Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652
Tort; defamation; headlines; qualified privilege.
Facts: On 5th May 2014, three newspapers (Sydney Morning Herald, The Age and The Canberra Times) published articles about Federal Treasurer Mr Joe Hockey. The articles had headlines in prominent, bold type saying "Treasurer for Sale" or "Treasurer Hockey for Sale". The Sydney Morning Herald used a poster ('placard') to promote the article, which said "Treasurer for Sale" in large, bold font. The Age released tweets saying "Treasurer for Sale" or "Treasurer Hockey for Sale" with hyperlinks to the full article. The full articles explained the existence of a fundraising body called the North Sydney Forum (NSF). Individuals from the business community paid large fees for membership in the NSF, and obtained the opportunity to attend events or meetings with senior government ministers like Mr Hockey. Because the NSF is an incorporated entity of the Liberal Party, the membership fees ended up as donations to the Liberal Party.
Issue: Were the articles were defamatory because they implied that Hockey accepted, or was willing to accept, bribes to influence his decision-making as Treasurer, or that he sold special access to himself?. Was the defence of qualified privilege available in the circumstances?.
Decision: The full articles were not defamatory, but the tweets and the poster were. No defence of qualified privilege was available. Damages were awarded to Hockey.
Reason: The test of whether published statements are defamatory is how ordinary reasonable readers would understand them. The ordinary reasonable person reads a whole newspaper article, not just the headline. If the conclusion of the article negates the headline or earlier comments, this is to be taken into account. In this case, the full articles were not defamatory, because they clearly stated that payments were not made to Mr Hockey personally but as membership fees to the NSF which were disclosed to the proper authorities as political donations. So the articles explained legitimate fundraising activities, where what was being bought was access to Hockey, but not the purchase of his judgment or discretion. However, the poster and tweets were defamatory, because there was no further explanation and the headlines by themselves did imply corrupt behaviour by Hockey. It was relevant that other stories about corruption of public officials had emerged at the same time, which would have made the ordinary reasonable reader more likely to take unexplained headlines as implying corruption. The court rejected the defence of qualified privilege because, although Hockey's performance of his public functions as Treasurer were a matter of public interest, it was not reasonable for the newspapers to use the headlines they did.