm to a later stage in the proceedings lies on the plaintiff (Hossein v Ali (Ruling) [2022] VCC 2195 at [45]).

The Limitation Period for Defamation Cases: Factors a Plaintiff Should Consider prior to Commencing a Case

In the world of defamation law, time is of the essence.

In Western Australia, as well as other Australian states, the limitation period for bringing a defamation case is one year from the date of publication.

This truncated period was first introduced as part of a suite of amendments to promote the resolution of defamation proceedings in a timely manner and to encourage non-litigious methods of resolving disputes.

This blog post discusses the various factors and actions potential claimants should consider during the one-year limitation period before deciding whether to pursue a defamation case.

Key considerations during the Limitation Period (also serves as a checklist for potential plaintiffs)

1. Reflect and consider maturely whether the proposed litigation can be resolved without litigation: As noted in the case of Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385, the one-year limitation period allows potential claimants time to reflect and consider whether the dispute can be resolved without resorting to legal action. Initiating a defamation lawsuit can be costly and time-consuming, so it is important to explore alternative dispute resolution methods, such as mediation or issuing a concerns notice to the publisher, as provided under Pt 3 Div 1 of the Defamation Act.

2. Consider whether the cost of litigation would be proportionate to the extent of perceived damage: Before pursuing a defamation case, claimants should weigh the costs of litigation against the potential recovery and the extent of the perceived damage. It is important to ensure that the costs of the lawsuit are not disproportionate to the potential outcome.

3. Conduct necessary enquiries as to the identity of the respondent or respondents: Identifying the correct respondent(s) is crucial in a defamation case. The one-year limitation period provides potential claimants with time to conduct necessary enquiries to accurately identify the parties responsible for the publication of the alleged defamatory material.

4. Assess the availability of sufficient material to support the claim: To succeed in a defamation case, a claimant must have sufficient evidence to support their allegations. The one-year limitation period allows claimants to gather the necessary material to establish their case.

5. Reflect on the potential impact of litigation on personal and financial well-being: Pursuing a defamation lawsuit can be a life-changing decision that may bring stress and potential adverse financial consequences. Claimants should take the time during the limitation period to consider the possible ramifications of litigation on their personal and financial well-being.

No Obligation to Commence Proceedings at the First Opportunity

In the Lehrmann case, it was held that the claimant does not have a positive obligation to commence proceedings at the first possible opportunity or in one period over another within the time set by the legislature.

The statutory task is holistic, requiring an evaluation of all relevant facts or "the circumstances" that existed within one year of the date of the publication.

As emphasized by Chesterman JA in Noonan v McLennan, a claimant does not have to account for every day or week in the limitation year, but rather must satisfy the court that it was not reasonable in the circumstances to have commenced an action within the limitation period.

Considering the Whole of the Circumstances

It is essential to recognize that while the fact that it may have been reasonable to commence proceedings for a significant period within the limitation period is material and could be determinative, the existence of this fact alone is not necessarily fatal.

As stated in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 at [24], the courts will consider the whole of the circumstances when evaluating the reasonableness of commencing proceedings.

For instance, an unexpected and catastrophic event occurring towards the end of the limitation period might make it unreasonable for a claimant to commence proceedings for the first time.

In such cases, if the court's consideration of the whole of the circumstances leads them to conclude that the claimant did not commence proceedings due to the unanticipated event, the statutory test may still be satisfied.

Thus, it is crucial for potential claimants to be aware that the courts will take a holistic approach when assessing the reasonableness of commencing proceedings within the one-year limitation period.

Assessing Damages in Defamation Cases: An Overview

Defamation law exists to protect individuals and entities from false statements that could harm their reputation.

When a person or organisation is defamed, they may be entitled to compensation for the damage done to their reputation and the associated emotional distress.

In this blog post, I discuss the principles for assessing damages in defamation cases, drawing on the case of Cables v Winchester [2018] VSC 392, as well as other relevant cases, to provide a general overview of the subject.

Key Principles for Assessing Damages in Defamation Cases:

In Wilson v Bauer Media, John Dixon J summarized the well-established principles for assessing damages in defamation cases as follows:

1. Damages should provide consolation for hurt feelings, damage to reputation, and vindication of the plaintiff's reputation.

2. Damages ought to reflect the high value the law places on reputation, particularly for those whose work and life depend on their honesty, integrity, and judgment.

3. The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff.

4. There must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

5. The extent of publication and the seriousness of the defamatory sting are pertinent considerations.

6. The court should take into account the 'grapevine' effect arising from the publication when determining the damage done to a plaintiff's reputation.

7. Injury to feelings may constitute a significant part of the harm sustained by a plaintiff.

8. Aggravated damages are a form of compensatory damages designed to reflect aggravation caused to a plaintiff's hurt or injury by reason of some conduct of the defendant.

