Recommendation 11–7 The Act should provide for a defence of fair report of proceedings of public concern.
11.93 This recommendation provides a defence for individuals who publish or otherwise disclose fair reports of public proceedings which may, in the process, reveal an individual’s private information. This defence will be of particular significance for media organisations, court reporters and educational institutions.
11.94 The ALRC recommends that this defence should be co-extensive with the defence of fair report of proceedings of public concern in the UDL. This statutory defence applies to the publication of defamatory matter contained in documents from proceedings of a parliamentary body, an international organisation, court or tribunal, inquiries including Royal Commissions, meetings of shareholders of a public company, and other public proceedings as outlined in the relevant provision of the UDL.
11.95 The ALRC considers that the meaning of ‘fair’, as it has developed at common law and in the interpretation of the UDL, should apply to this recommendation. At common law, ‘fair’ refers to summaries of proceedings which intend to honestly convey to the reader the impression which the proceedings would have had if the reader had been present. Whether a report is fair will be a question of fact for a court, to be determined objectively by comparing the report to the events or facts it described. The impression conveyed in the report must not be substantially different from the impression that someone would have gleaned had they been present at the relevant event.
11.96 Several stakeholders supported this defence. While the National Association for the Visual Arts (NAVA) supported the availability of the defence, it argued that it should be expanded to include artistic representations. However, the ALRC considers that artistic expression is more appropriately considered in the public interest balancing test which is part of the actionability for the cause of action.
11.97 Stacey Higgins argued that the defence is unnecessary as publications which are already in the public domain will not be subject to liability. The ALRC has recommended in Chapter 6 that, whether the material was already in the public domain should be taken into account when determining whether the plaintiff had a reasonable expectation of privacy. However, the ALRC considers that the interests of open government, transparency and open justice require a complete defence.
11.98 The Public Interest Advocacy Centre (PIAC) argued that the publication of material which is already in the public domain, including public documents and reports of proceedings, should not be protected by a defence, as the publication of private information which is already publicly available can cause distress:
the collection, use and disclosure of information about a person from publicly available sources can still have considerable privacy impacts. For example, information in the public domain would arguably include press clippings, which might contain inaccurate information, or accurate information that is open to misinterpretation. Information may still be private and personal to the plaintiff, despite the fact that it has been published, or is contained in a public record (for example, a person’s criminal record, their HIV status, or the fact that they are a rape victim).
11.99 The ALRC considers that this concern is addressed by the inclusion of the explanation that the defence is co-extensive with the defence to defamation. The definition of public documents in s 29 of the UDL provides a clear list of the proceedings which are subject to this defence. It also provides that the defence may be defeated if the matter was not published honestly for the information of the public or the advancement of education. The publication of some private information that is revealed in the course of open proceedings is also the subject of other specific legislation such as Judicial Proceedings Acts in the states and territories that prohibit the publication of private information in certain court proceedings. This includes the identity of protected classes of people such as jury members, children and the victims of sexual assault. Publication would also be subject to any suppression order of the court.
See, for example, Defamation Act 2005 (SA) 2005 s 29(4).
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Cook v Alexander  1 QB 279; Rogers v Whitaker (1992) 175 CLR 479.
Waterhouse v Broadcasting Station TGB Pty Ltd (1985) 1 NSWLR 58, –.
T Butler, Submission 114; Office of the Victorian Privacy Commissioner, Submission 108; ASTRA, Submission 99; Australian Sex Party, Submission 92; J Chard, Submission 88.
National Association for the Visual Arts Ltd, Submission 78.
S Higgins, Submission 82.
Public Interest Advocacy Centre, Submission 105.
See, eg, the Judicial Proceedings Report Act 1985 (Vic). Provisions in this Act restrict the publication of certain information in specific judicial proceedings.
See, eg, Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8. This provision empowers a court to make a suppression order ‘where the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency)’.