Restaurant critic Leo Schofield, then writing for The Sydney Morning Herald, found out the hard way when his excoriating 1984 review of east Sydney restaurant Blue Angel resulted in a $100,000 damages payout.
A jury found Schofield’s review, which described a lobster as being “cooked until every drop of juice and joy in the thing had been successfully eliminated”, conveyed four defamatory meanings – including that the restaurateur was “cruel and inhumane” in the methods deployed to cook the crustaceans.
The jury rejected a defence of fair comment, which pre-dates the honest opinion defence.
Most recently, The Australian Financial Review (owned by Nine Entertainment Co, which also owns this masthead) sought to rely on the honest opinion defence to fend off a lawsuit brought against it by businesswoman Elaine Stead over two columns penned by its Rear Window columnist Joe Aston in 2019.
Aston – “a talented and oftentimes highly entertaining wordsmith” who is “no respecter of persons”, in the words of Federal Court Justice Michael Lee – wrote a series of 40 columns about the controversial and now-defunct fund manager Blue Sky Alternative Investments, where Dr Stead was managing director of venture capital.
The columns in dispute labelled Dr Stead a “feminist cretin” who “set fire to other people’s money”.
Justice Lee found the columns conveyed four defamatory meanings, including that Dr Stead was a “cretin” and “rashly destroyed the capital of business ventures with which she was associated”.
In a judgment in January, Justice Lee rejected the Financial Review’s honest opinion defence. The defence requires a publisher to show the defamatory meanings were expressed as opinion, not fact, on a matter of public interest, and the opinion was “based on proper material”.
In most cases, “proper material” means facts set out explicitly or referred to in the article, unless the facts are notorious.
In a judgment on legal costs, Justice Lee said “the risks associated with making out the honest opinion defence were always high”.
“[T]he issue was not Mr Aston being critical, or even highly critical …[but] of proving that those opinions were properly based on facts stated in what was written,” he said (emphasis in judgment).
Michael Douglas, senior lecturer at the University of Western Australia’s Law School, said a major stumbling block for publishers relying on the honest opinion defence was that it compelled them “to either directly set out the facts on which the opinion is based, or to sufficiently refer to them”.
“It provides less room for a journalist to give a wink to the reader, or to assume that the reader knows what’s going on,” he said.
Mr Douglas said an amendment to the defence, which is expected to become law later this year, allowed the “proper material” underpinning the opinion to be “accessible from a reference, link or other access point” in an article, such as a hyperlink.
He said this might encourage “more online opinion-writing, in the form of [academic opinion website] The Conversation”.
But the defence doesn’t always fail in traditional print media cases. Patrick Cook, cartoonist at the now-defunct newspaper The National Times, fared better in a quintessentially Sydney legal battle.
He successfully defended a lawsuit brought against him by the late architect Harry Seidler, whose striking modernist structures including Blues Point Tower in McMahons Point are a feature of the Sydney landscape.
Cook’s 1982 cartoon, captioned “Harry Seidler Retirement Park”, “depicted a barren landscape on which had been erected ten structures resembling refrigerators but without any lids or tops”, NSW Court of Appeal Justice Harold Glass said in a 1986 judgment.
The structures featured slots through which one occupant was being given a sandwich at the front while a dunny man collected their waste at the rear.
Mr Seidler contended the cartoon defamed him by suggesting, among other things, he “lacked aesthetic sensibilities”. A Supreme Court jury found it did, but that Cook had established the defence of fair comment.
The “proper material” identified as the basis for the comment was Mr Seidler’s architecture, including Blues Point Tower and Australia Square, which was so high-profile as to be known to readers.
The defence has also been used successfully in a 2015 Western Australian case involving an unflattering Facebook review of an accountant, and by the ABC to fend off lawsuits over its Media Watch program. Overall, however, it is a defence which fails for journalists more often than it succeeds.
Professor David Rolph, defamation law expert at the University of Sydney Law School, said the defence “sounds like an important protection of free speech” but “the difficulty arises when that idea is translated into legal principle”.
He said honest opinion was “most easily established … where the facts are set out fairly clearly in one part [of the publication] and the opinion is expressed in another”. The Media Watch cases were the “archetypal” examples.
But in many cases this posed a problem. “People in ordinary, everyday speech and writing don’t usually set out their facts and then express a view on those facts,” Professor Rolph said.
Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.