Factors to Consider in Awarding Aggravated Damages:

In Cables v Winchester [2018] VSC 392, the court found that an award of aggravated damages was appropriate due to the following conduct of the defendant:

- Publishing words with the sole purpose of injuring the plaintiff's reputation

- Refusing to apologize

- Not appearing in the proceeding (until the hearing for assessment of damages)

Comparative Exercise and the Importance of Context:

As noted by Hayne J in Rogers v Nationwide News Pty Ltd, engaging in a comparative exercise for damages may be misleading, as each case is unique.

However, considering awards in comparable cases can be appropriate when there is no contradictor to respond to the submissions of the plaintiff.

In Fraser, Daly AsJ highlighted the importance of context, stating that reviewing other cases can be instructive in illustrating what features the current case does not have.

Social Media Publications and Defamation: Imputations and Extent of Publication

The increasing prevalence of social media has led to a rise in defamation cases involving online publications.

This blog post discusses the legal approach to evaluating social media publications in defamation cases, specifically focusing on imputations and the extent of publication.

The analysis will draw from the case of Hockings v Lynch & Adams [2022] QDC 127, as well as referencing other pertinent cases such as O'Reilly v Edgar and Bolton v Stoltenberg.

Extent of publication

When determining the extent of publication in defamation cases involving social media, courts take into account various aspects.

These include the number of followers, shares, likes, and comments, which can serve as evidence of the publication's reach. For instance, in O'Reilly v Edgar, the court acknowledged that at least 1,000 members of a Facebook group had downloaded and read the defamatory posts.

In contrast, in Bolton v Stoltenberg, the court inferred from the evidence of reach, likes, comments, and shares that a substantial number of people had downloaded and read the material.

Context

The context in which defamatory posts are made is also a crucial factor to consider.

As articulated by Muir DCJ in Brose v Baluskas (No 6), examining the posts within the context they were posted and as part of the broader conversation on the relevant sites is essential.

Social media platforms possess particular characteristics, such as:

• inconsistent moderation,

• a propensity for false or exaggerated claims,

• the use of emojis and non-standard characters.

These factors can impact how an ordinary and reasonable reader interprets and understands the posts.

Ongoing Publication

Additionally, the extent of ongoing publication plays a significant role in defamation cases.

In Hockings v Lynch & Adams, for example, the court examined whether the defamatory posts remained publicly accessible on the internet at the time of the trial. The court found that, due to the grapevine effect, the defamatory posts had been published to an estimated hundreds of people.

Reasonableness and the Lange Defence in Defamation Law: Balancing Free Speech and Reputation Protection

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.

Understanding the Lange Defence in Defamation Law

Defamation law seeks to balance the protection of individual reputations with the importance of free speech, particularly in matters of government and politics.

One key aspect of defamation law in Australia is the Lange defence, a constitutionally protected privilege that provides a further protection for publishers of false and defamatory material.

In this blog post, I discuss the origins and principles of the Lange defence, as well as its limitations.

The Lange Defence: Background and Principles

The Lange defence emerged from a line of High Court cases starting with Theophanous v Herald & Weekly Times Ltd (1994) and Stephen v West Australian Newspapers Ltd (1994).

The defence was settled by the unanimous decision of the High Court in Lange v Australian Broadcasting Corporation (1997), where the court recognised the importance of the concept of representative democracy and the dissemination of information about government and political matters to the widest possible audience.

Under the Lange defence, each member of the Australian community has an interest in receiving information, opinions, and arguments concerning government and political matters, and each person has a correlative duty to disseminate such information, opinions, and arguments. This new category of qualified privilege was seen as an extension of the existing categories of qualified privilege.

The Lange Defence: Conditions and Reasonableness

A crucial aspect of the Lange defence is the question of the conditions upon which this extended category of common law qualified privilege should depend.

Just as the traditional categories of qualified privilege are unavailable where a respondent was actuated by malice, the High Court noted that as long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory.

Additionally, in view of the much wider audience that has an interest in receiving discussion about government and political matters, the High Court held that the protection will be lost unless the publisher of the false or defamatory material proves they acted reasonably.

The concept of reasonableness has been the subject of debate and differing interpretations, but it generally encompasses factors such as:

• having reasonable grounds for believing the imputation was true,

• taking proper steps to verify the accuracy of the material, and

• seeking a response from the person defamed.

Limitations and Criticisms of the Lange Defence

Despite the potential importance of the Lange defence in striking a balance between freedom of discussion and protection of reputations, it has been criticised as being "ill-defined" and having limited utility, primarily due to the stringent reasonableness requirement.

Some commentators have even labeled it a "disaster" and called for a reconsideration of the balance between free speech and reasonable protection of individuals involved in government or politics.

In practice, the Lange defence is rarely successful, leading to questions about whether a proper balance is being struck.

Key Take-Aways

• The Lange defence represents an important aspect of defamation law in Australia, seeking to balance the competing interests of free speech and protection of individual reputations.

• While the defence has its limitations and has been subject to criticism, it remains an essential component of the legal landscape, protecting the communication of government and political matters.