A recent High Court judgment, which allowed the ABC to broadcast a documentary, The Fisherman, will have important consequences for people seeking to restrain the broadcast of defamatory media reports.

The Fisherman,
which airs tonight, investigates one of Australia’s most notorious unsolved crimes, the disappearance of the Beaumont children in 1966. In upholding the right of the ABC to air it in Australian Broadcasting Corporation v O’Neill the majority of the Court emphasised freedom of speech over any potential harm suffered by James O’Neill (the person the subject of the documentary).

In November 1975, O’Neill was convicted of the murder of a boy whom he had abducted and killed in February 1975. He was sentenced to life imprisonment and is still imprisoned. He also confessed to murdering another boy but charges were not pressed. Since 1999, Mr Davie has been investigating claimed connections between O’Neill and other missing children, including the Beaumont children.

Davie and Roar Film Pty Ltd produced The Fisherman under contract with the ABC. The film was shown at the Hobart Film Festival in January 2005 and the issues raised by it were widely reported in the Tasmanian media. The ABC was prevented from broadcasting The Fisherman nationally in April 2005 after O’Neill commenced an action for defamation against the ABC, Roar Film Pty Ltd and Davie in the Supreme Court of Tasmania.

O’Neill claimed damages and a permanent injunction preventing the broadcast of the film. However, he also applied for an interlocutory injunction to prevent the documentary from being broadcast before the final trial determination. Crawford J of the Supreme Court of Tasmania granted the interlocutory injunction, which was subsequently upheld by the Full Court.

A majority of the High Court (Gleeson CJ and Crennan J, Gummow and Hayne JJ) allowed the appeal. Kirby J and Heydon J dissented in separate judgments.

The majority emphasised the public interest in free speech and the power to make serious allegations publicly. Gleeson CJ and Crennan J said allegations of serious criminal conduct often became known to the public through the media rather than through charges and conviction. It was in the public interest for police and prosecuting authorities to be called into question.

Further, the majority of the High Court held that courts have been cautious in awarding interlocutory injunctions in defamation cases because of the public interest in free speech.

Finally, the majority observed that O’Neill’s character had been badly damaged by the nature of his previous crimes and by the Tasmanian media coverage. Therefore, even if the comments were defamatory, O’Neill might only be granted nominal damages.

In his dissenting judgment (with which Heydon J agreed), Kirby J said freedom of speech was not an absolute right. He agreed with the trial judge that the documentary would amount to “conviction by media”. His Honour noted that Davie had misled O’Neill to get him to participate in the documentary. He said that the decision may mean that a prisoner serving a sentence for a heinous crime is fair game.

I must confess to mixed feelings about this case. It is important to uphold freedom of the press. As Gleeson CJ and Crennan J observe, the documentary may lead authorities to reopen investigations and even to make headway in solving the crime. The emphasis of the High Court on freedom of speech and public interest over the harm which defamatory material may cause is in line with the recent House of Lords decision, Jameel & Ors v Wall Street Journal Europe Sprl [2006] UKHL 44. Also, I admit that I am curious about the allegations made by Davie.

However, it does not seem fair that because O’Neill committed an admittedly horrendous crime in the past, he therefore has no reputation to protect. O’Neill will be subject to a good deal of negative publicity, which is particularly unfortunate if he did not commit the crimes in question.