Defamation in the Media Law - Assignment Example

DEFAMATION IN THE MEDIA LAW Customer Inserts His/her Name Customer Inserts Grade Course Customer Inserts Tutor’s Name 30/04/2011 Introduction Defamation is the main cause of action offering protection against attacks on the reputation of the individual or company. It is also an area of law which can frequently give rise to pre-publication legal problems. For those with responsibility for publication, there can often be a difficult balancing exercise in deciding whether to publish and what to publish. Defamation is thus a serious problem which journalists belonging to all the mass media have to deal with throughout their career. Journalists tend to defame the political leaders, sports people, film stars and other famous people. This can result either due to their negligence and carelessness or because of lack of sufficient knowledge about defamation (Gallant & Epworth, 2001). Defamation may take two forms namely libel and slander. Where slander consists of the publication of defamatory matter by spoken words or transitory gestures, libel consist of the publication of defamatory matter by written or printed word. This may be either in the physical form or by any other form of communication that has the potentially harmful characteristics of written or printed word. Libel is defamation in written or permanent form for instance a letter or a book (Smartt, 2006). On the other hand, slander is not permanent for example spoken words. However, defamation contained in a television and radio broadcast is classified as libel. Similarly, the publication of defamatory material over the internet is also considered as libel. Unlike libel, slander requires proof of special damage, or quantifiable damage, with a number of limited exceptions. The exceptions are for example where the allegations concerns the claimant having a contagious or infectious disease, being unfit for his office of profession, committing a crime punishable by imprisonment (Gallant & Epworth, 2001). Defamation law is complex and varies considerably throughout the Australian jurisdictions. However, as general rule defamation is any publication or imputation which tends to injure a person’s reputation in the estimation of others by making them think less of him. That is, bring that person into hatred, contempt and ridicule. The principal interest which defamation law seeks to protect is reputation. There are several statements that can be made about a person which tend to lower the reputation of that person. In certain cases, people engage in some conduct which if reported to others by media, will lower them in estimation of others (Doyle & Bagaric, 2005). However, there is no prohibition against reporting this type of information. There is no person who has the right to prevent information being disclosed to others about their dubious or questionable activities. Moreover, it would be undesirable to restrict the flow and dissemination of this type of information. Restricting the flow of information will impact on the notions of personal responsibility and accountability which plays an important role in shaping behavior of individuals. This is normally reflected in the common law of defamation by the fact that truth is the defense. This means that defamation is concerned with protecting reputations which are genuinely sound as opposed to those which are unjustifiable. Thus, defamation does not necessarily protect information privacy. People and especially the media are free to report in a factual sense the acts and words of others as long as they are true and accurate (Doyle & Bagaric, 2005). According to Wallace & Pagone (1990), the law of defamation protects the person’s reputation. If a statement or publication negatively affects reputation, an individual may claim financial compensation for the damage caused. Initially, the intention of the defamation law was the preservation of a person’s esteem amongst peers. Today, the law is mainly used by public figures whose career or success depends on public reputation, and whose claim concerns a media publication. The law of defamation acts as a strong brake on free speech. As litigated defamation claims have included news report. Articles, entertainment reviews and radio, the law of defamation has a greater impact on free expression. Uniform defamation Acts came into effect in 2006 in all Australian States and Territories. Before the enactment of the Act, each jurisdiction had its own distinct defamation laws, with wide offences, penalties and defenses. The uniform scheme has now been accepted and supported by media organizations for striking an appropriate balance between individual rights and freedom of expression. Moreover, the legislation also seeks to balance the various public interest arguments involved. The new law in Australia has helped to raise defences against defamation proceedings at ease. The uniform defamation Acts create a more stable environment for publishers and people who are the subjects of publication in Australia (Sawer & Larkin, 2009). The Act thus offers a uniform definition of what is defamatory, clarifying when a cause of action arises and describing the defences on which publishers