Law of Communication and Larrys Right to Privacy - Assignment Example

Law of Communication Student’s Name Institutional Affiliation Law of Communication Part 1: Problem Questions 1. Has Larry defamed Ella in his online article ‘Law of Communication student thinks she knows travel because she’s been to Bali’ and are any defences available to him? In your answer, discuss any jurisdictional issues that arise in relation to Trail-Blazer. (10 marks) Larry defamed Ella in his online article and there are defenses available to him. Larry’s article regarding Ella being poor in writing and not being very sharp can be termed as defamation. According to the uniform defamation law enacted in 2006, defamation entails publishing false accusation regarding a person or a member of their family, whether alive or dead, through which there are chances that their reputation will be harmed; and their profession or trade will be injured. In addition, the false accusation may cause other people to hate, avoid, despise or ridicule the person. Larry falsely accused Ella of not being sharp whereas her straight Distinction academic transcript shows otherwise. Due to the defamatory remarks by Larry, there was a high likelihood that Ella’s reputation and her profession would be harmed and this would have resulted to students and organizations avoiding, despising, and ridiculing her. The jurisdictional issues that may arise in relations to Trail-Blazer entail proving the ‘truth’ of the defamatory remarks; the burden of proof for establishing truth for defamation has to be offered. Ella would have to prove that Larry’s article was capable of a defamatory implication meaning that it would cause her harm in her reputation, in the way people treat her, and in her professional career. Secondly, the words in the article has to prove Ella was the person defamed and thirdly, that the words were published meaning that they were seen by a third person. 2. Has Larry committed scandalising contempt by publishing his article? In your answer, briefly discuss the defences that might be available and what the consequences for Larry might be. (6 marks) Larry committed a scandalizing contempt by publishing the article. According to the uniform law of defamation, for material to be defamatory, it has to be published hence communicated orally, in a written or pictorial form to more than one person other than the plaintiff. The intent of the publisher is not taken into consideration. All people involved in the publication are potentially liable and hence each, some, or all can be sued. In this case, Larry thought that the article about Ella would make a great piece for the international magazine, which had about 10,000 Australian subscribers. Larry may offer to make amends to Ella. The uniform defamation law offers a framework for settling disputes. The legislation allows the two parties to make an offer to make amends. The offer may be made at any time up to twenty-eight days after the publisher of the alleged defamatory information, in this case Larry, has been served the complain notice or in case where the defence has been served. The offer for making amends should be written, and should include an offer for publishing a considerable correction of the defamation and an offer for paying expenses that Ella incurred. Larry’s offer may also include other types of offer that will remedy the harm that Ella sustained. In case Ella accepts the offer and Larry carries out the terms stated in the offer, Ella cannot continue with the defamation legal proceedings. According to the uniform defamation laws, if Larry offers Ella a reasonable offer and she declines, the offer constitutes a defence to a defamation action. Not all admissions and statements made regarding the offer will be permissible in court and any apology made will not entail admitting fault. In addition, if Ella rejects what a judge may consider an appropriate offer, the court does not ask the publishers to pay their legal expenses. The other defences that might be available include honest opinion, qualified privilege, justification, or truth. Under the honest opinion defence, Larry would have to prove that the material he communicated about Ella was an expression of honest opinion instead of a statement of fact, on an issue of public interest and was founded on appropriate materials. To benefit from this defence, Larry has to prove that the communication was a matter of public interest; communication was a comment, for instance, a judgment, opinion, criticism, observation, conclusion, or remark; and states the facts upon which the opinion was based. Under the justification or truth defence, Larry would have to provide that the material published was significantly true. Under the defence of qualified privilege, Larry would have to have an interest or a moral, social, and legal duty to inform a person and the person would have to have a corresponding duty or interest to obtain such information. The other defences that Larry can present include the triviality defence and absolute privilege. Larry would have used the information Privacy Act 2014 to defend his actions. The ACT regulates the handling of personal information by contracted service providers, and for other use. S.7 states that the protection of individuals’ privacy should be balanced with public sector agencies in undertaking activities and functions. The consequences for Larry include payment of amount of general or compensatory, or aggravated damages to Ella. According to the Defamation Act 2005 s.35, the maximum amount of harm for the non-economic loss that a plaintiff may receive in defamation proceedings is $ 250,000 or any other amount amended in line with this section from time to time in line with the time the plaintiff is awarded damages. Larry may also be asked to pay aggravated damages in case the court agrees that the defamation was deliberate, possibly due to improper motive or ill will. According to the uniform defamation law, aggravated damages are not meant to punish the publisher of the defamatory information; however they are extra compensation for the plaintiff in situations where the conduct of the publisher was predominantly culpable and injurious to the reputation of the plaintiff. In addition, he may pay special damages for any loss of earnings or business incurred by Ella. Under the uniform defamation law in Australia, the jury may be asked to establish whether there was a case for defamation and whether the broadcaster or broadcaster has a defence. In case the judge proves defamation and lack acceptable defence, the judge decides on the extent of harm incurred and expresses it for damages they reward. The judge may award both compensatory damages and aggravated damages1. 