A fundamental principle of free speech in our country is that people, including journalists, are at liberty to express their genuinely held opinion about others. When does the expression of this freedom become defamatory?
According to the Federal Court in the January 2021 decision of Stead v Fairfax Media Publications, defamation may occur when the opinion is not “properly based”. According to Justice Lee, a freedom to express a person’s views, no matter how awful, “does not become a licence to defame without lawful excuse”. In other words, there needs to be a proper factual basis to the matters upon which the expressed opinion is based.
In this case, the journalist Joe Ashton made a number of highly insulting remarks about the Plaintiff in a series of articles which appeared in the Australian Financial Review. The judge described the effect of the articles as causing the Plaintiff to be “serially mocked” and characterized as “a gaping moron” when there was simply no proper basis to suggest such things. Such was the distress and humiliation caused to the Plaintiff that in this instance, she received a damages award of almost $300,000.
This case is a salutary reminder of the importance, in any public statement criticizing another person, that factual material is referenced which provides a proper basis to the opinion being expressed. It will always be inherently dangerous, even in a liberal democracy like Australia, to aggressively lambast a person without proper justification.
