20 September 2005

"I'm not gay - not that there's anything wrong with that!": Are unwanted imputations of gayness defamatory?

The perennial issue about whether it’s defamatory to state or imply that someone is gay has come up again – this time in the context of tabulating the number of queer MPs in Parliament. See David Farrar: Gay MPs I prepared a paper on this issue while I was studying at UBC a couple of years ago: "I'm not gay - not that there's anything wrong with that!": Are unwanted imputations of gayness defamatory? It’s a little dated now and needs some revision. In particular, the Rivkin case went to the High Court of Australia - John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50. While it was decided on other technical grounds, Justice Kirby (one of the few out gay judges) made the following comment:
The homosexual intercourse imputations: In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person's reputation to publish such an imputation is related to time, personality and circumstance. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory. The introduction of Mr Rivkin's postulated sexual activity with Mr Wood was not entirely innocent, given the context. Mr Rivkin was described as a married man with five children who, by implication, was leading a secret life. This hypothesis was confirmed by the reference to his "high degree of interest in good looking young men" and by his provision to Mr Wood (who arguably filled the description) of a car, clothes, furniture and apartment, by clear implication in exchange for sexual favours. In the context of an article describing two murder hypotheses for the death of the deceased, one of which postulated the engagement of a "contract killer", the suggestion of homosexual activity between Mr Rivkin and Mr Wood in SMH1 went beyond an imputation of marital dishonesty or adulterous promiscuity on Mr Rivkin's part. In the context, such a sexual liaison, inevitably introduced into the matter complained of, as it would be read by the ordinary reasonable reader, the imputation as pleaded.
I’m revising the article for a Sexuality and Citizenship Symposium that a couple of us at the Law School are organising in November this year – with a view to publishing the papers next year. Any comments therefore welcomed!


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Nigel Kearney said...

I'm a little surprised at the suggestion that an allegation of being a communist is less defamatory than an allegation of being gay.

Possibly this says more about Justice Kirby than it does about the law.

Graeme Edgeler said...

Following a recent episode of South Park in the United States, I came across the following commentary:


Anonymous said...

Could Nigel perhaps explain what he means by his comment? It has me confused. Is he anti-gay and anti-communist, just anti-communist, or simply commenting on the law?

James said...
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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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