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material itself and the manner and extent of its publication, and others from the whole of the surrounding circumstances. The connection between the subject and defamatory imputation remains relevant. It may be tenuous, or it may be real and substantial. If what was said includes comment, it is relevant to consider whether it was fair and whether it followed logically from facts known or stated. Questions of the exercise of care before the defamatory utterance are also relevant, and questions as to whether the maker of the statement knew whether he was likely to convey a misleading impression."

[119] This passage indicates that the relevant conduct is the conduct of a defendant in publishing the particular imputation, not its conduct in publishing the whole matter; so that different results might eventuate in relation to different imputations: Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937 at [51] per Simpson J. See also Makeig v Derwent [2000] NSWCA 136 at [43] per Spigelman CJ (Mason P and Heydon JA agreeing).

[120] Accordingly, in my opinion, unreasonableness of the respondents' conduct in publishing matter in its character of making imputations against Mr Macartney-Snape does not constitute relevant unreasonableness so as to defeat a defence under s 22 to the appellant's claim. It may conceivably have some factual relevance to the question whether the respondents have proved they have acted reasonably in publishing the matter in its character as making the imputation against the appellant, but not otherwise. In my opinion, the appellant has not identified any respect in which the primary judge should have taken unreasonableness as against Mr Macartney-Snape into account in this way, but did not do so.

[121] I have said that, as part of establishing reasonableness, the onus is on the respondents to exclude malice; that is, in my opinion, relevantly an onus to show that their purpose in publishing the matter, in its character of conveying the defamatory imputation, was to give the audience information which the audience had an interest (or apparent interest) in having, and that the respondents did not have any other reason for this publication which was the dominant reason: cf Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [104].

(Emphasis added)

921 It seems to me there is force in the proposition that the approach explained in Griffith remains the principled way to approach this defence of confession and avoidance. What needs to be the subject of focus is the matter, but in its character of conveying the defamatory imputation.

K.3Introduction and the General Approach of the Respondents

922 As touched on above, my analysis of the reasonableness of the conduct of the publishers starts from the premise that the rape allegation has not been proven to be true. This is because if the defamatory imputation is true, it is unnecessary to consider this separate defence which recognises that a publisher can publish untrue material but still act reasonably. In this regard Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369