can rely to justify the publication of a defamatory material. The Acts also reinstate the common law approach to determining whether the alleged material is defamatory. Until the uniform laws were adopted, the defences to the publication of the defamatory material by the media varied from state to state. The main types of defence were truth, fair reports, fair comment on a matter of public interest and common law qualified privilege. The latter, includes the implied right to freedom of communication on political matters (Sawer & Larkin, 2009). A defamatory statement is a statement on fact that would intend to harm the reputation of the plaintiff in the eyes of at least a substantial and respectable minority of people by lowering the plaintiff in the estimation of those people. The statement may also deter those people from associating with the plaintiff. More specifically, it is a statement of fact that tends to disgrace a person by holding him or her up to hatred or ridicule, or by causing others to avoid him or her. However, the people who express this hatred or ridicule must be neutral and not in any way antisocial in their reaction. The defamatory statements about a plaintiff in the media cases fall into two main categories. There are those that involve matters of public concern and those that involve private matters. It is the onus of the jury to decide during the court proceedings whether a person has been libeled or not (Stuhmcke, 2001) Gillies & Selvadurai (2008) argued that the incorporation of concept of defamation in media law attempts to balance the two fundamental and competing interests. These include the interest of an individual to enjoy the benefits of a good reputation and the interest of the society in enjoying freedom of speech and expression. The objectives of the defamation Act is to enact provisions to promote uniform laws of defamation in Australia. It also ensures that the law of defamation does not unreasonably limit on freedom of expression particularly on publication of matters of public. The Act provides for an effective and fair remedy fro those whose reputation is affected by the defamatory statement. Finally, it promotes quick and non-litigious methods of resolving disputes arising about the publication of a defamatory statement. Who to sue and be sued Between the two subdivisions of defamation namely slander and libel, the latter is considered more damaging and severe because it is fixed and can be circulated broadly. Individuals, as well as corporations and nonprofit organizations, can sue for damage to their reputations. An individual is considered as a natural person under the law while corporation is treated as a legal person capable of suing in exception of its officials and stockholders. Defamation applies to both natural and legal persons. Government entities on the other hand may not sue for defamation. This is because it is not permitted to use public funds to prevent the public from criticizing it. However, the government officials can sue on their own behalf. The court requires the public officials to meet higher standard of proof in defamation cases than the private citizens (Packard, 2010). The limitations of who can sue for defamation are stated under section 10 of the defamation Act. This section provides that no action can be brought against a deceased person or on behalf of a dead person. Defamatory publications about persons deceased are thus not subject to liability. Certain corporations are also limited in their ability to bring an action for defamation. Sec 9(1) of the defamation Act states that a corporation shall have no cause of action for defamation in relation to the publication of the defamatory statement about the corporation, unless if it is an excluded corporation. This is a corporation that has been formed for non-profit purpose and employs fewer than 10 people and it is not related to another corporation (Gillies & Selvadurai, 2008). Claimant’s prove in Court Libel is a combination of several elements which include publication, defamation, identification, damage falsify and fault. However, before an allegation is considered as defamatory. The judge or jury must be convinced that the statement was concerning the plaintiff. He also needs to be convinced that the statement was untrue and harmful to the reputation, that the defendant was at fault, and that the statement resulted in damage to the plaintiff. The first thing that a libel plaintiff needs to establish in a claim is that the statement was published. Any article that appears in a printed or online news source is normally considered published. The requirement for publication is met when a third party sees the information alleged to be defamatory (Gallant & Epworth, 2001). Subsequently, the plaintiff or the claimant must proof that he or she was the subject of the defensive remark. If the statement cannot be shown to be of or concerning the plaintiff, it will not be considered harmful to his reputation. This is referred to as identification and may occur in a variety of ways. When a plaintiff is named for example in the defamatory statement, he is obviously identified. However, the name is not necessarily required for identification. Any