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The Third Man

Reform of the Australasian defamation defences

By Michael Gillooly

CONTENTSREVIEWS

The Third Man – Reform of the Australasian Defamation Defences plots an entirely new course for defamation law reform and in doing so provides a detailed analysis of the current Australasian defences.

Its starting point is the recognition that a cause of action in defamation presupposes the existence of at least three people: a plaintiff; a defendant; and a person to whom the defamatory material is published (the “Third Man” of the title, which was inspired by Carol Reed’s 1949 film masterpiece of the same name).

The central thesis of the book is that many of the intractable problems apparent in the current defensive regime disappear if the focus is changed to take account of the legitimate interests of the recipients of defamatory publications.

The first two chapters set out powerful arguments for the acceptance of this third man principle. The following six contain a searching evaluation of the current Australasian defences by reference to this principle.

Each treatment of an existing area of defence concludes by proposing draft model provisions designed to satisfy the third man principle. The threads of these individual proposals are woven together into a single, cohesive fabric – model Part Z – in the final chapter and accompanying appendix.

The authoritative Law of Defamation (The Federation Press, 1998 – now out of print) established Michael Gillooly as a leading scholar in the field of defamation law. Many will find The Third Man compelling, both in its analysis of defences in the current law and his argument for reform.


CONTENTS

General introduction
The third man principle 
Truth and related defences 
Fair comment and honest opinion 
Absolute privilege or protection
Qualified privilege or protection
Defences for republishers – fair and accurate reports and official documents 
Miscellaneous defences 
Conclusion
Appendix A:
Model Part Z – Code of Defamation Defences

Table of Cases/ Table of Statutes/ Abbreviations/ Index


REVIEWS

Treats in some detail the defences of truth, truth and public benefit, fair comment and honest opinion, absolute and qualified privilege (as well the Lange Extension) as well as the defence of fair report and other miscellaneous defences.
It is a very difficult task for an author to cover these defences adequately in the light of the fact that whilst they basically exist in each State and Territory, at the present time each State Act contains some vital difference and the procedure for dealing with this type of action differs from State to State. However, the author basically succeeds in this difficult task.
The modern cases on each defence are thoroughly analysed so as to produce a very useful book for practitioners in this area of the law.

Australian Law Journal, Vol 79, 2005

The strength of Gillooly’s work is its lucid, comprehensive exposition of the principal defences to defamation in Australia and New Zealand. … Gillooly demonstrates a profound grasp of the detail and nuance of the law as it applies across nine defamation jurisdctions. He also presents this material in a manner which is clear, structured and accessible.

Sydney Law Review, Vol 27 No 4, Dec 2005

The up-to-date, detailed comparative analysis of each of the Australian and New Zealand defamation defences undertaken in this book is valuable in itself and adds substantially to the author’s earlier work …
The case for greater attention to the perspective of the recipient of defamatory matter is well-made. … The author’s thesis deserves further consideration in relation to remedies and the elements of libel and slander.

Law Institute Journal (Victoria), Vol 78(10), Oct 2004

Do you practice in the area of defamation law? Do you have an interest in the present or future state of the law of defamation? If the answer to any of these questions is in the affirmative, you will find this book offers a world of thought to you.
Traditionally we think of defamation in terms of the person defamed and the person who did the defaming. We only think of the audience, that is, the people to whom the comments were made, in terms of the question of damages. Dr Gillooly has turned thinking concerning defamation onto its head and invited us to consider the law from the perspective of what he calls, "the Third Man" ie the person to whom the comments were made.
The more I thought about it, as I read the book, the more his comments made sense to me. We often consider, for example, the law of qualified privilege or as it is known in Tasmania, qualified protection, only in terms of the person whose reputation has been sullied by comments made under such protection. Dr. Gillooly makes a very strong case for a different, and dare I say, better, understanding of these concepts, by looking at them from the perspective of the third man, the person with an interest in hearing them. …
This is a thought provoking book which all who practice in defamation law will benefit from reading. It might even increase your level of understanding and provide you with opportunities for both prosecuting and defending actions. I am sure that it will clarify one's understanding, in particular of what underlies the defences to a claim for defamation and of need to obtain a balance between the perceived right of people to be informed, but at the same time, the right of public figures and others, to not have their reputations damaged unnecessarily.

BJM, Tasmanian Law Society Newsletter, September 2004

The Third Man was the title of of a screenplay by Grahame Greene set in post-war Vienna. It is now the title of a book by Associate Professor Gillooly about the reform of defamation defences. The law of defamation has its own “third man”: the recipient of defamatory communications. …
Gillooly seeks to resolve the “truth alone as a defence” debate by a Third Man analysis. Truth alone passes the quality test of asking: “Is the information accurate?” but it fails the relevance test. By not requiring recipients to have a legitimate interest in receiving the publication complained of, a truth alone defence effectively condones the dissemination of information that may be deeply damaging to the plaintiff but which is of no benefit to recipients. Receiving gossip about the ancient indiscretions of individuals and the private affairs of public figures may do the recipients of such gossip no harm but it does them no good. Gillooly subjects other defences to a similar Third Man analysis. …
The book is not simply of interest to reformers; it analyses existing defences. Its concise but comprehensive survey of the current law makes it a useful reference source. It is more current than Gillooly’s earlier work, the Law of Defamation in Australia and New Zealand. It is less expensive than comprehensive looseleaf services and it is more pleasant for readers who prefer their law in parchment rather than on a computer screen downloaded from cyberspace. …
The Gillooly Code may not be embraced by legislators, but Gillooly’s book should be read by those who want to now what the law is and how well it advances the interests of recipients of defamatory communications.

Peter Applegarth SC, The Queensland Lawyer Vol 24(6) June 2004

   

Published April 2004
Publisher The Federation Press
Hardback/272pp
ISBN 9781862874893
Australian RRP $75.00
International Price $70.00
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Law - Torts
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