The Law of Defamation Issues - Case Study Example

The law of defamation seeks to balance the public interest in freedom of speech and the private interest in protection of reputation. Does it achievethis? More radically, ought we to do away with defamation law and facilitate the free flow of information? The concept of a legally recognised right to privacy under the law remains the subject of complex debate1, compounded by the role of the media as self-proclaimed democratic watchdog, highlighting the tension between defining the parameters of a privacy right in context of established legal presumptions against censorship. Moreover, the staggering pace of Internet growth has compounded the inherently problematic concept of privacy protection by the proliferation of social networking sites, news blogs and email. This new medium has widened the scope of information dissemination and communication at social level at a rate beyond original predictions. However, the inherent drawback of the technological revolution is the ease and low cost of information dissemination, coupled with the shield of anonymity, rendering protection against defamation increasingly problematic2. This analysis considers the current position on legal protection of privacy, evaluating the efficacy of incidental protection through the law of defamation, with a particular focus on whether implementation of the Defamation Act 2005 has made any significant impact in clarifying the right to privacy under the law. I will also consider how far the current law goes to achieve a balance between the public interest in freedom of speech and the private interest in protection of reputation in using a contextual analysis of the issues raised by liability for defamation in the Internet particularly in context of internet service provider (ISP) liability. The issue of a legal right to privacy has come to the fore through discussions of media accountability in reporting, raising questions as to morality in journalism versus the constitutional right to freedom of speech3. The role of the media as an arm of the state of sorts4, acting as an accountability safeguard against individuals in power is vital to sustaining the constitutional objective of the state as a democracy in substance. However, some argue that the public “right to know defence5” goes beyond the purpose of accountability and effectively grants a licence to the press to invade and dissect the details of an individual’s private life with impunity6. Conversely, the wide range of circumstances covered by the case law in this area highlights the problem of what constitutes “defamatory” content. This is further perpetuated by inconsistency in practical application of the law at judicial level. For example, in the case of Boyd v Mirror Newspapers Limited7 it was held that “at common law, in general, an imputation to be defamatory of the plaintiff, must be disparaging of him… I say that this is “in general” the position, as the common law also recognises as defamatory an imputation which, although not disparaging, tends to make other persons “shun or avoid” the plaintiff…. As well as an imputation that displays the plaintiff in a ridiculous light, notwithstanding the absence of any moral blame on his part”8. Moreover, in the decisions in Costello v Random House Australia Pty Limited and Abbott v Random House Australia Pty Limited9, where the defendant published a book entitled “Goodbye Jerusalem: Night Thoughts of a Labour Outsider” making false allegations against two politicians was held to be defamatory. At trial the defendant conceded that the allegations made in his book were false. The decision in these cases clearly highlights the need to prevent unfettered freedom of the press. The current Defamation Act 2005 unites law of defamation in Australia. Previously, each state had different laws governing the tort of defamation and the objective of the Act was to enact model provisions agreed to by the Attorney General of the States and Territories. The Act retains the civil law definition of defamation. The test of what is “defamatory” is what the ordinary reasonable person would think after seeing or reading the publication. This in itself demonstrates that the purpose of defamation law is to protect an individual’s reputation. Furthermore, the requirement of publication coupled with the staggering costs involved in bringing a claim and establishing that the publication was in fact defamatory suggests that defamation law is intrinsically intended for the protection of people in positions of public authority and power, where reputation is important and funds are available to protect this “reputation”. The average individual cannot afford to bring a claim in defamation law to protect their reputation and the qualified privilege “right to know” defence highlights the limits of defamation law protection in any event. As such, it is submitted that the abolition of exemplary or punitive damages in defamation cases via section 37 and the detailed cost provisions of Section 40 is a welcome move in striking a balance in such claims. However, the change from a truth and public benefit defence to “truth alone” defence arguably raises an issue as to whether privacy protection is reduced10. The concept of “Reputation” is clearly distinct from privacy and the rationale for the common law defence is that telling the truth clearly cannot lower a person’s reputation11. As such, on this basis it is further submitted that the defamation law itself is an inappropriate vehicle to address the wider issues of privacy protection. Free press is undeniably a democratic privilege12 however it is arguable that many families affected by the demise of a political career through revelations of infidelity, would no doubt have coped better with the tawdry details in private13. It is precisely these concerns regarding responsible press reporting which have led to a consideration of whether there needs to be a broader, general right to privacy protected within a legal framework. This controversial issue has been further complicated by the law of defamation, which protects an individual’s right to an unblemished reputation. However, it is this very focus that has permitted courts and legislators to avoid directly addressing the broader issue of a general right to privacy. It has been claimed that law does not recognise a legal right to privacy “as such14” and concepts of privacy have found incidental protection by legal proceedings designed to protect other interests such as reputation under the law of defamation. However, unlike France and Germany, there