Who needs reform? Defamation and the strange case of Captain Shirley Falcke

Abstract

Defamation law, particularly from the mid 19th century, has struck a balance between protecting free speech on the hand and protecting reputation on the other. Modern reforms in many jurisdictions have felt that this balance is best kept by judges rather than juries hence the abolition of jury trials in this area. But the extent to which the balance could be monitored with juries depended very much on the willingness of appellate courts to review their verdicts. The fascinating case of Captain Falcke's defamation action against the Melbourne Herald in 1925, a case involving the limits of artistic criticism and a newspaper war, is a reminder both of the importance of the contemporary context in understanding jury verdicts in defamation cases and the lengths to which appellate courts could go to ensure the 'right' verdict was reached.