3. Advise whether you think the Department of Tourist Attracting should disclose under the Freedom of Information Act 1982 (Cth) the record of conversation between Larry and his contact at the Department regarding his succession plan.  In your answer, refer to the application of section 47F and the relevance of Ella’s motives for requesting the information. (5 marks) The Department of Tourist Attracting should disclose under the Freedom of Information Act 1982 (Cth) the record of conversation between Larry and his contact at the Department regarding his succession plan. Generally, under the Act, a document is usually exempt in case its disclosure would result to unreasonable disclosure of personal information about any person. In establishing whether disclosing the document would entail disclosing personal information, a Minister or agency has to take into consideration the extent to which other people know such information. In addition, they have to determine whether the person affected by the information is aware of the matters addressed in the document; information availability from sources where the public can access them and lastly other issues that they may consider important. Nonetheless, this rule does not apply in this case as provided in subsection 3 of 47F. Subsection 3 states that subsection 1 does not apply in cases where a person requests for access to a document only to include it in an issue relating to the person. Ella’s motive for requesting the information is to seek justice for the defamation that Larry caused. In this case, the conversation may be disclosed to a relevant qualified person to include in the court case. Access has to be given to conditionally exempt documents except in cases where it is contrary to the public interests. Part 2: Essay Question 4. How do you think Larry’s right to privacy can be balanced with Ella’s right to freedom of expression in this context, and vice versa? Do such rights exist under Australian law? Should they exist? (12 marks) Larry’s right to privacy can be balanced with Ella’s right to freedom of expression in this context, and vice versa by reconciling the two fundamental rights through striking a proper balance between the two. The interests in freedom of expression and privacy are both public interests. The defendant interest in freedom of expression as well as the wider public interest should be taken into consideration at the early stages in determining a cause of action. For instance, in case the court considers that Larry freedom of expression outweigh Ella’s interest in privacy, the cause of action will fail and vice versa. Privacy is of crucial public interest as was highlighted in Plenty v Dillon2, when the judges argued that the courts failure to uphold people rights through granting appropriate remedies lead to anarchy as the sense of injustice from invasion of person rights breeds social disorder. In Attorney General v Guardian Newspaper Ltd (No 2)3, Lord Goff argued that a public interest exists that assurances should be upheld and safeguarded at law. Nonetheless, although privacy is highly importance, it should not necessarily take precedence over freedom of expression. Freedom of expression is associated with creation of an ordered society, nonetheless is should not prevail over other competing public interests. Since the freedom of expression and rights to privacy are two competing public interests, the court should undertake a balancing operation, weighing both competing interests. In this case, the court should first focus on the actual rights being claimed by Larry or Ella, then at the justification for obstructing or restricting those rights and then apply the proportionality test to each. The two rights have to be considered when establishing the application of cause of action for misusing private information. Two questions are considered while making this determination. First, whether the information is confidential in the sense that article 8 protects it in principle. If the answer is ‘no’ then there is no case. If the answer is yes, it leads to the second question; in every context, should the owner of the private information interest give in to the right of freedom of expression that the publisher is awarded by Article 10. Neither of the Article has precedence over the other. When both the right to privacy and freedom of information come into play, more focus should be on the proportional relevance of the particular rights that an individual case is claiming. The rationale for interfering with either of the two has to be considered and an eventual balancing exercise undertaken. The right to privacy and the right to freedom of expression do not exist under Australian law. Nationally, there is no statutory or constitutional protection of freedom of expression and the right to privacy. Only a minority of territories and states have such a statutory right. When an enforceable right to privacy comes up at common law or is enacted under statute, the right is subject to the constitution. The rights should exist, as they are an important part of contemporary liberal democracy. The right to privacy is a fundamental protection of human dignity and freedom. In addition, it ensures more than protection of people homes and persons, but also entails people being able to decide for themselves the personal to share with other people. Hence, people are able to exercise power over information about them. Right to privacy ensures citizens are not vulnerable to intrusions by individuals, corporations, and government in their personal affairs. The right to freedom of expression is important as it enable people to speak their mind freely on fundamental issues in society. Part 3: Multiple Choice Questions            5. D 6. C 7. A 8. B References Attorney General v Guardian Newspapers Ltd 1990 2 AC 109 (Austl.) Defamation Act 2005 (Austl.) Freedom of Information Act 1982 (Cth), (Austl.) Mickle v. Farley 2013 NSWDC 295 (Austl.) Plenty v. Dillon 1991 171 CLR 635 (Austl.) Uniform Defamation Laws 2006 (Australia) (Austl.) Read More