has never been a distinct cause of action under the law for invasion of privacy. This lack of clarity and dependency on ad hoc judicial decisions is undesirable in addressing the right to privacy and the interpretation, which is disappointing in clarifying the legal parameters of privacy protection in Australia15. On the other hand, the practicability of implementing a separate law of privacy is also questionable. If it was introduced under the criminal law, it would clearly contradict the right to freedom of speech as journalists would potentially face a constant threat of arrest, leading to limitless claims. Alternatively, a civil law system would arguably only benefit a privileged minority as only the rich could afford to bring an action, which may in turn influence a journalist’s decision in publishing a story thereby undermining the independence of the press. Whilst the current legislative provisions are a welcome step in addressing cost issues, the reality is that defamation claims are inherently expensive. Moreover, The Internet by its very nature exposes content to a global audience. As such, the central issue facing ISPs on the Internet is liability for defamation which takes place in another jurisdiction16. The Defamation Act 2005 seeks to address this issue through the inclusion of the “Defence of Innocent Dissemination” in section 32. However, the problem is that the 2005 Act is unclear as to whether the qualified privilege defence applies to “subordinate publishers” as referred to in section 32. This would potentially create a dichotomy in the law enabling selective protection of privacy based on the status of the publisher. If we consider the German and French approach to privacy, both jurisdictions have implemented a separate system to defamation to address issues of privacy. German privacy law is designed to protect a person’s personality rights17. Although the German system does not address the wider concept of a general right to privacy, it is certainly a welcome approach in addressing issues of privacy within the developing concept of personality rights, which cannot adequately be protected by the law of defamation. The French right to privacy is expressed more broadly and enshrined in Article 9 of the French Civil Code18. However, the right is balanced by the Article 10 right to freedom of speech as well as Article 11 of the Declaration of Human Rights of 178919, quoted in the preamble of the French Constitution of 195820. Although the scope of privacy under French law is stated to cover a wide category of personal information including health, religion, love life, sexuality or finance, the practical approach of the French courts has been to consider whether the right to respect for private life has been violated according to the personality of the claimant. Similar to the German system, the issue of personality rights is paramount to the protection of privacy. In conclusion, it is evident that the conflict between freedom of speech and the right to privacy is a legal minefield, obfuscated by the reluctance of the courts and legislators to clarify the issue. The current reliance on the law of defamation to provide incidental protection to privacy is inadequate to address the broader variances pertinent to the concept of privacy outside the boundaries of an unblemished individual reputation. Furthermore, the uncertainties surrounding the application of the qualified privilege defence also highlights the inherent deficiency of defamation law to protect privacy. Critics of the French and German approach would suggest that by focusing on personality rights as a pre-requisite to legal protection effectively limits the privacy right to a privileged minority. However although by no means a panacea, the French and German position is clearly welcome in recognising the need to accommodate the developing concept of personality rights outside the scope of defamation law. In establishing a separate action for invasion of privacy, the German and French approach also acknowledges the broader issues raised by privacy, which cannot be solely covered by protection under defamation claims. It is also arguable that in light of the practical difficulties involved with establishing an all encompassing right to privacy as discussed above, that the German and French approach is a realistic compromise. In focusing on the concept of personality for privacy protection, the German and French approach is in fact focusing on a class of victim most likely to suffer damage from invasion of privacy whilst simultaneously preventing the risk of floodgate claims for breach of privacy. I would argue and recommend that legislators consider the approach taken by Germany and France and enter into some official discussion and consultation on how to address the concept of a privacy right under Australian law by analogy. Incidental protection through defamation creates continued uncertainty, compounded by ad hoc judicial decisions. Only when a focused taskforce is appointed to address the current inefficiencies can we begin to move towards a clear and consistent approach to privacy rights under Australian law. BIBLIOGRAPHY Blay, Gibson & Richards [2005] Torts Law in Principle, 4th Edition Thomson Lawbook Hewitt, P. (1977). Privacy Report, National Council for Civil Liberties, London UK. Journal of Information Science Volume 7 (1983). D Feldman., (1994). Secrecy, Dignity, or Autonomy? Views of Privacy as a Social Value”. 47 Current Legal Problems. R. Singh., (1998). Privacy and the Media After the Human Rights Act. EHRLR 712 Dame Mary Arden. (1998-1999). The Future of the Law Of Privacy. 9 KCLJ 19. Carol Reuss., (1999). Controversies in Media Ethics. 2nd Edition Allyn & Bacon James Curran., & Michael Gurevitch., (2000). Mass Media and Society. Arnold Publishers Frost, C., (2000). Media Ethics and Self Regulation. Longman Keeble, R., (2001). Ethics for Journalists. Routledge. D Price., (2001). Defamation: Law Procedure and Practice. 2nd Edition. Richard Clayton & Hugh Tomlinson., (2001). Privacy & Freedom of Expression. Oxford University Press Tugendhat, M., and Christie, I (ed.) (2002) The Law of privacy and the media. Oxford University Press. Hugh Tomlinson QC., (2003). Privacy and the Media- The developing Law. Matrix R. Stone., (2006). Civil Liberties & Human Rights. 6th Edition Oxford University Press. F. Quinn., (2007). Law for Journalists. Longman L McNamara., (2007). Reputation and Defamation. Oxford University Press. Defamation Act 2005 (SA). Websites: www.austlii.edu.au www.legifrance.gouv.fr www.hrni.org www.assemblee-nationale.fr Read More