Law of Communication - Toms Possible Defences and Sams Remedies - Case Study Example

Communication Law Name: Institutions: Case Study Sam Soapbox’s article, ‘We object! B-grade celebrity’s brush with the long arm of the law’ featuring Carey Classless and Justice Darren has drawn significant attention on the conduct of journalist and bloggers in respect to media ethics and Australia’s communication laws. The content of the article and the means applied in the collection of the information raises concerns over privacy and defamation legislations and the Code of Ethics governing collection of information by journalists. This write-up seeks to establish whether Sam the author of the article contravened the Code of ethics governing collection of information and publication and breached the Australian Consumer Law in his actions as well as whether Tim violated his right of copyright. 1. Has Sam breached any Codes of Ethics in relation to the collection of information for, and the content of, his article ‘Carey update – not her first brush with the law’? There is no doubt that Sam breached several Codes of Ethics governing the collection of information as stipulated by the media regulation body. Sam breached the code of ethics mandating all media professionals to disclose their actual identity and as members of the media profession as well as the actual purpose for collecting the information1. Sam breached this code by impersonating Dr. Delivery’s assistant with the aim of obtaining confidential information about Carey from her mother. On the other hand, Sam contravened the code of ethics requiring media personnel to use fair and honest means to collection information for any purpose in the process of executing their mandate. There is sufficient evidence in Sam’s conduct that he used impersonation, lies and coercion to collect information about his subject without taking into consideration the issue of professionalism, honest fairness in his actions2. In addition, Sam’s actions breach the code of ethics on integrity and dignity in information collection and publication. Finally, Sam allowed his quest for money and the need to increase subscriber to his online magazine contravene the code of ethics against falsification of information to suit personal interests. Other than acting in contravention to the media codes of ethics, the content of his article breaches laws governing information communication under the Australian and common laws. Media regulation laws prohibit publication or reporting of any information deemed derogatory or as threat to an individual’s identity and reputation among the decent members of the society3. As such, Sam contravened this law by publishing an article whose goal was to depict Carey as among the celebrities who break the law as often than not. The article’s content amounts to defamatory under the common law, which describe such statements as those which have the potential to harm a person’s reputation and change the way people perceive or think of his personality. The Shari-Lea Hitchcock v John Fairfax Publication Pty Limited (2007) NSWSC 7 offers an appropriate reference case in determining whether the content in Sam’s article amounted to defamation4. A story published by John Fairfax Publication Pty Limited depicted the plaintiff as having misbehaved with a married man at a social function, performed obscene dance, gate-crashed the social functions and used lies to convince the organizers to attend the functions. The Plaintiff viewed the publication as defamatory statements based on falsehood and sought legal address in the Supreme Court of New South Wales. The Court the plaintiff the claim for defamation against the publisher and requested damages assessment to be paid to the plaintiff. As informed by the decision in this case, the content of Sam’s article was defamatory based on inclusion of untrue information about his subject5. To underscore the issue of defamation in the content of Sam’s article, defamation was defined as statement likely to make an ordinary decent person to think less of the subject mentioned in the statement in ruling of Jordan CJ Consolidation Trust Co Ltd v Browne (1948) 49 SR (NSW6. Sam had a clear intention to make the followers of Carey as a celebrity think less of her based on her unruly character as depicted in the content of the article. Allegations on possible abortion of twins as implied in Sam’s phrase “with twins no less! The real question though, is where those twins are now...?” could have far reaching damaging implications on Carey’s reputation both as an ordinary person and a celebrity. 2. Has Tom breached Sam’s rights under the Copyright Act 1968 (Cth) in publishing on his blog the article ‘Carey and I – An affair to remember’? In your answer, discuss any defences that might be available to Tom and what remedies might be available to Sam. Yes, Tom has breached Sam’s rights under the Copyright Act 1968 by publishing a similar article about Carey on his online magazine. The content of Tom’s article captured the same information published by Sam including direct phrases. Despite giving a different title for his story, Tom conveyed the same message using the same format. Tom captured information about Carey’s lost twins after becoming pregnant during her university days as indicated by her mother to Sam. It was only possible that Tim got the information from Sam’s online magazine. In this case, Tim violated the