Defamation and privacy in an era of ‘more speech’

Defamation and privacy are now two central issues in media law. While defamation law has long posed concerns for media publications, the emergence of privacy as a legal challenge has been relatively recent in many common law jurisdictions. The detailed consideration of both defamation and privacy by the Australian Law Reform Commission in its 1979 report Unfair Publication: Defamation and Privacy stands as an exception more than a rule in Commonwealth jurisdictions. In Australia, privacy had long received some protection under defamation law through the requirement in five states and territories to prove the ‘public benefit’ or ‘public interest’ in publishing thematter in question, as well as its truth to establish the justification defence.Merely proving truth was not enough in Queensland, New South Wales, Tasmania and the Australian Capital Territory until the commencement of substantially uniform defamation laws across Australia in 2006. Before then, true private facts that were also defamatory might receive protection where law recognised no public interest or public benefit in publication. In practice, the extra requirement was examined rarely in litigation, although some observers suggested it changed particular media decisions about what to publish. In any event, that particular legal position makes the detailed consideration of both defamation and privacy in 1970s Australia law reform less remarkable. The Australian Law Reform Commission aside, however, there was generally tangential engagement