All's fair in love and war? Fairness, fair comment and the historical importance of the reputation of the plaintiff

Abstract

The law of defamation has long provided protection to artistic and literary critics expressing their opinions on works of literature and art. Historically, it was the fair comment defence that performed this function. Formally, the applicability of the defence focused on the defendant’s conduct and state of mind. However, a detailed historical study of four leading Australian defamation cases from the first half of the 20th century reveals that, in practice, the reputation of the plaintiff may well have been an important factor in determining whether the defence was successfully invoked. Doctrinal uncertainty combined with jury trial to give the operation of the defence in artistic and literary criticism cases more subtlety that has previously been recognised.