information or description in which the plaintiff is recognizable suffices the requirement for identification. This can either be through a picture, video, cartoon, or a sufficiently detailed description. When a defamatory statement is made to a group, the group may fail in court for defamation since they cannot prove that the article written refer to a specific individual (Packard, 2010). After the court is satisfied that the statement in question was published and that the plaintiff has been identified as its subject, it will then consider whether the words themselves could be considered damaging to reputation. It will be the onus of the court or jury to look at the words in the light of their ordinary meaning. Libel can be subdivided into two categories namely libel per se and libel per quod. Libel per se means a statement that is libelous on its face. That is, a statement that is obviously damaging one’s reputation. For example suggesting that someone is sexually promiscuous would be considered libel per se. on the other hand, libel per quod is not obvious and its negative implications depends on innuendo or knowledge of unrelated facts (Packard, 2010). Defenses It is normally the onus of the plaintiff to establish that the material or the defamatory statement was in deed defamatory. He must also prove that the material was published and did identify the plaintiff. However, the defendant may challenge all these points in their defense. However, some of the defenses contained in the defamation Act can be easily defeated if it can be shown that the publication of the defamatory matter was motivated by malice. For example, the defense of qualified privilege can be defeated if the plaintiff can show clearly that the publication of the defamatory matter was actuated by malice. Truth or Justification Truth is always a defense to a claim of defamation. No true statement can result in defamation. Truth is in most jurisdictions, a complete defense. However, in some jurisdictions by statute, truth is a complete defense to a charge of defamation only if the true statement was published for good motives or for justifiable ends. In order to make out the defense, the defendant must prove that the allegedly defamatory matter was in substance true. This means that, all the imputations conveyed by the matter complained of must be shown to be substantially correct. If only some of the imputations are proved to be accurate then, to the extent that the other imputations are unverified, the defense fails. This is because the defense is said to have been partially justified. In such circumstances, though the plaintiff succeeds overall, he or she may not recover damages in respect of the imputations proved true (Gillooly, 2004). It is a defence to defamation if the defendant proves that the imputations carried in the publication and alleged to be defamatory are substantially true. This is considered as a complete defense. The defense of truth does not require that every statement be true. If the main charge of the defamation is true, then inaccuracies as to one or some of the details are accepted. Moreover, if the matter complained of as being defamatory is published either partly or in addition to other matters that are substantially true, the defense of contextual true will be made. However, the defamatory matter cannot further harm the reputation of the plaintiff that has been sustained because of the substantial truth of the matters published with the defamatory material (Wallace & Pagone, 1990). Fair comment If the defamatory matter is published as part of or is contained in a report proceeding of matter of public concern, the publisher of the alleged defamatory material can defend himself for defamation. In order to succeed to use this defence, the defendant must show that the defamatory matter was already in a report of proceedings of a matter of public concern. Furthermore, he can show that the matter was contained in a fair copy, in a summary or extract of the published report. The defendant will thus state that he was nor reasonably aware that the previous published report was not fair or accurate (Gillies & Selvadurai, 2008). Not all defamation relates to facts alone. Much of what is printed in newspapers and journals or broadcast on radio and television is comment on public and literary affairs. The common law defence of fair comment gives protection mainly to the journalists and all those who venture opinions on these matters. As long as the comment is based on substantially true facts, books, protected reports, paintings, plays and concerts or on matters of public interest, the comment will not be defamatory. Lord Denning stated that whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, then it is a matter of public interest. Thus everyone is entitled to make fair comment ( Rice & Douglas, 2004). A fair and bona fide comment on a matter of public interest is no libel. Thus, legitimate criticism is not tort and the matters include those which the public is legitimately concerned and interested. For the purpose of defences of fair comment on matter of public interest, such matters must meet some criteria. Firstly, they must be such matters in which the public