copyright laws stipulated under the Copyright Act 1968 to protect literary works, which gain such rights by virtue of publication. Tom’s Possible Defences Tom could repute Sam’s accusations on breach of copyright laws by adducing that copyright laws do not prohibit sourcing of information from any source that is available. Copyright laws do not protect information but the way in which such information is conveyed, a legal position that gives Tom an opportunity to dismiss claims that only some could have had the information that was contained in his article7. Tom’s defences could also include claims that Tim was the original source of the information about Carey published by Sam and therefore the copyrights to Sam’s should have been co-shared. In addition, Tom could assert that the use of similar phrase as one of the evidence for copyright violation do not hold water because copyright laws do not protect phrases. Sam’s Remedies Following the evident fall-out between Tom and Sam, it is clear that Tom’s intentions for publishing the article entitled ‘Carey and I – An affair to remember’? was to jeopardize large number of subscribers to Sam’s online magazine. Sam could dismiss Tom’s claims for possible co-shared copyrights to his article based on the source of information by adducing that copyright laws do not protect information or its source and therefore Tom’s defense pegged on such claims should not hold8. In addition, Sam could claim that he gained copyright ownership over Carey’s story following by virtue of being the first one to gather and publish her story on his online magazine9. Sam could also adduce evidence on the existence of a common format in the way Tom conveyed his information in article to sustain his claim for copyright rights violation against Tom’s defences. Sam could seek damages arising from violation of his copyright rights including the transfer of all returns gained by Tom from the controversial article, request to have the article removed from his sight immediately and reimbursement of all cost for the legal proceedings. 3. Has Sam committed misleading and deceptive conduct under section 18(1) of the Australian Consumer Law in relation to his offer of a set of steak knives for new subscribers? Yes, Sam committed misleading and deceptive conduct under section 18 (1) of the Australian Consumer Law by offering a set of steak knives for new subscribers and subsequent failure to honor his word on the same. This amounts to provision of deceptive information to consumers with the aim of coercing and influencing their purchase decisions or their choices. Sam’s intentions for using the false gifts to attract subscribers form sufficient evidence against the stated section of the Australian Consumer Laws10. The consumer laws prohibit any use of bait advertisement, false offers, and coercive information on products to influence consumer choices. As such, Sam is liable for prosecution by any consumer protection agency or subscriber to his online magazine for use of deceit to attract subscribers to his online magazine for financial benefits. Successful prosecution would most likely see, Sam fined or compelled to reimburse all subscribers coerced by his offer for a set of steak knives to subscribe to his online magazine or face a ban from operating the online magazine. The law is clear about any misleading and deception of consumers and therefore, Sam is indeed guilty of violating section 18 (1) of the Australian Consumer Law. Part 2 1. Which of the following statements best describes the common law? (1 mark) C. A type of legal system developed in England, which comprises both Parliament-made law and judge-made law. 2. Which of the following would be permitted under the Listening Devices Act 1992 (ACT)? (1 mark) D. Recording a private conversation where the other party consents to the recording. 3. Which of the following would not be capable of registration under the Trade Marks Act 1995 (Cth)? (1 mark). B. A sign that is not distinct from the goods or services themselves. Bibliography Butler, Des & Rodrick, Sharon, Australian media law, 4th ed (2012) Thomson. Thomson Reuters (Professional) Australia Limited. Commonwealth of Australia, The Australian Consumer Law: a guide to provision. Australian Government (2010),< http://www.consumerlaw.gov.au/content/the_acl/downloads/ACL_guide_to_provisions_November_2010.pdf> Communications Law Center, Defamation Fact Sheet, Communications Law Center, (2010) < http://www.law.uts.edu.au/comslaw/factsheets/defamation.html> Communications Law Center, Journalism and media ethics fact sheet, Communications Law Center 2010, http://www.law.uts.edu.au/comslaw/factsheets/journalism-and-media-ethics.html Creative Commons, Australian Copyright law overview (2005), http://creativecommons.org.au/content/copyright-law-overview-info-pack.pdf Kenyon, Andrew, ‘Perfecting Polly Peck: defences of truth and opinion in Australian defamation law and practice’ (2005) Sydney Law Review29, 651-682. Media Entertainment & Arts Alliance, Media entertainment & Arts Alliance- Journalists’ Code of Ethics, Media Entertainment & Arts Alliance, 2013 http://www.alliance.org.au/code-of-ethics.html Price, Monroe, Verhulst, Stefaan and Morgan, Libby, Routledge handbook of media law, London: Routledge 2013. Referred Cases Jordan CJ Consolidation Trust Co Ltd v Browne (1948) 49 SR (NSW The Shari-Lea Hitchcock v John Fairfax Publication Pty Limited (2007) NSWSC 7 m Read More