Defamation update: Don't "Rush" into publishing before you've considered your defences

The latest decision in the Rush versus the Daily Telegraph defamation saga is a warning to all publishers. Post-publication fact-finding to support the truth of a publication isn't going to cut it for a qualified privilege defence.

Things aren't looking good for the Daily Telegraph in its defence of Geoffrey Rush's defamation case. In a pre-trial hearing (that we've already reported on in the New Matilda), a judge struck out all of the Daily Telegraph's truth defence and part of its qualified privilege defence. Then the Daily Telegraph sought to reinstate the parts of its qualified privilege defence that the judge struck out.

Without a truth defence, the Daily Telegraph's only defence is qualified privilege, or hoping that Rush doesn't prove the defamatory meaning of the articles. Qualified privilege doesn't require a publisher to prove truth, so long as they can show that they acted reasonably and the audience had an interest in receiving the information published. Reasonableness is key.

It's well established that the information a publisher had when it decided to publish is relevant to whether it acted reasonably. The Daily Telegraph also wanted to rely on a nice long list of facts that it said supported the truth of the articles. The sources of several of the facts weren't disclosed. Plus the Daily Telegraph didn't identify when it was informed of each of the facts and how they related to its decision to publish. And that's the part of the defence that didn't fly.

Take note publishers, here's the scoop on how to set yourself up for a qualified privilege defence.

What you need to show is that your conduct in publishing the article was reasonable, not that the content of the article itself was reasonable.

You need to identify your belief in the truth of the article, the basis for that belief, and why that belief was reasonable in the circumstances. The objective truth of the facts is irrelevant unless you can show that the facts were known to you before publishing, and informed your decision to publish.

What isn't going to cut it? Facts you didn't know, or didn't take account of when deciding to publish. Anything that's uncovered post-publication won't be relevant.

The bottom line? If you're a publisher make sure you get your house in order before publishing, not after.