in general have a legitimate interest, either directly or indirectly. For example, matters connected with national and local government. Secondly, they must be matters which are at the public theatres offered for public entertainment. Comments in order to be fair must be based upon facts and if the defendant cannot show that his comments contain no misstatements of facts he cannot prove a defence of fair comment (Gillies & Selvadurai, 2008). What will be justified as being for public interest under the provisions of the defamation act is normally difficult to determine. Therefore the matter is left with the judge to determine and decide whether the comment alleged to be defamatory is out of public interest. In Barboro v Amalgamated Television Services Pty Ltd, judge Hunt J gave some guidance concerning the public interest. In this case, it was not disputed by the plaintiff that those viewers who identified him in the telecast had a legitimate interest in the situation in Griffith as so described. The interest or apparent interest of the receipients need not be a proprietary one, or even a peculiar one. The word ‘interest’ is used to denote that the matter is of substance apart from its mere quality as news ( Rice & Douglas, 2004). The requirement of substantial truth and public interest under the defamation Act 1974 (NSW) protects public figures from having their private lives reported on indiscriminately or unfairly in the media. Judge Hunt J pointed out that a public figure’s private behavior or character can become a matter of public interest in two ways. Either because it affects the performance of that person’s public duties, or because that person makes his or her private behavior a matter of public interest. Some politicians and other public figures take delight when their private lives are exposed to the public. Others struggle to maintain their privacy and that of their families (Gillies & Selvadurai, 2008). Privilege Privilege means that a person stands in such relation to the facts of the case that he is justified in saying or writing what would be slanderous or libelous in any one else. The general principle underlying the defence of privilege is the common convenience and welfare of the society or the general interest of the society. There are two kinds of privilege namely absolute and qualified privilege. In the case of absolute privilege, it is the occasion which is privileged. Thus, once the nature of the occasion is shown, it follows as a necessary inference, that every communication on that occasion is protected. However, in the case of qualified privilege, the defendant does not prove privilege until he has shown how that occasion was used ( Rice & Douglas, 2004). Absolute privilege In any society, some public institutions must be able to carry out their activities in public without the threat of defamation. There would be no justice if all those people involved in carrying out these activities were open to defamation actions. Therefore, no defamation actions can be brought against judges, counsel, parties or witness for any statement they make in the course of their judicial proceedings. While proof of malice will defeat the defence of qualified privilege, it will not affect the defence of absolute privilege. When it is established that the document or statement is absolutely privileged, that become the end of the matter ( Rice & Douglas, 2004). If a defendant can establish that the material complained of was published on an occasion of absolute privilege they can establish a defence to defamation. Occasions of absolute privilege include the proceedings of a parliamentary body. This includes documents produced under the authority of parliament or the publication of the debates of parliament. The strict rule under absolute privilege is that the parliamentary privilege does not extend to statements made outside the parliament. Occasions absolutely privileged may be grouped as parliamentary proceeding, judicial proceedings, military and state proceedings (Gillies & Selvadurai, 2008). Qualified privilege This is a broad and potentially important defence. At common law, it is a defence where the statement was made by a person having the interest or duty, legal or social, to make it to the recipient. The recipient has a like duty or interest as well of receiving it. In certain circumstances, a defendant may be able to rely on the defence of qualified privilege if he can show the provision of the defamatory matter to the recipient satisfied certain criteria. These criteria is that the recipient of the information has an interest in having the information also, that the matter was published in the course of giving the recipient such information. Finally, that the conduct of the defendant in publishing the matter is reasonable in the given circumstances. All these criteria must be satisfied (Gillies & Selvadurai, 2008). In the case of Lange v Australian Broadcasting Corporation (1997), the High Court of Australia issued an affirmation creating in defamation law the defence of qualified privilege. In this case, the application made to the High Court arose from a claim filed by the former Prime Minister of New Zealand David Russell Lange against