Extreme anger is as good a reason as any to come out of blogging retirement temporarily. The ABC’s Andrew Denton has demanded that Channel Nein apologise to Joanne Lees for publishing a poll on yesterday’s Today program asking viewers if they felt Ms Lees was innocent of Peter Falconio’s 2001 murder in the Northern Territory!
I would go even further. I’d be interested in lawyer readers’ thoughts on the following questions:
- Is the poll defamatory? It seems to me that at the very least it carries the imputation that Ms Lees’ guilt or innocence remains an open question and a reasonable one to ask about.
- If so, is there any available defence under the new national defamation laws? I would not think that either truth, fair comment or any form of privilege, qualified or otherwise, could assist Nein.
- Could Ms Lees therefore obtain an interlocutory injunction against Nein? The principles governing interlocutory injunctions in defamation cases were recently considered by the High Court in Australian Broadcasting Corporation v O’Neill (28 September 2006). Essentially, an injunction may be granted if:
- there is no “real room for debate as to whether the statements complained of are defamatory”; and
- there is no “real ground for supposing that the defendant may succeed upon any such ground (defence) as privilege, or of truth and public benefit”.
- Of course, the new national defamation laws substitute truth for “truth and public benefit”, but I would not imagine that would be a hindrance to Ms Lees’ case given that she is manifestly innocent and a man has already been convicted of the murder on evidence that would appear on my evaluation to be overwhelmingly convincing.
- Finally, if you agree that the case is a pretty strong one, do you know any public-spirited senior barrister who might be prepared to take on such an injunction application pro bono and urgently? Of course, there would only be a point in this if Nein intends further publishing the poll or its results, either on TV or its website. Nevertheless, if anyone is interested in pursuing it, I might conceivably be able to put Joanne Lees in contact with you via a former NT Police victim support officer I know who provided her with support throughout the Falconio trial. Clearly you would need to be in a position to move quickly.