Blog

Defamation and the truth about the truth defence

Emily Shoemark

29 May 2019

Topics

  • Compensation
  • Defamation
  • Dispute Resolution

Critically acclaimed actor Geoffrey Rush was recently awarded $850,000 in general and aggravated damages and a further $1.98 million for past and future economic loss by the Federal Court of Australia. He was awarded this amount after successfully arguing Nationwide News published defamatory material in two articles printed in The Daily Telegraph in 2017.

When a party is accused of defaming another person, there are four defence strategies that the accused can employ: truth, absolute privilege, qualified privilege and fair comment. In this article, Emily Shoemark and Paris Miller investigate the truth defence that Nationwide News unsuccessfully argued in this case.

Rush v Nationwide News Pty Ltd – the arguments

Central to the arguments posed by Mr Rush’s legal team was the concept of ‘truth’ and the lack of evidence to support Nationwide News’ defence of ‘justification’.

These legal arguments, which are available in Australian defamation proceedings, are explained below:

Truth

In proceedings where the statements that are alleged to be defamatory are defended as ‘statements of fact’, an important question to ask is, ‘is what was published substantially true?’. However, this question is not as clear as one might think. When determining ‘truth’ the court is concerned not necessarily with the statement, but with the ‘imputation’ or ‘insinuation’ that the statement makes.

For example, a statement about David’s hair could be made – ‘David’s hairstyle is bad’. The imputation of this statement, that a reasonable person could make, is that the hairdresser who cut David’s hair is not skilled enough to properly cut and style hair. The statement about David’s hair might be accepted, but this does not prove that the imputation was correct. It would need to be shown that David’s unfortunate hair arose because David’s hairdresser was unqualified, not because David doesn’t know how to use a nice pomade in his textured quiff.

Justification

The defence of justification hinges on the ability of the respondent to show that the imputations were at least substantially true, if not completely true, and therefore the respondent was entitled to publish the material. There is no onus on the applicant to show that the imputations are false, however the applicant is given opportunity to disprove the evidence the respondent provides.

In Rush v Nationwide News, one imputation of the statements published in The Daily Telegraph was that Mr Rush was a pervert. The article in question did not explicitly use this term, however Justice Wigney directed that the statement made by Nationwide News should include the factual contents of the article in its entirety. Content including the use of a photographic headshot of Mr Rush in King Lear stage makeup, the headline ‘KING LEER’, and a statement within the article alleging that Mr Rush had denied inappropriate behaviour, were all identified by Justice Wigney as a statement that shaped the imputation that Mr Rush was a pervert.

The respondent argued the imputation to be substantially true, based, in part, on a line from a text message Mr Rush sent to his accuser. Justice Wigney did not accept that the text message could be inappropriate, when considered in context. This evidence, on the balance of probabilities, did not prove the substantial truth of the imputation.

Rush v Nationwide News Pty Ltd – the findings

In making his decision, Justice Wigney considered several factors, including:

  • the imputations made by the two articles
  • whether the imputations conveyed guilt
  • what an ordinary and reasonable person would interpret from the statements made
  • the credibility of witnesses
  • the evidence submitted by the Nationwide News to support the truth defence.

Justice Wigney found that the numerous serious imputations alleged against Mr Rush, including that Mr Rush engaged in inappropriate behaviour of a sexual nature and behaved as a sexual predator while working on the Sydney Theatre Company’s production of King Lear, were not substantially true.

Justice Wigney also found that the timing of the publication of the two articles (during the #MeToo movement) and the decision to position an article regarding Mr Rush alongside an article concerning the allegations against Don Burke, further damaged Mr Rush’s reputation by associating Mr Rush with notorious alleged sexual harassers Harvey Weinstein and Kevin Spacey.

The particularly serious nature of the imputations against Mr Rush and the timing and placement of the articles were two of many factors in Justice Wigney’s decision to award Mr Rush $2.9 million in compensation. Nationwide News has since appealed the ruling.

How can we help?

Before publishing words that you think may be defamatory, or if you are concerned that you may have been defamed, we can help you determine your position. Please contact our Business Law team on 02 6285 8000 or by email.