the defendant. As part of their defence, ABC pleaded that the matters complained of related to the subjects of public interest and political matters. They therefore argued that they had a duty to publish the material to viewers who had a legitimate reciprocal interest in receiving the information. The court developed the defence of qualified privilege and ruled out in favour of ABC. It was held that the each member of the Australian Community has an interest in disseminating and receiving information. Moreover, the conduct of ABC in publishing the matter was reasonable in the given limited circumstances. Individuals have a qualified privilege to respond in the media to attacks made on their characters, conduct or business interests made either in the media or in public. If the person’s reply to an attack is true though defamatory, this defence will protect both the person replying and the person who published the reply. The defence will apply to protect both the broadcasters and newspapers and in particular to the newspapers which give a right of reply to those attacked in public. The defence is available provided the reply is without malice, is not excessive and does not contain counter-charges which are not related to the previous attack. This defence can be defeated if the plaintiff can show that the defendant was motivated by malice. This defence is criticized because it may still not provide adequate protection to media statements ( Rice & Douglas, 2004). The common law provides that publishers have to prove the truth of their statements in order to obtain protection of qualified privilege. The complexity of this law is shown in the case of Bashford v Information Australia (Newsletters) Pty Ltd. In this case, the Information Australia (Newspaper) Pty Ltd included a report in a newsletter that was of interest only to the people in the occupation of health and safety. The report stated that Bashford had been found liable in damages for harm done by another company. This was the company that was controlled by Bashford and his wife that was found liable. Bashford sued the publishers for defamation and succeeded. The court held that there was no malice in this case. Also since the publication was limited to subscribers of the newsletters and dealt with a matter of interest to them, this was therefore an occasion of qualified opinion (Doyle & Bagaric, 2005). Honest opinion In other cases, if the defendant can prove that the publication was not a statement of fact but just an expression of own opinion, he can rely on this defence. However, the opinion must be a related to a matter of public interest and must also be based on accurate materials. This defence can also be applied by the employees or agents of the defendant. It may also be used by other persons like commentators and other third parties to defend their opinions (Gillies & Selvadurai, 2008). Innocent dissemination The defendant can rely on this defence if the publication of the defamatory matter was carried out in his capacity as a subordinate distributor. He can show that he did not know or could not reasonably have known that the matter was defamatory. Moreover, this lack of knowledge must not have been out of negligence on his part. A subordinate distributor is a person who was not the first or primary distributor of the matter (Gillies & Selvadurai, 2008). Remedies The main remedy for defamation is damages. According to defamation act, the damages awarded for defamation must have a close relationship to the harm suffered. The loss incurred may be quantifiable or non-quantifiable. In the first case, the awarding of damages is relatively straight forward. The state of mind of the defendant is irrelevant in the awarding of damages ( Rice & Douglas, 2004). In suit for damages, the law requires that the plaintiff ought to allege the publication of the defamatory statement, state the actual words used and also state that they were spoken to some named individuals. He needs to specify the actual time and place when and where they were published. Damages are normally calculated irrespective of whether the defendant was motivated by malice or intention. Damages can also be mitigated for example if the evidence falls short of justification, malice or provocation by the plaintiff (Gillies & Selvadurai, 2008). References: Doyle, C. & Bagaric, M. (2005), Privacy law in Australia, Sydney: Federation Press. Gallant, S & Epworth, J. (2001), Media law: a practical guide to managing publication risks, Brisbane: Sweet & Maxwell. Gillies, P. & Selvadurai, N. (2008), Marketing Law, Melbourne: Federation Press. Gillooly, M. (2004), the third man: reform of the Australasian defamation defences, Sydney: Federation Press. Packard, A. (2010), Digital Media Law, Sydney: John Wiley and Sons. Rice, S. & Douglas, R. (2004), Retreat from injustice: human rights law in Australia, Melbourne: Federation Press. Sawer, M. & Larkin, P. (2009), Australia: the state of democracy, Brisbane: Federation Press. Smartt, U. (2006), Media law for journalists, Melbourne: SAGE Stuhmcke, A. (2001), Essential tort law, Melbourne: Routledge. Wallace, J. & Pagone, T. (1990), Rights and freedoms in Australia, Adelaide: Federation Press. Read More